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United States of America v. Donald J. Herbst

February 14, 2012


Appeal from the United States District Court for the Northern District of Iowa.

The opinion of the court was delivered by: Beam, Circuit Judge.

Submitted: October 20, 2011

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

The district court*fn1 sentenced Donald Herbst, Sr., to 70 months' imprisonment after a jury convicted him of (1) one count of conspiracy to buy, receive, and possess goods stolen from an interstate shipment of freight, in violation of 18 U.S.C. §§ 371 and 659, and (2) nine counts of buying, receiving, or possessing goods stolen from an interstate shipment of freight, in violation of 18 U.S.C. § 659. Herbst appeals his conviction and sentence, asserting that (1) there is insufficient evidence that he knew the goods at issue (meat products) were stolen; (2) the district court erred when it excluded a defense witness's testimony under Federal Rule of Evidence 403; (3) the prosecutor made improper comments during closing arguments; and (4) his sentence is procedurally unsound and substantively unreasonable. We affirm.


During the relevant period, Farmland Foods, Inc., stored meat products in an AmeriCold facility in East Dubuque, Illinois, and McFarland Truck Lines operated as an interstate trucking carrier of Farmland products. Between 2006 and September 2007, James Patterson and his brothers, employed as McFarland truckers, stole over $187,000 worth of Farmland meat-bacon, bacon-wrapped filets, ribs, ham, etc.-out of trailers they hauled from the AmeriCold facility. The Patterson brothers hauled the stolen meat to James's property in Zwingle, Iowa, where it was loaded into a van for delivery to buyers in the Dubuque area. James's daughters and his wife, Patricia, aided in loading meat into the van and dispersing it to customers.

In August 2006, Herbst first purchased some of the stolen Farmland meat from Butch Maas, one of the Pattersons' customers. Beginning in September 2006, however, Herbst began buying meat directly from the Pattersons. Over the next year, Herbst made purchases approximately every two weeks, receiving up to 3,000 pounds of meat per purchase at $1 per pound. Herbst paid the Pattersons in $100 bills and resold the meat to approximately 30 others. Herbst estimated at trial that he purchased a total of 12,000 to 15,000 pounds of meat from the Pattersons and resold 99 percent of what he purchased. James Patterson testified that Herbst purchased two-thirds of all the meat the Pattersons stole. Although Herbst and his wife kept "to the penny" records for their business, Dubuque Hose & Hydraulics, they did not keep any receipts or written records for their meat transactions.

In early September 2007, Farmland hired private investigators to determine the source of product losses at the AmeriCold facility. On September 9, the investigators witnessed a noticeably weighed-down van leave James Patterson's property and drive toward Dubuque. While following the van, the investigators noticed a case of Farmland meat pushed against the van's window. The van drove to Herbst's residence, backed into the garage, the garage door closed, and the van emerged thirty minutes later. The private investigators contacted law enforcement regarding their observations and police officers confronted James Patterson. James agreed to set up a controlled sale of meat to Herbst and, after calling Herbst, delivered 25 cases of meat to Herbst's business while wearing a wire. During the exchange, Herbst told James that he was "pretty careful" about picking those to whom he resold meat because he did not want to get himself "in trouble."

After the controlled buy, officers confronted Herbst and he admitted that he had "suspicions" that the meat was stolen. Herbst also told officers that he marked up cases of meat between $3 and $5 for resale. During a search of Herbst's person, officers recovered a small notebook that listed the names and phone numbers of James and Patricia Patterson and Herbst's meat customers. When officers asked Herbst about the notebook, he said, "It's only numbers." While searching the basement of Herbst's residence, officers located Farmland meat in freezers and a safe containing $61,750, almost all of which was in $100 bills. Prior to opening the safe, Herbst told officers that there was only $15,000 to $17,000 in the safe. At trial, Herbst claimed the money in the safe was from sources other than meat sales.

On July 27, 2010, Herbst was charged in a superceding indictment with one count of conspiracy to buy, receive, and possess stolen meat, and ten counts of buying, receiving, and possessing the same. The primary issue at trial was whether Herbst knew the meat was stolen. Herbst took the stand and denied any such knowledge, asserting that James Patterson told him the meat was being sold because it was either damaged or outdated. Herbst also called Butch Maas, who testified that he told Herbst the meat was expired. In contrast, the government called James Patterson, who testified that, although he never expressly told Herbst the meat was stolen, he assumed Herbst knew as much. James pointed out that, when making deliveries, the Pattersons concealed the meat in the back of their van with blankets. And, if the deliveries were made to Herbst's residence, the Pattersons backed their van into Herbst's garage, Herbst closed the garage door, and then the Pattersons and Herbst unloaded the meat. If the deliveries were made to Herbst's business, the Pattersons drove their van through a gate and the gate closed behind the van prior to unloading. After considering such evidence, the jury found Herbst guilty of conspiracy and all but one of the remaining counts,*fn3 and the district court sentenced Herbst to a total of 70 months' imprisonment. Herbst appeals.


A. Sufficiency of the Evidence

Herbst asserts that there was insufficient evidence that he knew the meat he purchased from the Pattersons was stolen. To support this contention, Herbst emphasizes that James Patterson never expressly told him the meat was stolen*fn4 and that Butch Maas told him the meat was outdated. While Herbst acknowledges that he began to suspect the meat was stolen, he claims that he ultimately concluded the meat was not stolen because he assumed Farmland would have more quickly detected such a large loss of product. We review sufficiency challenges de novo, "viewing the evidence in the light most favorable to the verdict, accepting all reasonable inferences that support the verdict, and reversing only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Reaves, 649 F.3d 862, 868 (8th Cir. 2011) (quotation omitted). Importantly, under the willful blindness doctrine, the knowledge element of an offense is satisfied if the defendant acts "with an awareness of the high probability of the existence of the fact in question" and "deliberately fail[s] to make further inquiries, intending to remain ignorant." United States v. Chavez-Alvarez, 594 F.3d 1062, 1067 (8th Cir. 2010) (internal quotation omitted). The district court instructed the jury regarding willful blindness with no objection from the parties.

Despite Herbst's assertions to the contrary, our review of the record discloses more than sufficient evidence to support the jury's finding that Herbst either actually knew the meat was stolen or acted with willful blindness to that fact. For the sake of brevity, we highlight only some of the more telling evidence here: (1) Herbst purchased thousands of pounds of meat from the Pattersons at only $1 per pound over the period of one year; (2) Herbst ordered specific meat products from the Pattersons; (3) Herbst told one of his meat customers, "Well at least [the Pattersons] are stealing the good stuff"; (4) after police confronted Herbst, Herbst told one of his meat customers "not to say anything" to police regarding the meat; (5) Herbst told James Patterson during the controlled buy that he was "pretty careful" while picking meat customers because he did not want to get himself "in trouble"; (6) Herbst and the Pattersons unloaded the meat behind closed doors; (7) Herbst admitted at trial that he lied to officers when he grossly understated the amount of cash in his safe, which contained $61,750 in mostly $100 bills; (8) Herbst only paid the Pattersons in cash, typically in $100 bills; and (9) while Herbst and his wife otherwise kept "to the penny" ...

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