United States v. Donald Herbst, Sr.
2012 U.S. App. LEXIS 2903
| 8th Cir. | 2012Background
- Herbst was convicted by a jury of conspiracy to buy, receive, and possess stolen meat and multiple counts of buying, receiving, and possessing the same; he was sentenced to 70 months.
- Farmland meat was stolen from an AmeriCold facility by Patterson brothers and delivered to Herbst, who bought large amounts at $1 per pound and resold it to about 30 buyers.
- Herbst paid in cash, kept minimal records, and admitted suspicions of theft after a controlled sale was arranged by police.
- A controlled sale led to Herbst telling a customer he was careful about choosing buyers to avoid trouble; authorities found a large cash stash ($61,750) in a safe.
- Herbst sought to introduce a tax-expert opinion to support his claim that meat sales in 2006 were not reportable as income; the district court excluded this testimony as 403 and the prosecution commented on taxes during closing.
- On appeal, Herbst challenges sufficiency of evidence, exclusion of the defense witness, prosecutorial comments, and the sentence; the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of knowledge that meat was stolen | Herbst lacked explicit knowledge; no direct statement of theft | Evidence showed willful blindness to theft | Sufficient evidence for knowledge/willful blindness |
| Exclusion of tax expert testimony under Rule 403 | Exclusion violated right to present a complete defense | Testimony cumulative and marginally relevant | Harmless error; did not contribute to verdict |
| Prosecutor's closing arguments | Comments contravened Instruction 22 and misrepresented evidence | No preserved objection; plain-error review | No reversible error; strong evidence against Herbst; isolated comments |
| Sentence within advisory Guidelines | Presumption of reasonable within Guidelines should not apply | Guidelines and rationale improperly framed | Within-Guidelines sentence affirmed; no abuse of discretion |
Key Cases Cited
- United States v. Chavez-Alvarez, 594 F.3d 1062 (8th Cir. 2010) (knowledge through willful blindness construct evaluated for willful ignorance)
- United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004) (defendant’s right to present defense; admissibility of marginally relevant evidence)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless-error review for evidentiary errors)
- United States v. Eagle, 498 F.3d 885 (8th Cir. 2007) (harmless error analysis in defense-right claims)
- United States v. Crumley, 528 F.3d 1053 (8th Cir. 2008) (prosecutorial-misconduct plain-error standard; need prejudice)
- United States v. Rodriguez, 612 F.3d 1049 (8th Cir. 2010) (prosecutor remarks evaluated for prejudice; strength of evidence considered)