United States v. Orville Klecan

ROSS, Senior Circuit Judge.

Orville Klecan appeals from his conviction by a jury of six counts of converting to his own use property which was pledged to the Commodity Credit Corporation (CCC), an agency of the United States, in violation of 15 U.S.C. § 714m(c). The jury found as to each count that the value of the converted property exceeded $500, and Klecan was sentenced to thirty days imprisonment and five years probation and ordered to pay restitution. For the reasons set forth below, we affirm.

Klecan is a farmer in Diller, Nebraska. Each count against Klecan arose from a separate loan to him from the CCC. Kle-can took out the loans in late 1981 and 1982. Each loan was secured by a mortgage on grain owned by Klecan. Klecan borrowed a total of over $56,000 from the CCC, secured by over 22,000 bushels of grain.

Klecan signed an agreement for each loan providing that he would be responsible for the grain and keep it in good condition, and that he would not dispose of any grain without prior CCC authorization. However, an inspector from the Agricultural Stabilization and Conservation Service (ASCS)¹ discovered on March 15, 1984 that all but 855 bushels of the grain was gone. Klecan told the ASCS that he had fed the grain to his cattle in the summer of 1983 because the grain had gone out of condition.

After the presentation of evidence at trial, the district court² submitted to the jury a two-part verdict form. The first part provided for the jury to state whether Kle-can was guilty as to each count, and the second part provided for the jury to state whether, as to each count with a guilty verdict, the government had proved beyond a reasonable doubt that the value of the converted property was in excess of $500. The jury returned a guilty verdict and found the value of the property to be over $500 on each count. Klecan then filed a motion for acquittal, arguing that there was insufficient evidence for the jury to make its finding as to the value of the grain. After discussing at length the evidence of the grain’s value, the district court denied the motion, finding that there was sufficient evidence for the jury to find beyond a reasonable doubt that the value of the grain exceeded $500 in each count.

On appeal, Klecan argues that the value of the grain was an essential element of the crime and that the jury should have been so instructed. Klecan further contends that there was insufficient evidence for the jury to find that the grain’s value exceeded $500.

15 U.S.C. § 714m(c) prohibits a person from willfully stealing, disposing of or converting to his own use any property mortgaged or pledged to the CCC. The statute provides for a fine of up to $10,000 and up to five years imprisonment if the value of the property exceeds $500, or a fine of up to $1,000 and up to one year imprisonment if such property has a value of $500 or less.³

Klecan complains that the district court erred in failing to instruct the jury that the value of the converted property was an essential element of 15 U.S.C. § 714m(c). The district court determined that the value of the grain was not an essential element of the offense, but was instead a sentencing consideration. We agree with the district court. The clear language of § 714m(c) indicates that the value of the property is not an essential element of the crime, but only is to be considered after guilt has been determined. See McMillan v. Pennsylvania, 477 U.S. 79, 86-87, 106 S.Ct. 2411, 2416-2417, 91 L.Ed.2d 67 (1986).

Moreover, even if the jury should have been instructed as to the issue of value, failure to do so was harmless error beyond a reasonable doubt. In reaching its verdict the jury specifically found that, as to each count, the government proved beyond a reasonable doubt that the value of the converted property was in excess of $500. See Redding v. Benson, 739 F.2d 1360, 1363-64 (8th Cir.1984), cert. denied, 469 U.S. 1222, 105 S.Ct. 1210, 84 L.Ed.2d 352 (1985).

Klecan also argues that there was insufficient evidence on which the jury could find that the value of the grain exceeded $500. We disagree. In considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the government, giving to the government the benefit of all reasonable inferences. United States v. Eder, 836 F.2d 1145, 1148-49 (8th Cir.1988).

The evidence in this case, although circumstantial, was sufficient to support the jury’s finding as to each count. Count I was based on an October 22, 1981 loan for $16,402.50. The loan was secured by 6,750 bushels of corn, which had a loan rate of $2.43 per bushel. This corn was commingled with the grain which served as the basis for Count II. Count II related to a January 15, 1982 loan of $7,435.80, which was secured by 3,060 bushels of corn with a loan rate of $2.43 per bushel. The corn for these two loans was measured and inspected by an ASCS inspector on November 10, 1981, and found to be in good condition. It was measured and inspected again on June 16, 1982, and found to contain some brown weevil. The inspector noted the weevil so it could be brought to Kleean’s attention and remedied. An August 25, 1982 inspection by the ASCS revealed no brown weevil, but found that the peak of the grain was getting moldy. The inspector again noted this so that Klecan could aerate or stir the corn. On March 15, 1984, the ASCS inspector discovered that the bin was empty.

Count III concerned a December 28, 1982 loan for $16,254, which was secured by 6,300 bushels of corn with a loan rate of $2.58 per bushel. The ASCS went to inspect the grain on March 15, 1984, and discovered that the bin was empty.

Count IV related to a November 1, 1982 loan for $5,805, which was secured by 2,250 bushels of corn with a loan rate of $2.58 per bushel. This corn was measured and inspected on February 24, 1983, and found to be in good condition. In March 1984, the ASCS inspector discovered that the bin was in the process of being emptied, with only 855 bushels of grain remaining.

Count V arose from a November 10,1982 loan for $5,266.80, which was secured by 1,260 hundred weight of sorghum with a loan rate of $4.18 per hundred weight. On February 24, 1983, the grain was measured and inspected and found to be in good condition. The ASCS inspector found the bin empty on March 15, 1984.

Count VI concerned a November 12,1982 loan for $5,266.80, secured by 1,260 hundred weight of sorghum with a loan rate of $4.18 per hundred weight. This grain was found to be in good condition when measured and inspected on February 24, 1983. The March 1984 inspection revealed the bin to be empty.

We find that there was sufficient evidence to support the jury’s finding as to the value of the grain. The evidence does not support Klecan’s contention that the grain had gone out of condition by the summer of 1983. To the contrary, the evidence showed that on February 24, 1983, the grain securing the last three loans was in good condition. Further, although some brown weevil had been found in the grain relating to the first two loans, this condition had been remedied by August 1982. At that time there was some mold on the corn, but the inspector indicated this could be remedied by aerating the corn.⁴ Therefore, there was sufficient evidence for the jury to find that the grain in each count, which had a loan value of at least $5,266.80 for Counts V and VI and as much as $16,-402.50 for Count I, had a value of at least $500 when Klecan converted it to his own use by feeding it to his livestock. Consequently, the conviction of Orville Klecan is affirmed.

1 . The Agricultural Stabilization and Conservation Service administers the farm loan program for the Commodity Credit Corporation.

2 . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska.

3 . 15 U.S.C. § 714m(c) (1982) provides:

Whoever shall willfully steal, conceal, remove, dispose of, or convert to his own use or to that of another any property owned or held by, or mortgaged or pledged to, the Corporation, or any property mortgaged or pledged as security for any promissory note, or other evidence of indebtedness, which the Corporation has guaranteed or is obligated to purchase upon tender, shall, upon conviction thereof, if such property be of an amount or value in excess of $500, be punished by a fine of not more than $10,000 or by imprisonment for not more than five years, or both, and, if such property be of an amount or value of $500 or less, be punished by a fine of not more than $1,000 or by imprisonment for not more than one year, or both.

4 . We note that the value of the grain to Klecan would remain at loan value, regardless of market value, if Klecan kept the grain in good condition as required by his agreement with the CCC. The ASCS county executive director testified at trial that if the market value of the grain was lower than the loan rate at the time the loan was due, instead of repaying the loan the farmer could forfeit the grain to the government and his loan obligation would be fulfilled. While we are not implying that the loan value is necessarily dispositive evidence of the value of the grain, it is proper evidence for the jury to consider.