United States v. Garrett

103 F.4th 490

UNITED STATES of America, Plaintiff - Appellee v. James GARRETT, Defendant - AppellantUnited States of America, Plaintiff - Appellee v. Levi Garrett, Defendant - Appellant

No. 23-1252

No. 23-1256

United States Court of Appeals, Eighth Circuit

Submitted: October 19, 2023

Filed: May 29, 2024

Appeal from United States District Court for the District of South Dakota - Central

Counsel who presented argument on behalf of the appellant and appeared on the brief was Michael Steven Beardsley, of Rapid City, SD. The following attorney(s) also appeared on the appellant brief; Steven Carson Beardsley, of Rapid City, SD.

Counsel who presented argument on behalf of the appellee was Kevin Koliner, AUSA, of Sioux Falls, SD. The following attorney(s) appeared on the appellee brief; Cameron J. Cook, AUSA, of Pierre, SD.

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

A jury found James Garrett and Levi Garrett guilty of making false statements in connection with federal crop insurance, in violation of 18 U.S.C. § 1014. The Garretts appeal, challenging the district court's¹ evidentiary rulings and its denial of their post-trial motions. We affirm.

I.

James Garrett operated a farm in Sully County, South Dakota, with his son, Levi.² The Garretts participated in a federal crop insurance program, which was administrated by Crop Risk Services (CRS) and backed by the Risk Management Agency of the United States Department of Agriculture (USDA). Through that program, they both obtained insurance for sunflower crops in 2018, and James obtained insurance for a corn crop in 2019.

In 2018, to receive full insurance coverage for a sunflower crop in Sully County, the USDA required that it be planted no later than June 20, 2018. James signed an acreage report certifying that he planted 1,115.22 acres of sunflowers between June 11 and June 16, 2018. And Levi signed an acreage report certifying that he planted 1,122.79 acres of sunflowers between June 10 and June 13, 2018. Both reports were signed on July 6, 2018. Above their signatures, the reports included the following statement:

I certify that to the best of my knowledge and belief all of the information on this form is correct. I also understand that failure to report completely and accurately may result in sanctions under my policy, including but not limited to voidance of the policy, and in criminal or civil penalties (18 U.S.C. § 1006 and § 1014; 7 U.S.C. § 1506; 31 U.S.C. § 3729, § 3730 and any other applicable federal statutes.).

On June 27, 2018, a hailstorm hit Sully County, and the Garretts reported harvest losses to CRS. James reported a loss of $246,687, and Levi reported a loss of $248,361.

In 2019, to receive a discounted insurance premium for his corn crop, James agreed to plant at least twenty acres of corn on two or more fields within a square-mile section of land. On July 12, 2019, James signed an acreage report certifying that he planted 47.5 acres of corn on June 17, 2019, and that he was prevented from planting 2,171.28 acres of corn due to weather-related issues. That year, James reported a loss of $557,066.

Following an investigation, James and Levi were charged in a multi-count superseding indictment. As relevant to this appeal, both were charged with making a false statement in connection with the payment of federal crop insurance benefits, in violation of 18 U.S.C. § 1014. The indictment alleged that James falsely certified the number of acres of sunflowers he planted in 2018, as well as the number of acres of corn he planted in 2019. And it alleged that Levi falsely certified the number of sunflower acres he planted in 2018.

In October 2022, the case went to trial. The jury heard from several witnesses. Cody Hostler, part-owner of Sioux Nation, LLC, testified about supplying seed to the Garretts, including selling them sunflower seed in June 2018. Six neighbors testified about the Garretts' farming practices and their failure to timely plant or maintain their fields, and three of those same neighbors testified about Levi's character for truthfulness. Two CRS insurance adjusters, Barry Jennings and Mark Opp, testified about their inspections of fields where James certified having planted corn in 2019. And Levi testified about the sunflower and corn crops that were ostensibly planted in 2018 and 2019, respectively.

The jury also examined dozens of exhibits, a few of which are relevant here. The government introduced Sioux Nation, LLC's handwritten log—a legal pad updated contemporaneously by its employees when seed purchases were delivered or picked up—that showed James received eight pallets of sunflower seed between June 20 and June 22, 2018. The government also introduced photographs and video from when Jennings and Opp inspected the Garretts' farm in 2019. The Garretts sought to introduce photographs of a neighboring field as a point of comparison, but the district court sustained the government's objection to their admission.

At the conclusion of the six-day trial, James was convicted on two counts of making a false statement in connection with insurance for sunflower and corn crops, and Levi was convicted on one count of making a false statement in connection with insurance for a sunflower crop. The Garretts timely moved for judgment of acquittal, and in the alternative, a new trial, under Federal Rules of Criminal Procedure 29 and 33, arguing there was insufficient evidence to support their convictions. The district court denied their motion. Then, after Hostler provided the Garretts with an affidavit "to clarify/detail" his trial testimony about Sioux Nation, LLC's handwritten log, they moved for reconsideration of their motion for a new trial pursuant to Rules 33 and 37. The district court denied that motion as well.

II.

The Garretts appeal two of the district court's evidentiary rulings at trial—the admission of the Sioux Nation, LLC log and the exclusion of photographs of a neighboring field. They also appeal the denial of their motion for judgment of acquittal, or a new trial, and the denial of their motion for reconsideration. We consider each in turn.

A.

First, with respect to their convictions for the 2018 false statements about sunflower crops, the Garretts argue that the district court erred in admitting the handwritten log maintained by Sioux Nation, LLC employees. When, as here, there is no timely objection to the admission of contested evidence at trial, we review for plain error. United States v. Kelley, 861 F.3d 790, 798 (8th Cir. 2017). "[U]nder plain error review, [a defendant] must show (1) the district court committed an error, (2) the error is clear or obvious, and (3) the error affected [their] substantial rights." United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011) (citing Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)).

The government offered the handwritten log during Hostler's direct testimony. The Garretts now assert that the log was irrelevant because, during his cross-examination, Hostler acknowledged that he was not the sole author of the log. But the government had to prove beyond a reasonable doubt that James and Levi each made a false statement about the date they planted their crops. See 18 U.S.C. § 1014; United States v. Alexander, 679 F.3d 721, 726 (8th Cir. 2012). The log was offered to show when the Garretts purchased sunflower seed in 2018. As evidence of the date on which the seed was picked up or delivered—i.e., evidence of the earliest date the Garretts could have planted—the log was relevant. See Fed. R. Evid. 401 (stating that evidence is relevant when "it has any tendency to make a fact more or less probable than it would be without the evidence"); see also Fed. R. Evid. 402 (stating that relevant evidence is generally admissible at trial).

The Garretts have also failed to explain why the log was not admissible pursuant to the hearsay rule exception for business records "kept in the course of a regularly conducted activity." See Fed. R. Evid. 803(6)(B). At trial, Hostler identified the log as comprising records of "seed deliveries or pickup." He testified that the records were kept in the ordinary course of Sioux Nation, LLC's business, and were updated at or near the time of each purchase. The Garretts assert that the log was unreliable and lacked proper foundation because, despite having contributed to it, Hostler "did not personally create the [log] and could not verify its accuracy." But Hostler testified that some of the handwriting in the log was his own and the other writing was that of another Sioux Nation, LLC employee. Hostler explained that he recognized the other employee's handwriting because "there's only two or three [Sioux Nation, LLC employees who] are in charge of [that] stuff" and would fill out the log. We find no plain error in the admission of the log.

Second, with respect to James's conviction for the 2019 false statement about the corn crop, the Garretts argue that the district court erroneously excluded two photographs of a field adjacent to their farm. We review evidentiary rulings that have been preserved for appeal, as this one was, for an abuse of discretion. United States v. Guzman, 926 F.3d 991, 999 (8th Cir. 2019). "[A] district court's evidentiary rulings are subject to harmless error analysis under Federal Rule of Criminal Procedure 52(a)." United States v. Buffalo, 358 F.3d 519, 521-22 (8th Cir. 2004) (citation omitted). "An evidentiary error is harmless when, after reviewing the entire record, this court determines that the substantial rights of the defendant were unaffected, and that the error did not influence or had only a slight influence on the verdict." United States v. Overton, 971 F.3d 756, 765 (8th Cir. 2020) (quoting United States v. DeMarce, 564 F.3d 989, 997 (8th Cir. 2009)).

The government's theory on this count was that although James certified that 47.5 acres of corn were planted, they were...