United States v. Derek Benedict

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Steven M. Colloton and Duane Benton AUTHORING JUDGE:Diana E. Murphy (PUBLISHED), CONCUR BY: Steven M. Colloton [4373213] [14-3412, 15-1014]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3412
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Derek Edward Benedict
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 15-1014
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lyle Robert Carpenter
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 20, 2015
Filed: March 2, 2016
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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MURPHY, Circuit Judge
Appellants Derek Benedict and Lyle Carpenter were convicted by a jury of
conspiracy and burglarizing various drug stores in Minnesota and Iowa where they
stole pharmaceutical products and cash from safes, registers, and ATMs. They now
appeal their convictions and their sentences imposed by the district court.1 We affirm.
I.
A.
From 2009 to 2012, Derek Benedict and Lyle Carpenter were involved in a series
of commercial burglaries, conspiring at various times with six other people: Jason
Mussehl, Julia Julien, Tim Kielb, Cher Mayotte, Jennifer Stanley, and Jonathan Quast.
Jason Mussehl was involved in burglaries for over 25 years, which were his primary
source of income. He knew Benedict from elementary school and met Carpenter in
2009. Mussehl's half brother was Jonathan Quast, and Mussehl dated both Julia Julien
and Jennifer Stanley. Additional members of the conspiracy were Tim Kielb and his
girlfriend, Cher Mayotte.
The group’s burglaries focused on the theft of money and pharmaceuticals from
businesses they investigated as potential targets, where they would first look for motion
sensors and locate any alarm systems. They would then return at night to break into a
targeted building, often cutting a hole in the roof near an alarm which they proceeded to
disarm. At other times they entered a building by knocking down an exterior wall or by
prying open the front door and disabling any alarm before a signal could be sent. Once

1

The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
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an alarm was disabled, the burglars would leave the location for a half hour or more to
ensure that they had not been detected. One of the group was tasked with waiting outside
in the vicinity of a targeted business to watch for any law enforcement personnel. After
being satisfied that they had not been detected, the burglars would reenter the store, drill
open safes and ATMs, and carry away their contents. The burglars working inside a
store would communicate by two way radio with their confederate remaining outside.
Carpenter specialized in drilling into safes and ATM machines, a task at which he
excelled. Benedict served as driver and kept watch outside for any approaching police.
On October 4, 2009, Carpenter, Mussehl, Tim Kielb and Jennifer Stanley
burglarized a Walgreens drug store in Minneapolis and transported its ATM to the house
of a friend. After breaking into the machine and obtaining its contents, the burglars
disposed of the machine in the Mississippi River. Later that month, Benedict, Carpenter,
Mussehl, and Stanley burglarized a Walgreens store in Robbinsdale, Minnesota. Then
the same four burglars broke into a Golden Valley Walgreens in November and a South
Minneapolis Walgreens in December.
Carpenter went to prison after he was convicted of a different crime, but Mussehl
continued to burglarize Walgreens stores. Benedict wanted to participate in these
burglaries, but Mussehl turned him down. When Carpenter was released from prison in
2012, he again joined in burglaries with Benedict and Mussehl. On July 15, 2012,
Benedict and Carpenter, together with Mussehl, Kielb, Cher Mayotte, and Julia Julien,
burglarized a pharmacy in Bloomington, Minnesota (Bloomington Drug). The burglars
took both money and pharmaceuticals. Carpenter, Mussehl, Kielb, and Mayotte next
committed a burglary at a gas station in Prior Lake, Minnesota on August 19, 2012.
They removed an ATM belonging to South Metro Federal Credit Union and transported
it in Mussehl's truck to a friend's garage, where they broke into it. Four days later,
Carpenter, Mussehl, Kielb and Quast burglarized a Walgreens store in Circle Pines,
Minnesota.
On September 9, 2012, Benedict, Carpenter, Mussehl and Julien burglarized a
Walgreens store in Des Moines, Iowa. Benedict again kept watch outside the store, and

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Carpenter and Mussehl entered the building. Later that day, Benedict bought an Infiniti
using his share of the proceeds from the burglary.
By early 2013, coconspirator Tim Kielb had been arrested and began to cooperate
with law enforcement agents. He used a recording device to capture several discussions
with Benedict and Carpenter about burglaries. In February of that year, police found a
glove at the site of an Aldi Foods store in Blaine, Minnesota, which had been burglarized
by entering through the roof. A DNA swab of the Aldi glove linked to a predominate
profile that matched to Lyle Carpenter. On June, 9, 2013, Carpenter was arrested while
burglarizing a Super America gas station. He was apprehended along with a crowbar,
sledgehammer, mask and two way radio.
B.
Benedict and Carpenter were jointly charged with conspiracy to commit bank
burglary, bank larceny, and interstate transportation of stolen property, conspiracy to
steal controlled substances, bank larceny, burglary involving controlled substances, and
interstate transportation of stolen property. The ten count indictment also charged
Carpenter on additional substantive charges of bank burglary, bank larceny, credit union
burglary, and burglary involving controlled substances. Benedict and Carpenter were the
only two defendants to proceed to trial; each of the other coconspirators pled guilty. In
addition to testimony from numerous law enforcement officials and others, the
government called coconspirators Mussehl, Julien, Kielb, Stanley, and Mayotte to testify
and describe their own roles in the conspiracy, as well those of Benedict and Carpenter.
Coconspirator Jonathan Quast was additionally called to testify about the burglary he
committed with Carpenter in Circle Pines, Minnesota.
Benedict moved to sever, but severance was denied. He also sought to have an
expert witness testify to the subject of the untrustworthiness of coconspirator testimony,
but his request was untimely and rejected by the district court. Both men were convicted
of all charged crimes. At sentencing the district court concluded that both Benedict and
Carpenter were career offenders. They were sentenced accordingly: Carpenter to 210

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months with $272,561 ordered in restitution, and Benedict to 150 months with $199,007
ordered in restitution. The two defendants now appeal their convictions and sentences.

II.
Benedict makes three claims relevant only to his case: that he was improperly
denied a severance, that he should have been permitted to present expert testimony,
and that the evidence was insufficient to convict him of the charged offenses.
Benedict moved for a severance. Federal law favors joint trial for individuals
charged in the same indictment, and there is a "strong" presumption against severing
properly joined cases. United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996).
A denial of a motion to sever is only reversed when a defendant has shown an abuse
of discretion resulting in severe prejudice. United States v. Young, 701 F.3d 1235,
1238 (8th Cir. 2012). To prevail on such a claim a defendant must show prejudice to
a specific trial right or that a joint trial would not enable the jury to make "a reliable
judgment about guilt or innocence." United States v. Dierling, 131 F.3d 722, 734 (8th
Cir. 1997) (internal quotation marks omitted). Varying strength in the evidence
against each defendant does not require a severance. Id.
Benedict and Carpenter were indicted together for the their participation in same
conspiracy, and their cases were properly joined. See Delpit, 94 F.3d at 1143. Benedict
argues however that some of the evidence focused solely on Carpenter, including a video
of Carpenter being arrested while burglarizing a Super America store and evidence about
a glove matching Carpenter's DNA profile which had been found outside a burglarized
Aldi Foods store. This evidence is not sufficient to show that the jury could not have
made a reliable judgment about Benedict's guilt or innocence because of the district
court's limiting jury instructions that each defendant "is entitled to have his case decided
solely on the evidence which applies to him," and that the jury "must give separate
consideration to the evidence about each individual Defendant." This trial was not the
"unusual case" in which the efficiency of joinder would have been outweighed by

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difficulty for the jury to analyze separately the evidence against each individual
defendant. See United States v. Martin, 777 F.3d 984, 995 (8th Cir. 2015).
Benedict next claims that the district court erred by rejecting his request to permit
expert testimony from Dr. Jeffrey Neuschatz. While Benedict contends this amounted
to the denial of his right to defend himself and therefore is subject to de novo review, a
court's exclusion of expert testimony is appropriately reviewed for abuse of discretion.
United States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004). The district court's decision
was based on Benedict's failure to make disclosures required under Federal Rule of
Criminal Procedure 16(b)(1)(C). That rule requires a defendant, upon the government's
request, to provide a summary of proposed testimony describing "the witness's opinions,
the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim.
P. 16(b)(1)(C). Five days before trial was to begin, Benedict first indicated his intention
to call Dr. Neuschatz. The district court permitted the disclosures to be made at that
time, but they were not. Then on December 11, the court prohibited its introduction
under Rule 16(d)(2)(C), and Benedict offers no argument on appeal about the disclosure
issue. We conclude the district court did not abuse its discretion by excluding evidence
for that reason. See United States v. Holmes, 670 F.3d 586, 599 (4th Cir. 2012)
(concluding district court did not abuse its discretion in excluding expert testimony after
required Rule 16(b)(1)(C) disclosures were not made).
The district court also concluded that the subject of the proffered expert testimony
was improper. Dr. Neuschatz, the proffered expert, had authored an article entitled The
Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32
Law & Hum. Behav. 137 (2008). His article warned that mock jurors provide "undue
weight to confession evidence when rendering guilt decisions." Id. at 138. In his
affidavit filed in the district court, Dr. Neuschatz claimed that "[w]ithout expert
assistance, jurors' abilities to assess the veracity of a witness's testimony are extremely
limited." Benedict argues on appeal that the testimony would have been proper and
necessary to demonstrate the unconscious impact of live testimony and "the substantial
bias of testimonial evidence from any source on a listener." It is however "plain error to
admit testimony that is a thinly veiled comment on a witness' credibility." Nichols v.

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Am. Nat'l Ins. Co., 154 F.3d 875, 884 (8th Cir. 1998). Moreover, "[w]eighing evidence
and determining credibility are tasks exclusive to the jury." Id. at 883. The district court
did not abuse its discretion by declining to admit Dr. Neuschatz's testimony.
Benedict also challenges the sufficiency of the evidence. He argues that there was
not corroborated evidence to show he acted with a purpose in common with the other
members of the conspiracy. We review such a challenge de novo, examining the
evidence in the light most favorable to the government, resolving evidentiary conflicts
in the government's favor, and granting all reasonable inferences which support the
verdict. United States v. Casteel, 717 F.3d 635, 644 (8th Cir. 2013). Benedict's
coconspirators testified that he had participated in a conspiracy to commit burglary and
the other charged offenses. The testimony of coconspirators alone is sufficient to support
a conviction for conspiracy unless it is "incredible or insubstantial on its face." United
States v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008) (internal quotation marks
omitted). The coconspirator testimony introduced in this case was credible and
supported by other evidence. Contrary to Benedict's complaint that there was not
sufficient corroborating evidence, much of the coconspirator testimony was corroborated.
Jason Mussehl for example testified that Benedict told him that he purchased an Infiniti
with the proceeds of their burglary of a Walgreens store in Des Moines. The government
then introduced the title to the particular car.
Benedict also relies upon Mussehl's testimony that for a period of time Benedict
unsuccessfully sought to participate in burglaries with Mussehl. Benedict claims this
shows he was not part of a single conspiracy. Mussel's full testimony, however, shows
that Benedict engaged in numerous burglaries with the group of coconspirators.
Benedict's claim that the evidence does not show his participation in a conspiracy is flatly
contradicted by the trial record. We conclude that the evidence was sufficient to sustain
his convictions.

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III.
Carpenter makes one claim relevant only to his case, arguing that restitution was
wrongly imposed under the Mandatory Victim Restitution Act (MVRA). We review
such questions of law de novo. United States v. Senty-Haugen, 449 F.3d 862, 865 (8th
Cir. 2006). Carpenter maintains that corporations are not victims under the Mandatory
Victims Restitution Act because they are not "persons" within the meaning of the statute.
The MVRA requires that a district court shall order a defendant to make restitution in
cases "in which an identifiable victim or victims has suffered a physical injury or
pecuniary loss." 18 U.S.C. § 3663A(c)(1)(B). "Victim" is defined in the statute to mean
"a person directly and proximately harmed as a result of the commission of an offense
for which restitution may be ordered." Id. § 3663A(a)(2).
Although "person" is not defined in the MVRA, the Dictionary Act defines
"person" to include corporations "unless the context indicates otherwise." 1 U.S.C. § 1.
Carpenter does not dispute that the corporations here were harmed as a result of his
conduct, but claims that the context here shows corporations do not fit within the
statutory definition of person since "it would have been easy" to provide in the text of the
MVRA that "'persons' includes corporations." This argument overlooks the statutory
scheme and the Dictionary Act itself. See 1 U.S.C. § 1.
The government adds that the context within the MVRA itself indicates that
corporations are eligible to be considered victims within the meaning of the act. Section
3663A(c)(1)(A)(ii) extends the MVRA to crimes such as bank fraud under 18 U.S.C.
§ 1344, which covers defrauding "a financial institution." Id. § 1344(1). Such an
inclusion would make no sense if the MVRA were intended to exclude corporations from
its definition of victim. Carpenter's limited definition is inconsistent with our prior
MVRA decisions which have not applied the statute only to natural persons. See SentyHaugen, 449 F.3d at 865 (concluding that "the IRS is an eligible victim under the
MVRA"); see also United States v. Engelmann, 720 F.3d 1005, 1014 (8th Cir. 2013)
(rejecting the argument that bad actions by financial institutions made them ineligible
for victim status under the MVRA).

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Carpenter claims that the district court erred in ordering $53,729 in restitution to
the targeted stores for sums of money taken from safes and cash registers during the
burglaries, as opposed to money taken from ATMs. He claims these sums represent
money taken during the commission of state law crimes for which restitution is not
appropriate. We look to the "scope of the indictment to determine whether an award" is
eligible to be included in a restitution order. United States v. Ramirez, 196 F.3d 895, 900
(8th Cir. 1999) (internal quotation marks omitted). A district court also has "discretion
to order restitution for all the victims" of a criminal scheme, whether or not the particular
losses are "specifically named in the indictment." Id. at 899. Carpenter's argument rests
in part on his claim that "no [f]ederally-charged conspiracy existed here to steal the
store's own property and money," an assertion which is contradicted by the record.
Carpenter was indicted and convicted of Interstate Transportation of Stolen Property, 18
U.S.C. § 2314, which requires transportation of money worth $5,000 or more, knowing
it to have been stolen, and conspiracy to commit the same. Moreover, the indictment in
this case specifically charged the taking of money from Walgreens safes and transporting
it from Iowa to Minnesota.
Even if the conspiracy charged in the indictment had not included the stolen
property charge, the restitution order for payments to the burglarized stores was proper
under the plain language of the MVRA. That act requires that restitution be made to
every victim. 18 U.S.C. § 3663A(a)(2). A victim is defined as:
a person directly and proximately harmed as a result of the commission of
an offense for which restitution may be ordered including, in the case of an
offense that involves as an element a scheme, conspiracy, or pattern of
criminal activity, any person directly harmed by the defendant's criminal
conduct in the course of the scheme, conspiracy, or pattern.
Id. The stores were clearly victims, because they were harmed as "a result of the
commission of an offense for which restitution may be ordered," id., namely, conspiracy
to commit bank burglary, bank larceny, and interstate transportation of stolen property,
as well as conspiracy to steal controlled substances. The taking of money from the safes

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was also specific "criminal conduct" which Carpenter and his coconspirators undertook
"in the course of the scheme, conspiracy, or pattern." Id. We conclude that the district
court did not err in its imposition of restitution for the victim stores.
IV.
Both defendants challenge an evidentiary stipulation which established
jurisdictional elements of the charged offenses, including the stipulation that certain
Walgreens stores which had been burglarized were used in part as a bank, that certain
ATMs were owned by a bank insured by the FDIC or by a credit union insured by the
National Credit Union Administration, that Bloomington Drug was registered with the
FDA, and that the stolen drugs contained FDA controlled substances. Benedict and
Carpenter now claim they did not knowingly and voluntarily agree to the admission of
their stipulation. Our review is for plain error because the defendants did not object to
the stipulation before the district court. Martin, 777 F.3d at 993.

We recently rejected a very similar argument in Martin. There, as here, the
defendants did not object to an evidentiary stipulation in district court, yet claimed on
appeal that it had not been knowingly made. 777 F.3d at 993. We noted there that a
defendant is ordinarily bound by an agreed upon stipulation "[u]nless the defendant
indicates objection at the time the stipulation is made." Id. (internal quotation marks
omitted). Martin also reaffirmed our circuit rules that 1) an inquiry as thorough as that
provided for in Federal Rule of Criminal Procedure 11 is not required when
stipulating to an element of an offense, and 2) a stipulation is knowingly and
voluntarily made when signed by the defendant and "entered in open court in the
presence of the defendant." Id. (internal quotation marks omitted).
Appellants now emphasize what they see as the sole difference between Martin
and their case: in Martin the stipulation was signed by the defendant, while here the
stipulation was signed only by defense counsel. This argument fails. The stipulation
was read verbatim in open court in the presence of appellants and defense counsel
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represented that they did not object to its admission. Appellants are bound by their
stipulation, and it was not plain error for the district court to accept it. See 777 F.3d
at 993.
At sentencing both Benedict and Carpenter received enhancements under the
sentencing guidelines for being career offenders as defined in U.S.S.G. § 4B1.1. They
each had prior convictions for commercial burglaries, offenses which were classified
as crimes of violence under U.S.S.G. § 4B1.2. Section 4B1.2(a)(2) includes in its
definition of "crime of violence" any offense punishable by imprisonment for more
than one year that "is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another." Our court has concluded in the past that a commercial
burglary conviction, even if not classified as a "burglary of a dwelling," is a crime of
violence because "any generic burglary . . . is a felony that 'otherwise involves
conduct that presents a serious potential risk of physical injury to another' within the
meaning of § 4B1.2(a)(2)." United States v. Bell, 445 F.3d 1086, 1090 (8th Cir.
2006).
Subsequently, in United States v. Stymiest, 581 F.3d 759 (8th Cir. 2009), the
court broadened the type of burglary qualifying as an enumerated crime of violence.
The Stymiest appellant had a prior conviction for third degree burglary of a research
building. 581 F.3d at 767–68. The court noted that this generic burglary would have
been an enumerated offense if the Sentencing Commission had not limited the
definition of crime of violence in U.S.S.G. § 4B1.2(a)(2) to "burglary of a dwelling."
Id. at 768–69. The court then concluded that the Commission's narrowing of the
definition from generic burglaries to only burglaries of a dwelling had been
inconsistent with the Supreme Court's decision in Taylor v. United States, 495 U.S.
575, 597 (1990). 581 F.3d at 769. Commercial burglary should therefore properly
be classified as an enumerated crime of violence under the guidelines. Id. (citing Bell,
445 F.3d at 1090).

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In the case now before our court, appellants seek resentencing under the
Supreme Court's recent decision in United States v. Johnson, 576 U.S. __, __, 135 S.
Ct. 2551 (2015). This decision focused on the Armed Career Criminal Act (ACCA)
definition of violent felony. The Court decided that the language used in the residual
clause of that definition is unconstitutionally vague. Id. at 2563. Thereafter, a panel
of our court remanded for resentencing in United States v. Taylor, a case in which the
appellant had been sentenced under the identically worded residual clause in U.S.S.G.
§ 4B1.2(a)(2) ("otherwise involves conduct that presents a serious potential risk of
physical injury to another"). 803 F.3d 931, 932–33 (8th Cir. 2015).
Assuming without deciding that the holding of the Supreme Court's Johnson
decision applies to the residual clause in the guidelines, we affirm appellant's
classifications as career offenders under Stymiest and their sentences. Under our own
precedent, convictions for burglary qualify as crimes of violence under § 4B1.2(a)(2),
whether or not the burglarized structure was a dwelling.
V.
The district court did not err by holding a joint trial for these coconspirators,
accepting counsel's evidentiary stipulation, or excluding expert witness testimony.
Nor did the trial court err in its imposition of restitution. The evidence was also more
than sufficient to convict Benedict. Because our decision in Stymiest qualifies the
appellants' prior convictions as crimes of violence under the guidelines, we affirm
their career offender status and sentences. See Stymiest, 581 F.3d at 769. The
judgments of the district court are affirmed.
COLLOTON, Circuit Judge, concurring.
I concur in the opinion of the court, but with reservations about the alternative
holding in United States v. Stymiest, 581 F.3d 759, 769 (8th Cir. 2009), and its
application to the sentences imposed in this case. Stymiest, adopting dicta from
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United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006), said that the Sentencing
Commission’s decision to define “crime of violence” in the career offender guideline,
USSG § 4B1.2(a)(2), to include “burglary of a dwelling” rather than “burglary” was
“invalidated” by the Supreme Court’s decision in Taylor v. United States, 495 U.S.
575 (1990). Taylor held that “burglary” in the definition of “violent felony” in the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), includes certain nonresidential burglaries. The alternative holding in Stymiest conflicts with an en banc
decision of the First Circuit, which ruled that the Sentencing Commission permissibly
declined to enumerate non-residential burglary as a “crime of violence” under
§ 4B1.2. United States v. Giggey, 551 F.3d 27, 33-37 (1st Cir. 2008) (en banc). There
is a substantial question whether Stymiest and Bell correctly reasoned that the
Commission must give the undefined term “crime of violence” in 28 U.S.C.
§ 994(h)—which calls for the creation of a career offender guideline—the same
meaning as the different term “violent felony” in 18 U.S.C. § 924(e)(2)(B)(ii). See
Bell, 445 F.3d at 1090. The question takes on even greater significance in light of the
Sentencing Commission’s pending proposal to amend the definition of “crime of
violence” to eliminate “burglary” altogether. Sentencing Guidelines for United States
Courts, 81 Fed. Reg. 4741, 4744 (Jan. 27, 2016) (amending USSG §§ 4B1.1 and
4B1.2). The briefs filed in Bell and Stymiest suggest that the court broached the
validity of § 4B1.2(a)(2) without urging by the government or adversarial briefing on
the question. See also Stymiest, 581 F.3d at 767 (noting that the government did not
cite Bell). Given the conflict in the circuits and the significance of the issue, the
sentencing portion of this appeal may warrant review by the court en banc.
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