USA v. Dennis Friske

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 18, 2011
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14915
________________________
D. C. Docket No. 08-00010-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS FRISKE,
a.k.a. Denny,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 18, 2011)
Before MARTIN and BLACK, Circuit Judges, and RESTANI, Judge.*
MARTIN, Circuit Judge:
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting*
by designation.

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Dennis Friske appeals his conviction for attempting to obstruct an official
proceeding, by attempting to dispose of and hide assets involved in a forfeiture
proceeding, in violation of 18 U.S.C. §§ 1512(c)(2) and 2. He argues that the
District Court erred in denying his motion for judgment of acquittal because the
government failed to introduce sufficient evidence to permit the jury to find that he
knew of the existence of the forfeiture proceeding. We agree. We therefore vacate
Friske’s conviction and sentence, reverse the District Court’s denial of Friske’s
motion for judgment of acquittal, and remand the case to the District Court for
entry of judgment of acquittal.1
I.
Friske was charged with attempting to obstruct a forfeiture proceeding
involving the property of William Erickson, who had been indicted for conspiracy
and drug charges relating to a marijuana grow operation. The government
introduced the following evidence at trial: On October 13, 2008, Erickson, who
was in jail at the time, placed a phone call to Friske, which was recorded. In that
conversation, Friske, who lived in Wisconsin, told Erickson he was coming to visit
Erickson in Florida that Wednesday, October 15, 2008. Erickson discussed with
Because we vacate Friske’s conviction and remand to the District Court to enter a1
judgment of acquittal, we need not address Friske’s other arguments challenging the District
Court’s denials of his motions to sever and the prosecutor’s closing argument.
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Friske a “little repair job” at Erickson’s home in Florida, which would require
Friske to wear gloves and get on his hands and knees under the pool decking at the
rear of the house. Erickson referred to “three things” near the pool pump. He told
Friske to visit him at the jail afterwards, and to do so as soon as possible “if
something screws up.”
Upon hearing the recording of the October 13, 2008 conversation, law
enforcement agents, believing that Friske was going to Erickson’s property to
recover money or drugs buried under the pool decking, obtained a search warrant.
When Friske did not arrive at the property as expected on October 15, 2008, the
agents executed the warrant. Buried under the pool deck, the agents found three
sealed pieces of PVC pipe containing United States currency. In total, the agents
recovered $375,000.00. Before they left, the agents smoothed out the ground in
the area where they dug up the pipes so it looked as it had when they arrived.
The next day, October 16, 2008, Friske explained to Erickson, in another
recorded phone conversation, that he did not go to Erickson’s property as planned
the day before, October 15, 2008, beause he had been delayed at the airport and
had problems with a credit card and rental car. But Friske stated that he was going
to the property that day and would arrive there in about an hour.
The agents returned to Erickson’s residence, and found that Friske was
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already there. They encountered him walking towards them on the entry road
about 200 yards inside the north gate of the property. Friske was wearing gloves
and holding a flashlight. He was wet, and had dirt on his chest and arms. The
agents identified themselves and asked Friske why he was there. He told them that
he had come to recover and move some items for a friend. He told the agents they
could look at the items he had retrieved and loaded into his van. He gave the
agents written and oral permission to search the vehicle. In a briefcase in the front
seat of the van, the agents found several letters from Erickson to Friske. The
letters included hand-drawn diagrams of the property, showing among other things
the location where the pipes were ultimately discovered. In one of the letters,
Erickson also asks Friske to do him a “a big favor,” by coming to Florida for a few
days to “find a couple of things [at Erickson’s house] to take back to [Wisconsin].”
He hastens to add that it would be “nothing illegal for [Friske],” just “important
paper work I have put away.”
While the search of the van was taking place, one of the agents told
Friske—falsely—that they had been watching him digging around the pool deck.
Friske became agitated and explained that he had been inspecting the pool deck
because there was wood rot that he was going to fix. The agent testified at trial
that he had viewed the condition of the pool deck the day before, when digging up
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the three PVC pipes, and had not observed any wood rot. When Friske tried to
point out the wood rot under the deck, the agent saw that two new holes had been
dug under the pool deck since the agents had smoothed over the surface the day
before. The agent told Friske that they had been listening to his conversations with
Erickson and knew that he had come down to pick up money that had been
concealed on the property. According to the agent, Friske responded: “Look, these
are my friends. I’m not going to cooperate against my friends.” After reviewing
Friske’s driver’s license and taking his finger prints, the agents allowed him to
leave.
Later that same day, October 16, 2008, Friske and Erickson spoke on the
phone three times. In those conversations, Friske explained that DEA agents had
been on Erickson’s property and “didn’t buy it” when Friske explained that he was
looking at pilings underneath the deck because he was fixing up the house and
securing the property for Erickson.
II.
Friske argues that the District Court erred in denying his motion for
judgment of acquittal because the evidence was insufficient to support his
conviction. “We review de novo a district court’s denial of judgment of acquittal
on sufficiency of evidence grounds.” United States v. Browne, 505 F.3d 1229,
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1253 (11th Cir. 2007). “In reviewing a sufficiency of the evidence challenge, we
consider the evidence in the light most favorable to the Government, drawing all
reasonable inferences and credibility choices in the Government’s favor.” Id. “A
jury’s verdict cannot be overturned if any reasonable construction of the evidence
would have allowed the jury to find the defendant guilty beyond a reasonable
doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “The
evidence need not be inconsistent with every reasonable hypothesis except guilt,
and the jury is free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial.” United States v. Poole, 878 F.2d
1389, 1391 (11th Cir. 1989). But “[w]hen the government relies on circumstantial
evidence, reasonable inferences, not mere speculation, must support the
conviction.” United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008).
Friske was convicted of violating 18 U.S.C. § 1512(c)(2), which provides
that “[w]hoever corruptly . . . obstructs, influences, or impedes any official
proceeding, or attempts to do so, shall be fined under this title or imprisoned not
more than 20 years, or both.” To establish a violation of § 1512(c)(2), the
government must prove beyond a reasonable doubt that:
(1) there was an official proceeding taking place, [in this case a
forfeiture proceeding]; (2) [Friske] engaged in conduct which
constituted a substantial step toward the commission of the crime of
obstruction of an official proceeding; (3) [Friske] acted corruptly, i.e.,
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with an improper purpose and to engage in conduct knowingly and
dishonestly with the specific intent to subvert, impede or obstruct the
[forfeiture proceeding]; and (4) the natural and probable effect of
[Friske’s] conduct would be the interference with the due
administration of justice.
United States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir. 2007) (quotation marks
and alterations in original omitted).
Friske argues that the district court erred in denying his motion for judgment
of acquittal because the government did not offer evidence sufficient to support a
finding that he knew of the forfeiture proceeding. As an initial matter, we must2
decide whether the government was required to prove that Friske knew of the
forfeiture proceeding. In United States v. Aguilar, 515 U.S. 593, 115 S. Ct. 2357
(1995), the Supreme Court held that a similar statute, 18 U.S.C. § 1503, which
prohibits “corruptly or by threats of force, . . . influenc[ing], obstruct[ing], or
imped[ing], or endeavor[ing] to inflence, obstruct, or impede, the due
administration of justice,” contains “a ‘nexus’ requirement—that the act must3
have a relationship in time, causation, or logic with the judicial proceedings.” Id.
Because we conclude that the government was required to introduce sufficient evidence2
for the jury to find that Friske knew his actions were likely to affect a forfeiture proceeding, and
that it failed to do so, we do not address Friske’s argument that the evidence was also
insufficient to support the jury’s finding that there was a forfeiture proceeding taking place with
respect to Erickson’s property.
We have previously observed that the elements of § 1503 are analogous to the elements3
of § 1512(c)(2). See Mintmire, 507 F.3d at 1289.
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at 599, 115 S. Ct. at 2362. As our sister circuits have explained, “[t]he nexus
limitation is best understood as an articulation of the proof of wrongful intent that
will satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v.
Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009) (quotation marks omitted); see also
United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006) (using same language
to describe nexus requirement as applied to § 1503). In Aguilar, the Supreme
Court stated that “if the defendant lacks knowledge that his actions are likely to
affect the judicial proceeding, he lacks the requisite intent to obstruct.” 515 U.S. at
599, 115 S. Ct. at 2362. In Arthur Anderson LLP v. United States, 544 U.S. 696,
125 S. Ct. 2129 (2005), the Supreme Court extended this requirement—that there
be “a ‘nexus’ between the obstructive act and the proceeding”—to another similar
statute, 18 U.S.C. § 1512(b)(2), which prohibits, among other things, “knowingly
. . . corruptly persuad[ing] another person . . . with intent to . . . cause or induce any
person to . . . withhold testimony . . . or . . . document[s] . . . from an official
proceeding.” Id. at 708, 125 S. Ct. at 2137.
We now join our sister circuits in concluding that § 1512(c)(2) also contains
a nexus requirement as articulated in Aguilar. See Phillips, 583 F.3d at 1264;
United States v. Reich, 479 F.3d 179, 186 (2d Cir. 2007); see also United States v.
Carson, 560 F.3d 566, 584 (6th Cir. 2009) (assuming arguendo that Aguilar nexus
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requirement applies to § 1512(c)(2)). Aguilar relied on the principle that “a4
person lacking knowledge of a pending proceeding necessarily lack[s] the evil
intent to obstruct.” 515 U.S. at 599, 115 S. Ct. at 2362 (discussing Pettibone v.
United States, 148 U.S. 197, 207, 13 S. Ct. 542, 546–47 (1893)). That principle
applies equally to § 1512(c)(2), because without knowledge of the forfeiture
proceeding, Friske could not know that his actions were likely to affect it. We
recognize that § 1512(f)(1) provides that “[f]or the purposes of [§ 1512] . . . an
official proceeding need not be pending or about to be instituted at the time of the
offense.” But, as the Supreme Court observed in Arthur Anderson, “[i]t is . . . one
thing to say that a proceeding need not be pending or about to be instituted at the
time of the offense, and quite another to say a proceeding need not even be
foreseen.” 544 U.S. at 707–08, 125 S. Ct. at 2137 (quotation marks omitted).
Thus, in this case, the government was required to prove that Friske knew of, or at
least foresaw, the forfeiture proceeding.5
We are aware of no circuit that has rejected Aguilar’s nexus requirement in the context4
of § 1512(c)(2), see Phillips, 583 F.3d at 1264, and the government has not offered any argument
against applying the nexus requirement to § 1512(c)(2). Instead, the government urges us to
assume without deciding that the nexus requirement applies, but to find it satisfied in this case.
But as explained below, we conclude that the nexus requirement was not satisifed here.
We emphasize that it is not necessary to prove that the defendant knew that a5
proceeding was pending, nor is it always sufficient to prove that the defendant “may have
foreseen an official proceeding at some time in the future.” United States v. Frankhauser, 80
F.3d 641, 652 (1st Cir. 1996) (analyzing the the analagous mens rea requirement for
§ 1512(b)(2)(B)). Consistent with Aguilar’s nexus requirement, the government must prove that
the defendant knew of or foresaw an official proceeding, and knew that his actions were likely to
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In support of his motion for judgment of acquittal before the District Court,
Friske conceded that “there [was] plenty of evidence [from which] the jury can
conclude that he went under the deck to retrieve three items for Mr. Erickson,” but
insisted that “there [was] not one scintilla of evidence that he knew he was
obtaining something that was subject to forfeiture.” We agree. Although Friske
was certainly acting suspiciously in his attempts to recover the three sealed PVC
pipes from under the pool deck, more is required to prove a violation of
§ 1512(c)(2). Specifically, the government had to prove beyond a reasonable
doubt that Friske knew that the natural and probable result of his actions would be
the obstruction of Erickson’s forfeiture proceeding. We are unable to find any
evidence in the record that Friske knew of or foresaw the forfeiture proceeding.
The only way the jury could conclude that Friske knew his actions were likely to
affect a forfeiture proceeding, in the absence of any evidence that he was aware
that a forfeiture proceeding was pending or foreseeable, would be through
speculation. But speculation is not enough to sustain a conviction based on
circumstantial evidence. See Mendez, 528 F.3d at 814.
Because the government offered no evidence that Friske knew that his
actions were likely to affect a forfeiture proceeding, we conclude that a reasonable
affect it.
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jury could not find, beyond a reasonable doubt, that Friske had the requisite intent
to obstruct. See Aguilar, 515 U.S. at 599, 115 S. Ct. at 2362 (“[I]f the defendant
lacks knowledge that his actions are likely to affect the judicial proceeding, he
lacks the requisite intent to obstruct.”). Thus, the evidence was insufficient to
support Friske’s conviction under § 1512(c)(2), and the District Court therefore
erred in denying Friske’s motion for judgment of acquittal.
For all of these reasons, we vacate Friske’s conviction, reverse the District
Court’s denial of his motion for judgment of acquittal, and remand the case to the
District Court to enter a judgment of acquittal.
VACATED, REVERSED and REMANDED.
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