Filed: Jul. 25, 2014
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 13-3057 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Scott Bradley Olsen lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - Joplin _ Submitted: April 18, 2014 Filed: July 25, 2014 _ Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges. _ BYE, Circuit Judge. A jury convicted Scott Olsen of disaster fraud in violation of 18 U.S.C. § 1040 an
Summary: United States Court of Appeals For the Eighth Circuit _ No. 13-3057 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Scott Bradley Olsen lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - Joplin _ Submitted: April 18, 2014 Filed: July 25, 2014 _ Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges. _ BYE, Circuit Judge. A jury convicted Scott Olsen of disaster fraud in violation of 18 U.S.C. § 1040 and..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3057
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Scott Bradley Olsen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: April 18, 2014
Filed: July 25, 2014
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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BYE, Circuit Judge.
A jury convicted Scott Olsen of disaster fraud in violation of 18 U.S.C. § 1040
and false statements in violation of 18 U.S.C. § 1001. The district court1 sentenced
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The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
Olsen to two concurrent eighteen-month terms of imprisonment. Olsen appeals
contending the evidence was insufficient to sustain his conviction. We affirm.
I
A May 22, 2011, tornado in Joplin, Missouri, destroyed the single-family home
of Charles and Myrtle Pyle at 2305 Virginia Avenue. After the tornado, a
Presidential Disaster Declaration was issued for Joplin. The Disaster Declaration
enabled various forms of federal disaster assistance, primarily administered by the
Federal Emergency Management Agency ("FEMA"). The assistance available after
the Joplin tornado included rental assistance, replacement of essential personal
property, and repairs, but was only available to individuals if their primary residence
had been damaged or destroyed. For these purposes, a primary residence is the
"dwelling where the applicant normally lives, during the major portion of the calendar
year," 44 C.F.R. § 206.111, including a home intended for such purposes that an
individual has recently moved into. The Pyles were fully insured and thus not eligible
for assistance under the Disaster Declaration.
On May 26, 2011, Olsen submitted an online application for disaster assistance
listing 2305 Virginia as his secondary residence. FEMA denied Olsen's claim
without an inspection because his primary residence had not been damaged by the
tornado. Olsen visited a disaster recovery center on June 10, 2011, and supplemented
his May 26 claim with a handwritten letter stating he was moving into 2305 Virginia
at the time of the tornado and detailing lost personal property. FEMA again denied
Olsen's claim.
On July 9, 2011, Olsen submitted a handwritten letter to FEMA which claimed
Olsen entered into a lease on May 20, 2011, and was moving his personal property
into the home on May 21, 2011. Olsen also submitted a list of lost property and a
document he represented to be his rental agreement for 2305 Virginia. The rental
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agreement document, dated May 20, 2011, bore the purported signature of "Dean
Richey" who Olsen represented as the property manager. On July 20, 2011, Olsen
furnished to FEMA a printed email and word-processed letter which he purported
were from Dean Richey and which detailed the rental agreement. Along with these
documents, Olsen submitted two declaration and release forms signed on July 1,
2011, verifying his statements were true. During the investigation of Olsen's claim,
a FEMA representative contacted Myrtle Pyle and learned Olsen had never lived at
or signed a lease for 2305 Virginia. FEMA denied Olsen's claim on July 27, 2011.
Olsen was indicted on one count of disaster fraud and one count of making a false
statement.
At trial, the government introduced, among other evidence, hand-writing
analysis showing the signature of "Dean Richey" closely resembled Olsen's known
handwriting. The government also introduced evidence the Pyles did not know of
Olsen and had never seen Olsen or his personal property in the vicinity of 2305
Virginia. Olsen then testified in his own defense and confirmed he had submitted the
documents to FEMA. Olsen, however, articulated he had been the victim of a scam
and denied fabricating the lease or letter from "Dean Richey." Olsen also admitted
portions of his July 9, 2011, letter to FEMA were untrue.
The jury found Olsen guilty of both counts.
II
Olsen contends the government's evidence was insufficient to support his
convictions for disaster fraud and making a false statement. We review the
sufficiency of the evidence de novo, viewing evidence in the light most favorable to
the government, resolving conflicts in the government's favor, and accepting all
reasonable inferences that support the verdict. United States v. Payton, 636 F.3d
1027, 1042 (8th Cir. 2011). If any interpretation of the evidence would allow a
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reasonable-minded jury to find the defendant guilty beyond a reasonable doubt, we
must uphold the verdict. United States v. McCloud, 590 F.3d 560, 565-66 (8th Cir.
2009). This standard of review is very strict, "and the jury's verdict is not to be
lightly overturned." United States v. Hayes,
391 F.3d 958, 961 (8th Cir. 2004).
To convict Olsen of disaster fraud in violation of 18 U.S.C. § 1040, the
government needed to prove (1) Olsen made a materially false or fraudulent statement
or representation to FEMA; (2) Olsen's statement was in connection with a benefit;
(3) the benefit was in connection with the Disaster Declaration; and (4) the benefit
was a payment, money, or thing of value of the United States. 18 U.S.C. § 1040. To
convict Olsen of making a false statement in violation of 18 U.S.C. § 1001, the
government needed to prove (1) Olsen made a statement or representation; (2) that
Olsen knew was false, fictitious, or fraudulent; (3) Olsen made the statement or
representation knowingly and willfully; (4) the statement or representation concerned
a matter within the jurisdiction of FEMA; and (5) the statement or representation was
material. United States v. Rice, 449 F.3d 887, 892 (8th Cir. 2006).
Olsen argues the government failed to present evidence he made a materially
false statement or representation to FEMA because he denies he ever knowingly made
the false statement that 2305 Virginia was his primary residence. Olsen argues
because he never explicitly listed 2305 Virginia as his primary residence, he cannot
be guilty of the crimes charged. After reviewing the evidence introduced at trial,
including substantial evidence Olsen held out 2305 Virginia as his primary residence,
we conclude the government met its burden.
While the government did not produce a specific statement from Olsen that
2305 Virginia was his primary residence, it presented copious evidence that Olsen
represented as much to FEMA. For example, after Olsen's May 26 application was
denied specifically because 2305 Virginia was not his primary residence, Olsen
amended his application to show he was moving into 2305 Virginia at the time of the
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tornado. To support his amended application, Olsen submitted a letter to FEMA
claiming he rented and had already moved into the residence. Olsen also fabricated
a lease as well as an email and letter from a non-existent property manager. These
false representations, meant to demonstrate Olsen had moved into 2305 Virginia
immediately before the tornado, were representations made to show Olsen was
eligible for relief in light of the fact that 2305 Virginia was his primary residence.
Finally, it was within the purview of the jury to find Olsen's contention he was the
victim of fraud not credible. See United States v. Drapeau, 414 F.3d 869, 877 (8th
Cir. 2005) ("The test for rejecting a jury's credibility determinations is extraordinarily
stringent.") (internal quotation marks and citation omitted).
The government has met its burden, and the jury has properly performed its
function. We find no error.
III
For the foregoing reasons, we affirm the judgment of the district court.
SHEPHERD, Circuit Judge, dissenting.
Because I believe there was insufficient evidence to support Olsen’s
conviction, I respectfully dissent. In each count of the indictment, the Government
charged Olsen with making a false statement or representation of a fact, specifically
that his “primary residence was 2305 Virginia Avenue, Joplin.” However, the
evidence at trial was that Olsen indicated on his FEMA application that his primary
residence was 410 South Wall. To the question, “Is [2305 Virginia] your primary
residence?” Olsen answered, “No (Secondary).” During a subsequent investigatory
interview, Olsen again told the investigator that 2305 Virginia was not his primary
residence, and in fact that he sustained no damage to his primary residence. Further,
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in submitting subsequent materials to FEMA, Olsen never used the words “primary
residence” or affirmed that 2305 Virginia was his primary residence.
No doubt, there was sufficient evidence for Olsen to be convicted of submitting
a false rental agreement or false information about his lost property, but there was
insufficient evidence for a jury to conclude that Olsen represented 2305 Virginia as
his primary residence. See United States v. Vesaas, 586 F.2d 101, 104 (8th Cir.
1978) (“‘It may well be that petitioner’s answers were not guileless but were shrewdly
calculated to evade. Nevertheless, . . . any special problems arising from the literally
true but unresponsive answer are to be remedied through the ‘questioner’s acuity’ and
not by a federal perjury prosecution.’” (alteration in original) (quoting Bronston v.
United States,
409 U.S. 352, 362 (1973))). In my view, the Government should be
held to the allegations as set forth in its indictment.
Accordingly, I would reverse Olsen’s conviction.
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