Submitted: December 12, 2014.
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Benjamin Bejar, Assistant U.S. Attorney, Thomas More Hollenhorst, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN.
For Elfred William Petruk, Defendant - Appellant: Mark D. Nyvold, Fridley, MN.
Elfred William Petruk, Defendant - Appellant, Pro se, Pine Knot, KY.
Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
BRIGHT, Circuit Judge.
In June 2012, Elfred Petruk stole Travis Behning's pickup truck. Separate charges were brought against Petruk in Minnesota state court (2012) and federal court (2013) related to the theft. While incarcerated on the theft charges, Petruk attempted to obtain false exculpatory statements. Petruk was convicted by jury of one count of carjacking (Count 1) in violation of 18 U.S.C. § 2119(1) and two counts of corruptly attempting to obstruct an official proceeding (Counts 2 & 3) in violation of 18 U.S.C. § 1512(c)(2). The district court sentenced Petruk to three concurrent terms of 168 months in prison--the bottom of the Guidelines range of 168-210 months. Petruk appeals, arguing that the evidence is insufficient to support his convictions. We AFFIRM Petruk's conviction for attempting to obstruct an official proceeding for actions he took to obtain false statements after his original federal indictment
had been filed (Count 3). We reverse and VACATE Petruk's carjacking conviction (Count 1) and his remaining obstruction conviction (Count 2) based on insufficiency of the evidence, and remand for resentencing.
A. Theft of the Truck
In the early morning hours of June 18, 2012, Tammy Behning (" Tammy" ) and her family were at their home in Saginaw, Minnesota, when they heard someone start the 1989 GMC pickup truck (the " truck" ) parked outside that belonged to Tammy's younger son, Travis Behning (" Behning" ). Behning left Tammy's home earlier that evening. After hearing the truck start, Tammy's older son, Dustin Behning, jumped in his vehicle and attempted without success to follow the truck as it sped off. Tammy called 9-1-1 and reported the theft. She also contacted Behning who lived in nearby Proctor, Minnesota, and informed him that his truck had been stolen.
Upon hearing the news, Behning began driving towards Tammy's home in his other vehicle. After driving for ten to fifteen minutes, Behning passed the truck traveling the opposite way on the highway. He turned his vehicle around, flashed his headlights, and began following. The driver of the truck, later discovered to be Petruk, eventually pulled over and exited from the driver side door. When Behning attempted to confront Petruk, Petruk ran back to the truck and drove off. Behning continued to follow.
A short time later, Petruk crossed over a small bridge and stopped the truck. Behning, still following, stopped approximately ten feet behind the truck. Petruk exited the truck and started " charging" toward Behning who remained in the driver's seat of his vehicle speaking with Tammy on the phone. When Petruk reached the window, he demanded that Behning get off the phone. Before Behning could roll up the window, Petruk swung a hammer towards Behning's head. Behning grabbed the hammer before it hit him and Petruk pulled Behning's arm down onto the window pane causing a bruise. Petruk regained control of the hammer. As Behning began to drive off, Petruk smashed the rear driver side window of Behning's vehicle with the hammer. Petruk briefly followed Behning in the truck before turning the opposite direction. Behning then attempted to follow Petruk but eventually lost sight of the truck.
Shortly thereafter, law enforcement located the truck abandoned in a nearby ditch. Behning subsequently identified Petruk from a photo line-up. A sample of Petruk's DNA matched DNA found on the steering wheel of the truck and a hammer found inside the truck.
Approximately six months later in December 2012, Petruk was incarcerated at the Saint Louis County Jail in Duluth, Minnesota, on state charges relating to the theft of the truck. No federal charges had yet been filed. While incarcerated, Petruk made various phone calls to his friend Sara Jean Peterson (" Peterson" ) in an attempt to secure false alibi witnesses. Specifically, on December 18, 2012, Petruk instructed Peterson to arrange for a woman named " Dawn" to sign a statement that she was with Petruk on the night the truck was stolen. On December 26, 2012, Petruk again discussed the need for alibi statements. Petruk stated that he would " [j]ust need 'em in court tomorrow, or on
Friday." During a subsequent conversation that day, Petruk berated Peterson for not providing the false ...