## Facts

- Lester A. Hawkey, the sheriff of Minnehaha County, South Dakota, helped arrange annual “benefit concerts” beginning in 1988 through an agreement with Wildwood Productions.
- The concerts were represented to the public as charitable events whose proceeds would aid local youth programs.
- Wildwood’s telemarketers solicited ticket sales, donations, and advertising purchases; invoices and payments were transmitted through the United States mail.
- The concert structure contemplated separate bank accounts for ticket proceeds and advertising proceeds associated with the sheriff’s department and a related deputies association.
- After the 1991 concert, Hawkey used concert-account funds for personal and business expenses while still making some charitable contributions.
- Hawkey later deposited some personal or business funds into the concert accounts to replace depleted balances.
- A federal grand jury returned a 41-count indictment charging mail fraud, unlawful monetary transactions, misapplication of local government property, false tax returns, false statements, and forfeiture.
- A jury convicted Hawkey on all but two counts; the district court imposed a 41-month prison sentence and entered forfeiture orders.

## Issues

1. Whether the evidence was sufficient to support convictions for mail fraud, unlawful monetary transactions, misapplication of local government property, false tax returns, and false statements.
2. Whether the district court erred in applying the Sentencing Guidelines, including a U.S.S.G. § 3B1.3 abuse-of-trust enhancement, rejecting a double-counting objection, and denying a U.S.S.G. § 3E1.1 acceptance-of-responsibility reduction.
3. Whether the forfeiture orders applied the correct forfeiture statute and correctly calculated the amount and property subject to forfeiture, given returned/commingled funds and valuation questions.

## Decision

- The court affirmed the convictions, holding the evidence sufficient under the standard requiring review in the light most favorable to the verdict and reversal only if no reasonable jury could find guilt beyond a reasonable doubt.
- The court affirmed the Sentencing Guidelines rulings, including the abuse-of-trust enhancement and denial of acceptance of responsibility.
- The court reversed and remanded the forfeiture orders, concluding the district court misapplied the governing forfeiture framework and miscalculated forfeitable amounts.

## Legal Principles

- Sufficiency review requires viewing evidence in the light most favorable to the verdict and drawing reasonable inferences supporting it; reversal is warranted only when no reasonable jury could find guilt beyond a reasonable doubt.
- A mail-fraud scheme may be proven where solicitations represent a charitable purpose but a substantial portion of the proceeds is diverted to personal use; delivery of some promised benefits and some charitable donations does not defeat fraudulent intent.
- U.S.S.G. § 3B1.3 applies when a public official with substantial discretion and limited oversight exploits that position to misappropriate entrusted funds.
- Applying multiple guideline adjustments is not impermissible double counting where each adjustment addresses a distinct aspect of the misconduct targeted by the Guidelines.
- Acceptance-of-responsibility determinations receive great deference; a defendant who contests factual guilt at trial ordinarily is not entitled to the reduction absent a clear post-conviction showing of acceptance.
- Criminal forfeiture must follow the statute tied to the offenses of conviction and must be calculated to reflect the defendant’s forfeitable interest traceable to criminal proceeds, including proper treatment of returned or commingled funds and partial ownership/value issues.

## Conclusion

The Eighth Circuit upheld Hawkey’s fraud-related convictions and sentencing determinations based on sufficient evidence of misrepresentations and diversion of charitable proceeds and on proper application of the Guidelines, but it set aside the forfeiture orders and sent the case back for recalculation under the correct statutory basis and tracing principles.


United States v. Hawkey, 148 F.3d 920 (8th Cir. 1998)