United States of America v. Nathan Charles Wood Koen

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2062
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Nathan Charles Wood Koen
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: February 17, 2023
Filed: April 4, 2023
____________
Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
____________
SMITH, Chief Judge.
Nathan Koen, a Drug Enforcement Administration (DEA) Special Agent,
pleaded guilty to accepting bribes. In calculating his offense level, the presentence
investigation report (PSR) applied a cross-reference in the Sentencing Guidelines for
bribery. The cross-reference applies “[i]f the offense was committed for the purpose
of facilitating the commission of another criminal offense.” U.S.S.G. § 2C1.1(c)(1).

-- 1 of 4 --

The PSR found that the bribes were accepted for the purpose of facilitating a
conspiracy to distribute between 15 and 45 kilograms of methamphetamine. Over
Koen’s objections, the district court1 agreed with the PSR and applied the cross-
reference in determining Koen’s offense level. Koen appeals, and we affirm.
I. Background
In 2013, Koen led an operation in Florida that resulted in the arrest of
Francisco Benitez for drug crimes. After his arrest, Benitez began working for Koen
as a confidential informant. When Koen was transferred to Little Rock, Benitez came
with him. Eventually, Benitez stopped working as a confidential informant. Koen
then came to him and asked him if he wanted to return to selling drugs. Benitez,
initially hesitant, declined. Koen returned and asked again. After asking around to
confirm the authenticity of the offer, Benitez accepted. Over the next two years,
Benitez made payments totaling approximately $31,000 to Koen. Benitez testified
that he paid Koen this money for information and protection from law enforcement.
Benitez testified that he would send Koen names and photos of potential
business partners. According to Benitez, Koen would then use his DEA access to tell
Benitez whether those people were under investigation. Koen testified that he never
gave Benitez accurate information about persons under investigation but instead
would just make up an answer. The DEA logs all searches made within its system;
Koen did not run the information Benitez provided through the DEA’s database.
However, as an active DEA agent in Little Rock, Koen did have general knowledge
of the DEA’s activities in the area.
Benitez also testified that, on a few occasions, Koen provided him advice to
lessen his drug-trafficking business’s visibility to law enforcement. Benitez testified
1The Honorable Brian Miller, United States District Judge for the Eastern
District of Arkansas.
-2-

-- 2 of 4 --

that after the U.S. Postal Service intercepted a package of drugs he had mailed, Koen
advised him on precautions that he should take to avoid getting caught—changing his
phone and address and using trucks instead of the mail to transport drugs.
Koen admitted accepting Benitez’s bribe money but claimed that he did so only
to pay off his personal debts and that he neither intended to facilitate Benitez’s illegal
business nor ever actually did. The district court found Koen’s testimony not credible;
specifically, it said that it would require the “suspen[sion of] all common sense to
believe that story,” R. Doc. 59, at 158:22–23, and that Koen’s story “just defies
logic,” id. at 177:19.
II. Discussion
We review the district court’s findings of fact for clear error but its application
of the Sentencing Guidelines de novo. United States v. Blanton, 281 F.3d 771, 775
(8th Cir. 2002). “[A]ssessing a witness’s credibility is a duty for the district court, and
its assessment is ‘virtually unreviewable on appeal.’” United States v. Smith, 576 F.3d
513, 516 (8th Cir. 2009) (quoting United States v. Ralph, 480 F.3d 888, 890 (8th Cir.
2007)).
Koen raises two arguments on appeal. First, he argues that the cross-reference
requires him to have acted with the specific intent to actually assist Benitez’s drug-
trafficking operation; second, he argues that he did not possess this intent. We
assume, without deciding, that Koen’s reading of the cross-reference is correct. The
district court nevertheless found that intent: “[W]hen you combine the testimony with
the payments and with the sneaking and with the common sense of why, why did they
give you $31,000, it indicates that Mr. Koen was providing protection—and he knew
he was—[for] this drug operation.” R. Doc. 59, at 178:11–15 (emphasis added). The
district court drew this conclusion following a credibility determination.
-3-

-- 3 of 4 --

Despite its stated low regard for Benitez’s credibility, the district court credited
his testimony over Koen’s. That determination is “virtually unreviewable on appeal.”
Smith, 576 F.3d at 516 (quoting Ralph, 480 F.3d at 890). Benitez’s testimony
recounted acts Koen undertook that assisted in Benitez’s drug-trafficking business.
Benitez testified that in response to the Postal Service’s interception of one of his
drug packages, Koen advised him to use trucks instead of the mail to transport drugs
as well as change both his phone and his address. This occurrence evinced Koen’s
intent to be paid in return for helping Benitez avoid detection by law enforcement.
Benitez presumably wanted to avoid detection for much the same reasons as all drug
traffickers: the better quality of life found outside prison and the continued ability to
run his illegal business. Koen helped him remain free; by doing so, he assisted
Benitez’s drug-trafficking business. For doing so, he received $31,000. Koen’s story
“just defies logic,” and the district court appropriately chose to disregard it. R. Doc.
59, at 177:19.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-4-

-- 4 of 4 --