United States of America v. Garland Joseph Nelson

United States Court of Appeals
For the Eighth Circuit
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No. 23-2177
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United States of America
Plaintiff - Appellee
v.
Garland Joseph Nelson
Defendant - Appellant
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No. 23-2207
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United States of America
Plaintiff - Appellee
v.
Garland Joseph Nelson
Defendant - Appellant
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Appeals from United States District Court
for the Western District of Missouri
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Submitted: January 12, 2024
Filed: July 1, 2024
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Before LOKEN, KELLY, and STRAS, Circuit Judges.
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KELLY, Circuit Judge.
Garland Joseph Nelson pleaded guilty to one count of mail fraud and one
count of felon in possession of a firearm. See 18 U.S.C. §§ 1341, 922(g)(1),
924(a)(2). The district court1 sentenced him to 360 months of imprisonment and 36
months of supervised release, and ordered him to pay $260,925.07 in restitution.
Nelson appeals the restitution order. We affirm.
I.
Between November 2018 and July 2019, Nelson operated a cattle fraud
scheme in Missouri. Under the auspices of his mother’s company, J4s Farm
Enterprises, Inc., Nelson received cattle that belonged to Diemel’s Livestock, LLC
(Diemel’s Livestock), a company that was owned and operated by brothers, Justin
and Nicholas Diemel. Nelson agreed to feed and pasture the cattle in Missouri, and
sell them after they had grown and become more valuable. But he failed to feed or
care for the cattle properly, and many of the cattle died. Rather than disclose the loss
to Diemel’s Livestock, Nelson continued to accept more cattle—selling them as if
they were the original cattle and continuing with the fraud. All told, of approximately
534 heads of cattle that Nelson received from Diemel’s Livestock, 217—or 40%—
died before they could be sold.
To lull Justin and Nicholas Diemel into believing that he would provide
payment and to fend off their inquiries or complaints, on June 24, 2019, Nelson sent
Diemel’s Livestock a check for $215,936.50. However, the check came from an
account that had a balance of only twenty-one cents, and Nelson damaged the check
before sending, in an attempt to make it unusable. After receiving the check, the
1 The Honorable Beth Phillips, Chief Judge, United States District Court for
the Western District of Missouri.

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Diemel brothers traveled to Missouri on July 20, 2019. Nelson took them to several
farms that day, and indicated that the cattle on those farms were theirs, but they could
tell that was not true. The following morning, when Justin and Nicholas Diemel went
to Nelson’s mother’s farm to receive the payment he still owed, Nelson killed them.
During the same time period as his fraud against the Diemel brothers, Nelson
engaged in similar conduct involving farmer David Foster in Kansas, and farm
owner John Gingerich in Missouri. Under that scheme, Nelson and Foster partnered
in a joint venture to buy, raise, and sell newborn calves. While Foster provided
Nelson with funding to buy the calves—including from Diemel’s Livestock—
Nelson was supposed to cover the costs of raising them, with the supposed aim of
splitting the proceeds after the calves were sold. Gingerich, in turn, agreed to feed
and doctor the calves with supplies provided by Nelson. Nelson, however, gave
Foster inflated purchase prices and did not provide Gingerich with the necessary
supplies to adequately feed or care for the calves. In an effort to save the calves,
Foster and Gingerich used their own funds to care for them. But, in the end, as with
the cattle from Diemel’s Livestock, many died before they were sold. Of the 131
calves they purchased, only 35—or 27%—survived.
Nelson was subject to criminal and civil liability in Missouri for the killings
of Justin and Nicholas Diemel. After pleading guilty to two counts of first-degree
murder, he was sentenced to two consecutive terms of life without parole. In
addition, Diemel’s Livestock and members of the Diemel family brought a wrongful
death action against Nelson, his mother, and J4s Farm Enterprises, Inc., which
resulted in a two-million-dollar settlement agreement. That agreement provided
surviving family members with “damages on account of personal injuries and
sickness,” and disposed of any other obligations or damages arising from the
“personal injuries and/or death of Justin Diemel and Nicholas Diemel, deceased, and
any other claims brought or that could have been brought . . . as a result of the
incident on or about July 21, 2019.” The agreement expressly allocated “Zero and
00/100 Dollars ($0) payable to Diemel’s Livestock, LLC.”

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Nelson was also subject to federal criminal liability, and shortly after pleading
guilty to state charges, he pleaded guilty to federal charges of mail fraud and felon
in possession of a firearm.2 At sentencing, the district court adopted the Presentence
Investigation Report (PSR) “in its entirety,” which included a determination as to
restitution.
The PSR provided that “[p]ursuant to 18 U.S.C. § 3663A, restitution in the
total amount of $260,925.07 shall be ordered in this case.” In that same paragraph,
the PSR indicated that “[r]estitution is due and owing” in the amounts of
$215,936.50 to Diemel’s Livestock; $32,625 to David Foster; and $12,363.57 to
John Gingerich. Nelson submitted a written objection to that paragraph, stating:
Mr. Nelson objects to any order as to restitution. Diemel Livestock had
a civil suit against Mr. Nelson prior to this plea. Mr. Nelson believes
that this money was collected through that suit. He denies owing money
to David Foster, and Mr. Foster is not a victim in this case.
Moreover, Mr. Nelson will be serving a life sentence, without the
possibility of parole, in his state murder case. It would be impossible
for more than a minor portion of this money to ever be collected.
The district court considered Nelson’s two-part objection at sentencing.
With respect to Foster and Gingerich,3 Nelson argued that any restitution
would be “speculative,” as the losses concern “a large cattle operation that involves
2 Nelson was on supervised release for a prior conviction when these offenses
occurred. That prior case was consolidated with the instant case before the district
court. After Nelson admitted to violating conditions of his supervised release, the
district court revoked his supervision and imposed a sentence of 24 months of
imprisonment, to be served consecutively to the term of 360 months imposed in the
instant case. On appeal, Nelson does not challenge the revocation or the sentence
imposed in the prior case.
3 At sentencing, the district court allowed Nelson to lodge the same objection
and arguments that he raised against Foster to include Gingerich’s losses as well.

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a ton of people,” and prices that change daily. But Nelson “did not object to the
facts” that were the basis for calculating the restitution amounts, and agreed with the
district court that he failed “to put the government on proper notice of that particular
issue.” Nelson also agreed with the district court that his objection “should have been
more specific in talking about the speculative nature” of the loss. Nevertheless, he
proposed having a separate restitution hearing if needed. The government argued
that both Foster and Gingerich had provided documentation of their personal, out-
of-pocket financial losses during the investigation, and took care to distinguish their
losses from any expected profit. The district court overruled Nelson’s objection after
finding the paragraphs in the PSR that detailed the loss amounts to be “pretty straight
forward and clearcut,” such that no “complicated calculation” or additional
information was required.
The district court next considered Nelson’s argument that restitution to
Diemel’s Livestock constituted an impermissible double recovery. It overruled that
objection because Diemel’s Livestock had not received any funds under the
settlement agreement, and furthermore the settlement concerned the Diemel
brothers’ wrongful death, whereas the criminal restitution order compensated losses
from the fraud that is the basis of this case.
II.
On appeal, Nelson challenges the district court’s restitution order. First,
Nelson argues that the district court erred by not requiring the government to prove
loss amounts by a preponderance of the evidence. Second, he argues the district court
erred in concluding that a restitution award to Diemel’s Livestock would not result
in double recovery.
A.
We first address the issue of loss to Foster and Gingerich. “We review the
district court’s fraud loss calculation for clear error, and ‘as long as the determination
is plausible in light of the record as a whole, clear error does not exist.’” United

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States v. Aden, 830 F.3d 812, 815–16 (8th Cir. 2016) (quoting United States v.
Farrington, 499 F.3d 854, 859 (8th Cir. 2007)).
Pursuant to the Mandatory Victim Restitution Act (MVRA), a district court
must order restitution when “an identifiable victim or victims has suffered a physical
injury or pecuniary loss,” and that loss actually resulted from “the commission of an
offense.” United States v. Hansmeier, 988 F.3d 428, 440 (8th Cir. 2021) (quoting 18
U.S.C. § 3663A(a), (c)). Generally, it is the government’s burden to prove the
restitution amount by a preponderance of the evidence. United States v. Frazier, 651
F.3d 899, 903 (8th Cir. 2011). However, “[u]nless a defendant objects to a specific
factual allegation contained in the PSR, the court may accept that fact as true for
sentencing purposes.” United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir.
2008) (quoting United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999)); United
States v. Rodriguez, 711 F.3d 928, 940 (8th Cir. 2013) (“Vague and blanket
objections lacking specific clarity are not sufficient.” (citation omitted)). Cf. United
States v. Searing, 250 F.3d 665, 667 (8th Cir. 2001) (concluding that because the
defendant had objected to specific facts in the PSR, the district court erred by
ordering restitution without first requiring supporting evidence).
Nelson argues the district court should have required the government to
present evidence to prove Foster and Gingerich’s losses, and asserts that by objecting
to the paragraph in the PSR that recommended restitution, he put specific factual
allegations in dispute. But as Nelson acknowledged at sentencing, he failed to object
to the factual allegations regarding the loss amounts outlined in the PSR. Instead, he
objected to “any order as to restitution,” and asserted that Foster and Gingerich were
not “victim[s] in this case.” This “summary objection” lacked the “specificity and
clarity” necessary to preclude the district court from relying on the factual
allegations in the PSR. See Razo-Guerra, 534 F.3d at 976. The district court did not
clearly err when it accepted the unobjected-to loss amounts alleged in the PSR. See
id.; Moser, 168 F.3d at 1132.

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B.
Next, we consider Nelson’s argument that since the shareholders of Diemel’s
Livestock already recovered under the civil settlement agreement, the restitution
would result in double recovery. “We review restitution awards for abuse of
discretion and any factual findings about the amount to be paid for clear error.”
United States v. Kempter, 29 F.4th 960, 969 (8th Cir. 2022).
Under the MVRA, individuals who are convicted of mail fraud must pay
restitution to identifiable victims. Hansmeier, 988 F.3d at 440; see United States v.
Benedict, 855 F.3d 880, 886 (8th Cir. 2017) (recognizing that, in general,
corporations may be victims under the MVRA). Although the MVRA aims “to make
victims whole and compensate them for their losses, the MVRA does not allow
victims to obtain double recovery or a windfall through restitution.” United States v.
Louper-Morris, 672 F.3d 539, 566 (8th Cir. 2012) (citations omitted). Consequently,
the MVRA provides that “[a]ny amount paid to a victim under an order of restitution
shall be reduced by any amount later recovered as compensatory damages for the
same loss by the victim in . . . any Federal civil proceeding.” Id. (citing 18 U.S.C.
§ 3664(j)(2)(A)). To prevent double recovery, a district court may be required to
offset the restitution amount after a defendant presents evidence that a victim has
already received compensation. See United States v. Ruff, 420 F.3d 772, 776 (8th
Cir. 2005) (remanding for the district court to consider whether a defendant’s
criminal restitution order to pay law enforcement must be offset by any amount law
enforcement already received through forfeiture proceedings).
Nelson argues that because shareholders of Diemel’s Livestock were already
paid through the civil settlement agreement, the district court’s restitution order of
$215,936.50 amounted to an impermissible double recovery. But the settlement
agreement expressly stated that Diemel’s Livestock would not recover damages
under the settlement, and Nelson did not present evidence that Diemel’s Livestock
received any other compensation in connection with the fraud alleged in this case.
Thus, we find no clear error in the district court’s finding that Diemel’s Livestock

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had received “no funds” under the settlement agreement.4 See Louper-Morris, 672
F.3d at 566 (finding no double recovery and affirming criminal restitution order
when defendant conceded that victim had not yet received any payments pursuant to
a civil judgment). We also disagree with Nelson’s contention that the district court
relied too much on the fact that Diemel’s Livestock did not recover damages from
the settlement agreement, which the court described as “primarily” a wrongful death
settlement. Given its factual findings, the district court did not abuse its discretion
when it awarded restitution to Diemel’s Livestock. See United States v. Chalupnik,
514 F.3d 748, 752 (8th Cir. 2008) (reviewing district court’s decision to award
restitution for abuse of discretion).
III.
We affirm the district court’s restitution order.
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4 This decision does not preclude Nelson from seeking a future modification
of the restitution order based on evidence of double recovery or—as raised for the
first time on appeal—the dissolution of Diemel’s Livestock. See United States v.
Evans, 48 F.4th 888, 894 (8th Cir. 2022) (“[A]t the time of any enforcement of the
restitution order, [the defendant] is free to present evidence to preclude recovery by
way of restitution in the criminal case for the same conduct already
compensated.” (first alteration in original) (quoting United States v. Manzer, 69 F.3d
222, 230–31 (8th Cir. 1995))); United States v. Redlin, 983 F.2d 893, 896 (8th Cir.
1993) (“We will allow sentences to be attacked on grounds raised for the first time
on appeal in only the most exceptional cases.”).

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