United States of America v. Wayne D. Lozier, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 24-1200
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United States of America
Plaintiff - Appellee
v.
Wayne D. Lozier, Jr.
Defendant - Appellant
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Professional Bail Agents Association of the United States; Turning Leaf Inc.
Amici on Behalf of Appellant
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Appeal from United States District Court
for the Eastern District of Missouri
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Submitted: September 26, 2024
Filed: December 5, 2024
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.

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Wayne Lozier, Jr., a licensed bounty hunter in Louisiana, went to Missouri
and detained a fugitive who failed to appear for her Louisiana court date. Based on
this act, a federal grand jury indicted him for kidnapping and conspiracy to kidnap.
At Lozier’s trial, the case hinged on whether he acted “unlawfully” in seizing,
detaining, and carrying away the fugitive, specifically whether Lozier’s detention of
the fugitive was justified or excusable despite his failure to comply with two
provisions of Missouri law regulating surety recovery agents. Lozier argues the jury
instructions deprived the jury of its ability to decide that crucial element. We agree.
As a result, we vacate Lozier’s convictions and remand for a new trial.
I. Background
In 2018, R.C. was charged with two offenses, taken to a Louisiana jail, and
later bonded out by her husband. When she failed to appear for her court date, her
bondsman hired Wayne Lozier, Jr., to apprehend her. Lozier held a valid Louisiana
license for fugitive or surety recovery. He learned R.C. was at a residence in
Missouri and traveled with a fellow surety recovery agent, Jody Sullivan, to seize
and transport her. Lozier went to the residence, entered the home, placed R.C. in
handcuffs, and forced her to enter his vehicle. They then began traveling south.
Meanwhile, the owner of the residence contacted law enforcement to alert
them that Lozier had seized R.C. from her home. A St. Peters, Missouri police
officer, Jeffrey Atkins, investigated the incident due to his concern Lozier had
entered the home without authorization. He contacted Lozier and learned he was
not licensed in Missouri and had failed to notify local law enforcement before
apprehending R.C. from a home in contravention of Missouri law. See Mo. Rev.
Stat. §§ 374.757(2), 374.783(1), 374.789(1). Officer Atkins informed Lozier of
these violations and directed him to stop somewhere in Arkansas to release R.C. to
authorities at a nearby police station. At the direction of the bondsman, Lozier did
not stop and eventually delivered R.C. to Hinds County Jail in Mississippi.

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A grand jury charged Lozier with two counts: conspiracy to kidnap and
kidnapping, in violation of 18 U.S.C. § 1201(a). He twice sought to dismiss the
indictment on the basis that his seizure of R.C. was not unlawful because he was
acting as an agent of a bail bondsman by detaining a fugitive who failed to appear.
The government argued Lozier acted unlawfully in seizing R.C. because he failed to
follow two provisions of Missouri law: (1) surety recovery agents must be licensed
by the state prior to capturing a fugitive, see Mo. Rev. Stat. §§ 374.783(1),
374.789(1); and (2) they must inform local law enforcement before attempting to
enter a residence, id. § 374.757(2). The district court denied the motions to dismiss
on the basis that Lozier raised factual challenges to the government’s ability to prove
its case.
At trial, Lozier conceded he lacked a Missouri license and presented no
evidence he had contacted local law enforcement before seizing R.C. He
nevertheless contended he had not committed a federal kidnapping or conspired to
commit one because: (1) R.C. had an active warrant for failing to appear in court;
(2) R.C.’s bondsman hired Lozier to apprehend her; and (3) Lozier’s act of
apprehending her was a standard fugitive apprehension with immaterial technical
missteps. Lozier also objected to a jury instruction (Instruction 16), which addressed
the Missouri surety recovery agent provisions on which the government rested its
claim that he acted unlawfully. He argued the instruction “violate[d his] right to due
process and his right to a fair trial” by “tak[ing] away the jury’s ability to look at the
facts and determine” whether he acted unlawfully. The trial judge overruled his
objection, and the jury found Lozier guilty on both counts. The district court
sentenced Lozier to a below-guidelines sentence of 120 months on both counts
running concurrently. On appeal, Lozier asserts Instruction 16 employed a
conclusive presumption as to the unlawfully element of the kidnapping offense and
seeks vacatur of his convictions and a new trial.

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II. Analysis
Typically, in light of the trial court’s “wide discretion in formulating
appropriate jury instructions[,]” we review its rulings for abuse of discretion. United
States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (quoting United States v. Cruz-
Zuniga, 571 F.3d 721, 725 (8th Cir. 2009)). But when a ruling on a jury instruction
“simultaneously denies a legal defense, the correct standard of review is de novo.”
See United States v. Bruguier, 735 F.3d 754, 757 (8th Cir. 2013) (en banc) (quoting
United States v. Young, 613 F.3d 735, 744 (8th Cir. 2010)). If the challenged
instruction created a conclusive presumption as Lozier contends, it deprived him of
his ability to defend against the charges by arguing that the government failed to
prove a necessary element of the offense. We therefore review whether Instruction
16 created a conclusive presumption de novo. See United States v. Warren, 25 F.3d
890, 897 (9th Cir. 1994).
The Fifth Amendment’s Due Process Clause requires the government to prove
all essential elements of a criminal offense beyond a reasonable doubt to obtain a
conviction. In re Winship, 397 U.S. 358, 364 (1970). Thus, a court cannot offer a
jury instruction that “‘reliev[es] the [government] of the burden of proof’ . . . by
creating a mandatory presumption” of a necessary element of the offense. Francis
v. Franklin, 471 U.S. 307, 313–14 (1985) (quoting Sandstrom v. Montana, 442 U.S.
510, 521 (1979)). Such instructions “conflict with the overriding presumption of
innocence” and invade the jury’s factfinding role. Sandstrom, 442 U.S. at 523
(quoting Morissette v. United States, 342 U.S. 246, 275 (1952)). For example, the
Supreme Court held an instruction directing the jury to presume “a person intends
the ordinary consequences of his voluntary acts” created an impermissible
conclusive presumption. See id. at 513, 523. This instruction allowed the
government to prove intent by proving only the voluntary act even though the
defendant could have voluntarily acted without the requisite intent. See id. at 523–
24. As a result, the jurors would not actually have had to find intent beyond a
reasonable doubt to conclude the element was proven because they were told to
presume it from the defendant’s action. With this instruction, the government

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needed to prove only certain predicate facts, not the element itself. See id. It
therefore violated the defendant’s due process protections because it took away the
jury’s ability to find each element. Id. at 523.
As relevant here, to commit the charged crime of federal kidnapping, a
defendant must have acted “unlawfully” in “seiz[ing]” or “carr[ying] away” another
person. 18 U.S.C. § 1201(a). In this appeal, both Lozier and the government agree
a person acts unlawfully for purposes of section 1201(a) only if he acts contrary to
law and without justification or excuse, so the government must prove both aspects
to obtain a kidnapping conviction. Lozier argues Instruction 16 impermissibly
removed the government’s obligation to prove he acted without justification or
excuse. We agree.
The jury instructions for kidnapping used at Lozier’s trial had two main
components: (1) the elements of the offense (Instruction 15); and (2) the surety
recovery agent provisions of Missouri law (Instruction 16). Instruction 15 followed
the Eighth Circuit pattern for kidnapping but added that “‘[u]nlawfully’ means
contrary to law and neither justifiable nor excusable.” See Eighth Circuit Manual of
Model Jury Instructions (Criminal) § 6.18.1201 (2023). Instruction 16 was crafted
by the district court and read:
Under Missouri law, a “surety recovery agent” is a person not
performing the duties of a sworn police officer who tracks down,
captures, and surrenders to the custody of a court a fugitive who has
violated a bail bond agreement.
(1) Did Defendant Lozier fail to inform local law enforcement that he
was planning to enter a Missouri residence as a surety recovery
agent?
Yes _________________________ No ________________________
(2) Did Defendant Lozier engage in fugitive recovery in Missouri
without holding a valid Missouri surety recovery agent license?

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Yes _________________________ No ________________________
If you have unanimously answered “Yes” to either question (1) or (2),
the Defendant has acted unlawfully.
Final Jury Instrs. at 25, No. 4:21-CR-365 (E.D. Mo. Sept. 28, 2023), ECF No. 199.
This instruction was used in lieu of the parties’ proposal, which quoted various
Missouri statutes governing the rights and obligations of surety recovery agents for
the jurors to consider in determining whether Lozier acted contrary to Missouri law.
See Refused Jury Instrs. at 1–4, No. 4:21-CR-365 (E.D. Mo. Sept. 28, 2023), ECF
No. 201.
Instruction 16 created a conclusive presumption as to whether Lozier acted
unlawfully. Although the parties agree that in order to convict the jury needed to
find both a violation of law and that Lozier’s conduct was not justified or excusable,
Instruction 16 stated the mere acts of violating Missouri law were sufficient to find
Lozier “acted unlawfully.” In other words, Instruction 16 directed the jurors,
regardless of any justification or excuse, to find the unlawfully element satisfied if
Lozier acted contrary to the identified Missouri provisions. The government itself
recognized this impact and argued as much in its closing:
If you look at Instruction No. 16, when you retire for your deliberations,
those are the two questions that you must answer to determine whether
or not the defendant acted unlawfully in this case.
The first deals with his failure to notify local law enforcement. The
second deals with the fact that he was never licensed as a surety
recovery agent by the Missouri Department of Commerce and
Insurance.
And if your answer is yes to either one of those interrogatories in
Instruction No. 16, then the government has proven beyond a
reasonable doubt that the defendant acted unlawfully.

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Trial Tr. vol. 3 at 33–34, No. 4:21-CR-365 (E.D. Mo. Oct. 24, 2023), ECF No. 205.
The government did not argue Lozier lacked a justification or excuse for his conduct,
presumably because Instruction 16 made it unnecessary. By eliminating the need to
prove a lack of justification or excuse, Instruction 16 relieved the government of its
burden to fully prove the unlawfully element. See Francis, 471 U.S. at 313.
We next look at the remaining jury instructions to see if they cured the defect
of Instruction 16 because we evaluate instructions “in the context of the entire
charge.” Jones v. United States, 527 U.S. 373, 391 (1999). As we do, we are guided
by the principle that “[l]anguage that merely contradicts and does not explain a
constitutionally infirm instruction will not suffice to absolve the infirmity” because
“[a] reviewing court has no way of knowing which of the two irreconcilable
instructions the jurors applied in reaching their verdict.” Francis, 471 U.S. at 322.
The most pertinent instruction is Instruction 15. This instruction told the jury that
in order to convict it must find Lozier’s seizure, detention, and carrying away of R.C.
were “contrary to the law and neither justifiable nor excusable.” But a reasonable
juror relying on Instruction 16 could have concluded any justification or excuse was
irrelevant if Lozier had committed those state law violations. Indeed, Instruction 16
was a clear command that Lozier had acted unlawfully if he acted contrary to those
Missouri surety laws and is irreconcilable with Instruction 15’s direction to consider
justification or excuse.
The government raises a variety of arguments in defense of the jury
instructions, none of which are availing. First, it asserts Instruction 16 did not create
a presumption based on another element of the offense and therefore does not present
a due process concern. But, as explained above, Instruction 16 had that exact effect.
It told the jury the existence of one portion of the “unlawfully” element (acting
contrary to law) resolved a separate one (acting without justification or excuse). In
any event, while conclusive presumption cases often involve presuming one
element’s existence from another, such as intent based on the performance of an act,
e.g., Sandstrom, 442 U.S. at 523, this is not required to find an impermissible
presumption. Instead, the instruction need only “direct the jury to presume an

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ultimate element of the offense based on proof of certain predicate facts.” Neder v.
United States, 527 U.S. 1, 10 (1999) (emphasis omitted). It did so here by instructing
that Lozier acted both contrary to Missouri law and without justification or excuse
(the ultimate element) because he engaged in fugitive recovery without a Missouri
license and failed to notify law enforcement before attempting the seizure (the
predicate facts). However, Lozier’s violations of Missouri law do not necessarily
foreclose finding that he acted with justification or excuse. By telling the jury it only
needed to find an action contrary to law to find he acted unlawfully, the instruction
impermissibly “preclude[d] the jury from making a finding on the actual element of
the offense.” See id.
The government next asserts Instruction 16 properly stated Missouri law,
which it claims does not permit a justification or excuse for these violations.
Whatever role state law plays in determining whether a defendant acted contrary to
law for purposes of federal kidnapping, the government bears the burden to prove
every element of the federal kidnapping charge it brought, which for purposes of this
case the government concedes includes a lack of justification or excuse. See In re
Winship, 397 U.S. at 364. Instruction 16 may accurately explain how Lozier could
have violated Missouri law, but that does not necessarily resolve whether he acted
unlawfully for purposes of 18 U.S.C. § 1201(a). As a result, the district court could
not properly offer a jury instruction that foreclosed the jury’s ability to consider the
existence of a justification or excuse even if it accurately described Missouri law.
Finally, the government asserts any error was harmless. Conclusive
presumptions and similar errors to instruct the jury on every element of an offense
are subject to harmless error review. Rose v. Clark, 478 U.S. 570, 581–82 (1986).
See also United States v. Evans, 272 F.3d 1069, 1081 (8th Cir. 2001). An error is
harmless “where it is clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty without the error.” United States v. Goodman, 88 F.4th
764, 768 (8th Cir. 2023) (quoting United States v. Strubberg, 929 F.3d 969, 977 (8th
Cir. 2019)). This requires asking “whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted element.” United

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States v. Carlson, 787 F.3d 939, 947 (8th Cir. 2015) (quoting Neder, 527 U.S. at 19).
Here, a rational jury could have found Lozier’s actions were justifiable or excusable
because he was authorized to seize R.C. as an agent of her bondsman.1 R.C. testified
she understood missing court resulted in a warrant for her arrest and failing to follow
the conditions of her bond could lead to arrest by her bondsman. The jury further
heard that Lozier was seizing her pursuant to the active warrant and the bond
agreement after being instructed to do so by her bondsman. From these facts, a jury
could potentially have concluded, for example, Lozier had the authority to seize,
detain, and carry away R.C. through his relationship to her bondsman and that she
had implicitly consented to him doing so as part of her bond, thereby justifying or
excusing his acts. But Instruction 16 suggested to Lozier’s jury it should disregard
this evidence, and the government emphasized this in its closing by telling the jury
once it found a state law violation, the unlawfully element of the federal offense was
conclusively proven. We cannot say beyond a reasonable doubt the jury would have
reached the same conclusion in the absence of the conclusive presumption. This
error was not harmless.
The conclusive presumption also infected the conspiracy count, requiring
vacatur of both convictions. The two counts were inextricably linked based on the
evidence, and the government does not dispute the counts rise and fall together. The
conspiracy count required the jury to conclude Lozier and Sullivan agreed to commit
1 Lozier argues, and the government does not dispute, that justification or
excuse in this context is fact-specific, making it distinguishable from the typical
four-element justification defense. Cf. United States v. Andrade-Rodriguez, 531
F.3d 721, 723 (8th Cir. 2008) (noting the four elements of a typical justification
defense). Neither party requested any instruction defining what the jury would need
to find to determine if there was a justification or excuse and none was provided to
the jury. Absent the conclusive presumption, the jury would have been tasked with
determining for itself whether these facts justified or excused Lozier’s acts. We do
not resolve the contours of what constitutes a sufficient justification or excuse under
18 U.S.C. § 1201(a), but, based on the parties’ agreement that justification or excuse
hinges on the facts of the individual case, we conclude a jury could have rationally
found the seizure was justifiable or excusable based on the evidence presented at
trial.

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a kidnapping. The government’s conspiracy case was essentially that Lozier and
Sullivan accomplished what they agreed to do. If Lozier committed a kidnapping,
he also conspired to commit one. In contrast, if Lozier’s seizure and carrying away
R.C. was justified or excusable, then he did not agree to commit a kidnapping. For
the same reasons that Instruction 16 took this consideration away from the
kidnapping count, a reasonable juror would have likely believed he must find Lozier
guilty of conspiracy if Lozier committed those Missouri law violations, regardless
of any justification or excuse.
III. Conclusion
Accordingly, we vacate Lozier’s convictions and remand for a new trial. The
motion to supplement the record on appeal is granted.
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