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Date: 10-01-2021

Case Style:

United States of America v. Josh Isler

Case Number: 19-1891

Judge: Bobby E. Shepherd

Court: United States Court of Appeals For the Eighth Circuit

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

St. Louis, MO. - Criminal defense Lawyer Directory


St. Louis, MO - Criminal defense lawyer represented defendant with one count of theft of trade secrets and one count of making a false statement to the Federal Bureau of Investigation (FBI) charges.

In February 2013, Isler was hired as a Technical Service Account Manager at
DuPont Industrial Biosciences, a division of DuPont, Inc. that operated in the biofuels industry. The terms of Isler’s employment included a confidentiality
agreement whereby Isler agreed not to share trade secrets or proprietary company
information with competitors. By July 2013, Isler began discussions with a smaller
company about leaving DuPont for a potential employment opportunity. The
smaller company was a direct competitor of DuPont’s. On August 8, 2013, Isler
accepted a formal offer of employment from the competitor, with a start date of
August 26, 2013. On that same day, the competitor’s Chief Operating Officer
(COO) inquired via text message as to whether, while at DuPont, Isler had been
servicing two specific ethanol plants that the competitor also worked with, telling
Isler that he would be overseeing those two plants, as well as a third, when he began
employment with the competitor. Isler and the COO exchanged numerous text
messages, including one in which Isler stated, “Let me see what I can before I can’t.”
The following day, August 9, 2013, Isler submitted his resignation to DuPont and
advised them that his last day with the company would be August 23, 2013.
Computer records later revealed that, between August 11 and August 19,
2013, Isler transferred hundreds of internal electronic files belonging to DuPont to
an external media device folder, with some of the files ultimately recovered on the
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
computer the competitor provided to Isler when he began employment. During this
same time frame, Isler also exchanged email messages with another employee of the
competitor, in which Isler offered to send the employee “visitor logs that may be of
use to you,” while noting that if the employee were “not comfortable viewing these,
[Isler would] understand.” After the employee responded that he was with the COO
and that he was comfortable with Isler providing the information, Isler transmitted
at least eight documents that contained trade secrets and proprietary information
belonging to DuPont. This information included details regarding the ethanol plants
Isler would be overseeing when he began his new employment and information
regarding other DuPont customers. Isler and the COO then exchanged emails over
a several-day period, discussing both the information about the plants and the
customer information. When Isler notified the COO that he was going to turn his
phone back over to DuPont, the COO reminded Isler to “erase all texts with me
before giving the phone back.”
On August 23, 2013, Isler’s final day with DuPont, he participated in an exit
interview, during which he was reminded of the confidentiality agreement he signed
when beginning employment with DuPont. Isler acknowledged the confidentiality
agreement, which included a requirement to protect DuPont’s intellectual property
even after the end of his employment, and affirmed that he understood its contents.
On August 26, 2013, Isler began employment with the competitor and immediately
assumed a role of providing information and advice regarding DuPont’s proprietary
information and customers, including participating in a meeting with one of the
ethanol plants that was also a client of DuPont’s.
On the morning of November 8, 2013, the FBI executed a search warrant at
Isler’s residence. When FBI agents executing the search warrant questioned Isler
regarding any files or documents he had downloaded or copied that contained trade
secrets or proprietary information belonging to DuPont, Isler initially denied
downloading any files belonging to DuPont, asserting that he had downloaded only
personal information and nothing belonging to DuPont. Upon continued
questioning, Isler stated he had downloaded only “a handful” of files but was certain
he had not downloaded anything else. After being confronted with evidence
showing that he had downloaded hundreds of DuPont’s files, Isler stated that he had
done so to assist him in his new position with the competitor. Before searching the
rest of the residence, FBI agents asked Isler if he had any firearms on the property.
Isler stated that he did not, but when agents later recovered a firearm from an
outbuilding on the property, Isler admitted to knowing there was a firearm where
agents had recovered it.
After the FBI searched Isler’s residence, Isler sent two emails to the
competitor’s COO and another company employee. These emails provided a false
explanation for the presence of DuPont files on Isler’s computer, including that he
had downloaded the files to help him while DuPont computers were down and that
it was common practice, and even encouraged by DuPont, to download files onto
personal computers. Isler also sent the same false explanation to his father via email.
On November 14, 2013, the COO notified Isler that, at the direction of the
competitor’s company attorneys, Isler was being placed on temporary administrative
leave based on the investigation. Isler was reinstated by the competitor in 2014 but
was terminated in 2018 based on his involvement in this case.
On June 28, 2018, Isler was charged by information with one count of theft of
trade secrets and one count of making false material statements to the FBI. He then
entered a guilty plea to both counts pursuant to a plea agreement. As part of the plea
agreement, the parties stipulated to a loss amount of at least $5,000, but both parties
acknowledged that the final loss determination would be made by the district court.
The United States Probation Office prepared a Presentence Investigation Report
(PSR), which determined that the appropriate United States Sentencing Guidelines
range was 0 to 6 months imprisonment. The PSR specifically stated that neither the
Probation Office nor DuPont had been able to reasonably estimate an actual or
intended loss as a result of Isler’s theft of trade secrets and that a significant upward
departure may be warranted based on DuPont’s loss.
Sentencing proceeded in two parts. At the first sentencing hearing, the district
court heard testimony regarding three proposed methods of calculating DuPont’s
loss. The government first presented evidence that the loss could be calculated by
considering the lost sales revenue to DuPont, which it calculated as more than
$18,000,000. It then presented evidence that the loss could be calculated by
considering research and development costs in the amount of “thousands, if not
millions, of dollars.” The government finally argued the district court could
calculate the loss by considering Isler’s gain, which it calculated as over $550,000
when it totaled the total salary Isler earned over five years of employment with the
competitor. The district court then recessed to consider the parties’ arguments. At
the second sentencing hearing, before imposing its sentence, the district court noted
that the case was unusual in that Isler admitted his theft of trade secrets had a
financial impact on DuPont; however, “calculating the loss to the victim for purposes
of computing an advisory guideline range with any degree of accuracy is just not
possible.” R. Doc. 53, at 1. The district court thus rejected each of the government’s
proposed measures of loss. Because “the seriousness of the crime [was] not captured
in the advisory guideline calculation,” the district court varied upwards and imposed
a sentence of 42 months on each count, with the sentences to run concurrently, and
a three-year period of supervised release as well as a $5,000 fine. R. Doc. 53, at 1.
Isler filed this appeal, arguing that the district court’s sentence was both procedurally
flawed and substantively unreasonable.
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we ‘apply a deferential abuse-of-discretion standard.’” United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (citation omitted).
“We review a district court’s sentence in two steps, first reviewing for significant
procedural error, and second, if there is no significant procedural error, we review
for substantive reasonableness.” United States v. Ayres, 929 F.3d 581, 582-83 (8th
Cir. 2019).
Isler asserts that the district court committed procedural error by: (1) failing
to address his arguments against an above-Guidelines-range sentence; (2) failing to
adequately explain the deviation from the Guidelines range; (3) misapplying the
Guidelines to increase his sentence based on an unproven loss and false statements
to the FBI; and (4) relying on clearly erroneous factual findings to fashion his
sentence. Isler also asserts that the district court imposed a substantively
unreasonable sentence.
“Procedural errors include ‘failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.’” United States v. Godfrey, 863 F.3d 1088, 1094-95 (8th
Cir. 2017) (citation omitted). Although we generally review the sentence under the
abuse-of-discretion standard, “[w]here, as here, the defendant fails to object timely
to a procedural sentencing error, the error is forfeited and may only be reviewed for
plain error.” United States v. Thigpen, 848 F.3d 841, 847 (8th Cir. 2017).2
plain error review, the defendant must show: (1) an error; (2) that is plain; and
(3) that affects substantial rights.” Id. (citation omitted).
Isler asserts that plain error review does not apply to his arguments, relying
on United States v. Wiley, 509 F.3d 474 (8th Cir. 2007), where we held that a
defendant does not forfeit a claim of unreasonableness by failing to object after a
sentence has been imposed and “where the defendant first learns of the district
court’s intention to vary upward . . . when the court pronounces the final sentence.”
Id. at 476. But this rule applies only to claims regarding substantive
unreasonableness; “[p]rocedural sentencing errors are forfeited, and therefore may
be reviewed only for plain error, if the defendant fails to object in the district court.”
United States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008). Because Isler did not
object at sentencing to any of the grounds he now asserts constitute procedural error,
we apply a plain error standard of review.
Isler’s first argument, that the district court failed to address Isler’s arguments
against an above-Guidelines-range sentence, is simply unsupported by the record.
During the sentencing hearing, Isler argued that, because the loss could not be
adequately calculated, the government failed to meet its burden of proof, and he
should not be held responsible for any greater loss than the agreed-to minimal sum
contained in the PSR. In response to this argument, the district court provided the
following explanation:

Well, gain or loss is not the only way to determine if a crime is
serious. It’s certainly easy, and many of the white-collar guidelines use
that. But I don’t see this case as being weakened by the government
asking for a departure or a variance. Departures are commonly used
where there is an unusual case, a case that falls outside the heartland
and just doesn’t fit neatly into this little model that the Sentencing
Commission has put together. Same way with the variance. I don’t see
it as a weakness. I think it is an acknowledgement that this is an unusual
case. And so the Court is encouraged to look at all the 3553(a) factors,
including any guideline computation, and try to get to a disposition
where the sentence is sufficient but not greater than necessary to
achieve the goals of sentencing.
R. Doc. 45, at 80-81. And in the second part of the sentencing hearing, the district
court explicitly stated, “[A]lthough I considered each and every argument made, I
may not address each and every point of those in arriving at my decision[.]” R. Doc.
53, at 1. We are satisfied this record demonstrates that the district court considered
and addressed Isler’s argument regarding the government’s purported inability to
meet its burden of proof on the loss amount. See United States v. Keating, 579 F.3d
891, 893 (8th Cir. 2009) (“[W]here the district court heard argument from counsel
about specific § 3553(a) factors, we may presume that the court considered those
factors.”); see also United States v. Overbey, 696 F.3d 702, 705 (8th Cir. 2012) (“In
explaining the sentence the district court need only ‘set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.’” (alterations in
original) (citation omitted)). We thus conclude the district court committed no error,
much less one that was plain, in considering Isler’s arguments.
Isler’s second contention, that the district court failed to adequately explain
its deviation from the Guidelines range, is similarly without merit. It is clear the
district court: (1) concluded that the loss and intended loss were large; (2) did not
believe any of the loss-calculation methods presented by the government adequately
measured the loss; and (3) determined that, where the evidence demonstrated the
loss was significant but incapable of ascertainment with sufficient certainty, the
Guidelines range underrepresented the severity of the offense. In addition, the
district court stated:
As the parties would acknowledge, this is an unusual case. I find
the seriousness of the crime is not captured in the advisory guideline
calculation. And as we discussed in the first session of this sentencing,
although the defendant admits that his crime had a financial impact on
the victim corporation, both the parties and the Court have concluded
that calculating the loss to the victim for purposes of computing an
advisory guideline range with any degree of accuracy is just not
R. Doc. 53, at 1. The district court also noted that Isler’s criminal history showed a
lack of respect for the law, that his colloquy at sentencing suggested a minimization
of his criminal conduct, and that the record here, unlike other theft-of-trade-secrets
cases, demonstrated that Isler had a comprehensive understanding of his duty of
confidentiality to DuPont. The district court clearly explained the basis for the
upward variance, so we find no procedural error in this regard. See United States v.
Washington, 515 F.3d 861, 866-67 (8th Cir. 2008) (finding no procedural error in
district court’s explanation of sentence where district court acknowledged
Guidelines range accounted for conduct to an extent but did not adequately reflect
the seriousness of the conduct). We thus conclude the district court committed no
error, much less one that was plain, in explaining its reasoning for varying upwards.
Isler next asserts that the district court misapplied the Guidelines by increasing
his sentence based on an incalculable loss and his false statements to the FBI. This
argument merely voices Isler’s disagreement with the district court’s decision to
vary upward based on the inability to properly ascertain DuPont’s losses. Indeed,
Isler raised no objection to the calculated 0-6 month Guidelines range and offers no
argument suggesting that the district court arrived at an erroneous calculation of his
Guidelines range. And, to the extent that Isler’s argument is premised on a challenge
to the district court’s decision to vary upwards based on the 18 U.S.C. § 3553(a)
factors, “[w]e will not sustain a procedural challenge to the district court’s discussion
of the 18 U.S.C. § 3553(a) sentencing factors by a defendant [like Isler] who did not
object to the adequacy of the court’s explanation at sentencing.” United States v.
Williamson, 782 F.3d 397, 399 (8th Cir. 2015) (first alteration in original) (citation
omitted). The district court thus committed no error in its application of the
Guidelines to formulate Isler’s sentencing range.
Finally, Isler asserts that the district court relied on clearly erroneous facts as
a basis to increase his sentence, specifically asserting the district court erroneously
found (1) that Isler agreed his case was “unusual”; (2) that DuPont lost customers as
a result of Isler’s conduct; and (3) that Isler “repeatedly lied” to the FBI and was
similarly untruthful with his father. Isler’s contentions fail to satisfy the stringent
standard of plain error review because the district court’s factual findings are amply
supported by the record. And, even assuming the district court did rely on clearly
erroneous facts, there is simply no evidence to demonstrate that these facts
constituted a plain error affecting Isler’s substantial rights. “To demonstrate an
effect on substantial rights, [the defendant] must show a reasonable probability that
but for the error, he would have received a more favorable sentence.” United States
v. Cottrell, 853 F.3d 459, 463 (8th Cir. 2017) (citation omitted).
First, as to Isler’s argument that the district court erroneously stated he agreed
it was an “unusual” case, when viewing the record, it is apparent that the district
court was merely characterizing Isler’s counsel’s argument that the case was “an
interesting case” with “many curves and nuances,” rather than relying on this as an
admission to warrant an upward variance. And, even if the district court had not
stated Isler agreed the case was unusual, the record offers no suggestion that this
difference alone would have resulted in a different sentence. Next, as to Isler’s
argument regarding the purportedly erroneous statements that DuPont lost
customers, Isler repeatedly lied to the FBI, and was untruthful to his father, the
record, which includes Isler’s stipulation that DuPont suffered a loss from his
conduct, his admission that he lied to the FBI, and the false explanation he provided
his father as to why he had DuPont files on his personal computer, provide a
sufficient basis for the district court’s factual determinations. And, again, these
factual determinations were immaterial to the district court’s ultimate decision,
especially where the district court repeatedly stated that its primary concern was the
Guidelines range did not account for the severity of the crime of theft of trade secrets
when the precise measure of the large loss to DuPont was incapable of
ascertainment. Because the factual determinations were not integral to the district
court’s decision to vary upwards, Isler has failed to show that they impacted his
ultimate sentence. Thus, for each of these alleged errors, Isler cannot show that “but
for the error, he would have received a more favorable sentence.” Id. (citation
omitted). The district court committed no error in its factual findings as it related to
its decision to vary upwards in imposing Isler’s sentence. The district court thus
committed no procedural error in fashioning Isler’s sentence.
We next consider Isler’s claim that the district court imposed a substantively
unreasonable sentence. Isler asserts that the district court gave significant weight to
improper and irrelevant factors, including Isler’s history of multiple traffic violations
and his over-two-decades-old drug conviction; gave little to no weight to mitigating
factors, including Isler’s previous rehabilitation from a drug-abuse condition; and
committed a clear error in judgment by increasing Isler’s sentence where the loss
could not be properly calculated. As stated above, the deferential abuse-ofdiscretion standard applies to Isler’s claim of substantive unreasonableness. A
district court abuses its discretion when it “(1) ‘fails to consider a relevant factor that
should have received significant weight’; (2) ‘gives significant weight to an
improper or irrelevant factor’; or (3) ‘considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.’” Feemster, 572 F.3d at
461 (citation omitted). However, “it will be the unusual case when we reverse a
district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable.” Id. at 464 (citation omitted).
Isler first challenges the district court’s consideration of his past conduct,
including a history of multiple traffic infractions and a drug conviction which was
over two decades old. Isler asserts that because these offenses are instances of minor
criminal conduct unrelated to his present offenses of conviction, the district court
improperly relied upon them in imposing an upward variance. Although minor
traffic offenses “standing alone are not particularly serious, and bear no similarity to
the instant charges,” they may still indicate to the district court “that leniency has
not been effective.” United States v. Herr, 202 F.3d 1014, 1017 (8th Cir. 2000)
(citation omitted). “Even minor crimes may show a likelihood of recidivism if they
portray a defendant who is particularly incorrigible.” United States v. Taylor, 864
F.3d 851, 852 (8th Cir. 2017) (per curiam). Here, the district court considered Isler’s
record of traffic infractions as evidence of a history of non-compliance with the law.
Indeed, the district court stated as much, remarking that it was “not very impressed
with being convicted of speeding 12 times, and those are not old convictions. When
somebody keeps doing this, it appears to me they have no respect for the law.” R.
Doc. 45, at 81. Similarly, the district court was permitted to consider evidence of
Isler’s past drug conviction. Although the drug conviction was nearly two decades
old, it was particularly relevant to the issue of Isler’s lack of respect for the law
where Isler failed to report for a drug test as required while on pre-trial release. The
district court thus did not err in considering Isler’s traffic infractions and past drug
conviction in fashioning his sentence.
Isler next asserts the district court abused its discretion by giving inadequate
weight to mitigating factors, specifically his voluntary participation and success in a
drug rehabilitation program. But a district court has “wide latitude” to assign weight
to sentencing factors, and “[t]he district court may give some factors less weight than
a defendant prefers or more weight to the other factors, but that alone does not justify
reversal.” United States v. Moua, 895 F.3d 556, 560 (8th Cir. 2018) (per curiam)
(citation omitted). The district court did not err by utilizing its wide latitude in
assigning weight to specific sentencing factors.
Isler finally argues that the district court abused its discretion by varying
upwards in imposing its sentence. Specifically, Isler argues that the district court set
a dangerous precedent by erroneously varying upwards based on the government’s
inability to prove DuPont’s loss and that this error amounted to a clear error of
judgment in considering the § 3553(a)(6) factor of the need to avoid unwarranted
sentencing disparities. Although “[w]e may consider the extent of any deviation
from the guideline range, . . . Gall forbids requiring proportional justifications for
variances from the range, and even extraordinary variances do not require
extraordinary circumstances.” United States v. Johnson, 916 F.3d 701, 703 (8th Cir.)
(citation omitted), cert. denied, 139 S. Ct. 2657 (2019). Here, the district court’s
upward variance was clearly motivated by its conclusion that the Guidelines range
underrepresented the seriousness of the offense due to the court’s inability to assign
a precise figure to DuPont’s significant loss. The district court did not impose a
disproportionate sentence in the face of significant Eighth Circuit case law dictating
the parameters of an appropriate sentence in similar situations. Instead, it merely
imposed a fact-specific sentence after considering the unique circumstances of this
case. Nothing in the record demonstrates that the district court imposed a
disproportionate sentence for Isler’s crimes. The district court thus did not impose a
substantively unreasonable sentence.

Outcome: For the foregoing reasons, we affirm.

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