Petition for Writ of Certiorari — King v. United States

Suprene Court, Us

Files

No. __O31539-y 74 2004

In The

Supreme Court of the Gnited States

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ROBERT RICHARD KING,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

a

_

PETITION FOR WRIT OF CERTIORARI

Sd

BRYAN CAVE LLP

THOMAS C. WALSH

(Counsel of Record)

JAMES F. BENNETT

One Metropolitan Square, #3600

St. Louis, Missouri 63102

(314) 259-2000

Attorneys for Petitioner

———

~=

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Where a government operative secretly records

conversations with the defendant, during which he makes

incriminating statements and attempts to elicit incrimi-

nating statements from the defendant, all with the inten-

tion of playing those recordings as substantive evidence at

trial, are such statements “testimonial” so as to fall within

the Confrontation Clause restrictions of Crawford uv.

Washington, 124 S. Ct. 1354 (2004)?

2. Cau the government obtain a conviction for

bribery of a foreign official under the Foreign Corrupt

Practices Act without any showing that any money was

paid, attempted to be paid, or even allocated for payment,

and without identification of the public official who is the

recipient of the proposed bribe or the “official act” for

which the payment was to be given?

3. Is it outrageous government conduct that violates

due process for the government to obtain a conviction of a

defendant by planting a wire on a confessed felon, allowing

him to manufacture a “crime,” and instructing him to

make incriminating statements in order to elicit concur-

rence from the defendant?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........ccceeeeeeeeeeeeeeeeeeeeees i

TABLE OF AUTHORITIEG. ..............cccccercsssesserseoerees ill

OPINIONS BELOW. .....ccccccsscosscsrccsccrsscocssensensscsveneves “3

SUTRISDIIC TI OM oo viineseccccncoscsasscnescetevesrasscesereonseesivanens 1

CONSTITUTIONAL PROVISION AND STATUTE

TIT VOLVED a iccossissssssticcmmmnngse ene 1

STATEMENT OF THE CASE ............:cccscssenseeeeeeeeees 2

REASONS FOR GRANTING THE PETITION ......... 5

I. Co-Conspirator Statements Uttered for the

Purpose of Creating Evidence Are Testimo-

nial and Subject to the Confrontation Clause

Under Crawford v. Washington ..........cceeeree 5

Il. The Decision Below Conflicts with Decisions

of this Court and of Various Courts of Ap-

peals Concerning the Elements Necessary for

Proof of Bribery .....<..:cesccconecsisseseneneasaansnvonnaes 10

III. Cutrageous Governmental Misconduct Bars

This Prowecutiods, «.iccscsvdsivesexscovsexsisassesrersnesass 14

COMIC LAUSIOIN oo xagssnskcnccevasenengueacunesesaneneeanneeaan 19

APPENDIX

Opinion of United States Court of Appeals for the

Eighth Circuiit ............cccccccsessesessereressensnsenensesenes A-1

Order Denying Rehearing and Rehearing en banc... A-16

TABLE OF AUTHORITIES

Page

CASES

Bourjaily v. United States, 483 U.S. 171 (1987)... 4, 8, 9, 10

Crawford v. Washington, 124 S. Ct. 1354

a SR ee 6, 7, 8, 10, 19

Dixson v. United States, 465 U.S. 482 (1984)................. 12

Hampton v. United States, 425 U.S. 484 (1976)............... 16

Idaho v. Wright, 497 U.S. 805 (1990)...............cccsssserreeeeeees 9

Jacobson v. United States, 503 U.S. 540 (1992).............4. 16

Krichman v. United States, 256 U.S. 363 (1921)............. 12

Lilly v. Virginia, 527 U.S. 116 (1990) .............sscssssressssersees 9

Ohio v. Roberts, 448 U.S. 56 (1980) .................ccseseeeees 6, 8, 9

Sorrells v. United States, 287 U.S. 435 (1932)................. 15

United States v. Andrews, 765 F.2d 1491 (11th Cir.

aL a cael aanagnenanannstonsenrininniss 18

United States v. Batres-Santolino, 521 F.Supp. 744

a dasienk bina pabagpenennsnuetbeeneasin 16

United States v. Choy, 309 F.2d 602 (9th Cir. 2002)......... 13

United States v. Dixon, 658 F.2d 181 (3d Cir. 1981)......... 13

United States v. Hernandez, 731 F.2d 1147 (5th Cir.

tc! Ba Ye ce oe ee 13

United States v. Inadi, 475 U.S. 387 (1986)........... ees 9

United States v. Lard, 734 F.2d 1290 (8th Cir. 1984)....... 18

United States v. Loschiavo, 531 F.2d 659 (2d Cir.

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Rasco, 853 F.2d 501 (7th Cir. 1988)........ 13

United States v. Russell, 411 U.S. 423 (1973) ............ 15, 16

United States v. Santana, 6 F.3d 1 (1st Cir. 1993)............ 15

United States v. Shulman, 624 F.2d 384 (2d Cir.

BED ickiivcsonéscbinetuesinghececduateituaswmugbeasibeateiasGunnidadaadiecoal 13

United States v. Sun-Diamond Growers of Califor-

Oh. Be Uy SE Ci isiachidisiiendooeaan 12

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978)......... 16

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, Amendment VI .................. 1,6

Foreign Corrupt Practices Act, 15 U.S.C.

BD: FRI PIED siinssctnrstvorsésinccionserabnasies mets 2, 3,11

FE ee chsisinssatenscndssxccaneconsetmncsaneieeatenas 11, 12, 13

TG. Fee ad okccenksiececeecsisiinisnssiniicscinnssteresee 1

PETITION FOR WRIT OF CERTIORARI

Petitioner Robert Richard (“Rick”) King respectfully

requests that the Court grant a writ of certiorari to review

the judgment of the United States Court of Appeals for the

Eighth Circuit.

+

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 351

F.3d 859 (8th Cir. 2003), and is reproduced in Appendix A

(A-1). The order of the Court of Appeals denying rehearing

and rehearing en banc is reproduced in Appendix B (A-16).

¢

JURISDICTION

The opinion and judgment of the Court of Appeals

were filed on December 15, 2003. Petitioner’s timely

petition for rehearing and rehearing en banc were denied

on February 19, 2004. This petition was filed within 90

days of February 19, 2004. Jurisdiction of this Court is

founded on 28 U.S.C. § 1254(1).

¢

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

Amendment VI to the United States Constitution

provides: “In all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the witnesses

against him....”

2

Title 15 U.S.C. § 78dd-2, the Foreign Corrupt Prac-

tices Act, provides:

“(a) It shall be unlawful for any domestic concern...

to make use of the mails or any means or instrumentality

of interstate commerce corruptly in furtherance of an offer,

payment, promise to pay, or authorization of the payment

of any money, or offer, gift, promise to give, or authoriza-

tion of the giving of anything of value to —

“(1) any foreign official for purposes of —

“(A)(i) influencing any act or decision

of such foreign official in his official capac-

ity. .

“(h)(1) The term ‘domestic concern’ means —

“(A) Any individual who is a citizen, na-

tional, or resident of the United States. ...”

*

STATEMENT OF THE CASE

Petitioner Robert Richard King originally loaned $2

million to a company owned by one Stephen Kingsley,

supposedly to be spent for a port development in Costa

Rica. Kingsley squandered the funds on his own hedonistic

lifestyle, precipitating an FBI investigation. Kingsley

eventually confessed to a series of felonies and then

persuaded the agent in charge, Robert Herndon, that

petitioner was part of a plot to bribe Costa Rican officials

to obtain “concessions” regarding the port project (Tr. 579).

Even though Herndon knew that petitioner was a

victim of Kingsley’s swindle (and had so advised peti-

tioner), he commissioned Kingsley to record conversations

3

with petitioner to establish the bribery conspiracy (Tr. 580,

726, 821). Accordingly, over a three-month period,

Kingsley recorded some 29 conversations with petitioner,

almost all of which were initiated by Kingsley (Tr. 709).

Petitioner, who knew he had been fleeced by Kingsley, had

no intention of engaging in any transaction with him, but

was biding his time while attempting to put together a

viable group to salvage the Costa Rican project (Tr. 788-

89).

Although there had been earlier discussions about

making a contribution to one or more of Costa Rica’s

political parties (Tr. 696-97), once Kingsley went to work

for the government, he consistently characterized the

potential payment on tape as a “bribe” and sought peti-

tioner’s concurrence in that terminology (Tr. 710, 821).

When Kingsley told him (falsely) on tape that bribes had

previously been paid, petitioner expressed shock and

disbelief (JA Ex. 2, pp. 7-8). While on a few occasions

petitioner did not challenge Kingsley’s nomenclature, at

one point he said emphatically “I didn’t talk to anybody

[about] bribe payments,” and “I’ve never said I’m bribing

anybody” (JA Ex. 70, pp. 66-67). He also announced that

he wanted to get lawyers involved to make sure that

everything was done the right way (Tr. 696-99, 718-20).

And he insisted that no action would be taken until he

went to Costa Rica and evaluated the situation for himself

(JA Ex. 3, pp. 15-18).

Based on the tape recordings, petitioner was indicted

for violating the Foreign Corrupt Practices Act, 15 U.S.C.

§ 78dd-2(a)(1)(A) (“FCPA”), together with a Costa Rican

national named Pablo Barquero. By the time of trial,

Kingsley was dead. Barquero was likewise unavailable.

Over petitioner’s Confrontation Clause objections, the

4

government played excerpts from seven of the recordings

of Kingsley’s conversations with petitioner, and four tapes

of Kingsley’s discussions with Barquero. The trial court

ruled that these recordings were admissible under the co-

conspirator exception to the hearsay rule.

It was undisputed at trial that no payment was ever

made or offered to any Costa Rican official. Petitioner

never raised any funds for the Costa Rican project, and no

one ever appropriated, segregated, or allocated any mon-

eys for the alleged payment. The only overt act relied on

by the government to support the bribery charge was

petitioner’s (unsuccessful) solicitation of financial support

for the port project from potential investors.

No particular Costa Rican official was ever identified

as the proposed recipient of the would-be payment. The

evidence showed only discussion about a laundry list of

political figures who were never shown even to have heard

of Kingsley, let alone of petitioner. And the object of the

proposed payment was described on the tapes only as the

obtaining of some amorphous “concessions” on the land to

be developed.

The jury found petitioner guilty of FCPA conspiracy

and of four substantive violations based on his fund-

raising efforts. He was sentenced to 30 months in prison

and fined $60,000. On December 15, 2003, the Eighth

Circuit affirmed, holding that “[t]he tape recordings alone,

support the jury’s verdict” (A-5). The court rejected peti-

tioner’s Confrontation Clause argument, citing Bourjaily

v. United States, 483 U.S. 171 (1987), as dispensing with

any inquiry into reliability for co-conspirator statements.

The court did not address petitioner’s argument that the

alleged recipient of the payment had never been identified,

5

but set forth at length excerpts from the tape recordings

referring generically to “politicians” (A-5-7 n. 2). Petitioner's

claim of outrageous government misconduct was also re-

jected, the court noting that “Kingsley’s character was

flawed” but that “the use of unsavory informants is quite

often the nature of the beast in police investigations” (A-15).

Rehearing and rehearing en banc were denied (A-16).

7 ——

REASONS FOR GRANTING THE PETITION

I. Co-Conspirator Statements Uttered for the

Purpose of Creating Evidence Are Testimo-

nial and Subject to the Confrontation Clause

Under Crawford v. Washington.

Much of the evidence against petitioner in this case

was presented in recordings of conversations between

petitioner and Kingsley, the confessed felon who by then

was working with the government to concoct a case

against petitioner, and between Kingsley and Barquero. It

is perfectly clear that the subject matter of the taped

conversations was dictated by the FBI and that the pur-

pose of the recordings was to create “evidence” that could

be played ut trial (Tr. 578-84). FBI agent Herndon admit-

ted that he “specifically gave Kingsley instructions to

bring up the kickback so that [he could] see what people

say” (Tr. 821).' Portions of those recorded conversations

' Herndon further testified as follows:

“Q. And did I hear you say that in the course of dealing with

Kingsley, and particularly for the August 17 meeting, some-

times you wrote out instructions for how Kingsley was to

operate?

(Continued on following page)

6

were played verbatim for the jury and were the corner-

stone of the government’s case.

By the time of trial, though, Kingsley was dead.

Petitioner’s counsel thus had no chance to cross-examine

him about the fabricated “conspiracy,” his defrauding of

petitioner, his instructions to entrap petitioner, his crimi-

nal record, or eny other subject that would have substan-

tially undercut the authenticity and probity of the

recordings. Barquero was likewise unavailable, being

safely ensconced in Costa Rica, but petitioner’s objections

to the playing of the tapes on the basis of the Confronta-

tion Clause were overruled.

Earlier in this Term, and subsequent to the opinion of

the Court of Appeals affirming petitioner’s conviction, this

Court reinforced the Confrontation Clause of the Sixth

Amendment in Crawford v. Washington, 124 S. Ct. 1354

(2004). The Court discarded the “indicia of reliability” test

of Ohio v. Roberts, 448 U.S. 56 (1980), and held that

testimonial out-of-court statements of an unavailable

witness cannot be introduced against a criminal defendant

unless there was a prior opportunity for cross-

examination. The Court left “for another day any effort to

spell out a comprehensive definition of ‘testimonial,’”

while noting by way of example in dicta that the rules of

“A. Correct.

“Q. And there is a script or set of instructions that you gave in

writing to Kingsley for this August 17 meeting, correct?

“A. That’s correct.

“Q. And am I right that you told Kingsley specifically that he

should use this script during meetings?

“A. Yes” (Tr. 817).

ee nee

evidence do not consider statements in furtherance of a

conspiracy to fall in that category. Id. at 1374, 1387.7 At

the same time, in language that accurately describes the

present case, the Court recognized that “[iJnvolvement of

government officers in the production of testimony with an

eye toward trial presents unique potential for prosecuto-

rial abuse. ...” Jd. at 1367 n. 7.

This is that “other day” anticipated by Crawford, and

this case affords the Court the opportunity to analyze the

“testimonial” requirement in a context that recurs with

great frequency — i.e., where a government mole lures the

defendant into an illegal plot and records the discussions

for the purpose of creating trial evidence that will be heard

through the jury’s headphones. Even if this does not

violate due process (see Point III, post), it is surely not the

type of out-of-court statement characterized as “non-

testimonial” in Crawford and bears none of the indicia of

reliability referred to in the Chief Justice’s concurring

opinion.

The contrived statements of Kingsley were used here

to convince the jury that he and petitioner had agreed to

bribe some Costa Rican officials. Petitioner’s inability to

cross-examine Kingsley or Barquero to expose the

trumped-up nature of the relationship allowed Kingsley’s

statements to be heard by the jury without challenge and

* The concurring opinion of the Chief Justice observed that co-

conspirator statements are typically deemed reliable “due to the

circumstances under which they were made,” and that because “the

| declarant and the accused are partners in an illegal enterprise, the

| statements are unlikely to be false ... .” Id. at 13877 (Rehnquist, C.J.,

| concurring).

8

constituted a classic Confrontation Clause violation. The

Court of Appeals rejected petitioner’s Confrontation

Clause argument on two bases. First, it ruled that the

Confrontation Clause was not even implicated because

Kingsley’s statements were not hearsay but were merely

offered to show the “completeness and intelligibility” of

petitioner’s adoption of those statements and because

“such admissions [are] non-hearsay under the hearsay

rule” (A-8-9).’ Second, the court held Kingsley’s statements

admissible under the co-conspirator exception to the

hearsay rule, citing Bourjaily v. United States, 483 U.S.

171 (1987) (A-9).

Neither of the Eighth Circuit’s stated reasons for

allowing the jury to hear Kingsley’s recorded statements

can survive Crawford. The test is not whether the state-

ments were hearsay or non-hearsay. As the Court said in

Crawford, “Leaving the regulation of out-of-court state-

ments to the law of evidence would render the Confronta-

tion Clause powerless to prevent even the most flagrant

inquisitorial practices.” 124 S. Ct. at 1364. Rather, under

Crawford, the only inquiry is whether the statements were

“testimonial” in nature. The Court of Appeals, without the

benefit of Crawford, perfunctorily dismissed petitioner’s

Confrontation Clause argument by citing Bourjaily for the

proposition that all co-conspirator statements are beyond

the reach of that constitutional protection because they

are conclusively presumed to be reliable. Indeed, Bourjaily

invoked Roberts to dispense with a reliability inquiry on

’ This reasoning is, of course, totally inapplicable to the taped

recordings of conversations between Kingsley and Barquero, to which

petitioner was not a party.

9

the basis that the co-conspirator exception to the hearsay

rule is firmly rooted in our jurisprudence. Jd. at 183.

But Bourjaily and other co-conspirator cases dealt

with statements made under non-testimonial circum-

stances — that is, when they were unrelated to a criminal

investigation and were made without litigation in mind.

See also, e.g., United States v. Inadi, 475 U.S. 387 (1986).

The basis for admission of such statements is that they

“are given under circumstances that eliminate the possi-

bility of fabrication, coaching, or confabulation and that

therefore the circumstances surrounding the making of

the statement provide sufficient assurance that the state-

ment is trustworthy and that cross-examination would be

superfluous.” Idaho v. Wright, 497 U.S. 805, 820 (1990).

The statements in this case are different in kind.

Whether hearsay or not, they are the antithesis of the type

of co-conspirator statements discussed in this Court's

previous cases. Kingsley had assumed the role of “witness”

against petitioner, and cross-examination would easily

have shown that his statements were neither genuine nor

trustworthy. Ironically, the Eighth Circuit’s approval of

Kingsley’s statements on the grounds that they were made

merely to obtain petitioner’s “adoptive admissions” betrays

the facts (a) that they were specifically scripted with

litigation in mind; and (b) that they were thoroughly

unreliable. Kingsley’s recorded seduction of petitioner is

more akin to the confession of an unavailable accomplice

that implicates another party, which is inadmissible under

the Confrontation Clause. Lilly v. Virginia, 527 U.S. 116,

125-39 (1999) (plurality opinion). Crawford and_ the

overruling of Roberts has called into question the vitality

and reach of Bourjaily in the context of such evidentiary

10

co-conspirator statements. This Court should grant certio-

rari to determine the applicability of Crawford to co-

conspirator statements uttered for the purpose of creating

evidence, and to analyze the effect of Crawford on the

holding in Bourjaily.*

II. The Decision Below Conflicts with Decisions

of this Court and of Various Courts of Appeals

Concerning the Elements Necessary for Proof

of Bribery.

It is undisputed that no money was either paid or

offered to any Costa Rican official. Nor were any funds

appropriated or segregated for such a purpose (Tr. 622,

734-36). Viewing the evidence most favorably to the

government, the so-called co-conspirators talked about

making a contribution to one or more political parties in

Costa Rica, which suddenly began to be characterized as a

“bribe” by Kingsley after he began working for the gov-

ernment. Although petitioner expressly said on tape that

he had no intention of bribing anyone and wanted to get

lawyers involved to do the deal the right way (Tr. 718-20),

on several other occasions he acquiesced in Kingsley’s

characterization of the proposed payment.

It is also clear that no particular Costa Rican official

was ever identified as the recipient of the proposed “bribe.”

Likewise, the “official” act for which the payment was to

* At a minimum, the Court should grant this petition, vacate the

judgment below, and remand the case to the Eighth Circuit for recon-

sideration in light of Crawford, which was handed down after the

decision below.

11

be made was never specified except in the most general

terms, when it was called a “concession.” The government

made no showing that such a payment would be illegal.

Thus, the issue presented here is whether a defendant

can be convicted of violating the Foreign Corrupt Practices

Act by talking about bribing an unidentified foreign

government employee for the purpose of obtaining some

unspecified favorable action which may or may not be

illegal. By rejecting petitioner’s motion for judgment of

acquittal, the district court allowed the jury to return a

verdict of conviction in a case where the evidence, viewed

most favorably to the governmént, showed conclusively

that no crime had been committed. By affirming, the

Eighth Circuit created a conflict with the decisions of this

Court and numerous circuits regarding the elements of

bribery that need to ke proven to sustain a federal convic-

tion. This case comes perilously close to criminalizing pure

speech.

The relevant provision of the FCPA makes it illegal to

take any act in furtherance of “an offer, payment, [or]

promise to give anything of value to... any foreign official

for purposes of ... influencing any act or decision of such

foreign official in his official capacity....” 15 U.S.C. § 78

dd-2(a)(1)(A).

The question presented here is what the statute

means when it prohibits giving anything of value to a

public official to influence an official act. These terms have

a well-defined meaning in the domestic bribery statute, +8

U.S.C. § 201, which is almost a precise analogue. Section

201(c)(i)(A) prohibits giving “anything of value” to a public

official “for or because of any official act performed or to be

12

performed by such public official.” Hence, in every perti-

nent aspect, the domestic and foreign bribery proscriptions

are identical and are subject to the same sentencing

guideline, § 2C1.1. The decision below, however, conflicts

with numerous rulings from this Court and the various

circuits regarding the “who,” “what,” and “how” of a

bribery case:

1. In United States v. Sun-Diamond Growers of

California, 526 U.S. 398 (1999), this Court held that the

government must prove a link between the thing of value

conferred on the federal official for a bribery conviction

under § 201(b)(1), and that § 201(c)(1)(A) — the so-called

“sratuity statute” -- likewise requires proof ofa connection

between the payment and the specific act requested. Here,

no specific act to be requested was ever identified at trial.

2. The failure to prove that the person to be paid is a

“public figure” vitiates a bribery conviction. United States

v. Loschiavo, 531 F.2d 659 (2d Cir. 1976). The government

must show that the proposed recipient is acting in an

official function, Krichman v. United States, 256 U.S. 363

(1921), and the proper inquiry is whether the person to be

bribed occupies a position of public trust with official

responsibilities. Dixson v. United States, 465 U.S. 482

(1984). The government specifically took the position

below that “neither the statute nor any of the FCPA cases

cited by the defendant address or support his claim that

the official must be identified.” (Br. for Appellee, 8th Cir.

No. 03-1112, p. 18). A concomitant of the government’s

failure to identify the intended recipient was its failure to

establish that a payment to him or her would have been

illegal.

13

3. Mere acts of preparation io establish the willing-

ness to engage in a bribery transaction do not constitute a

crime. United States v. Shulman, 624 F.2d 384 (2d Cir.

1980). In order to aid and abet a bribery offense under

§ 201, the defendant must do more than associate with

individuals involved in a criminal venture. United States

v. Dixon, 658 F.2d 181 (3d Cir. 1981). The government

must prove an actual giving of money or an offer to give or

transfer money. United States v. Rasco, 853 F.2d 501 (7th

Cir. 1988); United States v. Hernandez, 731 F.2d 1147 (5th

Cir. 1984). Admittedly, no such offer or payment was made

in this case.

In United States v. Choy, 309 F.2d 602, 606 (9th Cir.

2002), the Court of Appeals reversed a bribery conviction,

finding tnat the acts on which the verdicts stood were too

attenuated to bring the defendant’s conduct within the

proscription of the federal bribery statute. The govern-

ment argued that the defendant’s purchase of computers

to be used and owned by an FDA official (turned govern-

ment informant) as part of the official’s efforts corruptly to

clear the defendant’s food imports was enough to convey

indirect benefits to the official in violation of law. The

Ninth Circuit disagreed:

“There is no end to the chain of reasoning under-

lying the government’s theory: payment of virtu-

ally any expense in preparation for offering a

bribe would become a consummated crime of

bribery. We cannot interpret the bribery statute

so loosely.” Id. at 606. -

The Eighth Circuit here disregarded the teachings of

all these cases and affirmed a bribery conviction under the

FCPA — both for conspiracy and substantively — without

proof of any payment or offer of payment, the identity of a

n__

14

proposed payee, or the illicit objective sought to be

achieved. As so construed, an FCPA case is infinitely

easier to prove than a domestic bribery case, even though

they are both based on the same public policy, contain the

same elements, and carry the same penalties. This Court

should grant review to underscore the fact that the stan-

dards are the same for proof of both types of bribery, to

reinforce the elements of the crime of bribery, to determine

what acts “in furtherance” of proposed payment are

sufficient to trigger liability, and to ensure that citizens

are not imprisoned for mere talk.

Ill. Outrageous Governmental Misconduct Bars

This Prosecution.

One of the reasons the government was unable to

prove the identity of the potential “bribee” or the type of

“concessions” to be sought was that they didn’t exist. The

Costa Rican project as conceived by Kingsley was dead in

the water as a result of his misappropriation of the funds

contributed and his confession to the FBI. Hence, there

was no viable project, no official to bribe, and no conces-

sions to be requested. They were merely concocted by the

confessed con-man Kingsley under the sponsorship and

with the blessing of FBI Agent Herndon in an effort to

ensnare petitioner, who had never before been in trouble

with the law in his 70 years.

Petitioner had been identified by the FBI as the

principal victim of Kingsley’s fraud, and was so notified

(Tr. 560-61). When Kingsley went down, he decided to take

others with him and persuaded (i.e., conned) FBI Agent

Herndon to set up a sting on petitioner (Tr. 727-29, 742-

54). Thereafter Herndon and Kingsley met every other day

15

while Kingsley engaged in a series of tape-recorded con-

versations scripted by Herndon with the specific purpose

of manufacturing a non-existent crime and enticing

petitioner to say incriminating things (Tr. 767-68, 801).

The government even paid Kingsley’s phone bill so he

could continue making recordings (Tr. 769-70). Something is

seriously — and constitutionally — wrong with this picture.

This Court has admonished that the judiciary should

not tolerate overreaching conduct by law enforcement that

is designed to instigate a criminal act by persons “other-

wise innocent in order to lure them to its commission and

then punish them.” United States v. Russell, 411 U.S. 423,

428-29 (1973), quoting Sorrells v. United States, 287 U.S.

435, 448 (1932). In Russell, the Court said that “we may

someday be presented with a situation in which the

conduct of law enforcement agents is so outrageous that

due process principles would absolutely bar the govern-

ment from invoking judicial processes to obtain a convic-

tion.” 411 U.S. at 431-32. In the Court of Appeals, the

government denigrated this warning as dicta, and argued

that it has been “criticized, limited, or even rejected

altogether....” (Br. for Appellee, p. 39). In seeking total

insulation from judicial scrutiny of prosecutorial tactics,

the government urged the Eighth Circuit to follow opin-

ions from other circuits holding that the Russell doctrine is

“moribund,” and that the “banner of outrageous miscon-

duct is often raised but seldom saluted.” Jd., citing United

States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989),

and United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993).

The Court should use this case to show prosecutors

that there is indeed meat on the Russell bones and to

disabuse them of their claim to unfettered discretion.

Where, as here, the government deliberately targets and

16

induces an otherwise innocent person to engage in crimi-

nal-like conduct, the government’s actions must be deemed

sufficiently outrageous to warrant dismissal of the indict-

ment as violative of due process. See Hampton v. United

States, 425 U.S. 484, 489 (1976); Russell, 411 U.S. at 431-

32.

In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978),

a government agent planned and controlled a drug labora-

tory and induced and directed the defendant to arrange

some capital for the laboratory and to arrange some

distribution of the drugs. In words that accurately describe

the present case, the court found that the government

agents had:

“generated new crimes by the defendant merely

for the sake of pressing criminal charges against

him when, as far as the record reveals, he was

lawfully and peacefully minding his own affairs.

Fundamental fairness does not permit us to

countenance such actions by law enforcement of-

ficials and prosecution for a crime so fomented by

them will be barred.” Jd. at 381.

The Third Circuit held that the government’s involvement

in the crime was “so overreaching as to bar prosecution of

the defendants as a matter of-due process of law.” Id. at

377. In United States v. Batres-Santolino, 521 F.Supp. 744,

751 (N.D. Cal. 1981), the court ruled the government’s

conduct to be outrageous because the defendants were

lured away from law-abiding activities into a cocaine

transaction. See also Jacobson v. United States, 503 U.S.

540, 548 (1992) (“In their zeal to enforce the law, however,

Government agents may not originate a criminal design,

implant in an innocent person’s mind the disposition to

commit a criminal act and then induce commission of the

17

crime so that the Government may prosecute.”). The result

below is inconsistent with these precedents.

This is not a case where an indicted individual made a

deal with the prosecution to cooperate in helping catch

bigger fish who had orchestrated a previous or an ongoing

criminal enterprise. The FBI in this case worked with

Kingsley to concoct an FCPA scheme and manufacture a

crime. In every conversation taped in June, July, and

August 2000, Kingsley attempted to create evidence of an

FCPA conspiracy and tried desperately to make petitioner

go along with talk of “bribes.” The taped meeting held on

June 2, 2000 is particularly enlightening. Petitioner

expressed surprise and dismay upon learning from

Kingsley that he had supposedly already paid bribes to

individuals in Costa Rica. On the tape, petitioner indi-

cated that he was aware of the federal investigation and

noted that “Steven’s told me all this time that there’s

absolutely nothing [illegal] been done....” In a stressed

voice, Kingsley interrupted him and attempted to trick

him into stating that he was aware of the bribes. Instead,

petitioner repeated that he knew nothing of past bribes

(JA Ex. 2, pp. 7-8).

At that point, even if Agent Herndon had originally

believed Kingsley’s lies about petitioner’s existing culpabil-

ity, this conversation should have convinced him otherwise

and caused him to blow the whistle on Kingsley’s efforts.

But instead of stopping Kingsley from trying to manipu-

late petitioner, Herndon gave a carte blanche to a con-

fessed con man and instructed Kingsley to try for 22 more

months to get petitioner to incriminate himself with

regard to future transactions. Kingsley’s improper conduct

is attributable to the government because he was acting as

18

its agent. It is this government’s application of “an ele-

ment of persuasion or mild coercion” that renders the

behavior here fundamentally unfair and unethical. See

United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir.

1985); see also United States v. Lard, 734 F.2d 1290, 1296

(8th Cir. 1984) (finding that government agent’s involve-

ment approached a level of outrageousness that would bar

a conviction).

The awesome power of the federal government can be

easily abused. When it is, the courts have an obligation to

step in. The government has no business concocting a

phony crime, enlisting a known felon as its wire-wearing

seducer, characterizing a proposed but non-existent

transaction as illegal, and then encouraging a law-abiding

third party to agree with that characterization. The

government stepped way over the line here and should be

reprimanded, not rewarded, for its repugnant behavior,

and review should be granted to clarify the line between

aggressive prosecution and unconstitutional overreaching.

+

19

CONCLUSION

For the reasons stated, the petition for certiorari

should be granted. In the alternative, certiorari should be

granted, the judgment below vacated, and the case re-

manded to the Court of Appeals for reconsideration in

light of Crawford v. Washington, 124 S. Ct. 13854 (2004).

Respectfully submitted,

BRYAN CAVE LLP

THOMAS C. WALSH

(Counsel of Record)

JAMES F. BENNETT

One Metropolitan Square, #3600

St. Louis, Missouri 63102

(814) 259-2000

Attorneys for Petitioner

May 2004

A-1

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 03-1112

United States of America,

Appeal from the United

States District Court

for the Western District

of Missouri.

Appellee,

v.

Robert Richard King,

Appellant.

x &£ & &€ &€ EF F

Submitted: September 8, 2003

Filed: December 15, 2003

Before MORRIS SHEPPARD ARNOLD, BEAM, BYE,

Circuit Judges. |

BEAM, Circuit Judge.

On June 27, 2001, a grand jury indicted Richard King

for conspiring to violate the Foreign Corrupt Practices Act

(“FCPA”) and for violating the FCPA and the Interstate

Travel ir Aid of Racketeering Act (“Travel Act”) by agree-

ing to bribe Costa Rican officials to obtain valuable land

concessions needed to develop a Costa Rica project. A jury

later convicted King of one count of conspiracy and four

bbb tan sare

A-2

counts under the FCPA. The district court’ sentenced King

to thirty months’ imprisonment and fined him $60,000.

King appeals claiming: 1) the evidence was insuffi-

cient to support the convictions, 2) the trial court erred by

admitting some tape recordings while denying the re-

cordings King offered, 3) the trial court erred by instruct-

ing the jury on “deliberate ignorance,” and 4) the trial

court erred by denying King’s motion to dismiss the

indictment prior to trial due to the government’s over-

reaching conduct. For the reasons set forth below, we

affirm.

I. BACKGROUND

This case involves an FBI investigation into the

dealings betwee certain individuals who hoped to develop

a port in Limo, Costa Rica. The focus of the investigation

concerned the planned payment of a $1 million bribe

(a.k.a. “kiss payment” or “closing cost” or “toll”) to senior

Costa Rican officials and political parties to obtain conces-

sions for the land on which the new development was to be

built.

Much of the investigation centered around the deal-

ings of Owl Securities and Investments, Ltd. (“OSI”), a

company based in Kansas City, and its employees ard

contributors. Several individuals attempted to raise funds

from investors through OSI for the multi-faceted project in

Costa Rica involving a large land and port development.

1 The Honorable Scott O. Wright, United States District Judge for

the Western District of Missouri.

A-3

The project had many components including a port, a

salvage station, development of recreational facilities,

housing, light manufacturing, warehouses, and an airport.

During the investigation, the FBI encountered several

individuals including Stephen Kingsley, President and

CEO of OSI; Richard Halford, OSI’s CFO; Albert Reitz,

OSI’s VP; Pablo Barquero, an agent of OSI in the Costa

Rican office; and Defendant King, one of OSI’s largest

investors. FBI Special Agent Robert Herndon led the

inquiry, originally investigating Kingsley and OSI. Ulti-

mately, Agent Herndon sought the cooperation of both

Kingsley and Reitz to obtain recordings of conversations

between alleged conspirators, including King.

II. DISCUSSION

A. Sufficiency of the Evidence

“In reviewing the sufficiency of the evidence on ap-

peal, the court views the evidence in the light most favor-

able to the government, resolving evidentiary conflicts in

favor of the government, and accepting all reasonable

inferences drawn from the evidence that support the jury’s

verdict.” United States v. Two Eagle, 318 F.3d 785, 790

(8th Cir. 2003). We are bound by a strict standard of

review when reviewing the sufficiency of the evidence, and

the verdict of the jury should not be overturned lightly. Jd.

“The verdict must be upheld ‘if there is substantial evi-

dence that would allow any rational trier of fact to find the

essential elements of the crime beyond a reasonable

doubt.’” United States v. Waldman, 310 F.3d 1074, 1077

(8th Cir. 2002) (quoting United States v. Wright, 246 F.3d

1123, 1126 (8th Cir. 2001)).

A-4

At trial, the government presented six witnesses. Two

of those witnesses, Richard Halford and Albert Reitz,

testified on behalf of the government pursuant to a plea

agreement wherein each pleaded guilty to certain offenses

in exchange for the possibility of a more lenient sentence.

The government questioned each of the six witnesses

about King’s involvement with and knowledge of the

planned bribe. The government also published portions of

several taped conversations between King and others,

which Stephen Kingsley recorded at the FBI’s request.

These taped conversations involving King occurred be-

tween May 26, 2000, and August 17, 2000.

To prove conspiracy, the government must show an

agreement between at least two people and that the

agreement’s objective was a violation of the law. United

States v. Jackson, 345 F.3d 638, 648 (8th Cir. 2003). “Proof

of a formal agreement is unnecessary, a tacit understand.

ing is sufficient, and can be proved by direct or circum-

stantial evidence.” Jd. (citation omitted).

For King’s remaining FCPA convictions, the plain

language of the FCPA prohibits the use of “any means or

instrumei:tality of interstate commerce corruptly in

furtherance of an offer, payment, promise to pay, or

authorization of the payment of any money, or offer, gift,

promise to give, or authorization of the giving of anything

of value to any foreign official for purposes of influencing

any act or decision of such foreign official in his official

capacity.” 15 U.S.C. § 78dd-1(a)(1)(A).

Viewing the evidence in the light most favorable to the

verdict, there was ample evidence in the record to support

the jury’s convictions. The tape recordings, alone, support

the jury’s verdict.” There was sufficient evidence to prove

* For example, the following exchanges are just a small sample of

A-5

what the jury heard:

May 26, 2000:

Kingsley:

King:

Vangsley:

King:

Kingsley:

King:

Well you’ve always known about the closing cost

fees and that.

I’ve known what?

You’ve known about the closing costs.

The one million dollars?

Yeah.

Y’ve known about that for five years, yeah, ...

June 1 and 2, 2000:

King:

Kingsley:

King:

Kingsley:

King:

Kingsley:

King:

Kingsley:

King:

Kingsley:

King:

You see when they walk into the bank, you

know, the bank is going to be curious as to what

they’re putting up a million-dollars for...

Well do they...

... If they do a letter of credit.

...dothe bank...do...

Ah, my own bank does not ask for that. My own

bank is going to take the Falcon. But if I go with

these other people, a letter of credit, and the

reason I may go to them for a letter of credit in-

stead of my own letter of credit is that it’s, it’s

going to get them involved in this.

Yeah. Do

And we don’t, we don’t want just a millioen-

dollars, we want a hundred thirty-five million.

Yeah. Do they know what the million{’]s for

though?

Ah, probably . . . I think I told them yeah.

Yeah. Wel!

They didn’t bat an eye.

(Continued on following page)

Kingsley:

King:

Kingsley:

A-6

(coughs)

I put it in this letter as a closing cost.

Yeah, that’s what Dick likes to call it, is a closing

cost.

June 28, 2000:

Kingsley:

Halford:

Kingsley:

King:

Kingsley:

King:

Kingsley:

King:

Kingsley:

King:

Well, look, what.

He irritated a lot of people.

Yeah, what, um, what Pablo had said, was why

just pay, pay off the current politicians. Pay off

the future ones.

That’s right. Because we’re gonna have to work

with them anyway.

And so what he was saying was double, you

know, give them more money. Buy the opposi-

tion. If you buy the current party and the oppo-

sition, then it doesn’t matter who’s in because

there’s only two partis.

The thing that really worries me is that, uh, if

the Justice Department gets a hold of. Finds out

how many people we've been paying off down

there. Uh, or even if they don’t. Are we gonna

have to spend the rest of our lives paying off

these petty politicians to keep them ovt of our

hair? I can just see us, every, every day some

politician on our doorstep down there wanting a

hand out for this or that.

Well, I mean,

I’d like to

I

Think we could pay the top people enough, that

the rest of the people won’t bother us any. That’s

what I’m hoping this million and a half dollars

does. I’m hoping it pays enough top people...

August 17, 2006.

Kingsley:

Now Pablo’s continued to talk to the politicians.

They know about the toll, closing costs call it

(Continued on following page)

a

A-7

King’s knowledge of the proposed payment long before

Kingsley became an informant for the government. More-

over, the recordings show King’s knowing participation in,

approval of, and subsequent actions in furtherance of the

conspiracy to offer the bribe. In addition, the testimony of

what you will. So he’s still our biggest asset in

place.

King: What do they know about the closing costs?

Kingsley: Who?

King: Does everybody agree to what we talked about

recently?

Kingsley: Yeah, a million into escrow for the toll.

- King: And then we get the property and then we do

the (unintelligible)?

Kingsley: Um hum. Yeah now let me [’ll, I'll, I'll come on to

that because I'll explain how we work through

that. Uh, essentially once the politicians see the |

money in escrow, they'll move. That’s what it

comes down to (clears throat). Pablo’s gonna

send a list, an e-mail with a list of politicians al-

ready paid off and the ones he’s gonna pay off.

King: Isn’t that awfully dangerous?

Kingsley: No e-mail’s probably the most secure form of

communication.

King: From what I read it’s not, number one and num-

ber two, there’s got to be a better way.

Barquero: We have tw make the politicians sure that they

are going ‘o get that. That is one thing that we

have to make them feel comfortable that uh, we

would get the full support.

~

King: I (unintelligible)

SAMPLE EE ARMOR SANIT SA my Sie

Barquero: What

King: I’m more concerned about

IE AK Toe.

3 Barquero: (unintelligible)

King: Not getting caught.

A-8

six witnesses conducted over a five-day period, and the

remaining exhibits support the jury’s conviction of King

for conspiracy and substantive violations under the FCPA.

B. Evidentiary Rulings

King also challenges the district court’s admission of

the FBI tapes, arguing that 1) without Kingsley or —

Barquero available for cross-examination’ the admission of

their statements violated King’s Sixth Amendment right to

confrontation, 2) the district court’s admission of only

portions of the tapes violated the rule of completeness, and

3) there were reasons to question the accuracy and com-

pleteness of the tapes.

We review the district court’s evidentiary rulings for

abuse of discretion. Asa-Brandt, Inc. v. ADM Investor

Servs., Inc., 344 F3d 738, 747 (8th Cir. 2003). First, the

admission of the Kingsley conversations are non-hearsay,

out-of-court statements that raise no Confrontation Clause

issues because they were admissible to ensure the com-

pleteness and intelligibility of King’s admissions. United

States v. Stelten, 867 F2d 453, 454 (8th Cir. 1989). Fur-

ther, even if some of Kingsley’s incriminating statements

were offered for the truth, King adopted those statements,

thus Federal Rule of Evidence 801(d)(2)(B) deems them to

be non-hearsay. Id. Insofar as such hearsay considerations

do apply in this case, the exclusionary principles embodied

in the Confrontation Clause do not nullify the well-established

* Kingsley was found dead on October 14, 2000, and Barquero, who

was charged in this case, remains a fugitive.

Se

ye cal a

A-9

reasons for making such admissions non-hearsay under

the hearsay rule. Jd.

Further, the district court did not abuse its discretion

in admitting these statements under Rule 801(d)(2)(E) as

statements of co-conspirators. King argues that the taped

conversations between Kingsley and Barquero did not

contain sufficient “indicia of reliability” to pass constitu-

tional muster, were not corroborated by independent

evidence, and did not constitute adoptive admissions by

King.

Since Bourjaily v. United States, 483 U.S. 171, 182-83

(1987), this Circuit has rejected the indicia of reliability

requirement. United States v. Beckman, 222 F.3d 512, 522-

23 n.7 (8th Cir. 2000) (holding that Bourjaily rejected the

proposition that admission of a co-conspirator statement

required sufficient indica [sic] of reliability); United States

v. Roach, 164 F.3d 403, 409 n.5 (8th Cir. 1998) (“(T]he

Supreme Court has explicitly rejected the need for a

separate reliability inquiry.”).

Because hearsay rules and the Confrontation

Clause are generally designed to protect similar

values, and stem from the same roots, . . . no in-

dependent inquiry into reliability is required

when the evidence falls within a firmly rooted

hearsay exception. We think that the co-

conspirator exception to the hearsay rule is

firmly enough rooted in our jurisprudence that

_. a court need not independently inquire into

the reliability of such statements.

Bourjaily, 483 U.S. at 182-83 (internal quotations and

citations omitted).

A-10

To admit statements of co-conspirators under Federal

Rule of Evidence 801(d)(2\(E), the government must

demonstrate by a preponderance of the evidence “‘(1) that

a conspiracy existed; (2) that the defendant and the

declarant were members of the conspiracy; and (3) that the

declaration was made during the course and in further-

ance of the conspiracy.” Beckman, 222 F.3d at 522 (quot-

ing United States v. Bell, 573 F2d 1040, 1043 (8th Cir.

1978)). Our review of the record demonstrates that the

government met this burden in admitting the

Kingsley/Barquero statements as those of co-conspirators.

Furthermore, the fact that Kingsley allied himself with

the government “has no effect on the continuing conspira-

torial efforts of his former associates who remain at large,”

and does not bar admission of his statements under Rule

801(d)(2)(E). United States v. Lewis, 759 F.2d 1316, 1348

(8th Cir. 1985). Barquero’s statements made to Kingsley

are admissible under Rule 801(d)(2)(E) even though

Kingsley was acting under the direction and surveillance

of government agents to obtain evidence against the co-

conspirators. Id. The district court did not abuse its

discretion in admitting these statements. We find King’s

remaining contentions without merit.

Finally, King challenges the district court’s denial

under the rule of completeness. Rule 106 provides:

When a... recorded statement or part thereof is

introduced by a party, an adverse party may re-

quire the introduction at that time of any other

part or any other writing or recorded statement

which ought in fairness to be considered contem-

poraneously with it.

Fed. R. Evid. 106. While in some cases Rule 106 may re-

quire that all or portions of a series of recorded conversations

spre i —~ ee

ieee

i

}

4

{

A-11

be played to avoid misleading the jury, “the party urging

admission of an excluded conversation must ‘specify the

portion of the testimony that is relevant to the issue at

trial and that qualifies or explains portions already admit-

ted.”” United States v. Webber, 255 F.3d 523, 526 (8th Cir.

2001) (quoting United States v. Sweiss, 814 F.2d 1208,

1212 (7th Cir. 1987)). “In addition, the district court has

broad discretion to conduct the trial in an orderly and

efficient manner, and to choose among reasonable eviden-

tiary alternatives to satisfy the rule of completeness

reflected in Rule 106.” Webber, 255 F.3d at 526.

After review of the trial record, we conclude the

district court did not abuse its discretion by denying King’s

request to publish all the tapes to the jury in their en-

tirety. Nor do we find that the tapes that were submitted

to the jury denied King a fair trial. King did present some

additional portions of the remaining tapes or tape tran-

scripts to the jury, thus providing context where the

defense felt necessary.’ As to the remaining portions of the

tapes, King does not specify the portion of the testimony

that is relevant to the issue at trial and that qualifies or

explains the portions already admitted. See id. Nor does

King show that the tapes that the government introduced

at trial misled the jury or provided an incomplete or

distorted view of the relationship and communications

between King and Kingsley, all of which would be relevant

under the Rule 106 inquiry.

‘ Even then, King failed to timely request that these supplemental

portions be played or read at the time the government first published

them to the jury as required under Rule 106, an issue we will not

address dispositively in this appeal.

A-12

Likewise, as to the accuracy and completeness of the

tapes, although Kingsley failed to record each and every

conversation, Agent Herndon testified that Kingsley would

take notes of those conversations and give those notes to

the FBI. Further, the fact that Kingsley recorded the tapes

outside the presence of the FBI on many occasions is also

of no consequence. The FBI closely monitored the devel-

opment of the conversations over time, ensuring the

accuracy and consistency as one conversation built upon

another. Admitting portions of the tapes in light of this

evidence was not an abuse of discretion.

C. Deliberate Ignorance Instruction

King also challenges the deliberate ignorance instruc-

tion given to the jury. We review the district court’s deci-

sion to give a jury instruction under the abuse of

discretion standard. United States v. Woodard, 315 F.3d

1000, 1003 (8th Cir. 2003). A deliberate ignorance instruc-

tion essentially “‘allows the jury to impute knowledge to

[the defendant] of what should be obvious to him, if it

[finds], beyond a reasonable doubt, a conscious purpose to

avoid enlightenment.’” United States v. Barnhart, 979 F.2d

647, 651 (8th Cir. 1992) (first alteration in original) (quot-

ing United States v. Zimmerman, 832 F2d ‘44, 458 (8th

Cir. 1987) (per curiam)). We are cognizan* wf the risk,

however, that a deliberate ignorance instruction might

lead the jury to employ a negligence standard and convict

a defendant on the impermissible ground that he should

have known an illegal act was taking place. Barnhart, 979

F.2d at 651. Thus,

[olur review of the District Court’s decision to

give this particular instruction must be done by

viewing the evidence and any reasonable inference

pines

fete or

3

&

‘

.

A-13

from that evidence in the light most favorable to

the government. While a district court should not

give the deliberate-ignorance instruction when

the evidence points solely to the defendant’s ac-

tual knowledge of the facts in question, the “in-

struction is particularly appropriate when the

defendant denies any knowledge of a criminal

scheme despite strong evidence to the contrary.”

Woodard, 315 F.3d at 1003-04 (quoting United States v.

Regan, 940 F.2d 1134, 1136 (8th Cir. 1991)) (internal

citations omitted). “In order for a defendant’s ignorance to

be deliberate or willful, the defendant must have been

presented with facts that put him on notice that criminal

activity is probably afoot, and then the defendant must

have failed to investigate those facts ....” Barnhart, 979

F.2d at 652.

The district court did mit abuse its discretion by

giving the deliberate ignorance instruction. The only

“error” we find, if any, is that the deliberate ignorance

instruction was superfluous in this case, which is certainly

not reversible error. Given the evidence presented by the

government against King, this instruction was irrelevant

at worst. Although the evidence certainly suggested that

King was not ignorant of the criminal scheme, but rather

he, in fact, knew of the scheme and worked to perpetuate

the bribe, King’s defense was to attack the credibility of

his co-conspirators and point to the lack of proof of his bad

intent, arguing that he did not “corruptly” do anything.

Given this defense strategy, in light of the evidence pre-

sented by the government against King, the instruction

was appropriate. See id., at 651.

A-14

D. Motion to Dismiss

King’s final argument is that the district court erred

in refusing to dismiss the indictment due to the govern-

ment’s alleged outrageous misconduct. King claims that

the government allowed its informant Kingsley to target

King for prosecution and essentially manufactured the

crimes for which King was convicted. The district court,

through its adoption of the magistrate judge’s’ report and

recommendation, denied King’s motion to dismiss.

The court reviews de novo a district court’s order

denying a motion to dismiss an indictment. Two Eagle, 318

F.3d at 793. While there may be circumstances in which

the conduct of law enforcement agents is so outrageous

that due process bars the government from invoking the

judicial process to obtain a conviction, United States v.

Russell, 411 U.S. 423, 431-32 (1973), “[t]he level of outra-

geousness needed to prove a due process violation is quite

high, and the government’s conduct must shock the

conscience of the court.” United States v. Pardue, 983 F.2d

843, 847 (8th Cir. 1993) (internal quotations omitted). This

defense is reserved for conduct that falls “within that

narrow band of ‘the most intolerable government con-

duct.” Pardue, 983 F.2d at 847 (quoting United States v.

Musslyn, 865 F.2d 945, 947 (8th Cir. 1989)).

After our thorough review of the evidence presented at

the hearing on the motion to dismiss, we too follow the

well-reasoned analysis of the magistrate judge. We find no

© The Honorable John T. Maughmer, Chief United States Magis-

trate Judge, United States District Court for the Western District of

Missouri.

A-15

evidence of conscience-shocking behavior on the part of the

government. That the evidence was “contrived” or that

trickery was involved is simply not supported by the

evidence. We do not dispute that it was quite likely that

Kingsley’s character was flawed, but we recognize, like the

magistrate judge did, that the use of unsavory informants

is quite often the nature of the beast in police investiga-

tions. Such realities do not rise to the level of outrageous-

ness needed to support a due process violation.

Accordingly, we affirm the district court’s dismissal of

King’s motion to dismiss.

III. CONCLUSION

For the reasons set forth herein, we affirm the judg-

ment of the district court.

RCD SSSA RSP OS RES LER ED BLA I NE PAE PBS

‘

:

’

4

A-16

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 03-1112

United States of America, *

wn, =, Sn

v. * Rehearing En Banc

Robert Richard King, :

Appellant. *

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

February 19, 2004

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit