U.S. v. King, 03-1112.

• Decision Date: 15 December 2003
• Docket Number: No. 03-1112.,03-1112.
• Citation: 351 F.3d 859
• Parties: UNITED STATES of America, Appellee, v. Robert Richard KING, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 859

351 F.3d 859

UNITED STATES of America, Appellee, v. Robert Richard KING, Appellant.

No. 03-1112.

United States Court of Appeals, Eighth Circuit.

Submitted: September 8, 2003.

Filed: December 15, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc February 19, 2004. Motion for Stay of Mandate Denied March 3, 2004.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Appellant's motion for stay of mandate has been considered by the court and is denied.

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Michael S. Pasano, argued, Miami, FL (Daniel V. Hiatt, Kansas City, MO, on the brief), for appellant.

Philip Urofsky, Special Counsel of International Litigation, USDOJ, Washington, DC (Nancy E. Potts, Trial Attorney, with USDOJ, Fraud Section, Criminal Division, Washington, DC, on the brief), for appellee.

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 in Aid of Racketeering Act ("Travel Act") by agreeing 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 counts under the FCPA. The district court¹ sentenced King to thirty months' imprisonment and fined him $60,000.

King appeals claiming: 1) the evidence was insufficient to support the convictions, 2) the trial court erred by admitting some tape recordings while denying the recordings King offered, 3) the trial court erred by instructing 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 overreaching conduct. For the reasons set forth below, we affirm.

I. BACKGROUND

This case involves an FBI investigation into the dealings between certain individuals who hoped to develop a port in Limon, 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 concessions for the land on which the new development was to be built.

Much of the investigation centered around the dealings of Owl Securities and Investments, Ltd. ("OSI"), a company based in Kansas City, and its employees and 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. 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. Ultimately, 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 appeal, the court views the evidence in the light most favorable 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. Id. "The verdict must be upheld `if there is substantial evidence 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)).

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 between 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 understanding is sufficient, and can be proved by direct or circumstantial evidence." Id. (citation omitted).

For King's remaining FCPA convictions, the plain language of the FCPA prohibits the use of "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 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.² There was sufficient evidence to prove King's knowledge of the proposed payment long before Kingsley became an informant for the government. Moreover, 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 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-examination³ 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 completeness of the tapes.

We review the district court's evidentiary rulings for abuse of discretion. Asa-Brandt, Inc. v. ADM Investor Servs., Inc., 344 F.3d 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 completeness and intelligibility of King's admissions. United States v. Stelten, 867 F.2d 453, 454 (8th Cir.1988). Further, 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 nonhearsay. 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 reasons for making such admissions non-hearsay under the hearsay rule. Id.

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 constitutional 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, 107 S.Ct. 2775, 97 L.Ed.2d 144 (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 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 independent 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, 107 S.Ct. 2775 (internal quotations and citations omitted).

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 furtherance of the conspiracy.'" Beckman, 222 F.3d at 522 (quoting United States v. Bell, 573 F.2d 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 conspiratorial efforts of his former associates who...