U.S. v. Risken

• Decision Date: 22 May 1986
• Docket Number: No. 84-2449,84-2449
• Citation: 788 F.2d 1361
• Parties: UNITED STATES of America, Appellee, v. Louis Kenneth RISKEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1361

788 F.2d 1361

UNITED STATES of America, Appellee, v. Louis Kenneth RISKEN, Appellant.

No. 84-2449.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1985.

Remanded Dec. 17, 1985.

Resubmitted Feb. 14, 1986.

Decided April 18, 1986.

Rehearing and Rehearing En Banc Denied May 22, 1986.

Philip Miller, Des Moines, Iowa, for appellant.

Beneva Weintraub, Washington, D.C., Guy Cook, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and WOODS, ^* District Judge.

McMILLIAN, Circuit Judge.

Louis Kenneth Risken appeals from a final judgment entered in the District Court ¹ for the Southern District of Iowa upon a jury verdict finding him guilty of two counts of obstruction of justice in violation of 18 U.S.C. Sec. 1503 and two counts of witness tampering in violation of 18 U.S.C. Sec. 1512(a)(1), (2)(A). The district court sentenced appellant to a total of twenty years imprisonment with the provision that appellant would be immediately eligible for parole under 18 U.S.C. Sec. 4205(b)(2).

For reversal appellant argues that (1) the district court erred in denying his motion to dismiss the obstruction of justice counts, counts 1 and 4; (2) Bennett was not a "witness" within the meaning of 18 U.S.C. Secs. 1503, 1512; (3) tape recordings were admitted without foundation evidence; (4) prosecutorial threats intimidated a government witness; (5) there was insufficient evidence to support the jury verdict on counts 2 and 4; (6) the district court abused its discretion in denying several defense motions; (7) the district court erred in refusing to give certain instructions to the jury; and (8) the government failed to disclose a substantial, contingent payment to its chief witness.

For the reasons discussed below, we affirm the judgment of the district court.

FACTS

In February 1984 a federal grand jury in the Southern District of Iowa was investigating possible criminal violations of federal labor laws, including kickbacks, unlawful investments or loans, and the improper administration of the union health and welfare plan. The target of the grand jury investigation was Teamsters Local 147 and its president Vernon N. Bennett. Appellant owns the International Insurance Agency. Appellant was subpoenaed to testify before the grand jury on February 23, 1984, and March 21, 1984. The grand jury asked appellant questions about his selling insurance to Teamsters Local 147, his relationship with Bennett and his role in the administration of the union health and welfare plan.

Bennett was also subpoenaed to testify before the grand jury on March 21, 1984. Bennett appeared before the grand jury On May 15, 1984, Randall Cason and Thaddius Greenfield drove to appellant's office. Cason wanted to borrow $50 from appellant. When they arrived at the office, only Cason went inside the building. A short time later Cason and appellant left the building and got inside appellant's car. According to the government's evidence, appellant asked Cason if Cason could find someone who would perform a "contract" killing. Appellant told Cason that a "union man" was currently "involved" in a federal grand jury and that appellant was afraid that the "union man" could "cause him a problem." Appellant told Cason that if Cason knew of anyone who would perform the contract, Cason should have that individual call appellant using the name "Joe White."

and, upon the advice of his attorney, asserted the fifth amendment privilege against self-incrimination.

Cason rejoined Greenfield and told him what appellant had said. Unknown to Cason, Greenfield occasionally worked as an informant for the FBI. Greenfield told Cason that he might be able to help appellant with the contract killing.

The next day Greenfield told FBI special agent William Barrett Root about appellant's conversation with Cason. Agent Root advised Greenfield to see if he could determine the identity of the "union man" and then to report back.

On May 18, 1984, at Greenfield's request, Cason called appellant to let him know that someone would be calling him. Posing as Joe White, Greenfield then called appellant and they arranged to meet at a local discount department store that evening. Greenfield unsuccessfully attempted to contact Agent Root to inform him about the arranged meeting. Later Greenfield and Cason drove to the discount department store. Greenfield parked his car some distance from the store and Cason stayed inside the car. Greenfield walked to the front of the store and met appellant there as arranged. Appellant offered Greenfield $2,000 to kill a man whom appellant identified only as a "big shot" in the Teamsters who could hurt him in a federal grand jury hearing. Greenfield told appellant that he had come from St. Louis and requested money for expenses. Appellant gave Greenfield $30 and they arranged to meet again the next morning at appellant's office.

On May 19, before meeting appellant as arranged, Greenfield borrowed a small tape recorder in order to record the meeting. Greenfield then went to appellant's office. Greenfield and appellant discussed the "contract" in appellant's car. Greenfield had concealed the tape recorder in his pocket and switched on the tape recorder as he entered the car. Appellant gave Greenfield an additional $50 for expenses and then told Greenfield that the person to be killed was at that time out of town, but would be returning to attend a niece's high school graduation, and was generally "available" during the morning from 7:00 to 8:30 a.m. Appellant also asked Greenfield if he had a silencer. Greenfield answered that he did and appellant responded that that would be necessary. Appellant also assured Greenfield that his intentions were serious and "for real."

On May 21, 1984, Greenfield informed Agent Root of these developments. On May 23, 1984, Greenfield called appellant's office from the local FBI office. The call was recorded by the FBI. Appellant agreed to meet Greenfield the next morning. On May 24, 1984, Greenfield, wearing a concealed recording device, met appellant as arranged. During this conversation appellant denied discussing a contract, asking about a silencer or offering Greenfield $2,000 to kill someone. Appellant instead described their prior conversations as involving a car wash and stated that he could not raise the money to invest in the car wash. Greenfield then asked appellant why he had agreed to meet him in the first place and appellant answered that he had done so out of curiosity.

On May 25, 1984, Agent Root advised Bennett about appellant's recent conduct. Bennett informed Agent Root that he had been out of town during the past week and Bennett's wife, Dixie Lee Bennett, worked for appellant in his insurance business. On May 25, 1984, Bennett called his wife at work and told her that someone had threatened his life but did not identify appellant. Mrs. Bennett left the office and met her husband at his attorney's office. When she returned to work, appellant asked her where she had been. Mrs. Bennett told appellant that someone had threatened her husband and that she had been at his attorney's office. About an hour later Bennett's attorney called Mrs. Bennett at work and advised her to go home. As she was leaving, appellant asked her where she was going. Mrs. Bennett told appellant that she had been advised to go home and then left.

had returned in order to attend his niece's high school graduation. Bennett also recognized and identified one of the voices on the tape recordings as that of appellant.

Shortly after Mrs. Bennett left appellant's office, appellant made a call from a pay telephone booth at a neighboring gasoline station. The gasoline station attendant overheard some of the conversation and heard appellant say "the feds are on the case now," "I tell you they are on the case," "he's being interviewed right now," and "I tell you, my source says he is being interviewed right now." After appellant hung up, the attendant called the FBI.

On May 30, 1984, Randall Cason was subpoenaed to testify before the grand jury. Cason contacted appellant and asked him why he had been subpoenaed. Appellant asked Cason what he was going to say when he appeared before the grand jury. Cason indicated that all he could do was say what appellant had told him. Appellant then told Cason that "it was all a joke" and a "scam" and that he had only gone along with the plan to see how far it would go. Appellant also told Cason that if he would do him a favor, appellant would do a favor for him.

On June 26, 1984, appellant was indicted by the federal grand jury and charged with two counts of obstruction of justice in violation of 18 U.S.C. Sec. 1503 by endeavoring to hire someone to kill Bennett (count 1) and making false and misleading statements to Randall Cason (count 4) and two counts of witness tampering by engaging in misleading conduct toward Randall Cason (count 2) in violation of 18 U.S.C. Sec. 1512(a)(1) and attempting to hire someone to kill Bennett (count 3) in violation of 18 U.S.C. Sec. 1512(a)(2)(A). Following a five-day trial, the jury found appellant guilty of all four counts on October 5, 1984. Post-trial motions were denied. On November 2, 1984, the district court sentenced appellant to a total of twenty years imprisonment. ² This appeal followed.

OBSTRUCTION OF JUSTICE AND WITNESS TAMPERING

Appellant first argues that he was improperly charged in counts 1 and 4 with obstruction of justice in violation of 18 U.S.C. Sec. 1503. ³ Appellant argues that because Appellant has preserved this argument for appellate review. This argument was raised during trial in the district court and the government responded to defense motions by arguing that appellant had been properly charged under both Sec. 1503 and Sec. 1512.

the Victim and Witness Protection Act (VWPA), Pub.L. No. 97-291, 96 Stat. 1248 (1982), expressly deleted all references to...