## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2365

_____________ United States of America, * * Appellee, *

* v. * * Craig Scott Keltner, * * Appellant. * Appeals from the United States

_____________ District Court for the Eastern District of Arkansas. No. 97-2370

_____________ United States of America, * * Appellee, *

* v. * * Charles Bruce Nabors, * * Appellant. *

_____________ Submitted: January 14, 1998

Filed: June 5, 1998

_____________The Honorable John B. Jones, United States District Judge, United State s 1 District Court for the District of South Dakota, sitting by designation. The Ho norable Stephen M. Reasoner, United States District Judge, Unite d 2 States District Court for the Eastern District of Arkansas. -2- Before BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Jud ge, and JONES , District Judge.

1

_____________ JONES, District Judge.
After a three week trial in w hich 104 witnesses testified and approximately 200 exhibit s were introduced, defendants Craig Scott Keltner and Charles Bruce Nabor s
were convict ed by a jury of a violation of the Racketeer Influenced and Corrup t Organizati ons Act (RICO), 18 U.S.C. § 1962(c). The jury found the defendant s committed the following racketeering acts: robbery and kidnaping of Bill Anderson , robbery of Donna Johnson, interstate transportation of stolen property, conspiracy to rob and extort money from and attempted robbery of the Woodland Bank in Tulsa , Oklahoma, kidnapi ng of George Foster and Karen Fisher Perkins, wire fraud (Nabors only) and robbery and kidnaping of Vandy S. Gavin (Keltner only).

Both defe ndants were also convicted of conspiracy to commit extortion an d rob bery and interstate transportation of stolen jewelry. In addition, Nabors wa s convicted of m ail and wire fraud, felon in possession of a firearm and possession of a stolen firearm. Keltner was convicted of structuring a cash transaction.

The District Court sentenced Nabors to life imprisonment and sentenc ed Keltner 2 to thi rty years’ imprisonment. Both appeal their convictions. We affirm th e convictions of both defendants.

I. BACKGROUND-3-

The ev ents involved in this prosecution commenced following Nabors’ release from federal custody on parole in November 1 990. In December 1990, Fern Kilgore’s Fo rdBronco was stolen. Kilgore’s Bronco was rammed into a Radio Shack stor e during a bu rglary in January 1991. Billy Keltner, Keltner’s brother, admitted hi s participation and implicated Nabors in t he burglary of the Radio Shack store during an interview on February 25, 1991 with Federal Bureau of Investigation (FBI) agents and other law enforcement officials. Several compatible walkie-talkies and police scanners
were stolen from the store. A police scanner guide of the brand sold exclusively b y Radio Shack was later recovered by law enforcement from Keltn er’s car. Billy Keltner stated that Nabors did not find the spe cific type of microphone he wanted in the Radio Shack store so they burglarized a second store, where Nabors obtained the type o f microp hone for which he was looking. The internal components of one suc h microphone were ide ntified as similar to the microphone used on a hoax bomb device invo lvedin an extortion and robbery attempt of the Woodland Bank in Tulsa , Oklahoma. The items stolen from Radio Shack and the second store were similar to the items used in several subsequent crimes of which Keltner and Nabors wer e convicted.

The jury fo und Nabors and Keltner guilty of the January 1991 robbery an d kidnaping of Bill Anderson. During the FBI interview on February 25, 1991, Bill y Keltner admitted he participated in this crime. Anderson’s description of the crim e during his trial testimony coincides with Billy Keltner’s description given to the FBI. The items stolen from Anderson included guns, cash, jewelry, a photograph o f Keltner’s sister and a vehicle. Some of these items, including the vehicle and a gun, were later recovered by Anderson. The stolen jewelry had a value of between $21,000 and $22,000. Anderson identified Nabors at trial as one of the perpetrators of th e robbery and kidnaping.-4-

The jury also found Nabors and Keltner guilty of the January 1991 robbery of Donna Johnson. The items s tolen from Johnson included jewelry valued at $241,000, firearms, a camera, cash and a Cadillac. Johnson’s Cadill ac was later recovered. Billy Keltner a dmitted his participation in this crime to the FBI. Johnson testified at tria l regarding the details of the robbery in her home. Billy Keltner’s descriptions of th e crime and the jewelry taken (including a Rolex watch) are almost ident ical to Johnson’s trial testimony.

Keltn er was found guilty of the robbery and kidnaping of Vandy S. Gavin

. Gavinidentified Keltner at trial as the person who robbed him in his home. Wad e Wallis testified at trial that he, Keltner and Billy Keltner committed the robbery o f Gavin in March 1991.
The jury found Keltner and Nabors guilty of co nspiracy to commit extortion and robbery of the Woodland Bank in Tulsa, Oklahoma (Tulsa bank robbery). The jury also found the Tulsa bank robbery was a racketeering act under the RICO count

. Vie wing the evidence most favorably toward the guilty verdict, United States v

. Darden , 70 F.3d 1507, 1517 (8th Cir. 1995), cert. denied , 517 U.S. 1149 (1996), the record reveals the following facts. Bill Foster, President and CEO of Woodland Bank, and Karen Fisher Perkins, Senior Vice President and Controller of Woodland Bank , we re kidnaped by the defendants. Although Foster was not absolutely certain, h e testified at trial he believed Keltner was th e driver of the van involved in the crime and Nabors was the man in charge during the commission of the crime. Although Perkins had not identified Keltner or Nabors duringlineups prior to trial, she identified Keltner during th e trial as the driver of the van and Nabors as the man in charge. In addition, Nabors and Keltner admitted their participation in the Tulsa bank robbery (and some of the other burglaries and robberies discussed above) to several different individuals.
Defendants placed a device on Foster’s car which was triggere d to stop the car’s engine. On June 14, 1991, Foster’s car’s engine stopped and could not be restarted.-5-

Foster arranged for Perkins to give him a ride to work that morning. As Perkins was driving them to work , a van bumped into the back bumper of Perkins’ car. Foster got out of the car to survey the damage. Nabors approached Foster with a gun and directed Fo ster to return to Perkins’ car. Nabors got in the back seat of Perkins’ car an d directed Perkins to drive to a parking lot near the Woodland Bank. The van followed them to the parking lot.
Upon arriving in a parking lot, Nabors directed both Perkins and Foster to move to t he van. Nabors ordered Foster to retrieve $1 million from the Woodland Bank

. Foster informed the def

endants the bank did not have $1 million cash on hand and the bank vault would not open for another 30 minutes. One of the defendants stated h e knew the bank had $3.7 mi llion. The most recent Statement of Condition of the Bank indicated the bank had $3.7 million in ca sh due from other banks. An employee of the bank testif

ied that she believed Nabors came into the bank approximately one wee k pri or to the Tulsa bank robbery and requested a copy of the Statement of Condition

. The employee testified Nabors did all of the talking and a second man (younger than Nabors), dressed in white painters’ pants, was with him. The employee did not identify the second man. Terry Leach and Darla Leach testified that Nabors and Keltner were in Oklahoma approximately one week prior to the Tulsa bank robbery. Darla Leach testified that Keltner was wearing white painters’ pants during this visit to Oklahoma.
Following a discussion with Keltner about Foster’s statement that the bank did not have $1 million in cash on hand, Nabors decided to have Foster retrieve all of the cash in the possession of the drive-up tellers. Nabors fastened a metal box with a cable aroundFoster’s body and told Foster it was a bomb. Nabors told Foster to return to Perkins’ car with the money and follow the map contained in the trunk of the car.

Foster entered the Woodland Bank and im mediately called the FBI. The device placed on Foster was later found to be a microphone which allowed the defendants to hear what Foster was saying after he entered the bank. While Foster was driving to the-6-

bank, Keltner drove the van to a second parking lot where Nabors and Keltner ordered Perk ins to transfer to a brown car. Once they were in the brown car, Perkins coul d hear Foster’s voice on a two-way radio possessed by Nabors. When Nabors an d Keltner heard Foster call the police, their attempt to start the car failed. Perkin s escaped out the back door, flagged down a car and was given a ride to the bank.
The defendants were initially indicted in October 1992 and were ultimately tried
on a second superseding indictment filed in September 1993. The District Court initially dism

issed the RICO count in 1993, and this Court reversed. United States v. Nabors , 45 F.3d 238 (8 th Cir. 1995). The trial was commenced on July 29, 1996 and concluded on August 20, 1996.

II. DISCUSSION

A. RICO Violation

The RICO count against the defendants asserts a violation of 18 U.S.C. § 1962(c), which provides: (c) It shall be unlawful for any person employed by or associated with an y enter prise engaged in, or the activities of which affect, interstate or foreig n commerce, to conduct or participate, directly or indirectly, in the conduct of such en terprise’s affairs through a pattern of racketeering activity or collection o f unlawful debt.
1. Void For Vagueness

Defendants argue that the statutory substantive definition of RICO is void fo r vagueness as to the elements of enterprise and pattern of racketeering activity. “[T]he
vo id-for-vagueness doctrine requires that a penal statute define the criminal offens e with sufficient definiteness that ordinary people can understand what conduct isUnited States v. Angiulo , 897 F.2d 1169, 1179 (1st Cir. ), cert. denied , 498 U.S. 3 845 (1990); United States v. Coonan , 938 F.2d 1553, 1561-62 (2nd Cir. 1991), cert. denied , Kelly v. United States , 503 U.S. 941 (1992); United States v. Pungitore , 910 F.2d 1084, 1102-05 ( 3rd Cir. 1990), cert. denied , 500 U.S. 915 (1991); United States v. Bennett , 984 F.2d 597, 605-06 (4th Cir .), cert. denied , 508 U.S. 945 (1993); United States v. Krout , 66 F.3d 1420, 1432 (5th Cir. 1995), cert. denied , Alvarez v. Unite d States , 5 16 U.S. 1136 (1996); Columbia Natural Resources, Inc. v. Tatum , 58 F.3 d 11 01, 1106 (6th Cir. 1995), cert. denied , 516 U.S. 1158 (1996); United States v

. Ashman , 979 F.2d 469, 487 (7th Cir . 1992), cert. denied , Barcal v. United States , 510 U.S. 814 (1 993); United States v. Dischner , 974 F.2d 1502, 1508-11 (9th Cir. 1992), cert. den ied , 507 U.S. 923 (1993); Cox v. Administrator U.S. Steel & Carnegie , 1 7 F.3d 1386, 1398 (11th Cir. 1994), cert. denied , USX Corp. v. Cox , 513 U.S. 111 0 (1995). -7- prohi bitedand in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson , 461 U.S. 352, 357 (1983). Every circuit which has addressed the void-for-vaguen ess issue following the Supreme Court’s decision in H.J. Inc. v. No rthwestern Bell Tel. Co. , 492 U.S. 229, 239 (1989) has held the RICO statu te is not unconstitutionally vague. We join our sister circuits in holding that the 3 RICO statute is not unconstitutionally vague.
2. Admissibility Of Criminal Conduct Not Charged As Predicate Act

Defendants contend the District Court abused its discretion in admittin g evidence of uncharged criminal conduct to establish the elements of RICO. Witness Geral d Perryman was allowed to testifyabout his recruitment by the defendants to participate in the robbery of a bank in Hot Springs, his involvement in the conspiracy to rob the bank, overt acts that he and the defendants committed in preparation of the planne d robbery, a nd his eventual exclusion from the venture because Keltner discovered that he had mentioned it to his ex-wife.-8-

The District Court admitted the evidence at issue pursuant to our holding i n United States v. Ellison , 793 F.2d 942, 949, cert. denie d , 479 U.S. 937 (1986), that the government

may prove the existence of an enterprise for purposes of RICO b y intr oducing evidence not connected with the charges in the indictment provided th e prejudicial aspects of the evidence do not outweigh its probative value. Upo n reviewing the record, we find no abuse of discretion in the admission of the disputed evidence.
3. Sufficiency of Evidence To Sustain RICO Conviction

To establish a violation of RICO, the government must prove “(1) that a n enterprise existed; (2) that the enterprise affected interstate or foreign commerce; (3) tha t the defendant associated with the enterprise; (4) that the defendant participated , dir ectly or indirectly, in the conduct of the affairs of the enterprise; and (5) that th e defen dant participated in the enterprise through a pattern of racketeering activity b y committin g at least two racketeering (predicate) acts.” Darden , 70 F.3d at 151 8 (citatio n omitted). Defendants contend the evidence was insufficient on the elements of enterprise, pattern of racketeering activity and interstate commerce.

In revie wing the sufficiency of the evidence to support a jury verdict, the court view s “the evidence in the light most favorable to the guilty verdict, giving th e governme nt

the benefit of all reasonable inferences that might be drawn from th e evidence.” Darden , 70 F.3d at 1517 (quoting, United States v. Fregoso , 60 F.3d 1314, 1322 (8th Cir. 1995)). “We will reverse a conviction for insufficient evidence an d order the entry of judgment of acquittal only if no construction of the evidence exists to suppor t the jury’s verdict.” Id. We will address the sufficiency of the evidence as to the elements of enterprise, pattern of racketeering activity and interstate commerce.-9- a. Enterprise

Three elements are necessary to establish the existence of a RICO enterprise: “( 1) a common purpose; (2) a formal or informal organization of the participants i n which they func tion as a unit (‘some continuity of both structure and personnel’); and (3) ‘an ascertainable struc ture distinct from that inherent in the conduct of a pattern of
rac keteering activity.’” Darden , 70 F.3d at 1520 (citation omitted); and Nabors , 4 5 F.3 d at 240. Defendants argue the proof is insufficient to establish the third element. The inquiry under the third element is “whether the enterprise encompasses more than wh atis necessary to commit the predicate RICO offense.” Diamonds Plus, Inc. v

. Kolber , 960 F.2d 765, 770 (8th Cir. 1992). In making this inquiry, the court ma y consider the facts used to support the predicate acts. Id. “Our focus is to ensure that RICO’s severe penalties are limited to ‘enterprises consisting of more than simpl e conspiraci es to perpetrate the predicate acts of racketeering.’” United States v

. Davidson , 122 F.3d 531, 534 (8th Cir.) (quotation omitted), cert. denied , ___ U.S. ___, 118 S.Ct. 639 (1997).
Defendants contend the proof fails as a matter of law to prove that an enterprise existe d distinct, separate and apart from the racketeering activity. We disagree. The evidence viewed most favorably toward the guilty verdicts demonstrates that Nabors led a “small but prolific crime ring,” Davidson , 122 F.3d at 534, which had a distinct structure consisting of more than simple conspiracies to perpetrate the predicate acts withwhich each defendant was convicted. Nabors participated in and directe d Keltner’ s, Billy Keltner’s and other individuals’ activities in several burglaries , robberies and other crimes preceding the Tulsa bank robbery. Billy Kelt ner’s statement to the FB I reflects that Nabors was the individual in charge during the commission of such crim es. The victims of the Tulsa bank robbery testified Nabors was clearly i n charge during the commission of that off ense. Bill Anderson testified that Nabors was the man in charge during the robbery of his ho me. Many of the items stolen during the robberies were used in subsequent robberies. Specifically, several items previously-10-

stolen were used in the Tulsa bank robbery including parts of microphones used t o make a fake bomb and police scanners. Nabors and Keltner also committed severa l acts of intimidation and solicitation of perjury to protect their identity.

b. Pattern of Racketeering Activity

“A pattern of racketeering activity consists of at least two predicate acts , although two may not be sufficient [to prove such a pattern].” Darden , 70 F.3d at 1525 (citation omitted). The Supreme Court explained “to prove a pattern of racketeering
ac tivity a plaintiff or a prosecutor must show that the racketeering predicates ar e related, and

that they amount to or pose a threat of continued criminal activity.” H.J. Inc. , 492 U.S. at 239 . The predicate acts are related if they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise ar e inter relatedby distinguishing characteristics and are not isolated events.” Id. at 24 0 (citation and quotation marks omitted). Continuity may refer either to a “closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” Id. at 241. Even if the predicate acts d o not extend over enough ti meto establish closed-ended continuity, “the predicates will meet the definition o f open-en ded continuity to the extent they ‘involve a distinct threat of long-term racketeering activity.’” Handeen v. Lemaire , 112 F.3d 1339, 1352-53 (8th Cir. 1997) (quoting, H.J. Inc. , 492 U.S. at 242).

In this case, the ten predicate acts of which the jury convicted the defendant s were related. Several of the items tak en by defendants during the robberies were used in su bsequent robberies and the Tulsa bank robbery, including microphones, walki e talkies, firearms, a police scanner and a police scanner guide. Jewelry taken b y defendants during the robberies was transp orted across state boundaries, which served as the basis for their convictions for interstate transportation of stolen property. Several of d efendants’ victims testified that Nabors was the individual in charge and directed the activities of the other individuals during the commission of such crimes. The-11-

defend ants’ criminal activity progressed from burglary of unoccupied structures, t o robbe ries of owner-occupied homes, to kidnaping, to attempting to extort $1 millio n froma b ank. Defendants’ progressing criminal activity became more complex , requiring significant planning to avoid detection by law enforcement.

Defenda nts contend there was only one alleged scheme to rob a bank or extort monies, a nd the government, therefore, failed to establish a pattern of racketeerin g activity. This argument relates to the continuity element and is precluded by th e Supreme Court’s statement that “... it is implausible to suppose that Congress thought continuity might be shown only by proof of multiple schemes.” H.J. Inc. , 492 U.S. at 240. In this case, it is clear that Nabors’ and Keltner’s conduct involved the distinct threat of long-term racketeering activity. We find sufficient evidence to support th e jury’s finding that defendants engaged in a pattern of racketeering activity.

c. Interstate Commerce

Defendant s contend the proof failed to show the alleged enterprise affecte d interstate commerce. We find sufficient evidence in the record toestablish this element of t he offense. Both defendants made repeated trips between Arkansas, Oklahoma , Texas and Louisiana. Three of the predicate acts occurred outside the state o f Arkansas: the Tulsa bank robbery, interstate transportation of stolen property, wir e fraud and mail fraud.

B. Admissibility of Evidence Claims

Defendants contend the District C ourt erred in the evidentiary rulings discussed below. “We review the evidentiary rulings of a district court only for abuses o f discretio n, and will reverse only when an improper evidentiary ruling affects th e substantial rights of the defendant or w hen we believe that the error has had more than-12-

a slight influence on th e verdict.” United States v. Ballew , 40 F.3d 936, 941 (8th Cir. 1994) (citations omitted), cert. denied , 514 U.S. 1091 (1995).
1. Billy Keltner’s Statement of February 25, 1991

The D istrict Court allowed the admission of the FBI 302 report produce d following t he FBI’s interview with Billy Keltner on February 25, 1991. Defendant s object to t he admission of this statement on the grounds that it was hearsay, it wa s admitted in violati on of the Confrontation Clause of the Sixth Amendment, and it was the resu lt of an unlawful bounty hunting agreement in violation of the Fift h Amendment’s Due Process Clause.

Defe ndants objected to the FBI 302 report on hearsay grounds. The Distric t Court held the statement was against B illy Keltner’s penal interest and was admissible under Fed.R.Evid. 804(b)(3). We review this evidentiary ruling for abuse of discretion. Ballew , 40 F.3d at 941. Defendants contend this statement lacks the “circumstantial guarantees of trustworthiness” necessary for its admission. Nabors claims Billy Keltner
was offered release from a 10-year-prison sentence in Texas and immunity for tw o robberies and other crimes for his statement and cooperation. Defendants assert Billy Keltner ’s statement was not trustworthy as it was contradicted by other evidence , including the testimony of

Terry Don Leach. Defendants also claim the portion of the statement relating to the future crime in Oklahoma was not against Billy Keltner’s penal interest because it did not incriminate him. Keltner urges this Court to find that a n
accom plice’s statement which inculpates another individual is a subcategory o f statements against penal interest and is not a firmly rooted hearsay exception.

Admis sion of hearsay statements may be allowed under Rule 804(b)(3) if th e following three elements are met: (1) the declarant must be unavailable to testify at trial, (2) the statement must tend to subject the declarant to criminal liability to such an extent-13-

that no reasonabl e person in his position would have made the statement unle ss he believed it to be true, and (3) the statement must be supported by corroborating circumstances clearly indicating the trustworthiness of the statement. United States v. Bobo , 994 F.2d 524 , 528 (8th Cir.) (quoting United States v. Seabolt , 958 F.2d 2 31, 233 (8th Cir. 1992), cert. denied , 507 U.S. 971 (1993)), cert. denied , 510 U.S. 891 (1993). In this case, Billy Keltner was unavailable to testify at tria l because he committed suicide prior to the trial. The statement at issue provides details of criminal activity in which Billy Keltner participated and was planning to participate with various individuals, including both defendants. The statement include s informatio n regarding five of the predicate racketeering acts charged in this case: (1) the detai ls of the Anderson robbery, including a description of the items stolen fro m Anderson ’s home; (2) the details of the Anderson kidnaping; (3) the details of th e Johnso n robbery, including specific descriptions of jewelry stolen from Johnson’ s home; ( 4) the details of the transportation of stolen jewelry across state lines; and (5) the d etails of the conspiracy to rob or extort $1 million from a bank in Tulsa , Oklahoma. These statements cl early subjected Billy Keltner to criminal liability. The agreemen t

between Billy Keltner and the Texas authorities provided that if hi s information lead to the “arrest and /or indictment” of Nabors, the authorities would not pursue a motion to revoke Billy Keltner’s probation. Trial Exhibit 175. Contrary to defendants’ argument, the agreement did not provide immunity to Billy Keltner for his role in any criminal activity, including the Anderson and Johnson robberies. Tria l Exhibit 175.

T he information Billy Keltner gave to the FBI was supported by corroborating circumstances. Billy Keltn er’s description of the robbery or extortion of a Tulsa bank being planned matches almost exactly the manner in which the crime was actuall y committed just four months after Billy Keltner gave his statement to the FBI. Bill y Keltner informed the FBI that the bank president and his wife would be kidnaped and they would hold the wife hostage while requiring the bank president to retrieve $1-14-

million from the bank. During the robbery they would use some of the microphone s they had obtained dur

ing a robbery of an electronics store and walkie talkies they had stolen from a Radio Shack store to facilitate communication among the participants

. Nabors was t o furnish a necklace with speakers so the participants in the crime could listen t o what was happening inside the bank. A metal box, which could be hun g around the bank president’s throat, was being constructed to amplify the speakers.

Mr. Foster’s and Ms. Perkins’ identifications of the defendants at trial as well
as the ir descriptions of the manner in which the crime was committed provid e additional corroboration of Billy Keltner’s statement to the FBI regarding the Tuls a bank robbery. Other portions of Billy Keltner’s statement were supported by evidence introduced at trial and corroborating testimony from the victims of the other robberies. We find no abuse of discretion by the District Court in admitt ing the February 25, 1991 FBI 302 report of the FBI’s interview with Billy Keltner as a statement against penal interest.
Defendants’ argument that the Sixt h Amendment was violated by the admission of the FBI 302 report lacks merit. In e xamining the reliability of hearsay statements in conjunction with the Confrontation Clause, the Supreme Court stated: [W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he i s un available. Even then, his statement is admissible only if it bear s adequate “indicia of reliability.” Rel iability can be inferred without more in a c ase where the evidence falls within a firmly rooted hearsa y exception. Ohio v. Roberts , 448 U.S. 56, 66 (1980); see also , Whit e v. Illinois , 502 U.S. 346, 356 & n. 8 (1992) (recognizing that firmly rooted exceptions to the hearsay rules o f evidence carry sufficient indicia of reliability to satisfy the reliability requirement of the Confrontat

ion Clause), and Stidum v. Trickey , 881 F.2d 582, 584-85 (8th Cir. 1989), cert. denied , 493 U. S. 1087 (1990). As discussed above, Billy Keltner’s statement to the FBI was properly admitted pursuant to Fed.R.Evid. 804(b)(3) as a s tatement against-15-

his penal interest. Statements against penal interest fall within a firmly rooted hearsay exception. Berrisford v. Wood , 826 F.2d 747, 751 (8th Cir. 1987), cert. denied , 484 U.S. 1016 (1988). Therefo re, the reliability requirements of the Confrontation Clause were satisfied and the admission of Billy Ke ltner’s statement to the FBI did not violate the Confrontation Clause of the Sixth Amendment.

Defendants maintain the agreement between Billy Keltner and the FBI was an illegal “bounty hunting” agreement and the statement should not have been admitted because it violated defendants’ due process rights to a fair trial. We disagree. Th e agr eement

between Billy Keltner and the FBI stated he was to provide truthfu l in formationto the FBI. If such information led to the arrest and indictment of th e targeted individual (Nabors), the State of Texas and the prosecutor’s office woul d
recom mend

to the appropriate judge that Billy Keltner remain on probation and th e Moti onto Revoke Probation be dismissed. The portion of the agreement whic h referre d to Billy Keltner’s testimony before a grand jury or in court was eliminate d prior to signing the agreement because he refused to provide such testimony.
Billy K eltner’s agreement with the FBI and the State of Texas amounted to a contingent

plea agreement. A panel of this Court found in United States v. Irons , 53 F.3d 947, 948-49 (8th Cir . 1995), that an agreement similar to the one at issue did not violate a defendant’s right to a fair trial. As i n Irons , the agreement here required Billy Keltn er to provide truthful information. Id. at 948. The agreement did not gran t immunityto Billy Keltner for criminal activity of which he informed the FBI and did not release him from the ter ms of his probation. Similar to the agreement in Irons , the favorable treatment Billy Keltner was to receive under the agreement in this case was not con tingent on convicting Nabors. Id. The jury was fully informed about th e agreement (it was admitted as Exhibit 175 at the trial), and the jury could determin e whether Billy Keltner’s information was credible. Id.-16-

2. Billy Keltner’s Grand Jury Testimony

The District Court excluded Billy Keltner’s October 3, 1991 testimony before a grand jury, which defendants s tate they offered during the trial. Defendants contend the Dis trict Court abused its discretion in refusing the admission of this evidence , because defendants were not allowed to develop their theory of defense that Bill y Keltner fabricated evidence against them. Defendants claim the District Court failed to specifically make a finding as to the reliability and admissibility of Billy Keltner’s October 1991 grand jury testimony. We disagree.
Although defendants state they offered the grand jury testimony during the trial, defendants did not provide a citation to the record where su ch offer was made. We did not locate su ch offer in the record. Rule 28(e) of the Federal Rules of Appellat e Procedure s tates in relevant part, “[i]f reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which th e evidence was identified, offered, and received or rejected.” Even assuming the defendants offered the grand jury testimony, we are confident the District Court’s ruling excluding such testimony was proper.

Prior to trial def

endants filed a motion in limine to exclude both Billy Keltner’s grand jury testimony and the FBI 30 2 report discussed above. In granting defendants’ motion to ex clude the grand jury testimony, the District Court found it was no t admissible as a statement against penal interest because the government had grante d immunity t o Billy Keltner in exchange for his testimony. The District Court furthe r found t he grand jury testimony was not admissible under Fed.R.Evid. 804(b)(5 ) because the testimony lacked the “particularized guarantees of trustworthiness ” necessary for its admission under this rule. See United States v. Barrett , 8 F.3d 1296, 1300 (8th Cir. 1993). Contrary to defendants’ argument, the District Court made a detailed finding as to the reliability and admissibility of this testimony. We find no-17-

abuse of di scretion in the District Court’s exclusion of Billy Keltner’s grand jury testimony.
3. Tome Objection

The Supreme Court held in Tome v. United States , 513 U.S. 150, 167 (1995), that Fed.R.Evid. 801(d)(1)(B) “permits the introductionof a declarant’s consistent outof- court statements to rebut a charge of recent fabrication or improper influence o r motive only when those statements were made befo re the charged recent fabrication or improper influence or motive.”
Defendants argue the District Court erred in allowing the government to question one of the government’s witnesses, Terry Don Leach, about p rior consistent statements made by Le ach to the FBI and to two separate grand juries. These questions wer e al lowedon redirect examination by the government after the defendants had cross

examined Leach about suc h statements and raised the issue of fabrication or improper influence or motive. Defendants contend Leach’s motive to lie was obvious: Leach , accused of a crime, was avoiding prosecution by cooperating with the authorities and by incriminating the defendants. Defendants assert the consistent statements at issue
were made after

Leach’s motive to lie or fabricate had arisen, and therefore, th e District Court erred in overruling defendants’ Tome objection.

The gove rnment argues the rule at issue here is the rule of completeness , Fed.R.Evid. 106, rather than the Supreme Court’s rule in Tome . The governmen t contends the questions posed to Leach on redirect exa mination consisted of asking him about portions of the statements which the defendants omitted during cross

examination. We agree with the government’s posit ion and find no abuse of discretion in allowing such questions by the government on redirect examination.-18-

C. Brady and Jencks Act Issues

Defendants assert the government violated Brady v. Maryland , 373 U.S. 8 3 (1963), by refusing to comply with defendants’ requests for copies of FBI Agen t Handley’s 302 reports relating to Billy Keltner. Defendants also contend they sought the FBI 302 reports under the Jencks Act, 18 U.S.C. § 3500 et seq., and failure t o provide such information should result in a new trial.
During tria l, Agent Handley testified he documented in at least three FBI 30 2 reports that Billy Keltner refused to testify in any court proceedings because he wa s afraid of Nabors and family members were involved in the criminal activities bein g inve stigated. Although defendants received the February 25, 1991 FBI 302 report discu ssed above, defendants stated at trial that they had not received any FBI 30 2 report documenting Billy Keltner’s alleged fear of Nabors. Agent Handley testified that to his knowledge all of the FBI 302 reports authored by him were provided to th e defendants

. Upon requesting such reports, the District Court directed defendants t o raise the issue outside the presence of the jury. Defendants thereafter failed to request that the District Court consider the issue of the FBI 302 reports. Defendants did not include this issue in their motions for a new trial. During defendants’ request at trial for the additional FBI 302 reports concerning Billy Keltner, defend ants did not state the issue as being whether the government violated the principles set forth in Brady , 373 U.S. at 87. Defendants failed to obtain a ruling on this issue by the District Court

. The Brady issue has not been preserved for appellate review. See United States v

. Wagoner , 713 F.2d 1371, 1374 (8th Cir. 1983) (holding “[i]t was incumbent upon [the defenda nt] to obtain a ruling upon his motion [to exclude evidence] and having failed to do so leaves not

hing for review.”); and United States v. Payne , 102 F.3d 289, 292- 93 (7th Cir. 1996) (holding that defendant waived his Brady argument with respect to agent’s debriefing notes by failing to give the district court the opportunity to review the notes before taking an appeal, despite defendant’s request that the matter b e preserved for appeal).-19-

Even if def

endants had properly preserved their Brady claim for review, it i s without merit. In Brady , the Supreme Court stated that “sup pression by the prosecution of evidence favorable to an accused upon request violates due process where th e evidence is material either to guilt or to punishment, irrespective of t he good faith or bad faith of the prosecution.” 373 U.S. at 87. To establish a Brady violation, a defendant is required to show that: (1) the prose cution suppressed evidence; (2) the evidence was favo rable to the defendant; and (3) the evidence was material. United States v. Va n Brocklin , 115 F.3d 587, 594 (8th Cir. 1997), cert. denied , ___ S.Ct. ___, 1998 W L 245059 (U.S. May 18, 1998) (No. 97-1670). To establish materiality in the context of Bra dy , “the accused must show there is a reasonable probability that if the allegedl y suppressed evidence had been disclosed at trial t he result of the proceeding would have been differe nt.” Drew v. United States , 46 F.3d 823, 827-28 (8th Cir.) (citation s omitted), cert. denied , 516 U.S. 817 (1995). “A ‘reasonable probability’ is a probability sufficientto undermine the reviewing court’s confidence in the outcome of th e proceeding.” Id. (citation omitted).
Defendants have not shown any of the elements necess ary to succeed on a Brady claim. The record before the District Court on the suppression issue is insufficient to show the pr osecution suppressed the FBI 302 reports at issue. Even if they wer e suppresse d, defendants have failed to show the FBI 302 reports documenting Bill y Keltner’s fear of Nabors were “favorable” to them. Defendants allege such reports may “lead to other materials buried somewhere within the FBI.” Defendants further contend such reports are crucial to the defens e regarding the issue of governmental misconduct. “Mere speculation that materials may contain exculpatory evidence is not, however , sufficient to sustain a Brady claim.” Van Brocklin , 115 F.3d at 594.
Moreover, defendants have not satisfied the materiality element. The defendants have not shown there is a reasonable probability that the result of the trial would have been different had the FBI 302 reports documenting Billy Keltner’s fear of Nabors been disclosed to the m. Defendants do not specify how such reports may have affected the-20-

outcome of the trial. We therefore h old the defendants have failed to establish a Brady violation.
Regard ing their Jencks Act claim, defendants failed to object at trial on th e grounds that the alleged failure to provide the FBI 302 reports at issue amounted to a Jencks Act violation. Defendants did not raise this issue in their motions for a new trial. De fendants have waived this argument and we need not address it here. See Unite d States v. Grajales-Montoya , 117 F.3d 356, 363 (8th Cir.) (holding that failure t o advance a n argument before the district court that a Jencks Act violation occurre d results in waiver of the argument on appeal), cert. denied , ___ U.S. ___, 118 S.Ct. 586 (1997).

D. Remaining Issues
In addition to the issues addressed above, th e defendants have raised and briefed
sever al other issues. These issues include arguments that (1) the Fourth Amendmen t and 18 U.S. C. § 3109 were violated by the failure to “knock and announce” in th e execution of a search warrant; (2) the evidence was insufficient to sustain Nabors ’ convictions of mail and

wire fraud and possession of a stolen firearm; (3) the evidence was insufficient to sustain d efendants’ convictions of interstate transportation of stolen prope rty; (4) the jury should have been instructed on the law relating to illegal bounty hun ting agreements; (5) defendants are entitled to a new trial based on the decision in OldChief v. United States , 519 U.S. 172 (1997); (6) defendants are entitled to a new trial due t o outrageous governmental conduct; and (7) the District Court erred i n refusing re-cross-examination of Ms. Perkins after her identification of both defendants. We hav e carefully considered all arguments on these issues and have reviewed th e relevan t portions of the record. Each of these claims is without merit. The Distric t Court’s rulings on the issues listed above are affirmed.-21- III. CONCLUSION
For the reasons stated herein, we affirm the Distric t Court’s judgments as to both defendants.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.