1 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK GRAMS, Defendant - Appellant. No. 03-1332

ORDER AND JUDGMENT 1

Before TACHA , Chief Circuit Judge, LUCERO , and MURPHY , Circuit Judges. Mark Grams entered a conditional guilty plea to transporting a fraudulent security in interstate commerce in violation of 18 U.S.C. § 2314, which was the consequence of his alleged theft of a $191,700 chec k from his employer. He appeals the district court’s partial denial of his motion to suppress evidence as well as the district court’s denial of his motion t o dismiss the indictment for outrageous government conduct. We exercise jurisdi ction under 28 U.S.C. § 1291 and AFFIRM

.-2-

We summarily state the background facts and procedu ral history, which are addressed in substantial detail in the district cou rt’s Memorandum and Order of February 10, 2003. On July 26, 1995, Grams, who wa s then treasurer of Beaver Creek Resort Company and finance director of Vail A ssociates, diverted a $191,700 check payable by Beaver Creek to Gillig Co rporation, that had been issued in connection with a negotiation for purchas e of transportation buses for Beaver Creek. No one had focused on the disappearance of the check until 1997, when accountants inquired about the book entry of $ 191,700. In attempting to obtain information about the check from Grams, it w as determined that he had left on vacation, a work break from which he apparently elected not to return. Over the next eighteen months, investigations were launc hed by Vail Associates personnel, federal, and state authorities. These v arious investigations gradually uncovered evidence which led all to conclude that G rams was responsible for the theft of the money. On the basis of the evidence, which consisted of ba nk account numbers and details of financial transactions through which Grams diverted the money in question, the FBI issued a warrant for Grams’ arres t. Grams was arrested in Jackson Hole, Wyoming on April 6, 1999. On Novembe r 12, 1999, Grams moved to suppress the evidence under the Right to Financi al Privacy Act, 12 U.S.C. §§ 3401-3421, and the Fourth Amendment of the Unite d States Constitution. On-3-

March 23, 2001, Grams requested dismissal of the in dictment. After holding several hearings on Grams’ motions to suppress and to dismiss the indictment, the district court issued aMemorandum and Order on February 11, 2003, detailing its findings and concl usions and ultimately granting in part and denying in part the motion to suppress. Specifically, the district court found that the government had violated Grams’ Fourth Amendment rights by directing Grams’ roommate to open his mail and issu ing a federal grand jury subpoena for the contents of Grams’ private mailbox . Thus, as to evidence which the district court determined to have been derived from those violations, the district court granted the motion to suppress. On the other hand, the district court found much of the evidence against Grams admissible against him despite the Fourth Ame ndment violations. It found that as to some parts of the evidence, Grams failed to demonstrate a factual nexus between the illegality and substantial portions of the challenged evidence. See United States v. DeLuca , 269 F.3d 1128, 1132 (10th Cir. 2001). With respe ct to other portions of the evidence, the district court found that it either was discovered by means wholly independent of any const itutional violation, see Nix v. Williams , 467 U.S. 431, 443 (1984); United States v. Griffi n , 48 F.3d 1147, 1150 (10th Cir. 1995), or that it was sufficiently distinguishable from any constitutional violation to be purged from the prim ary taint, Griffin , 48 F.3d at-4-

1150. The district court also denied Grams’ motion to dis miss the indictment. Grams filed a motion for reconsideration of that di smissal and reasserted that the indictment should be dismissed, this time arguing that the government’s extreme and outrageous conduct in its pursuit of him justif ied dismissal. On April 1, 2003, the district court orally denied Grams’ motio n to reconsider. Grams ultimately pled guilty to the charge of trans portation in interstate commerce of a stolen check in violation of 18 U.S.C . § 2314, preserving his right to appeal the denial of his suppression motions andhis motion to dismiss the indictment. Having been sentenced to a term of fif teen months in prison and three years supervised release, Grams appealed, adv ancing two arguments of district court error: (1) that the district court’ s partial denial of Grams’ motion to suppress was based on its erroneous finding of no f actual nexus between the Fourth Amendment violations and the warrants that l ed to the evidence against him; and (2) that the court failed to take into acc ount the government’s improper conduct and therefore erred in refusing to dismiss the indictment. With respect to the district court’s partial denial of Grams’ motion to suppress, “[w]e consider the totality of the circum stances and view the evidence in a light most favorable to the government.” Unit ed States v. Avery , 295 F.3d 1158, 1167 (10th Cir. 2002) (quotation omitted). W e review the district court’s-5-

factual determinations for clear error and “will no t reweigh the evidence presented to the district court, second guess the d istrict court’s credibility assessments, or question ‘reasonable inferences’ th e district court drew from the evidence.” Id. We review the ultimate determination of reasonabl eness under the Fourth Amendment de novo. Id. Our review of the record convinces us that the district court’s consideration of Grams’ motion to suppress was correct in all res pects. The evidence that the court refused to suppress either lacked a factual n exus to the Fourth Amendment violations, was uncovered through independent and l egitimate sources, or was sufficiently distinguishable to be purged from the primary taint. For substantially the same reasons relied upon by the district court in its Order and Memorandum of Decision dated February 11, 2003, therefore, we AFFIRM the district court’s decision to partially deny Grams’ motions to suppre ss the evidence against him. As to Grams’ appeal of the district court’s denial of his motion to dismiss for outrageous conduct, our review is de novo. Uni ted States v. Pedraza , 27 F.3d 1515, 1521 (10th Cir. 1994). We have explained that “[w]hen the government’s conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses develope d through that conduct.” United States v. Sandia , 188 F.3d 1215, 1219 (10th Cir. 1999) (quotation omitted). “Government conduct is outrageous if con sidering the totality of the-6-

circumstances in any given case, the government’s c onduct is so shocking, outrageous, and intolerable that it offends the uni versal sense of justice.” Id. Moreover, “[o]utrageous conduct generally requires government creation of a crime or substantial coercion to induce the crime.” Id. Having examined the record carefully and upon consi deration of the totality of the circumstances, we conclude that the government’s conduct in prosecuting the instant case does not meet this ext remely high standard. Accordingly, we AFFIRM the district court’s denial of Grams’ motion to di smiss the indictment.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge