                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2721
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the Eastern
Thomas Finley,                          * District of Missouri.
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: March 9, 1999

                                 Filed: April 29, 1999
                                  ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      SACHS,1 District Judge.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Thomas Finley was indicted on three counts of using the mails with the intent
that a murder-for-hire be committed in violation of the laws of Missouri. See 18
U.S.C. § 1958(a). He was convicted after a bench trial. On appeal, he maintains that
there was insufficient evidence to convict him, that he was entrapped, and that the



      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, sitting by designation.
government engaged in such outrageous conduct in securing his conviction that the
charges against him should have been dismissed.

      We affirm the judgment of the trial court.2

                                            I.
       While in jail awaiting trial on a charge of rape, Mr. Finley asked his
cellmate, James Stewart, whether Mr. Stewart's brother (who Mr. Finley believed was
a murderer) could help him eliminate Rene Rowe, the supposed victim of the alleged
rape. Mr. Stewart agreed with Mr. Finley that he would have his brother visit the jail
disguised as a minister. Mr. Stewart then contacted the FBI, which arranged to have
one of its agents enter the jail in clerical garb and speak privately with Mr. Finley.
When the agent asked what he wanted done to Ms. Rowe and her boyfriend,
Mr. Finley said, "Well, he [Mr. Stewart] mentioned whacking 'em ... yeah. Eliminate
'em." If Ms. Rowe persisted in going to trial, then, Mr. Finley said, "We'll make 'em
disappear and I'll pay you for doing that." When the agent asked Mr. Finley directly
whether he wanted him to kill Ms. Rowe and her boyfriend, Mr. Finley replied, "If
that's what has to be done. If they don't, you know, come to reason."

      After this conversation, Mr. Finley twice wrote to the address that the agent
had given him and told him to "go ahead with the overdose or whatever as soon as
possible," and said that he would pay the agent when he was released. (An overdose
of drugs was one method that Mr. Finley had proposed for carrying out the murder
of Ms. Rowe.) A third letter directed the agent to collect a ring worth $700 or $800
from Mr. Finley's sister as the equivalent of earnest money: "I want you to know I
am sincere," the letter said. "I wanted to give you something to prove my good faith."



      2
       The Honorable Stephen Nathaniel Limbaugh, United States District Judge for
the Eastern District of Missouri.

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       This evidence, and other evidence that was adduced at trial, is more than ample
to sustain Mr. Finley's conviction. First of all, since the letters arrived in the mail,
and there was evidence that Mr. Finley put the stamps on them, a rational factfinder
could conclude that he used the mails in the furtherance of his plan. Mr. Finley has
an elaborate story that, if believed, would indicate that he had no intention to use the
mails, and did not cause them to be used; but the trial court did not credit his story,
and it was not required to. Second, Mr. Finley's reference to "whacking 'em," and his
direction to "eliminate 'em," supports the conclusion that he wanted the witnesses
killed, a manifest violation of Missouri law. Third, Mr. Finley promised to pay the
FBI agent for his services, and arranged to have a ring given to him as the equivalent
of earnest money. These are the three elements of the crime with which he was
charged. See 18 U.S.C. § 1958(a).

       Mr. Finley protests that his direction to kill the witnesses was conditioned on
being unable to dissuade them from testifying. But even if a conditional scheme to
murder is not punishable under the relevant statute, a question that we do not decide,
the letters that Mr. Finley wrote after the meeting with the FBI agent contain
unconditional directions to carry out an agreement to commit murder for hire.

                                           II.
       Mr. Finley argues that, even if there is sufficient evidence in the record to
support his conviction for the offense, he was entrapped into committing it. He
asserts that it was Mr. Stewart's idea to contact Mr. Stewart's brother to murder the
witnesses, and that Mr. Stewart was acting on behalf of the government at the time
that he revealed his idea to Mr. Finley.

      But, in the first place, the trial court believed Mr. Stewart's testimony that
Mr. Finley, without any prompting, had requested him to arrange contact between his
brother and Mr. Finley so that Mr. Finley could persuade the brother to kill the
witnesses. That finding is not clearly erroneous, and it makes it clear that Mr. Finley

                                          -3-
was predisposed to commit the crime, a fact immediately fatal to an entrapment
defense. See Jacobson v. United States, 503 U.S. 540, 548-50, 553-54 (1992), and
Mathews v. United States, 485 U.S. 58, 63 (1988). Mr. Finley's predisposition was
manifest, and he was thus an " 'unwary criminal' " rather than an " 'unwary
innocent,' " United States v. Russell, 411 U.S. 423, 436 (1973), quoting Sherman v.
United States, 356 U.S. 369, 372 (1958).

      The trial court also found, moreover, that Mr. Stewart was not acting as a
government agent at the time of his initial conversation with Mr. Finley concerning
the possibility of employing his brother to kill Ms. Rowe, a finding that the record
abundantly supports. Therefore, even if Mr. Stewart had predisposed Mr. Finley to
the commission of a criminal act, the entrapment defense would have been
unavailable because Mr. Stewart's actions could not be imputed to the government.

                                         III.
      The final argument that Mr. Finley offers is that the charges against him should
have been dismissed because the government engaged in outrageous conduct to
secure his conviction. Outrageous conduct is a term of art: It means conduct "so
outrageous and shocking that it exceed[s] the bounds of fundamental fairness."
United States v. Johnson, 767 F.2d 1259, 1275 (8th Cir. 1985). The course of
governmental conduct described earlier is hardly outrageous; in fact, it does not entail
anything that is in any way atypical of what government does to detect and prevent
crime on a daily basis. " 'Artifice and stratagem may be employed to catch those
engaged in criminal enterprises.' " Jacobson, 503 U.S. at 548, quoting Sorrells v.
United States, 287 U.S. 435, 441 (1932).

      It is true that there was a second meeting between Mr. Finley and the FBI
agent posing as a minister, in the course of which the agent told him falsely that he
had contacted the witnesses and they had refused to agree not to testify. A lie
might, under some circumstances, amount to governmental activity sufficiently

                                          -4-
outrageous to void a conviction. But in this case the offense was complete before
the second meeting, because the three letters and the conversation that furnished
the basis for the conviction were mailed and took place before the second
conversation occurred. That exchange is thus irrelevant to Mr. Finley's defense of
outrageous conduct, and we therefore reject the defense.

                                       IV.
      For the reasons indicated, we affirm the judgment of the trial court.

      A true copy.

             Attest:

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




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