                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 28 2004
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                         No. 03-1332
 MARK GRAMS,

          Defendant - Appellant.


                             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 check 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 to dismiss the indictment for

outrageous government conduct. We exercise jurisdiction under 28 U.S.C. § 1291

and AFFIRM.



      1
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      We summarily state the background facts and procedural history, which are

addressed in substantial detail in the district court’s Memorandum and Order of

February 10, 2003. On July 26, 1995, Grams, who was then treasurer of Beaver

Creek Resort Company and finance director of Vail Associates, diverted a

$191,700 check payable by Beaver Creek to Gillig Corporation, that had been

issued in connection with a negotiation for purchase 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 was 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 launched by Vail Associates

personnel, federal, and state authorities. These various investigations gradually

uncovered evidence which led all to conclude that Grams was responsible for the

theft of the money.

      On the basis of the evidence, which consisted of bank account numbers and

details of financial transactions through which Grams diverted the money in

question, the FBI issued a warrant for Grams’ arrest. Grams was arrested in

Jackson Hole, Wyoming on April 6, 1999. On November 12, 1999, Grams moved

to suppress the evidence under the Right to Financial Privacy Act, 12 U.S.C.

§§ 3401-3421, and the Fourth Amendment of the United States Constitution. On


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March 23, 2001, Grams requested dismissal of the indictment.

      After holding several hearings on Grams’ motions to suppress and to

dismiss the indictment, the district court issued a Memorandum and Order on

February 11, 2003, detailing its findings and conclusions 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 issuing 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 Amendment 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 respect to

other portions of the evidence, the district court found that it either was

discovered by means wholly independent of any constitutional violation, see Nix

v. Williams, 467 U.S. 431, 443 (1984); United States v. Griffin, 48 F.3d 1147,

1150 (10th Cir. 1995), or that it was sufficiently distinguishable from any

constitutional violation to be purged from the primary taint, Griffin, 48 F.3d at


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1150.

        The district court also denied Grams’ motion to dismiss the indictment.

Grams filed a motion for reconsideration of that dismissal and reasserted that the

indictment should be dismissed, this time arguing that the government’s extreme

and outrageous conduct in its pursuit of him justified dismissal. On April 1,

2003, the district court orally denied Grams’ motion to reconsider.

        Grams ultimately pled guilty to the charge of transportation 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 and his motion to dismiss the

indictment. Having been sentenced to a term of fifteen months in prison and

three years supervised release, Grams appealed, advancing 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 factual nexus between the

Fourth Amendment violations and the warrants that led to the evidence against

him; and (2) that the court failed to take into account 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 circumstances and view the evidence

in a light most favorable to the government.” United States v. Avery, 295 F.3d

1158, 1167 (10th Cir. 2002) (quotation omitted). We review the district court’s


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factual determinations for clear error and “will not reweigh the evidence

presented to the district court, second guess the district court’s credibility

assessments, or question ‘reasonable inferences’ the district court drew from the

evidence.” Id. We review the ultimate determination of reasonableness 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 respects. The evidence that the

court refused to suppress either lacked a factual nexus to the Fourth Amendment

violations, was uncovered through independent and legitimate 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 suppress 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. United 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 developed through that conduct.”

United States v. Sandia, 188 F.3d 1215, 1219 (10th Cir. 1999) (quotation

omitted). “Government conduct is outrageous if considering the totality of the


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circumstances in any given case, the government’s conduct is so shocking,

outrageous, and intolerable that it offends the universal 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 consideration of the

totality of the circumstances, we conclude that the government’s conduct in

prosecuting the instant case does not meet this extremely high standard.

Accordingly, we AFFIRM the district court’s denial of Grams’ motion to dismiss

the indictment.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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