                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-3828
      ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
William Boone,                        *
                                      *
            Appellant.                *
                                      *
      ___________                     *

      No. 04-3829                         Appeals from the United States
      ___________                         District Court for the Western
                                          District of Missouri.
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Kelvin Washington,                    *
                                      *
            Appellant.                *
                                      *
      ___________

      No. 04-3831
      ___________



United States of America,              *
                                       *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Jerome Creighton,                      *
                                       *
            Appellant.                 *
                                       *
      ___________                      *

      No. 04-3836
      ___________
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Barbara Turner,                       *
                                      *
            Appellant.                *
                                 ___________

                            Submitted: November 17, 2005
                               Filed: February 15, 2006 (Corrected: 3/02/06)
                                ___________


                                        -2-
Before MURPHY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

MURPHY, Circuit Judge.

       William Boone, Jerome Creighton, Barbara Turner, and Kelvin Washington
were each convicted of felony murder, armed robbery, use of a firearm during a crime
of violence, and conspiracy to commit an offense against the United States. Turner
was also convicted of attempting to murder two law enforcement agents while they
were transporting her to a federal correctional institution. The district court1
sentenced each of the four defendants to two consecutive life terms in prison. They
now appeal their convictions, raising numerous issues. We affirm.

                                         I.

      The armed robbery and felony murder of which all the defendants were
convicted took place at the Davis Club, a recreational club for enlisted personnel at
Fort Leonard Wood near Kansas City, Missouri. On the night of December 13, 2001
two masked men, one of whom was carrying a shotgun, entered the club through an
unlocked door. The robbers surprised Connie Oeffler, a club employee who was
preparing to close up for the evening, and her friend Brian Adams who was keeping
her company as she finished work. The intruders bound the hands of Oeffler and
Adams with cable ties, forced them to lie down on the floor, and started to stuff the
contents of the club vault into a black bag. One of the intruders took Adams into an
adjoining room, and Oeffler testified that the second robber ran into that room after
she heard a scuffle and furniture being overturned. Oeffler then heard two shots.
Adams was subsequently found dead from gunshot wounds.




      1
      The Honorable Dean Whipple, Chief United States District Judge for the
Western District of Missouri.

                                          -3-
       Shortly after Adams was shot, Cassandra Leone and Kathy Warden arrived to
deposit into the Davis Club vault the nightly proceeds from another recreational club
on the base. This was something they did every night as part of their jobs but they had
arrived later than usual that evening because a failed health inspection at their own
club had forced them to stay late and clean. When Oeffler told them that a robbery
was in progress, the two women attempted to barricade themselves in the vault, but
they were eventually apprehended by the robbers who wanted to know if they had
pushed "the button." That was a reference to the trigger for the vault's silent alarm
system, which neither the women with the deposits nor Oeffler knew about at the time.
The robbers subsequently herded Leone and Warden into the men's restroom at
gunpoint, where they were held until the robbery was completed. Shortly thereafter
a third man appeared without a mask; the government argued at trial that he had been
acting as a lookout. The three men eventually departed the club with over $50,000 in
cash and coins. Their take was approximately $14,000 more than the amount the club
would normally have had on hand because it included the jackpot for a "Super Bingo"
event scheduled for later that week.

       As soon as the robbers were gone, the three women victims called the military
police who undertook an investigation in conjunction with the FBI which continued
over the next year. Because a door to the club had been left unlocked and the robbers
apparently knew about the vault's security system, the regular schedules of employees
who might have been present, and the vault contents on the night of December 13,
investigators suspected that the robbery was an inside job. Over the subsequent
months they used eye witness accounts from Oeffler, Leone, and Warden along with
a variety of other evidence to identify the four appellants, two of whom worked at the
Davis Club, as the perpetrators.

      There was evidence that club manager Barbara Turner, along with her friend
William Boone who frequently resided with her, had done most of the planning. They
developed the idea of robbing the club and recruited Jerome Creighton and Kelvin

                                           -4-
Washington for the undertaking. They also made necessary preparations, such as
purchasing cable ties and walkie talkies from a Wal-Mart in St. Robert, Missouri (they
were shown leaving the store on a December 9 videotape). In addition Turner used
her computer to make fake military identification badges for Boone and Creighton
(whose pictures were found on her hard drive). She also deposited the Super Bingo
jackpot in the club vault several days before it would be needed. Turner would have
known about the vault's silent alarm system and have been able to predict when the
club would have the fewest people inside. Her friend Melissa Winslow testified at
trial that in a conversation after the crime, Turner had admitted her involvement and
implicated the other defendants. Leone and Warden testified that Turner told them on
December 14 that they "were not supposed to be there" when the robbery took place.
Turner testified at trial and denied all involvement.

        The government alleged that the shotgun used in the robbery had been
purchased by Boone from an acquaintance named Jerome Shelton who testified at
trial. The government also sought to prove that Boone participated in the actual
robbery as one of the masked assailants. Boone did not testify in his own defense but
he did offer an alibi to investigators. According to him, he was watching movies with
Lani Dvorak at a motel several miles from the base at the time the robbery was
committed. Dvorak initially corroborated his story before the grand jury, but later
disavowed that testimony. At trial she reported that she had not seen Boone for
several weeks until late in the evening of December 13 when he appeared in her motel
room without his glasses, claiming to have lost them in a fight (the government argued
at trial that they had been knocked off his head during the scuffle with Adams).
Dvorak also testified that she spent time with Boone the next day and saw him in
possession of large quantities of currency and rolled quarters and that he asked her to
dispose of a black duffel bag, to which she was later able to lead investigators.
Shortly after the robbery Boone opened a Bank of America checking account with
$1700 in cash.



                                           -5-
       Boone and Turner were both arrested in December 2002. While Turner was
being transported to a federal correctional institution in Springfield by FBI agent
Christopher Holland and sheriff's deputy Brad Ford, she lunged over the front seat of
the car, grabbed the steering wheel, and steered the vehicle into a tractor trailer truck.
The car crashed under the trailer which continued down the road a way, and Turner
began kicking Holland. She later told Holland and Ford that she had been trying to
kill herself. This incident was the basis for the attempted murder charge of which
Turner was convicted.

       According to the government's theory of the case, Washington, a soldier
working at the Davis Club part time, was the second masked robber who actually held
the shotgun during the robbery. Washington and Turner were romantically involved,
and he appears on the December 9 Wal-Mart videotape. Oeffler told investigators that
she recognized Washington's voice during the robbery when he said, "Ooh, we had a
pretty good night, didn't we?". She explained that because she had been "scared for
my life" she initially said only that the voice reminded her of Washington. Although
Washington did not testify at trial, he implicated the other defendants in a statement
to investigators and admitted to knowing about their plans. He insisted that his only
involvement had been to leave the door of the club unlocked at the end of his shift at
Turner's request and to tell Boone by walkie talkie how many people were left in the
club that night. He was arrested in New York City in March 2003 while carrying a
fake driver license under the name Roman Hodges. He attempted to flee but was
apprehended by local FBI agents.

       There was evidence that Creighton, a friend of Turner and Boone, was the third
robber, the one who appeared without a mask and who may have acted as a lookout.
Creighton's photo was found on Turner's computer, and a sketch of the third robber
made from Oeffler's description resembled his likeness and included a distinctive
facial scar, even though she placed it on the wrong side and described his earrings as
studs instead of hoops and him as Hispanic instead of African American. Inside the


                                            -6-
car of Creighton's girlfriend, which she testified he borrowed the night of the robbery,
investigators discovered unused cable ties of the same type used to bind Oeffler and
Adams. Shortly after the robbery Creighton left the Kansas City area for several
months. He spent some of that time with a friend in Elkton, Kentucky, who testified
that Creighton had had rolls of cash in a backpack which he used to pay for his hotel
and cover charges at various night clubs. Creighton, who did not testify at trial,
denied any involvement in the case.

      All four defendants were eventually indicted for felony murder under 18 U.S.C.
§ 1111, armed robbery under 18 U.S.C. § 2111, use of a firearm during a crime of
violence under 18 U.S.C. § 924, and conspiracy to commit an offense against the
United States under 18 U.S.C. § 371. Turner was also charged with the attempted
murder of Holland and Ford under 18 U.S.C. § 1114.

       A key development at trial occurred after the prosecution had rested. Counsel
for Boone sought to have Lani Dvorak declared unavailable and portions of her grand
jury testimony admitted into evidence to support his alibi. The court told the
government to try to locate her over the weekend because of possible confrontation
issues. When she was found in Colorado by the United States Marshals Service, she
indicated that she wanted to recant her grand jury testimony. On Monday the
government moved to reopen its case in chief so it could call Dvorak as a witness. It
asserted that her decision to recant had taken it completely by surprise, and the district
court granted the motion to reopen over the objections of Turner, Boone, and
Creighton. Although counsel for the defendants were allowed to interview Dvorak
before she testified, she terminated the meeting shortly after it commenced. The
defendants did not move for a continuance in light of the new development, however,
and they had the opportunity to cross examine Dvorak.

      Appellants also objected to various other decisions by the district court,
including the denial of severance motions by Boone and Creighton, motions for

                                            -7-
acquittal by Creighton and Washington, Turner's motion for a mistrial and dismissal
of the attempted murder count, and Washington's pro se motion for new counsel for
sentencing. Counsel for Turner also recorded an objection to the court's permitting
case agent Holland to escort witnesses in the courtroom. All four defendants were
eventually convicted and sentenced to two consecutive life terms in prison. These
appeals followed.

                                           II.

       Appellants raise a number of issues. Boone attacks the district court's denial
of his motion to sever and its decision to allow the prosecution to reopen its case in
chief. Creighton challenges the denial of his severance motion as well as the
sufficiency of the evidence. Washington claims that the evidence was insufficient,
that his due process rights were violated by the government's refusal to believe his
version of the crime, and that the district court erred by denying his motion for new
counsel and by admitting evidence of his flight during arrest. Turner challenges the
district court's decisions to allow the prosecution to reopen its case and to permit case
agent Holland to escort witnesses into the courtroom during trial, alleges prosecutorial
misconduct during closing argument, and claims that her indictment for attempted
murder should have been dismissed because of outrageous conduct by agent Holland.

                                           A.

       Boone and Turner contend that the district court abused its discretion when it
allowed the government to reopen its case in chief to permit Dvorak to testify. They
assert that their counsel were taken by surprise and were given no opportunity to
question Dvorak in a meaningful fashion before she testified. Since each of their
defense theories relied on the premise that Dvorak's grand jury testimony had been
truthful, they claim their counsel lost all credibility before the jury when she recanted.
The government counters that the district court decision was consistent with our

                                            -8-
precedents. It also notes that Dvorak's testimony came directly after the government
had originally rested and before any defense witness testified, thereby minimizing any
prejudice to appellants resulting from the order of the evidence.

       A trial court may permit either side to reopen its case in chief, see United States
v. Blum, 65 F.3d 1436, 1444 (8th Circuit 1995), and we have previously characterized
the discretion it exercises in doing so as "wide." United States v. Vanhorn, 296 F.3d
713, 719 (8th Cir. 2002). Where the government has been allowed to reopen, the
factors to be considered in reviewing that decision include whether the new evidence
caused surprise to the defendant, whether the defendant was given adequate
opportunity to rebut the new evidence, and whether the evidence was more
detrimental to the defendant than it otherwise might have been because of the order
in which it was presented. United States v. Rouse, 111 F.3d 561, 573 (8th Cir. 1997)
(internal quotations omitted).

       Dvorak's testimony was highly probative and came directly after the
government had rested, so the "orderly flow" of the evidence was not disrupted.
United States v. Larson, 596 F.2d 759, 779 (8th Cir. 1979). It is significant that
defendants were not denied an opportunity to cross examine her. While her change
of heart may have surprised defense counsel and undermined their planned defense
strategy, they failed to request a continuance. See, e.g., United States v. McQuisten,
795 F.2d 858, 864 (9th Cir. 1986) (reopening was not abuse of discretion where
defendant failed to request a continuance so that witness could be cross examined).
On this record we see no abuse of discretion by the trial judge.

                                           B.

      Boone and Creighton argue that the trial court abused its discretion when it
denied their motions to sever. Both claim to have been prejudiced by incriminating
statements made by Turner and Washington and by the inflammatory nature of

                                            -9-
Turner's actions related to her attempted murder charge. Boone also notes that Turner
"blurted out" on direct examination that he had spent time in prison, a fact that would
otherwise have been inadmissible. Creighton argues that the joint trial obscured the
fact that he took no part in planning the robbery and was tied to very little of the
physical evidence. Creighton also complains that Turner's testimony that she had not
seen him on the night of December 13 conflicted with his theory of defense based in
part on what his former girlfriend Diane Echols said about his whereabouts that night.
The government responds that neither Boone nor Creighton has made a sufficient
showing to counter the strong preference for trying codefendants together.

       Fed. R. Crim. P. 14(a) entrusts the decision of whether codefendants should be
severed to the "sound discretion of the trial judge." United States v. Knife, 592 F.2d
472, 480 (8th Cir. 1980). Where multiple defendants are charged in the same
indictment, there is a preference for a joint trial unless the party moving to sever can
show that the benefits are outweighed by a clear likelihood of prejudice. Zafiro v.
United States, 506 U.S. 534, 537 (1993); United States v. Frazier, 280 F.3d 835, 844
(8th Cir. 2002). Such a likelihood may be demonstrated by showing either that the
jury cannot be expected to compartmentalize the evidence with respect to different
defendants due to a "prejudicial spillover effect" between the cases against them,
United States v. Lueth, 807 F.2d 719, 731 (8th Cir. 1986), or that one defendant's
defense conflicts with that of another and that the jury is likely to infer from this
conflict alone that both are guilty. United States v. Ortiz, 315 F.3d 873, 898 (8th Cir.
2002). Merely showing that a separate trial would increase the likelihood of acquittal
is not sufficient. United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002).

      We conclude that a severance was not warranted for either Boone or Creighton.
The incriminating statements made by Washington and Turner were redacted for trial
to exclude references to the other defendants and so avoid any Bruton problem.2

      2
        In Bruton v. United States, 391 U.S. 123, 135-36 (1968), the Supreme Court
held that admission of incriminating out of court statements by one defendant which
                                           -10-
Turner's reference to Boone's time in prison was made in passing; at best the failure
to exclude it was harmless error given the weight of the other evidence. See United
States v. Carroll, 207 F.3d 465, 470 (8th Cir. 2000). As for the contradiction between
Turner's testimony and that given by Echols (who was the government's witness, not
Creighton's), Creighton has not argued that it led the jury to infer that both defendants
were guilty. See Ortiz, 315 F.3d at 898. None of these specific claims are sufficient
to overcome the preference for a joint trial. See Frazier, 280 F.3d at 844. Finally, the
general assertion of prejudice by Boone and Creighton because of evidence that did
not apply to them was insufficient on its face to warrant severance. See United States
v. Pecina, 956 F.2d 186, 188 (8th Cir. 1992) ("disparity in the weight of the evidence"
does not require severance). Where multiple defendants are tried together, the risk of
undue prejudice is best cured through cautionary instructions to the jury, United States
v. Mickelson, 378 F.3d 810, 817 (8th Cir. 2004), which the district court gave in this
case. We conclude there was no abuse of discretion.

                                           C.

       Creighton and Washington maintain that the evidence was insufficient to
convict them. Creighton argues that there was virtually no physical evidence such as
surveillance footage or large amounts of cash linking him to the crime and that his
conviction should be overturned because it was based almost entirely on Oeffler's eye
witness identification which he characterizes as ambiguous. The government counters
that Oeffler's identification was not ambiguous. She observed a light skinned person
of color who had a scar on his face and was wearing earrings. It also points to the
sketch produced from her recollections which it says closely matches Creighton's
likeness. Oeffler was also able to repeat her identification of Creighton at trial, and
it was corroborated by circumstantial evidence.




implicate a codefendant violate the latter's confrontation clause rights.
                                            -11-
       For his part Washington admits to having left the door of the Davis Club open
and to having contacted Boone to tell him how many people were left in the club. He
claims, however, that the only evidence to support the government's theory about his
role was Oeffler's identification of his voice, which he asserts was an inadequate basis
for conviction. The government counters that the credibility of Oeffler's identification
was for the jury to decide, and that its finding is "virtually unreviewable" on appeal.

       We review the evidence underlying a conviction de novo, but will uphold the
verdict if it is supported by substantial evidence. United States v. Fitz, 317 F.3d 878,
881 (8th Cir. 2003). The motion for acquittal was properly denied if a reasonable jury
could have found the defendant guilty beyond a reasonable doubt despite any
countervailing testimony. United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002);
see also United States v. Armstrong, 16 F.3d 289, 292 (8th Cir. 1994). In light of the
verdict all evidentiary ambiguities and discrepancies are resolved in favor of the
government. United States v. Ramirez, 350 F.3d 780, 783 (8th Cir. 2003).

        Both Creighton and Washington dispute evidence on which the jury apparently
relied, particularly Oeffler's eye witness identification of each of them. They assert
instead their own accounts of the evidence, but factual questions are the province of
the jury and its determinations normally control. See United States v. Pardue, 983
F.2d 843, 847 (8th Cir. 1993). In this case it was not unreasonable for the jury to rely
on Oeffler's identification of both men. The sketch of the unmasked robber produced
from her recollection resembled Creighton, and the jury could consider any factual
mistakes in her description as well. Moreover, her identification was corroborated by
circumstantial evidence like the existence of Creighton's image on Turner's computer.
Washington and Oeffler had spent significant time together as coworkers, and she
told the jury she had no doubt that the voice she heard on the night of December 13
was his. Washington had the opportunity to cross examine her about her identification
of him, and the jury apparently believed that fear for her life was the reason she had
initially said only that the voice she heard reminded her of Washington. Moreover,

                                           -12-
Washington admitted to being complicit in the crime. Taking the evidence in a light
most favorable to the government, we conclude that a reasonable jury could have
found both Creighton and Washington guilty beyond a reasonable doubt.

                                          D.

       Washington also argues that the district court erred by denying his pro se
motion for new counsel for sentencing and by admitting evidence of his flight during
arrest, and charges that his due process rights were violated.

       Washington contends that he was entitled to new counsel for sentencing. He
claims his trial attorney made a number of serious mistakes that could have prejudiced
him, including advising him not to testify at trial and failing to object to the
presentence investigation report, to present evidence at sentencing, or to move for a
new trial. He also claims that trial counsel told him that he would not be able to lend
his full ability to the case because of "personal problems." The government responds
that counsel was an experienced federal criminal trial attorney whose strategic choices
were similar to those made by the attorneys for the other defendants and that
Washington had effective representation even though he might be dissatisfied with it.

       The Sixth Amendment entitles criminal defendants to effective assistance of
counsel which means "the customary skills and diligence that a reasonably competent
attorney would perform under similar circumstances." Nerison v. Solem, 715 F.2d
415, 417 (8th Cir. 1983). We review denial of a request for new counsel for abuse of
discretion. United States v. Barrow, 287 F.3d 733, 737 (8th Cir. 2002). In order for
such a request to be successful, the defendant must show justifiable dissatisfaction
with his current representation. Id. Justifiable dissatisfaction can arise from
irreconcilable conflict, a complete breakdown in communication, or any other factor
interfering significantly with an attorney's ability to provide zealous representation,



                                           -13-
but it is not established merely by a defendant's frustration with counsel's performance
or disagreement with his tactical decisions. Id. at 738.

       Washington has shown only that he was not happy with some of counsel's
tactical choices and his reservation about giving the case his full "100 percent."
Washington has not demonstrated that he was prejudiced by any of the decisions
about which he complains which were similar to those of counsel for the other
defendants. In order to represent his client well at a federal sentencing hearing, it is
important for defense counsel to have a thorough knowledge of the record and the trial
evidence. See United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992) ("(T)he
district court must balance the defendant's right to counsel of his choice and the
public's interest in prompt and efficient administration of justice.") (internal quotations
omitted). We conclude the district court did not abuse its discretion in denying
Washington's request for new counsel for sentencing.

       Washington next argues that admitting evidence of his flight at the time of his
arrest was reversible error. He concedes he failed to raise this issue before the trial
court but maintains that admission of the evidence was plainly erroneous because the
flight occurred fifteen months after his offense, it had no probative value other than
showing consciousness of guilt, and the district court failed to give a cautionary
instruction. The government counters that there was no plain error affecting
Washington's substantial rights.

       Flight of an accused subsequent to commission of a crime is properly admitted
to show consciousness of guilt where other facts suggest that his decision to flee was
related to that offense. United States v. Blue Thunder, 604 F.2d 550, 556 (8th Cir.
1979) (internal quotations omitted). Although courts should be cautious in admitting
evidence of flight and it may not always be reliable, United States v. Melson, 7 F.3d
750, 752 (8th Cir. 1996), the potential for undue prejudice can be lessened by a
cautionary instruction to the jury. United States v. Peltier, 585 F.2d 314, 324 (8th Cir.

                                             -14-
1978). Since this issue was raised for the first time on appeal, we review solely for
plain error. Carroll, 207 F.3d at 470.

       Plain error occurs where there is an error which is plain and affects the
defendant's substantial rights. United States v. Hill, 91 F.3d 1064, 1072 (8th Cir.
1996). Evidence of a defendant's flight is admissible even if offered only to prove
consciousness of guilt where it appears in conjunction with other proof such as
evidence that the defendant was living under an assumed identity. See United States
v. Eggleton, 799 F.2d 378, 381 (8th Cir. 1986). The evidence here included proof that
Washington was carrying false identification. Furthermore, the elapsed time between
Washington's offense and his flight was less than in some other cases in which we
upheld the admission of such evidence. See, e.g., id. at 380-81 (flight twenty months
after crime committed). While the district court did not give a limiting instruction,
none was requested and under such circumstances the omission of a cautionary
instruction is not plain error. See United States v. Hankins, 931 F.2d 1256, 1263 (8th
Cir. 1991) ("the decision whether to instruct the jury on flight is best left to the district
court"). Finally, the evidence was referred to in the government's argument only in
passing. We conclude that there was no plain error in admitting the evidence because
it did not affect Washington's substantial rights. See United States v. Haukaas, 172
F.3d 542, 544-45 (8th Cir. 1999).

        Washington finally argues that the government's refusal to believe his own
account of his participation in the crime instead of Oeffler's testimony was
prosecutorial misconduct in violation of his due process rights. The government states
that it was entitled to disbelieve his account in light of Oeffler's testimony and in light
of what Turner told her friend Melissa Winslow about Washington's role even though
those statements were not introduced at trial.

     For governmental reliance on eye witness testimony to rise to the level of
misconduct which violates due process, the testimony must have been perjured, the

                                              -15-
government must have known it was, and there must have been a reasonable
likelihood that the perjured testimony affected the jury's factual determinations.
United States v. Martin, 59 F.3d 767, 770 (8th Cir. 1995) (internal quotations
omitted). Here, Washington has not established or even claimed that Oeffler perjured
herself in identifying him. We conclude that there was no prosecutorial misconduct
in violation of his due process rights.

                                           E.

       Turner contends that she was entitled to a mistrial because of prosecutorial
misconduct during its closing arguments and to dismissal of the attempted murder
charge of which she was convicted because of outrageous conduct by the officers
transporting her to Springfield. She also claims prejudice from case agent Holland's
escorting witnesses into the courtroom.

       Turner argues that the district court erred in denying her motion for a mistrial.
She claims that in its closing argument the government "shifted the burden of proof"
and mischaracterized statements of her own counsel about the evidence against Boone,
thereby making her appear untrustworthy and in league with another defendant. The
government notes in response that during and after closing arguments the trial judge
instructed the jury as to who had the burden of proof and that the prosecutor only
made reference to the same principles. While the prosecutor may have mistakenly
stated that Dvorak rather than defense counsel had been the first to reveal the fact that
Boone lost his glasses on the night of the robbery, he also reminded the jurors that any
statement made during closing arguments was not evidence and that they should trust
their own recollections of the evidence.

      Prosecutorial remarks during closing argument can be grounds for reversing a
defendant's conviction if they were improper and prejudicially affected the defendant's
substantial rights so as to deprive her of a fair trial. United States v. Beckman, 222

                                            -16-
F.3d 512, 526 (8th Cir. 2000). Here we have found no place in the prosecution's
closing argument shifting the burden of proof. We also conclude that the prosecutor's
mistaken attribution of the revelation about Boone losing his glasses could not have
prejudicially affected Turner's substantial rights given the other evidence against her.
Turner's motion for a mistrial was properly denied.

       Turner next contends that the charge of attempted murder against her should
have been dismissed because of outrageous conduct by FBI agent Holland which
violated her due process rights. She alleges that throughout his investigation Holland
threatened and intimidated her, engaged in other inappropriate conduct, and verbally
abused her using racial slurs during the drive to Springfield. Although the jury
convicted her of attempted murder, she points out that it could have found that
Holland provoked her as she claims because the instructions on the elements of the
offense included acting "in the heat of passion." In response the government notes
that both Holland and Ford denied Turner's allegations, that Turner herself has made
contradictory statements about what took place during the drive to Springfield (in her
pretrial motion to dismiss she denied that she ever grabbed the steering wheel of the
vehicle), and that even if Turner's allegations were true, Holland's actions would not
have been sufficiently conscience shocking to violate her due process rights.

       Outrageous government conduct that shocks the conscience can require
dismissal of a criminal charge, but only if it falls within the "narrow band" of the
"most intolerable government conduct." Pardue, 983 F.2d 843, 847 (internal
quotations omitted). Whether particular government conduct was sufficiently
outrageous to meet this standard is a question of law which we review de novo. Id.;
United States v. King, 351 F.3d 859, 867 (8th Cir. 2003). Turner's motion to dismiss
was properly denied because her allegations were not credible. Her own account of
what took place on the way to Springfield has changed over time. Moreover, the rule
that outrageous government conduct can foreclose criminal charges has been applied
by our court almost exclusively to situations involving entrapment, where law

                                           -17-
enforcement officers have sought to create crimes in order to lure a defendant into
illegal activity that "she was not otherwise ready and willing to commit." United
States v. Lard, 734 F.2d 1290, 1297 (8th Cir. 1984). Turner has not even alleged that
any government official engaged in such conduct here, and we conclude that she has
not shown any due process bar to her attempted murder conviction.

       Turner finally argues that the district court abused its discretion in allowing case
agent Holland to escort witnesses, claiming that his activities prejudiced the
defendants by creating the impression that the witnesses needed to be protected from
danger. The government counters that Turner has offered no support for this claim.
We review a district court's conduct of the trial for abuse of discretion, United States
v. Woody, 588 F.2d 1212, 1213 (8th Cir. 1979), and will not reverse absent a showing
of actual prejudice. United States v. Sykes, 977 F.2d 1242, 1245 (8th Cir. 1992).
Turner's assertion of prejudice here is only speculative, and we conclude that she has
shown no abuse of discretion in the way in which the court managed the trial
proceedings.

                                           III.

      For these reasons we affirm the judgments of the district court.

                            _________________________




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