750 F.3d 1001
8th Cir.2014Background
- Marlene Kalb, a Helena-West Helena police lieutenant, was convicted by a jury of two counts of attempted extortion under color of official right (18 U.S.C. § 1951(a)) and two counts of attempted possession with intent to distribute cocaine (21 U.S.C. § 846); she was sentenced to 30 months imprisonment and 3 years supervised release.
- An FBI operation used an informant/target ("CC") who met with Kalb while wearing a wire; CC solicited Kalb to escort his truck through town to avoid interference from other officers and paid her $500 on each of two occasions.
- Recordings and testimony showed Kalb agreed to follow CC in her marked police car while in uniform, warned him about surveillance and a particular officer, and accepted the cash payments; she later admitted to following CC twice for $500 each.
- Kalb testified she believed CC spoke jokingly about drugs and thought he referred to motorcycle parts and a suspended-license issue; she also claimed she could not hear parts of the recorded calls and denied knowing or possessing drugs.
- The jury convicted Kalb; she appealed arguing insufficient evidence for both extortion (no induced payment/quid pro quo) and attempted possession (no constructive possession of nonexistent cocaine), and raised an unbriefed entrapment claim.
Issues
| Issue | Plaintiff's Argument (Kalb) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency for extortion under color of official right | Payment was not shown to be induced by or connected to an official act; no explicit quid pro quo | Recordings and testimony show Kalb accepted $500 twice in exchange for escort services in uniform in a marked car — an official act | Conviction upheld: sufficient evidence that Kalb received payment she was not entitled to for official acts (Evans governs) |
| Sufficiency for attempted possession with intent to distribute (constructive possession) | Kalb had no physical access or control over CC's truck; mere following for 10–20 minutes is insufficient to establish constructive possession | Kalb knowingly agreed to protect shipments, followed closely in a police cruiser, and could have stopped and seized drugs — giving her the ability to reduce contraband to actual possession | Conviction upheld: constructive possession established by dominion/control via ability to effect stop/seizure (Chauncey standard) |
| Entrapment (waived) | Kalb asserts she was entrapped by informant/FBI | Government notes entrapment not properly briefed with record/authority | Court treats entrapment claim as waived for lack of developed argument and rejects it |
Key Cases Cited
- Evans v. United States, 504 U.S. 255 (1992) (public official commits extortion by receiving payment not entitled to in return for official acts)
- McCormick v. United States, 500 U.S. 257 (1991) (limits on quid pro quo requirement for campaign-contribution cases)
- United States v. Brown, 560 F.3d 754 (8th Cir. 2009) (standard for reviewing sufficiency of the evidence)
- United States v. Chauncey, 420 F.3d 864 (8th Cir. 2005) (constructive possession requires ability to reduce object to actual possession)
- United States v. Poulack, 236 F.3d 932 (8th Cir. 2001) (definition of constructive possession)
- United States v. Serrano-Lopez, 366 F.3d 628 (8th Cir. 2004) (mere presence plus knowledge can support constructive possession when continuous and exclusive)
- United States v. Wilson, 619 F.3d 787 (8th Cir. 2010) (access to vehicle and keys relevant to possession analysis)
- United States v. McAdory, 501 F.3d 868 (8th Cir. 2007) (issues unsupported by record/authority may be deemed waived)