In the
United States Court of Appeals
For the Seventh Circuit

No. 94-3885

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENNIS KING,

Defendant-Appellant.


Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 CR 909--Marvin E. Aspen, Chief Judge.


ARGUED SEPTEMBER 15, 1995--DECIDED FEBRUARY 12, 1996


   Before POSNER, Chief Judge, and CUDAHY and MANION,
Circuit Judges.

   MANION, Circuit Judge. A jury convicted Dennis King
of six counts of using interstate facilities with the intent to
hire someone to murder his wife in violation of 18 U.S.C.
sec. 1958. King appeals his conviction on various grounds.
We affirm.

I.

   A summary of the evidence at trial demonstrates how
this failed marriage evolved into a rancorous plot to com-
mit murder. Dennis King was a successful businessman
with considerable assets. He owned Barber King, a pros-
perous company which sold a popular hair cutting device.
The assets of his family and business together totaled
many millions of dollars. But his success in business was
not matched by success in marriage. King married his
wife Frances in 1975. They had two sons. In November
1990 Frances King filed for divorce.

   The Kings' divorce proceedings were bitter. Because the
Kings were unable to settle on a division of their consid-
erable assets or arrive at an amount of monetary support
for Frances King and the children, the Illinois state court
judge presiding over their divorce action ordered various
support payments which Mr. King paid only intermittent-
ly. At one point he was $92,000 in arrears in these pay-
ments, and the judge threatened King with contempt. The
state court judge also enjoined King's brother, Edward,
from transferring money for King, and placed a temporary
restraining order on King from dissipating assets.

   As the divorce proceedings dragged on and settlement
discussions bore no fruit, Dennis King became progressive-
ly more angry and frustrated. King shared these feelings
with his nephew, John King (the son of Dennis' brother,
Edward), who worked as a disc jockey in Cody, Wyoming.
John King testified that beginning in the fall of 1991, and
continuing through December 1993, Dennis King talked
to him on a number of occasions about having his wife
Frances killed. At first, Dennis and John King talked less
frequently, but during each of the conversations, the same
topic arose: Dennis King wanted John King to either murder
Frances King himself or hire someone else to kill her.

   At Christmas time 1991 John King was in the Chicago
area for the holidays. During that visit John said that his
uncle showed him $50,000 and asked him to "make a plan
to do it or find somebody that would kill Fran." By June
1993 the situation had become even more intense. Dennis
King traveled to Wyoming ostensibly on vacation. John
said that on this trip his uncle told him "with increased
intensity and urgency" that "an end needed to come soon
to the divorce proceedings."

   On December 1, 1993, Dennis King in Illinois contacted
his nephew John King in Wyoming by telephone. At the
time John King was working in the production room at
a radio station. After talking to Dennis for a few minutes,
John activated recording equipment in the studio and
taped the remaining portion of the conversation without
alerting Dennis. That same day John approached the local
police with the recording; the police immediately turned
it over to the F.B.I. John later agreed to record future
conversations with his uncle. Between December 1 and
15, 1993, John King in Wyoming had a total of eight con-
versations with Dennis King in Illinois, all of which he
recorded, and all of which were admitted as evidence and
played for the jury at Dennis' trial.

   Dennis King's recorded conversations were introduced
to demonstrate his intent to have his wife murdered. In
the first conversation on December 1, 1993, Dennis up-
dated his nephew on the status of the divorce proceed-
ings, including that he, Dennis, had been threatened with
jail for dissipating marital funds. Dennis stated repeatedly
in this conversation that he did not want his nephew
directly involved in the murder, but that he wanted John
to find someone to do it. Two days later John King called
his uncle and advised him that he had thought about his
uncle's offer and could "probably hook you up." Dennis
cut the conversation short, explaining to his nephew that
the telephone line might be tapped and that he would call
him back shortly. Fifteen minutes later Dennis called John
and told John that he would like "it" to be committed
within the next few weeks and while he was in El Paso,
Texas, giving him an alibi. John King falsely advised his
uncle that he had "found a guy out here" to commit the
murder. Dennis told John that he would pay $20,000 for
a hit-man, and that he would pay $5,000 to his nephew
as a "finder's fee." They concluded the conversation and
agreed to talk the following Monday by telephone.

   That Monday, December 6, 1993, John King telephoned
Dennis. Dennis told his nephew his motivation for want-
ing his wife murdered: his anger about her getting custody
over their two boys and expending hundreds of thousands
of dollars in legal fees for the divorce proceedings. John
King again pretended that he had found a hit-man to kill
his aunt, and advised Dennis that the hit-man was respon-
sible and had military experience. Dennis told John that
Frances worked at a jewelry store and he gave John the
location of the store. Dennis again expressed his dislike
of using the telephone, which could be tapped, and con-
cluded the conversation, only to travel to a pay telephone
and call John back fifteen minutes later. In that conver-
sation Dennis discussed the potential of the telephone line
being tapped, and admonished John that "she [Frances]
richly, fully expects to get whacked." Dennis told John
that the hit-man should travel to Chicago to "size up the
operation" and that Dennis wanted John to hold all the
money, except for the hit-man's travel expenses, and
"when the job is complete, and I say complete, then you
pay him." Dennis instructed his nephew that the hit-man
should fly to Milwaukee, rent a car, and drive to Palatine,
Illinois, where Dennis would wait for him in a parking
lot. Dennis promised to send cash to John via Federal
Express for the hit-man's travel expenses if Dennis' terms
were acceptable to the hit-man. When John asked Dennis
how he wanted Frances murdered, Dennis suggested a
holdup at the jewelry store where she worked. When John
noted that the store may have a security system, Dennis
suggested a carjacking in the alternative. When John
warned his uncle that the hit-man could not fly to Chicago
from Wyoming with a weapon, Dennis offered the use of
two guns for the murder, a .38 pistol that "can be used
as a throw-away", as well as a .357 caliber second gun.
Both of these guns were later found in a barn located on
property the Kings owned in Barrington, Illinois. Dennis
King had access to this property during the divorce pro-
ceedings, and admitted at trial that he owned the guns.

   Later in the evening of December 6, 1993 Dennis King
called his nephew from another pay telephone. Dennis told
John that he would provide the hit-man with a map when
the hit-man arrived in Chicago. Dennis set the following
Monday, December 13, 1993, as the date for the hit-man
to fly to Milwaukee, travel to Palatine, and meet with
Dennis. When John inquired whether or not Dennis could
secure Frances's work schedule, Dennis told John that "I
don't want it done at the house." When John asked whether
his uncle wanted "it" (Frances's dead body) found or not,
Dennis said "probably", and suggested that her body be
found "within a couple days." Dennis and John agreed
to discuss their plans later.

   On December 8, 1993, John King in Wyoming received
a Federal Express package from Dennis King in Illinois
which contained $2,000 in cash, comprised of twenty $100
bills, and the petition for order of protection filed by
Frances King, which included her affidavit that alleged
six instances of violent behavior by Dennis King. The
package also contained a handwritten note from Dennis
to John which discussed how "she expects me to kill her
or hire someone that I know has the ability." In the note
Dennis directed John not to discuss "direct details" over
the telephone, to use "extreme caution," and for John and
his "associate" to "be aware of the danger and obstacles
before and after."

   The next day Dennis called his nephew and told him
to put the plot "on hold temporarily because she is not
at work and has not been for a week." On December 15,
1993, Dennis called John from another pay telephone, told
John "we're still on," and made arrangements for them to
meet the following Monday, December 20. Ninety minutes
after this last recorded conversation concluded, the F.B.I.
arrested Dennis King. He was charged with use of inter-
state commerce facilities with intent that murder or con-
spiracy to murder be committed in violation of the laws
of Illinois as consideration for something of pecuniary
value in violation of 18 U.S.C. sec. 1958. Dennis pleaded not
guilty, but a jury convicted him of six counts of conspiracy
to have his wife murdered. Dennis appeals this conviction.

II.

   On appeal, Dennis King challenges the district court's
exclusion of evidence and the jury instructions.

A. Exclusion of Evidence

   King argues first that the district court improperly ex-
cluded the testimony of his friend William Cumming. King
asserts that Cumming would have testified about two con-
versations with King, the first of which included an in-
vitation to attend a meeting. King would argue that the
meetings were with the hit-man, and that these conver-
sations corroborated King's defense of intent to terminate
the murder scheme.

   At trial King's counsel examined Cumming concerning
two conversations "of an unusual nature" which occurred
between Cumming and King sometime between December
8 and 15, 1993. When King's counsel inquired as to whether
"Mr. King asked you [Cumming] something," government
counsel raised a hearsay objection. At a sidebar conference
King's counsel made an offer of proof: if asked the ques-
tion "did Mr. King ask you to do something", Cumming
would testify that "Mr. King asked me to attend a meet-
ing." Upon hearing what Cumming's testimony would be,
the government also raised a relevance objection. The dis-
trict court sustained the objection, refusing to allow Cum-
ming to testify further concerning this first conversation
with King.

   Cumming also testified that he had a second conversation with
King on or about December 13, 1993. The govern-
ment objected (without specifying a ground) to any testi-
mony from Cumming concerning what King asked Cumming
to do in this second conversation. The district court sus-
tained the objection. No offer of proof was made with re-
spect to the second conversation.


      1. First Conversation

   We conclude the district court prematurely sustained
the government's hearsay objection with regard to the
first conversation. When King's counsel inquired as to
whether "Mr. King asked you [Cumming] something," that
question did not necessarily elicit hearsay. The proposed
answer to the challenged question--"Mr. King asked me
to attend a meeting"--verifies only the fact that the re-
quest was made, rather than going to the truth or falsi-
ty of the statement. Accordingly, at that point the hear-
say rule was not properly invoked. The response to what
may have been the next question--"Why did he want you
to attend the meeting?"--very well could be hearsay. But
because the questioning never got that far, and King's
counsel's offer of proof was not at all adequate, we can
only speculate where he was going.

   We also conclude, however, that even if the district
court incorrectly excluded Cumming's purported testimony
on this question as hearsay, any error in its exclusion was
harmless. As we related recently:

"[T]his Court will only overturn a conviction on evi-
dentiary grounds if the error had a substantial influ-
ence over the jury. If the harmlessness of the error
is in grave doubt, relief must be granted. When the
error precludes or impairs the presentation of a
defendant's sole means of defense, the error has had
a substantial and injurious effect on the jury. Finally,
if the evidence of guilt was overwhelming and the
defendant was allowed to put on a defense, even if
not quite so complete a defense as he might have rea-
sonably desired, this Court will find the error harm-
less." 

United States v. Wimberly, 60 F.3d 281, 286 (7th Cir.
1995) (citations and internal quotes omitted).

   King was allowed to put on his defense, "[even] if not
quite so complete a defense as he might reasonably have
desired." United States v. Hanson, 994 F.2d 403, 407 (7th
Cir. 1993) (internal quote omitted). The prosecution argued
facts and inferences derived from King's taped conversa-
tions. King had plenty of opportunity to challenge these
arguments in a way that he thought would support his
defense of lack of intent to follow through with the plan.
Indeed, King advanced his defense in the best way possi-
ble, by attempting to convince the jury with his own tes-
timony. Limiting Cumming's testimony did not preclude
King's theory of defense. He had sufficient means to relay
that theory to the jury.

   Moreover, any erroneous exclusion of part of Cumming's
testimony was harmless in light of the overwhelming evi-
dence of King's guilt. The crucial question is whether a
reasonable jury could find that King intended to commit
murder for hire from the record evidence even including
Cumming's purported testimony. The taped phone calls
in which King conspired to hire someone to murder his
wife established a lengthy and substantial chain of inculpa-
tory evidence going back to 1991. By the time Cumming
came into the picture, the crime had been committed.
Even if we were to speculate that King's purpose in hav-
ing Cumming in tow was to show that he intended to call
the murder off ("evidence" that King changed his mind)
the crime of use of interstate facilities to conspire to com-
mit murder for hire had long been underway. The trial
evidence is replete with numerous acts advancing the con-
spiracy. King was not charged with murder--only use of
interstate facilities to conspire to commit murder for hire.
That indelible deed was done, and Cumming's presence
(for whatever reason) could not eradicate it.

   Even given all of this, nothing in Cumming's proposed
testimony indicates that King intended to call off the
murder scheme and send the hit-man back to Wyoming.
Rather, according to King's counsel's proffer, all that
Cumming was going to say was that King requested that
Cumming attend a meeting. It is wishful hindsight to con-
clude that King intended to call off the scheme and Cum-
ming would witness that change of heart. It is important
to note what King's counsel did not proffer: that King
called Cumming to show that Cumming would attend the
meeting with the hitman as "moral support" for King's
"change of mind"; that Cumming's testimony would not
incriminate him; and that Cumming's alleged exculpatory
testimony would not fly in the face of logic. King's counsel
could have included many things in this offer of proof.
He did not.

   For these reasons, we are satisfied that the excluded
testimony would not have had a substantial influence on
the jury's rejection of this defense. Cumming's response
could not have overridden the earlier evidence of King's
intent to commit murder for hire. Any evidentiary error
in excluding the substance of this first conversation was
harmless.

      2. Second Conversation

   King's argument for the admissibility of the second con-
versation fails because he did not properly preserve any
objection he had to the district court's rulings. This court
has limited power to correct errors that were forfeited
because they were not timely raised in the district court.
United States v. Olano, 113 S.Ct. 1770, 1776 (1993); United
States v. Perez, 43 F.3d 1131, 1135-36 (7th Cir. 1994).
Before this court can review a purported error which has
been forfeited, Federal Rule of Criminal Procedure 52(b)
provides that such an error must be "plain" and "affect
substantial rights." Olano, 113 S.Ct. at 1776; Perez, 43
F.3d at 1136. At trial King made no offer of proof as to
what the specific testimony would be in this second con-
versation, nor did King offer any reasons as to why this
testimony was not objectionable. King concedes this failure
in his brief to this court. Although King speculates as to
what Cumming's testimony would have been had the ob-
jections not been sustained, we too can only speculate,
as King made no offer of proof. The district court's exer-
cise of discretion to exclude evidence concerning the De-
cember 13, 1993 conversation with King cannot be deemed
plain error without a record having been made at the time
the testimony was offered. When the government's ob-
jections were sustained, counsel made no record of what
the testimony would have been or the arguments King's
counsel would have offered in response to the objections.
Without an offer of proof containing a description of the
substance of the conversation between Cumming and King,
and counsel's arguments why the statement would be ad-
missible, we have no additional record to review.

   Nor was the second conversation so closely linked with
the first conversation that we can assume the offer of proof
for the first extended to the second as well. The two con-
versations may have differed. Cumming testified that the
two conversations took place on different days. He also
said that at least one other person--a second nephew,
Brian King--was present at the second conversation but
was not present at the first. We are aware of no authority
that allows an offer of proof to apply in blanket fashion
to one objection in temporal proximity to the offer of
proof on another objection. Although we do not require
that a formal offer of proof be made, the record must
show the equivalent: grounds for admissibility, the pro-
ponent must inform the court and opposing counsel what
he expects to prove by the excluded evidence, and he
must demonstrate the significance of the excluded testi-
mony. See United States v. Peak, 856 F.2d 825, 832 (7th
Cir. 1988) (citing Fed. R. Evid. 103(a)). Because King's
trial counsel made no record whatsoever with regard to
the second conversation, we cannot discern the substance
of the proposed second conversation. It could be the same
or different than the first. We also can only assume its
significance to the proposed defense. No grounds for ad-
missibility were offered for the second conversation.

   The district court either properly sustained the govern-
ment's objection to any testimony concerning the sub-
stance of the two conversations between Cumming and
King, or any error committed in the exclusion of such
testimony was harmless.

B. Entrapment Jury Instruction

   King next contends that the jury in this case should
have been instructed on the law of entrapment. At the
jury instruction conference King submitted an entrapment
instruction, but the district court rejected it. We have
plenary review over the district court's decision not to
instruct the jury on entrapment. United States v. Jones,
21 F.3d 165, 171 (7th Cir. 1994).

   A valid entrapment defense requires proof of two re-
lated elements: (1) government inducement of the crime,
and (2) lack of predisposition on part of the defendant to
engage in criminal conduct. Mathews v. United States, 485
U.S. 58, 63 (1988); United States v. Santiago-Godinez, 12
F.3d 722, 728 (7th Cir. 1993), cert. denied, 114 S.Ct. 1630
(1994). Before the defendant may raise an entrapment de-
fense, he must offer sufficient evidence of both the govern-
ment's inducement and his own lack of predisposition.
Santiago-Godinez, 12 F.3d at 728.

   King's assignment of error on this issue fails for two
reasons. First, King failed to object to the district court's
rejection of his entrapment instruction and state the
grounds for his objection. Federal Rule of Criminal Pro-
cedure 30 provides in part:

No party may assign as error any portion of the
charge or omission therefrom unless that party ob-
jects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which the
party objects and the grounds of the objection.

Pursuant to Rule 30, submission of a jury instruction
without a timely objection to its exclusion from the charge
and distinct statements on the matter to which the party
objects and the grounds for the objection does not pre-
serve a right to appeal that exclusion. United States v.
Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994) (and citations
therein). King's counsel registered no such objection to
the exclusion of the entrapment instruction, nor did he
relate the requisite grounds to preserve his right to ap-
peal this issue.

   Second, the district court properly concluded that the
evidence as presented at trial did not support a finding
of entrapment under either of the two related elements,
government inducement and lack of predisposition. King's
nephew came forward to law enforcement officials after
a three-year period during which King had discussed kill-
ing his wife; the government did not approach King. The
government's instructions to John King to appear to agree
to his uncle's overtures to find a hit-man do not constitute
inducement. In the second recorded conversation John
King told Dennis King that he thought about Dennis' of-
fer, and said he could "probably hook you [Dennis] up."
Dennis did not correct John that no such offer had been
extended. The taped conversations demonstrate that the
government let the murder-for-hire scheme unfold. Indeed,
the only active role the government appears to have taken
was to place Frances King's car in the jewelry store park-
ing lot to confuse Dennis King as to his wife's where-
abouts. Affording a defendant an opportunity or facility
for the commission of the offense does not constitute en-
trapment. Artifice and strategy may be employed to catch
those engaged in criminal conduct. See Jacobson v. United
States, 112 S.Ct. 1535, 1540 (1992) (and citations therein).

   Moreover, the tapes of the conversations between Dennis
and John King, as well as John King's testimony, leave
no doubt as to Dennis King's predisposition to commit the
crime. The evidence must be considered under the factors
listed in United States v. Casanova, 970 F.2d 371 (7th
Cir. 1992), to determine whether King was predisposed
to commit the crime charged:

(a)  the defendant's character and reputation; (b)
whether the suggestion of criminal activity was orig-
inally made by the government; (c) whether the de-
fendant was engaged in criminal activity for profit;
(d) whether the defendant evinced a reluctance to
commit the offense, overcome only by repeated gov-
ernmental inducement or persuasion; and (e) the type
of inducement or persuasion offered by the govern-
ment. 

Id. at 375-76.

   The record contains reputation evidence of King's violent
nature. Also, the suggestion of criminal activity was orig-
inally made by Dennis King, not the government. In the
first recorded conversation Dennis King spoke of his
frustration that the divorce proceedings had dragged on
for three years, and he requested that his nephew put
him in contact with someone who could kill his wife. Fur-
ther, King set the financial terms for the hit-man, and
suggested the murder scenarios at the jewelry store and
at a carjacking. Moreover, King would have been able to
retain a larger portion of the marital assets if the plan
had worked; thus, he would have profited from the crime.
The record is barren on factor (d), whether King evi-
denced any reluctance to commit the crime. The only con-
cerns King appeared to express was with whether the hit-
man might abscond if King paid him too much money up
front, that the hit-man should not waste his time visiting
Chicago to survey the area if Frances King could not be
observed as well, and that the murder not occur while
Frances King was at home. Finally, the government of-
fered no inducement to King to commit the crimes. Con-
sequently, the Casanova factors dictate that King was in
fact predisposed to commit the murder-for-hire crime. The
district court did not err in deciding not to instruct the
jury on entrapment, as the evidence did not support such
an instruction.

C. Insanity Defense

   King also asserts that the district court erred by refus-
ing to instruct the jury on an insanity defense. King ten-
dered a jury instruction on insanity to the district court
which the court rejected without comment. King made no
attempt to object to this ruling and state reasons for such
an objection. Absent such a specific objection, King did
not preserve this issue for appeal; thus his claim of error
can be reviewed only under the plain error doctrine. Fed.
R. Crim. P. 30; Olano, 113 S.Ct. at 1776; United States
v. Starnes, 14 F.3d 1207, 1213 (7th Cir.), cert. denied, 114
S.Ct. 2712 (1994). Our review of the record yields no plain
error on this point.

   Doctor Peter J. Fink testified at trial that King was
a depressed individual. Although King properly filed notice
of intent to use the expert testimony of Dr. Fink pur-
suant to Fed. R. Crim. P. 12.2(b), King failed to give the
government notice of any insanity defense. Fed. R. Crim.
P. 12.2 expressly states:

(a) Defense of Insanity If a defendant intends to rely
upon the defense of insanity at the time of the al-
leged offense, the defendant shall, within the time
prescribed for the filing of pretrial motions, notify
the attorney for the government in writing of such
intentions and file a copy of such notice with the
clerk. If there is a failure to comply with the require-
ments of this subdivision, insanity may not be raised
as a defense.

(Emphasis supplied.)

   King failed to comply with this requirement. According-
ly, King has forfeited his right to object to the district
court's refusal to instruct the jury on insanity. United
States v. Buchbinder, 796 F.2d 910, 914 (7th Cir. 1986).
Further, King affirmatively acknowledged in discussions
with the district court that insanity was not an issue in
this case and that there was no evidence to support such
a claim. For all of these reasons, we find no error in the
district court's refusal to give an insanity instruction in
this case.

III.

   The district court's error in its evidentiary ruling on
Cumming's testimony was harmless. It properly instructed
the jury. Accordingly, we affirm Dennis King's conviction.

AFFIRMED.