State v. Rousseau

34 S.W.3d 254, 2000 Mo. App. LEXIS 1909, 2000 WL 1869444
Missouri Court of Appeals·Decided December 26, 2000·No. WD 58158·Published·Cited by 33 cases

Opinion

EDWIN H. SMITH, Judge.

The State of Missouri appeals from the judgment of the Circuit Court of Jackson County dismissing the three-count felony indictment against the respondent, Mark- *256 land S. Rousseau, charging him with three instances of giving false testimony before the Missouri Gaming Commission (Commission) concerning his involvement in the development of a riverboat casino in Kansas City, Missouri, in violation of § 313.550.3. 1

In its sole point on appeal, the State claims that the trial court erred in dismissing the indictment against the respondent as being fatally defective for failing to allege an essential element of the crime of giving false testimony before the Commission in violation of § 313.550.3, because, to establish such a violation, the court erroneously interpreted that section as requiring proof that the respondent gave false testimony before the Commission concerning horse racing, rather than excursion gambling boats.

We affirm.

Facts

In November 1992, the Port Authority of Kansas City, Missouri, solicited offers from gaming companies interested in building a riverboat casino on one of two sites located within the city limits of Kansas City on property controlled by the Port Authority, designated as site A and site B. Three gaming companies, Promus Corporation (Promus), Boyd Gaming Corporation (Boyd), and Hilton Hotels Corporation (Hilton), responded to the Port Authority’s solicitation.

In his capacity as vice president in charge of gaming development for Hilton, the respondent was dispatched to Kansas City in December 1992 to evaluate gaming opportunities and develop a gaming proposal to present to the Port Authority. The proposal was to include, inter aim, an outline of “Hilton’s commitment to minority participation in the construction and operation of the [proposed] casino, minority ownership in the casino, and the funding of social minority grants in Kansas City to assist problem gamblers, minority businesses and other organizations actively assisting minorities.” With respect to such grants, the respondent met with numerous members of the minority business community, including Elbert Anderson, the president of the Port Authority.

After much research and consideration, Hilton submitted a proposal for site B, but not site A. Both Promus and Boyd proposed building a casino on site A, but not site B. On January 12, 1993, the Port Authority, in a four-to-three decision, voted to accept Hilton’s bid. The deciding vote in favor of Hilton was cast by Anderson. Thereafter, the respondent and Hilton’s attorneys began negotiating the specific terms of the development agreement with the Port Authority. However, it soon became apparent that site B was unsuitable for construction due to various concerns, such as hazardous wastes, underground electrical conduits, and delicate brick-lined sewers. After Hilton proposed changing their gaming development from site B to site A, Boyd and members of the Kansas City city council became concerned that Hilton had executed a “bait and switch” with respect to its proposal for site B. Consequently, negative publicity and media coverage ensued, and talks between Hilton and the Port Authority began to break down, as Anderson became concerned that Hilton did not have the necessary leadership to continue with the project.

In light of the problems with the project, the respondent met with Bill Black, a prospective minority investor in Hilton’s casino project, and Anderson at a restaurant in Kansas City in early February 1993 to discuss their respective concerns. According to the State, at this meeting, the respondent thanked Anderson for helping Hilton acquire the Kansas City bid and asked him what he personally wanted in return for his continuing support. Anderson stated that he wanted Hilton to fund a seminar/fashion tour in the amount of $1,000,000 to be conducted in conjunc *257 tion with the Black Expo, to which the respondent agreed. As a result of this agreement, Anderson understood that his vote on any future developments as to Hilton’s casino, including a change to site A, had been “financially secured.”

On February 4, 1998, Black sent a letter to the respondent setting forth a proposal for a seminar/fashion tour called Savoir Faire 2 to be funded by a “corporate sponsorship fee” commitment by Hilton of $250,000 per year for five years. Accordingly, on February 25, 1998, at the direction of the respondent, a provision was placed in the Development Agreement concerning funding of “social/minority grants” in the amount of $250,000 per year for five years, subject to Hilton’s being licensed in Missouri and construction of the riverboat casino on site A. Shortly thereafter, before the Development Agreement was finalized, 3 the respondent left his employment with Hilton to accept a position elsewhere.

On March 24, 1993, Hilton received a letter from a company called K.C. Perspectives (KCP) seeking a social/minority grant as provided in the Development Agreement. The owner of KCP was Michelle Lathan, an employee of Anderson’s with whom he was having an affair and the former manager of Savoir Faire. Anderson testified that he contacted numerous Hilton officials to pressure them into awarding the grant to KCP. On July 13, 1993, Hilton advised the Port Authority that it had selected KCP to receive the first $250,000 social/minority grant. In August 1993, Hilton awarded the grant to KCP, even though it was not required by its agreement to do so until after receiving its Missouri gaming license in October 1996.

Sometime in 1996, the Commission began investigating suspected improprieties committed by Anderson while he was president of the Port Authority. On October 2, 1996, in connection with this investigation, the Commission held a hearing at which the respondent was called to testify under oath concerning the award of the social/minority grant to Savior Faire and its connection to Anderson, as a result of his relationship with Lathan. Under questioning by the Commission concerning the awarding of a grant to Savoir Faire, the respondent testified under oath that he had no authority to award a grant to any organization, and that at no time had Anderson approached him about Savoir Faire.

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State v. Rousseau, 34 S.W.3d 254, 2000 Mo. App. LEXIS 1909, 2000 WL 1869444 (Mo. Ct. App. 2000).

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