The appeal court noted the appellant was one of twenty-one defendants originally indicted in 1987 and that after a three-month trial, the jury found the appellant guilty of conspiracy and conversion and Mr. O'Farrell guilty of conspiracy. In this this appeal the appellant raised arguments in relation to the following: outrageous government conduct; challenge to the sentencing guidelines; entrapment; insufficient evidence for conversion; insufficient evidence for conspiracy; and cumulative error.

Outrageous Government Conduct: The first issue on appeal is whether the investigative conduct was so outrageous as to deprive the appellant of the right to due process.   Barger argued that the government's outrageous conduct included: the government hiring Mr. Tait on a contingent fee basis; Mr. Tait traveling from city to city throughout the country, spending $150,000 of government money to recruit Hells Angels to retaliate against the Outlaws; inciting Hells Angels to retaliate; and specifically inciting Mr. Barger to retaliate. Barger claims that the government's conduct so offended notions of fairness that his convictions should be reversed. The government insisted (and the trial court agreed) that its conduct was not outrageous, but was commensurate with the risk of retaliation presented by the Hells Angels. The appeal court noted that it had elsewhere stated that government conduct must violate fundamental fairness and be "shocking to the universal sense of justice." It noted this circuit court has been reluctant to grant the sanctions that the appellant seeks, since "to do so would greatly intrude into the law enforcement functions of the executive branches of federal and state governments."  The appeal court recalled four factors previously set out by the  determining if governmental conduct is outrageous: (1) the need for the police conduct as shown by the type of criminal activity involved, (2) the impetus for the scheme or whether the criminal enterprise pre-existed the police involvement, (3) the control the government exerted over the criminal enterprise, and (4) the impact of the police activity on the commission of the crime The government submitted and the court agreed on appeal that its conduct was necessary, given the violent histories of both the Hells Angels and the appellant-retaliation had to be expected. The appeal court referred to previous decisions involving the Ku Klux Klan where it was found that infiltrating such groups may be necessary to prevent the commission of crimes. In relation to the second of these factors appellant argued the infiltrator instigated the scheme. The  court on appeal  disagreed that the impetus for the scheme was the Hells Angels and not the government noting the former met several times to discuss arrangements including shortly after the murder of Webb. The court next considered factors 3 and 4 together. While agreeing the government excised some level of control as regards the plan and indeed noting that the plan was that of the infiltrators and not Mr. Barger's the court on appeal stated this was not significant-in this regard it also noted that Barger approved of the plan in advance and expressed satisfaction when he understood it had been completed.

Sentencing Guidelines: Mr Barger's second point of appeal related to the application of the Sentencing Guidelines. He argued inter alia that certain events in the conspiracy occurred after the Sentencing Report Act and guidelines -such that their application meant the ex post factor clause of the Constitution was violated.  The court rejected the arguments and relying on previous statements of the court to the effect that a defendant who commits a continuing offense beginning before the effective date of the guidelines and ending after the effective date of the guidelines can still be sentenced under the guidelines without violating the ex post factor clause of the Constitution.

Entrapment: The appellant maintained that he was not predisposed to engage in criminal conduct before being entrapped by Mr. Tait, who provided the following inducements: approaching Mr. Barger with a fictional plan to blow up the Chicago Outlaws' clubhouse; providing an alibi for the plan; urging Mr. Barger to talk with the Alaska Hells Angels for guidance in a retaliation; and telling Mr. Barger that he, Mr. Tait, was doing all the leg work in order to encourage Mr. Barger to act. The government, on the other hand argued argues that the appellant had both the predisposition and intent to participate in the conspiracy to retaliate against the Outlaws before Mr. Tait proposed the fictional Chicago bombing. The court on appeal agreed with the government position to hold that Mr. Barger failed to produce undisputed evidence demonstrating a patently clear absence of predisposition given all the facts.  The court noted the defendant's predisposition must be proven beyond a reasonable doubt by the government and which means  "the defendant's state of mind before his initial exposure to government agents."  And the following factors are relevant in determining whether a defendant is predisposed to commit a crime. Namely the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.

First, Mr. Barger is the recognized leader of the Hells Angels, an organization with a history of violence. However, the appellant has had no criminal convictions since the early 1970s. Second he took action: he sent a copy of the sensitive (and stolen) law enforcement 'EPIC'  manual to Mr. Tait. Mr. Barger's involvement began immediately upon Mr. Webb's death. This was long before Mr. Tait talked to him about the fictional bombing and alibi scenario. Third, Mr. Barger was not engaged in the criminal activity for profit, but for retaliation against the Outlaws. Fourth, Mr. Barger evidenced no reluctance and expressed interest and pleasure in the retaliatory nature (of the proposed bombing).  Later, he devised the alibi. Fifth, while it was an infiltrator who proposed the bombing it has been held an illicit transaction or attempted to arrange the purchase of narcotics lead by the government is insufficient to establish entrapment. There is a plethora of evidence to conclude beyond a reasonable doubt that Mr. Barger was predisposed to committing the offense. 

Conversion: this relates to the offence of obtaining and sending the EPIC manual. The appellant argued the United States failed to prove the following essential elements of the offense: (1) that the EPIC manual had value, (2) that the manual was property "of the United States" and (3) that he possessed the EPIC manual without authority However, the appeal court noted that during testimony at trial it was shown  that the manual was a very important investigative resource, took hundreds of hours and cost approximately $21,000 to produce. Clearly, the value of the EPIC manual is in the information contained therein. Second- just because the manual may have been in the possession of state or local law enforcement, and there is no proof that it was, does not mean that it lost its character as federal property. In relation to the third point the appeal court stated Barger lacked authority to transfer the EPIC manual, and he even admitted to Mr. Tait that he was not supposed to have it. The manuals are restricted.  The appeal court rejected Mr. Barger's contention that there was insufficient evidence to support his conviction of unauthorized conversion of the EPIC manual.

Conspiracy:  Mr. Barger and Mr. O'Farrell were convicted of conspiracy to blow up the Outlaws' clubhouse in Chicago, but the appellant contends that the United States produced insufficient evidence to support the conviction. The appellant argues that the government did not show an agreement between himself and Mr. O'Farrell. The appeal court agreed that the appellant correctly states that a conspiracy cannot be proven by an agreement between a defendant and a government agent or informer.  However it said proof of a formal agreement is not necessary to establish an unlawful conspiracy- a conspiracy "may be inferred from acts done with a common purpose. The appeal court noted Mr. Barger talked to many Hells Angels, both at formal meetings and elsewhere, about retaliation against the Outlaws; he circulated photos of the Outlaws believed to have killed Mr. Webb; and he circulated the EPIC manual. Further, Mr. Barger joined in the conspiracy to blow up the clubhouse without the government's repeated encouragement, and he expressed pleasure at the possibility that five or six Outlaws might be killed by the bomb. Then, Mr. Barger took an active role in providing Mr. Tait with an alibi. It rejected the appeal on this point also. 

Cumulative error:  The appellant's final contention is that his due process rights were violated by cumulative error . He argued the use of polygraph results to bolster the testimony of its informant, Mr. Tait was an error and there was  uncorroborated evidence. While the court agreed generally, the results of polygraph examinations are inadmissible into evidence this is not always necessarily the case. On the facts it noted when use of a polygraph test initially came up at trial and counsel objected until the court instructed the agent to read the contract into evidence. One part of the contract required Mr. Tait to submit to periodic polygraph tests. There were no objections at this point. Further, counsel for the defendants initiated discussion about the polygraph results while cross-examining Mr. Tait.

The court appeal court next referred to the two-step analysis when considering the admissibility of polygraph evidence. First, the evidence must be relevant; second, its probative value must outweigh the risk of unfair prejudice. It then held  the evidence is relevant since the appellant had questioned Mr. Tait's credibility, thus putting it at issue. Further, Mr. Tait's submission to polygraph tests was part of his contract with the FBI, which the defense put in issue several times during the trial. Second, we note that the government witnesses did not explore the issue, but that it twice came up that Mr. Tait would submit to polygraph tests. Then the defense cross-examined Mr. Tait on the issue. The appeal court stated there was no error when the trial court determined the probative value of the evidence outweighed the risk of prejudicial effect.

The second trial error the appellant asserts is that his right to a fair trial was violated when a juror saw co-defendant O'Farrell in shackles. Mr. Barger argues that, since he and Mr. O'Farrell were closely associated in view of the evidence at trial, viewing Mr. O'Farrell in custody would prejudice a juror against him. On the facts the appeal court noted the juror notified the court several days after seeing the co-defendant in custody. The trial judge asked the juror whether he could completely disregard what he saw and the juror responded that it did not effect him at all. All defense counsel were present during the questioning, and the judge consulted with them so he could ask any questions they had. Further, the judge instructed the juror that Mr. O'Farrell was not presently in custody. It stated  it is true that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial" and not on other circumstances not adduced at trial. It also noted it was for the defendant to demonstrate either that the alleged misconduct was inherently prejudicial or that it caused actual prejudice. It appeal court held it is not inherently prejudicial to bring a defendant to the courthouse or courtroom in custody as a security measure. Further, Mr. Barger has failed to show actual prejudice and the trial judge questioned the juror in front of defense counsel, who did not object to the judge's handling of the matter.  The appeal court stated these two alleged errors do not rise to the level of cumulative error.

The appeal court concluded by stating that the judgment of the district court was affirmed.