Petition — Riebold v. United States

Supreme Court, U. &

‘jo. FILED 3.

i

IN THE |_ MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-170

UNITED STATES OF AMERICA

Vv.

E.M. ‘“‘MIKE’’ RIEBOLD

and

DONALD T. MORGAN,

Petitioners

PETITION FOR A WRIT OF CERTIORARI! TO THE

| UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Tandy L. Hunt and

| Peter Everett IV

TURPEN, CURRIER,

EVERETT & JONES

318 Louisiana S.E.,

Albuquerque, New Mexico

87108

Counsel for Petitioners

OPINIONS BELOW------------------------

JURISDICTION-------------------- Sasene

QUESTIONS PRESENTED-------------------

CONSTITUTIONAL PROVISIONS INVOLVED----

STATEMENT OF THE CASE-----------------

REASONS FOR GRANTING THE WRIT---------

Question I--------------------------

Question [I-------------------------

Gemma ti anccccnccccececcecescececoces

CONCLUSION----------------------------

APPENDICES----------------------------

* Appendix A - Opinion of the Court of

Appeals entered May 25, 1977--------

Appendix B - Order denying rehearing

entered June 14, 1977---------------

Appendix C - Order denying Riebold's

motion for stay of mandate and grant-

ing Morgan's motion for stay of

mandate-----------------------------

Appendix D - Order denying Riebold's

subsequent motion and suggestions

for temporary stay of mandate-------

Appendix E - Order granting the

United States Attorney's motion to

publish the opinion-----------------

42

a4

45

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

ge ee

UNITED STATES OF AMERICA

y.

E. M. "MIKE" RIEBOLD

and

DONALD T. MORGAN,

Petitioners

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioners, E. M. "Mike" Riebold and

Donald T. Morgan pray that a writ of certiorari

be issued to review the judgment of the United

States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is

attached hereto as Appendix A (hereinafter

referred to as “Appendix A). That opinion was

entered on May 25, 1977. An order denying

“eee ee Oe. ow CP Onese

2

a rehearing (Appendix B) was entered on June 14,

1977. An order denying Defendant/Petitioner

E. M. "Mike" Riebold's motion for stay of mandate

and granting Defendant/Petitioner Donald T.

Morgan's motion for stay of mandate (Appendix C)

was entered July 1, 1977. Petitioner E. M.

Mike" Riebold's subsequent motion and suggestions

for temporary stay of execution of mandate

(Appendix D) was denied by order of July 14, 1977.

Although the case is not yet reported, an order

was issued by the Court on June 21, 1977,

granting the United States Attorney's motion to

publish the opinion (Appendix E).

JURISDICTION

The judgment of the Court of Appeals (Appendix

A) was entered on May 25, 1977. Defendant's

timely motion of petition for rehearing (Appendix

B) was denied June 14, 1977. No motion for

extension of time for filing a petition for writ

of certiorari was filed. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED

Were the Defendants denied effective assis-

tance of counsel and due process of law by the

refusal to grant a continuance in a very complica-

ted case concerning 84 counts, which include

misapplication of bank funds, fraud, securities

violations, which involve funds totaling

approximately 5.8million dollars? Is the Tenth

Circuit Court of Appeals incorrect in applying

an Outdated and unfairly oppressive rule, which

differs substantially from other Circuits,

concerning effective assistance of Counsel?

7 OTT -

Were the Petitioners denied their right to

a fair trial, and impartial jury, and due

process of law when the Government's chief

witness, the FBI agent in charge of the

investigation, shortly after intially being

sworn to testify on behalf of the Government,

stated that his investigation disclosed "“kick-

backs" from Defendant Riebold to Defendant/

Petitioner Morgan in orde~ for Defendant/

Petitioner Riebold to secure loans? Did the

Court compound the prejudicial nature of the

comment by not adequately instructing the jury?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part:

"No person shall be held to answer for

a capital, or otherwise infamous crime,

.., nor be deprived of life, liberty,

or property, without due process of law;..."

The Sixth Amendment to the United States

Constitution provides in pertinent part:

“In:all criminal prosecutions, the accused

shall enjoy the right to...have the

assistance of counsel for his defense."

STATEMENT OF THE CASE

Defendant-Petitioners E. M. "Mike" Riebold

and Donald T. Morgan were indicted along with

three other Defendants, and charged with violations

of 15 U.S.C. 77g (a) (x) - Securities Fraud;

18 U.S.C. 2- Aiding and Abetting; 18 U.S.C.

4

3-Accessory after the fact; 18 U.S.C. 215 -

Receipt of fee for procuring loan; 18 U.S.C. 371-

Conspiracy; 18 U.S.C. 656 - Misapplication of

bank funds; 18 U.S.C. 1014 - False Statements

to Bank to obtain loans; 18 U.S.C. 1341 Mail

Fraud; 18 U.S.C. 1343 Wire fraud; 18 U.S.C. 2314

Interstate transportation of property obtained

by fraud; 15 U.S.C. 77x false statements in

securities registration statement.

After hearings regarding the indictment in

CR 74-353, it was agreed that said indictment

would be dismissed, and by motion of the

government and order of Judge Payne, the

indictment in 74-353 was dismissed on May 20,

1975 as to all defendants.

A subsequent indictment, No. CR 75-142, was

returned by the Grand Jury and filed in open

Court on April 29, 1975. That indictment charg-

ed the same offenses against the same defendants

and included a total of 84 counts. Trial was

set for August 4, 1975.

On June 17, 1975, defendant Harold Morgan

pleaded guilty to an information filed by

the government in 75-187. On June 20, 1975,

defendant Crown pleaded guilty to count 67 of

the indictment in 75-142 after withdrawing his

former plea of not guilty. On June 23, 1975,

defendant Hammon withdrew his former plea of not

guilty and pleaded guilty to an information

filed by the government in 75-192.

On July 2, 1975, the Federal Public Defender

(who had been ordered by the trial court to

represent defendant E. M. "Mike" Riebold on June

20, 1975) filed a motion to vacate the August

er Ne nage —-

4, 1975 trial setting. That same day, July 2,

1975, Judge Payne denied that motion for

continuance without a hearing. Later on that

same day, the trial court revoked the appointment

of the Public Defender and indicated that Mr.

Riebold had the right to appear pro se and

further, that unless he changed his mind, the

matter would be heard on August 4. On that same

day, Judge Payne wrote a letter to defendant

Mike Riebold wherein he indicates that he

postponed the case from its original setting of

August 4, 1975. There is no further indication

why the Court vacated the August 4, 1975 setting,

however, by docket entry on July 10, 1975, the

case was reset for September 9, 1975.

Prior to the returning of the indictment,

defendant Donald T. Morgan had been represented

by attorney John C. Maine. On January 9, 1975,

(less than three weeks after Donald T. Morgan

was indicted) Mr. Maine filed a motion to

withdraw, which motion was granted on January 10,

1975. On January 9, 1975, Gene E. Franchini

entered his appearance on behalf of Donald T.

Morgan. On or about July 11, 1975, Gene

Franchini was notified that he would be appointed

a district judge. This information was communicat-

ed to defendant Donald T. Morgan who immediately

began looking for another attorney. Mr. Gene

Franchini continued to represent Donald Morgan

until he took the oath of office as Judge on

August 8, 1975, after which time he was

statutorily precluded from acting as attorney

for Donald T. Morgan. On August 13, 1975,

Donald T. Morgan retained the services of

Donald J. Wilson, who entered his appearance

on defendant Morgan's behalf that date. On that

same day, Mr. Wilson filed a motion for

6

continuance, stating that Mr. Morgan's previous

attorney, Mr. Franchini, had been appointed

Judge and that through no fault of defendant

Morgan, Mr. Franchini could no longer represent

him. In that motion, Mr. Wilson also referred

to the anticipated length of the trial, the

complexities of the case and the investigation

he would need to perform. This request for

continuance was similarly denied without a

hearing on August 14, 1975. The writer of this

brief was employed by Mr. Wilson on August 15,

1975, to assist in the preparation of this

case and also to perform an investigation into

matters relating to the loans made by Mr.

Morgan at the First National Bank. (At that

time, the writer was a member of the Louisiana

Bar but had not taken the New Mexico Bar exam).

On August 21, 1975, during a hearing before the

Court, Mr. Wilson again indicated that he had an

additional motion for continuance to file. The

Court stated that it would be denied even though

he had not even read the motion. On September

3, 1975, Mr. Wilson filed a supplemental motion

for continuance wherein he reiterated the basis

of his original motions, indicated that he

had hired the undersigned and specifically

Stated that he did not have adequate time to

prepare for such a monumental trial. On the

Same day said motion was filed, Mr. Morgan's

attorney indicated during a court hearing that

he was filing this supplemental iotion for

continuance. The court similarly denied the

motion without even reading it. On that same

day, the court signed a motion denying the

continuance, indicating erroneously that there

had been a hearing on said motion.

The trial itself begain September 8, 1975,

and proceeded until November 10, 1975, upon

——EEE

]

which day the jury returned its verdict.

Defendant Morgan was found guilty of counts |

through 3, counts 7 through 61, 68 through

79 and 80. Sentencing was set for December

19, 1975, on which date defendant Morgan was

sentenced as follows:

One (1) year each as to counts 1,

2 and 3, sentences to run concurrently;

two (2) years as to counts 7 through

61, 68 to and including 79, sentences

to run concurrently with all other

terms of imprisonment.

It is further ordered, adjudged and

decreed that defendant be committed

to the custody of the Attorney General

or his authorized representative for

a period of two (2) years as to count

80, sentence to run consecutively,

execution of sentence as to imprisonment

in count 80 only suspended, probation

five (5) years from this day, upon the

special conditions of probation that

defendant not associate with any of the

other defendants in causes numbered

74-142, 75-187 and 75-192, and that

defendant pay the United States a fine

in the amount of $10,000.00 as to count

80, as ordered by the probation officer.

(P. & Pr. Vol. 1, p. 204).

On the third day of trial, the government

introduced its chief prosecution witness, Loyal

W. Behrenz, the FBI agent who was in charge of

and had conducted the entire investigation

herein. When asked what the nature of his

investigation was, Agent Behrenz indicated that

he was investigating and had found "kick-backs"

8

made to defendant Morgan in order to obtain loans

of the First National Bank through him. This

Statement was objected to and the jury was

excused while the counsel discussed matters with

the court. The court excluded the testimony but

no instruction was given to the jury when they

pre te ge A motion for mistrial was made and

enied.

REASONS FOR GRANTING THE WRIT

Since 1970, various tests have been applied

by the Tenth Circuit regarding the effectiveness

of legal representation as such representation

is affected in whole or in part by a denial of

a motion for continuance. In United States v.

Davis, 436 F.2d 679 (10th Cir. 1971) the test

appeared to be*that the services of counsel must

be, “of a substandard level such as would make

the trial become a mockery and farcical."

Affirming an earlier standard enunciated in

Gofrith v. United States, 314 F.2d 868 (10th

Cir. 19). In United States v. Campbell, 453 F.2d

447 (10th Cir. 1972) the Court alluded to the

test that the trial should not be a “sham or a

farce.". In United v. Spoonhunter, 476 F.2d 1050

(10th Cir. 1973) regarding the alleged abuse of

discretion by the trial judge and refusing a

continuance, the test applied was that of a

“clear showing of abuse resulting in manifest

injustice."

The “mockery of justice" test for effective-

ness of counsel has been replaced by the test of

“reasonable effective assistance of counsel"

in other circuits. Beasley v. United States,

491 F.2d 687 (6th Cir. 1974); West v. Louisiana,

478 F.2d 1026 (5th Cir. 1973); Bruce v. United

States, 126 U.S. App. D.C. 336, 379 F.2d 113

(D.C. Cir. 1967). It is relevant to note that

the Circuit Court of Appeals for the District

of Columbia has rejected the archiac “farce

or mockery" test in favor of the "reasonable

effective assistance of counsel" test because it

was in that circuit that the former test was

established. Diggs v. Welch, 80 U.S. App. 5,

148 F.2d 667 (D.C. Cir. 1945), cert denied,

325 U.S. 889 (1945). It appears the Second

Circuit has applied the reasonable effective

assistance of counsel test in U.S. v. Tarmunti,

513 F.2d 1087 (2nd Cir. 1975) although it is not

clear whether that circuit has in fact specifi-

cally rejected the farce or mockery test.

We submit that the"reasonably effective

assistance of counsel" test would better

satisfy the ends of justice.

Lack of adequate time for defense counsel

to prepare for trial has been found to constitute

a denial of effective assistance of counsel.

United States v. Tarmunti, supra; Wolfs v. Britton,

509 F.2d 304 (ath Cir. 1975); United States v.

Miller, 508 F.2d 444 (7th Cir. 1974); United States

v. Knight, 443 F.2d 174 (6th Cir. 1971); Stokes

v. Peyton, 437 F.2d 131 (4th Cir. 1970); United

States v. Millican, 414 F.2d 811 (5th Cir. 1969)

and numerous other cases.

In the Fourth Circuit there has been created

a rebuttable presumption that effective assistance

of counsel was not provided if there is an

interval of only one day or less between employ-

ment of an attorney and the trial. Stokes v.

Peyton, supra, and cases cited therein at page 136.

Tits presumption is rebutted if the State shows

by “clear proof" that the denial of additional

time did not result in prejudice.

~ 10

“Adequate preparation for trial often

may be a more important element in the

effective assistance of counsel to which

a defendant is entitled than the forensic

skills exhibited in the Courtroom. The

careful investigation of a case and the

thoughtful analysis of the information

it yields may disclose evidence of which

even the defendant is unaware and may

suggest issues and tactics at trial which

would otherwise not emerge." Wolfs v.

Britton, supra, citing Moore v. United

States, 432 F.2d 730 at 735 (3rd Cir. 1970).

This is not a case where counsel for the de-

fense requested a continuance at the last minute.

Don Wilson requested a continuance on the day he

filed his appearance. He was obviously aware of

the complex nature of the case as evidenced by

the 84 count indictment itself and further in

the record by affidavits of other attorneys who

were somewhat familar with the case.

ee ee

The trial court did not even have the courtesy

to afford Don Wilson a hearing on either of his

motions for continuance to determine whether they

were well founded or not.

This is not a case where the first attorney

was able to assist subsequently retained counsel.

Gene Franchini became a judge on August 8, 1975,

and thereafter was statutorily precluded from

representing a private client. In addition,

through the personal knowledge of the undersigned,

Gene Franchini did not assist in the defense in

any manner subsequent to employment of the

undersigned by Don Wilson on about August 15, 1975.

1]

There were no motions for continuance

granted in this case at all. The trial court

continued the case from August 4, to September

8, ex propio motu. Although there are no

specific reasons other than expediting the

trial, it cannot be said in retrospect that

Don Wilson's motion for continuance was

denied because the court had granted prior

motions for continuance.

Myopically forcing the trial to "an expedi-

tious" commencement is not a rational basis

for the denial of continuance under the facts

of this case, especially considering that the

indictment in 75-142 had only been returned on

April 29, 1975.

There is no basis in reason and even less

basis in justice under law for denying Don

Wilson's motion for continuance. Failure to do

SO was not harmless error and substantially

affected the rights of the defendant, Don Morgan.

QUESTION II

Where an appellate court perceives from

an examination of the record that inadmissible

evidence made such a strong impression upon

the minds of the jury that its subsequent

withdrawal or the instruction to disregard

it probably failed to eradicate the injurious

effect of it from the minds of the jury, there

the defeated party does not have a fair trial

of his case, and a new trial should be granted.

Maytag v. Cummins, 260 F.75 82 (8th Cir.). This

wel t-aatabl ished rule has been applied by the

Supreme Court of the United States, Federal

Court, in criminal and civil cases and in jury

and non-jury cases. United States v. King,

12 13

7 How. 833, 12 L.Ed. 934; Pennsylvania Company CONCLUSION

v. Roy, 102 U.S. 451; Hopt v. Utah, 120 U.S. -

430; Sinclair, et al v. United States, 279 U.S. For the reason stated above, the petition

749; and in Federal Circuit Court of Appeals, for a writ of certiorari should be granted.

Copeland v. United States, 2 F.2d 637; Donald

v. United States, 102 F.2d 618 (Appellate, ss Respectful ly submitted,

It can reasonably be said that the term

“kick-backs" may have improperly influenced

a juror without the juror being conscious ; Tandy L. Hunt and

of its influence. See State vy. McBeth, 167 Peter Everett IV

LA 324, 119 So. 65 (1928). The admission of

some improper evidence cannot be cured because TURPEN, CURRIER,

some evidence by its very nature will leave a FVERETT & JONES

lasting impression on the mind of juror or judge. 318 Lowisiana S.E..

Holt v. United States, 94 F.2d 90 (10th Cir. Albuquerque, New Mexico 87108

1937). United States v. DeDominicis, 332 F.2d

207 (2nd Cir. 1964). Attorneys for Petitioners

When FBI agent, Loyal Behrenz, told the jury

he found "kick-backs" in Don Morgan's loan JULY, 1977

transactions, he in effect told the jury to

convict Don Morgan of the majority of the counts |

in the 84 count indictment. Such a comment

required the granting of a mistrial.

SUMMATION I hereby certify that on this

day of July, 1977, a

Certiorari should be granted in order to copy of the foregoing petition

settle the disparities between the Tenth for certiorari was mailed to

Circuit and the other Circuit courts. The the Solicitor General, Department

Tenth Circuit ruled as set forth in the opinion of Justice, Washington, D.C. 20530.

attached hereto, that “representation is All parties required to be served

competent unless it was perfunctory, in bad have been served.

faith, a sham, a pretense, or without adequate

opportunity for conference or preparation," By

United States v. Dingle, 546 F.2d 1378 (10th “Tandy L. Hunt and Peter Eyerett IV

Cir. 1976) at 1384 to 1385, should be Attorneys for Petitioners

disregarded in favor of the “reasonable effective

assistance of counsel" test which now prevails

in other United States Circuits as indicated supra.

14

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

May 25, 1977

agra

Nos. 76-1170 and 76-1171

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

E. M. "MIKE" RIEBOLD and

DONALD T. MORGAN,

Defendant-Apellants.

Appeal from the United States

District Court for the

, District of New Mexico

(D. C. No. CR-75-142)

Submitted: March 15, 1977

15

Lyman G. Sandy, Assistant United States Attorney

(Victor R. Ortega, United States Attorneys on

the brief), Albuquerque, New Mexico, for

Plaintiff-Appel lee.

James Patrick Quinn and Philip F. Cardarella,

Kansas City, Missouri, for Defendant-Appel lant

Riebold.

Peter Everett, IV, of Parker, Francis and

Everett, Albuquerque, New Mexico, for Defendant-

Appellant Morgan.

Before SETH, BARRETT, Circuit Judges, and KERR,

District Judge.*

BARRETT, Circuit Judge

*Of the District of Wyoming, sitting by

designation.

E.M. "Mike" Riebold (Riebold) and Donald

T. Morgan (Morgan)! have been found guilty by a

jury of receipt of a fee for procuring a loan,

aiding and abetting, misapplication of bank

funds, false statement in a securities registra-

tion statement, wire fraud, interstate transporta-

tion of property obtained by fraud, securities,

fraud, conspiracy, and mail fraud.2 On the

verdicts, the trial judge entered judgments

convicting appellants and sentencing them, from

which they appeal.

| Hereinafter collectively referred to as

appellants.

2 In violation of 18 U.S.C.A. Sec.215, 18 U.S.

C.A. Sec 656, 15 U.S.C.A. Sec. 774, 18 U.S.C.A.

Sec. 1343, 15 U.S.C.A. Sec. 77q(a), 18 U.S.C.A.

Sec. 2314, 18 U.S.C.A. Sec. 371, 18 U.S.C.A. Sec.

1341, and 18 U.S.C.A. Sec. 2.

16

Appellants were initially charged on December

20, 1974, by an 84 count indictment. This indict-

ment was superseded by a subsequent 84 count

indictment filed on April 29, 1975. After three

co-defendants entered guilty pleas, appellants

proceeded to trial on the 75 counts of the

indictment bearing charges relating to them.

Riebold was convicted on 72 counts. Morgan was

convicted on 71 counts.

Riebold was engaged in the business of min-

eral development involving oil, gas, and coal.

He was the controlling stockholder of several

corporations, including American Fuels, Inc.,

Garfield Mines, Inc., Agua Pura, and United States

Lime. Through numerous bank loans and loans from

private investors, as will be developed, infra,

a was able to project an image of immense

wealth.

Morgan was a vice-president and a chief loan

officer of the First National Bank of Albuquerque,

New Mexico (First National). Morgan initially

approved loans to Riebold because he “had thought

for some time that our bank, as the second largest

bank in the state, ought to achieve a certain

expertise in oil and gas lending that didn't exist

in New Mexico banks at that time." Thereafter,

he continued to approve loans to Riebold because

he felt "trapped" and because he believed that

additional loans were necessary if First National

was to recover any of the money it had advanced.

The trial consumed more than thirty days.

The Government introduced an overwhelming amount

of evidence which established the manner in

which appellants defrauded First National and a

number of private investors. Loans were generally

17

acquired for Riebold and his companies by mis-

representations made by appellants relating to

the value of Riebold's assets and the manner in

which the monies were to be expended.

The Government proved that Riebold's com-

panies were, for all practical purposes, dormant;

that the companies generated little or no income,

had negative net worths, ard were unable to pa’

their obligations on a timely basis; that loans

advanced by Morgan and private investors allowed

the companies to exist; that loans advanced for

specific exploration activities were diverted to

pay salaries, telephone bills, costs incurred in

operating Riebold's res entertainment

expenses, work on Riebold's home, and in payment

of existing loans and overdrawn bank accounts.

The Government established that Morgan utiliz-

ed his position as senior vice-president of First

National to: loan Riebold approximately three

million dollars ($3,000,000.00) at a time when

Morgan's authorized lending limit was $150,000;

make loans to Riebold that other bank officers

would not have made; loan Riebold monies after

being warned not to do so because of Riebold's

poor payment history; loan Riebold monies without

first obtaining a credit check or securing adequate

and proper collateral; conceal loans made to

Riebold which he knew would not be approved;

assure other officers that the Riebold loans would

all be repaid shortly; Hs pol some 2.3 million of

Riebold's loans hy fraudulently completing

a signed blank check of a corporate depositor;

continue to make loans to Riebold after being

expressly admonished by his superiors not to make

18

any further loans to him. Morgan made these loans

in a relatively unnoticed manner because of the high

position of influence and authority he held and

further because he was much respected within First

National. His co-employees and associates were

disinclined to challenge his loans. Riebold

rewarded Morgan for his help by bestowing financial

favors upon him.

The Government introduced detailed evidence

establishing the manner by which appellants were

able to defraud a number of private investors out

of an amount in excess of $2,000,000.00. This is

well summarized in the Government's brief:

“Riebold's usual method of doing business with

these investors and others was to impress them

with his apparent wealth, including his lavish

mansion and jet planes, which he used to fly

investors to various properties. He boasted of

his many companies and properties which he falsely

represented to be worth many millions of dollars,

and told tales of hugh deals that were always just

about to be closed."

Riebold and Morgan testified and they present-

ed evidence supportive of their defense which “was

a general denial of any intent by Riebold or

Morgan to pay or receive any 'kickbacks', or

misapply bank funds, or defaud anyone." Whether

appellants intended to defraud or injury First

National is, of course, immaterial in an 18 U.S.C.A.

Sec. 656 prosecution. In United States v. Tokoph,

914 F.2d 597 (10th Cir. 1975), we said:

...-This evidence is said to indicate

Weil and appellant did not intend to

injure or defraud the Bank. Whether

Or not the loans were repaid or the

Bank actually suffered a loss is not

material to a Sec. 656 charge. "The

19

offense occurred and was

complete when the misapplication

took place." United States v.

Acree, supra.

514 F.2d, at 604.

On appeal appellants do not directly challenge

the saffictencs Of the evidence. They contend that

the trial court erred in: (1) refusing to grant

a continuance; (2) denying their motion for a

mistrial during the testimony of the Government's

chief witness; (3) allowing the jurors to take

notes; (4) permitting their trial on a patently

biased indictment; and (5) inadequately instruct-

ing the jury.

#

(a)

Morgan contends that the trial court erred

in refusing to grant a continuance in that his

motion was not dilatory but was necessary to

prepare for “such a complex and lengthy trial

and that with additional time he could have

produced evidence which would have materially

benefited his defense.

Morgan was originally indicted on December

20, 1974. He had the services of retained counsel

at that time and for some time prior thereto in

the course of First National's investigation.

Morgan then retained other counsel who represent-

ed him through out the period that the second

indictment was brought (April 29, 1975), during

the many hearings on motions that arose there-

after and until August 8, 1975, when his counsel

assumed a state district judgeship. This of-

course, precluded him from further representation

of Morgan.

20

His counsel had informed Morgan about July

8, 1975, almost one month prior to his assump-

tion of the judgeship, that he had been so

appointed and would be unable to further represent

him. Even so, it was four weeks later when

Morgan retained new counsel, who entered his

appearance in this case on August 13, 1975. At

that time, trial had been scheduled for September

8, 1975. The trial court had granted two con-

tinuances at that time.

Following his entry of appearance as

Morgan's newly retained counsel, he filed for

re another continuance. He contended, inter

alia:

5. The undersigned is informed and

believes that the trial in this cause

wiil last from two to three months

and as a result of the complexities

of the case, the number of witnesses

and exhibits to be offered by the

Government and the Defendant, the

undersigned respectfully moves the

Court for a continuance in order to

properly acquaint himself with the

case and prepare a defense for the

defendant...

(R., Vol. I, p. 167.)

Morgan argues that the denial of the

continuance placed an insurmountable burden

upon his newly retained counsel in that it was

impossible for him to prepare for the trial to

commence September 8, 1975. On this predicate,

Morgan alleges that he was effectively denied

assistance of counsel and due process of law.

We hold that the trial court acted well within

21

its discretion in denying the continuance.

A trial court's determination to deny a

motion for a continuance will not be set aside

absent proof of a manifest injustice resulting

from its denial. In United States v. Hill,

526 =.2d 1019 (10th Cir. 1975), cert. denied,

425 U.S. 940 (1976), we sa‘d:

Consideration of these conten-

tions is based on the well-established

rule that "(tJ he trial court is vested

with discretion as to granting a

continuance. Its exercise will not be

disturbed on appeal in the absence of a

clear showing of abuse resulting in

manifest injustice." United States v.

Spoonhunter, 476 F.2d 1050 (10th Cir.

1973). Our review of the record con-

vinces us no absuse of discretion

occurred in denying this motion for

continuance. One attorney had entered

his appearance on November 27, 1973, two

other attorneys had entered their

appearances on January 24, 1974.

Services of a court-appointed investi-

gator were utilized. No showing of

inadequate time to investigate and

prepare for trial is made. See United

States v. Harris, 441 F. 2d 1333 (10th

Cir. 1971). The record does not show

any injustice resulting from the

denial of this continuance request.

526 F. 2d, at 1021-1022.

We hold that the record evidences that Morgan

suffered no manifest injustice by reason of the

22

denial of his motion for a continuance. Although

the trial was lengthy, the case was not complex.

The evidence introduced by the Government

centered upon Morgan's scheme and intent to de-

fraud First National and a number of private

investors. Morgan was ably represented by his

experienced retained counsel who had spent , i

considerable time preparing for the trial, aided

by the services of a full-time investigator.

Morgan's contention that a continuance may have

allowed him to present mitigating evidence

is too general to pass judicial muster, particul-

arly in view of the adequate, able defense

conducted by his retained counsel. The denial

of the motion for continuance did not deny

Morgan due process of law.

te

Morgan's related allegation that the denial

of his motion for continuance in turn denied him

effective assistance of counsel is equally with-

Out merit. We cannot lend even token credibil-

ity to Morgan's allegation that during the period

December, 1974, to August, 1975, his retained

counsel did "...little or no action{was taken) to

prepare a defense thus shifting the burden of

preparing the entire case for the defense to

[newly retained counsel] ...", inasmuch the

record is devoid of any evidence, direct or

circumstantial, supporting this contention.

The standard for effective assistance of

counsel is well established in this circuit. ;

In United States v. Dingle, 546 F.2d 1378

(10th Cir. 1976), we said: }

Dingle contends that he was

denied his right to counsel as

guaranteed by the Sixth Amendmert

23

because his trial counsel was

incompetent. A specific hearing was

held by the trial court on this

issue following remand.

At the competency hearing, Dingle

and his wife testified that Dingle

repeatedly requested his trial counsel

that he be permitted to take the stand.

His trial counsel testified that his

trial strategy was to attack the

credibility of the government witnesses,

[R., Vol. I, Supp., p. 17), and that

he did not recommend that Dingle

testify nor did he contact a witness,

Mrs. Bean, because, in his judgment,

she was not helpful to the defense

Strategy. The trial court found that

counsel was competent. This finding

must be given added weight in light

of the fact that the court had an

opportunity to view, hear, and observe

the witnesses. United States v. 79.95

Acres of Land, More or Less, In Rogers

County, State of Oklahoma, 459 Fo 185

(10th Cir. 1972).

Dingle would have us adopt a new

standard for determining the competency

of counsel. He urges that the test for

competent counsel should be whether the

representation "...[is7 reasonably

likely to render and rendering reasonably

effective assistance." People v.

Gonzales, 543 P.2d 72, 74 (Colo. App.

1974).

This court has long held that

representation is competent unless it

24

“was perfunctory, in bad faith, a sham,

a pretense or without adequate opportun-

ity for migeeren ge | a, :

Johnson v. United States, supra; lolnurs

V. United States, 453 F.2d 432 (10th Cir.

1971); United States v. Baca, 451 F.2d

1112 (10th Cir. 1971), cert. denied, 405

U.S. 1072, 92 S.Ct. 1524, 31 L.Ed. 2d 806

(1972); Ellis v. State of Oklahoma, 430 F.

2d 1352 (10th Cir. 1970), cert. denied,

401 U.S. 1010, 91S. Ct. 1260, 28 L.Ed.

2d 546 (1971). The rule is alive and

well in this circuit.

546 F.2d, at 1384-1385.

Applying this standard, we hold that Morgan was

not denied effective assistance of counsel.

Effective assistance of counsel cannot be equated

with victorious or flawless counsel. Brady v.

United States, 433 F.2d 924 (10th Cir. 1970). In

our view Morgan was represented by able trial

counsel. His allegation of ineffective assistance

of counsel is frivolous and without merit. Finally,

we observe that even had Morgan's then retained

counsel undertaken “little or no action"

between December, 1974 and August, 1975, there-

by rendering his representation a sham, farce,

or mockery as now contended, (a) it did not

extend to or affect the representation at trial,

and (b) Morgan must assume the fault for any

failure of his trial counsel to exercise greater

diligence inasmuch as counsel was retained in

each instance. This is particularly applicable

when we consider that Morgan learned that his

originally retained counsel was to be appoint-

ed to a judgeship almost two months prior to the

trial date.

25

(b)

Riebold contends that the trial court ref-

used to allow his appointed counsel sufficient

time to prepare for trial. His counsel was

appointed on July 10, 1975. Accordingly, he had

more than eight weeks to prepare for trial.

Riebold submits no specific proof of prejudice,

but rather a "shotgun" general allegation thar

the case was extremely "complex" and that “It

is better for the wheels of justice to grind

Slowly and finely than for them to grind

rapidly but crush the right of the accused in

the process."

We hold that Riebold's appointed counsel

had adequate time to prepare his defense,

thus assuring that the wheels of justice

were able to grind rapidly without crushing the

rights of the accused. However, even had there

been inadequate time for his counsel to prepare,

the fault rests squarely with Riebold.

Riebold had the services of retained counsel

until April 14, 1975. At that time, his

attorneys were allowed to withdraw because of

Riebold's failure to cooperate with them in the

preparation of his defense. From that date until

July 10, 1975, when the trial court appointed

counsel for him, Riebold continually reassured

the trial court that he would obtain counsel,

that he was in the process of “hiring one right

now," and that "I have about completed negotia-

tions with my attorney." Where, as here,

appellant's dilatory tactics are the sole cause

for the delay in obtaining counsel, it cannot

be held that the trial court abused its discretion

in denying a motion for a continuance. In

26

27

United States v. Curry, 512 F.2d 1299 (4th Cir.

1975), cert. denied, 423 U.S. 832 (1975), the

Court pertinently observed:

relieve that pain, did not effectively

represent him." We hold that this contention

. . . Curry's counsel argues that he

did not have adequate time in which to

prepare a defense. The record

demonstrates that Curry made no effort

to retain trial counsel between August

20, 1973, at which time he retained

counsel for purposes of representation

at arraignment only, and November 27,

1973, just seven days prior to trial

when he employed his present counsel.

Had Curry acted with reasonable dis-

patch in employing counsel for trial,

no continuance need haye been requested.

Where the defendant has unreasonably

delayed retention of counsel to repre-

sent him and such delay is the sole

result of defendant's dilatory tactics

it is not an abuse of discretion to

deny a request for continuance based

upon an allegation that additional time

would be “helpful” in preparing a

defense. In any event, defense

counsel did have seven days for

preparation. We find no merit in this

assignment of error.

512 F. 2d, at 1302.

Riebold also contends that he was denied

effective assistance of counsel because his

appointed counsel had to represent him while

suffering severe pain and while under the

influence of medicine. Riebold states that

his trial attorney, "feeling the effects

of the intense pain and the drug taken to

is not supported by the record.

Riebold's trial attorney did notify the

trial court that he was having back pains and

that he was taking medicine for this condition.

However, he also informed the court that a

continuance was not necessary and that the

medicine would not impair his ability to

represent Riebold, evidenced by the following

colloquy:

THE COURT: Let me ask you a question:

would it help you if the Court would

allow you to remain seated while you --

MR. DEATON: No, Your Honor, I don't

think that would help, I appreciate that,

but I don't think that would help. This

is something I haven't had trouble with

in approximately five years in any real

acute nature. I have had one week in this

trial where I wore a brace, and was kind

of limping around, but it was sufficiently

severe this morning, I did want to bring

it to the attention of the Court.

Because if I can't control the

symptoms of it, I can't function.

THE COURT: Well, the only thing I know to

do is for you to just tell the Court, and

we will declare a recess.

MR. DEATON: I will.

MR. HARTZ: May I ask the question, will

the pain killer dull your mind?

28

MR. DEATON: I am not representing

that the amount of codeine that | would

be taking will sufficiently impair me

to continue.

R., Vol. XXIV, pp. 4079-4080.

Riebold's trial counsel advised the court that

he would be able to proceed with the trial

and afford Riebold effective legal assistance.

The record does not contain any further

reference to counsel's physical condition even

though the trial lasted at least ten days beyond

the colloquy, supra. Under these circumstances,

and in view of the very able defense afforded

Riebold, we cannot accept Riebold's suggestion,

advanced and orally argued by his appellate

counsel, that we, in effect, look beyond the

record in accepting Riebold's personal "diagnosis"

of his trial counsel's physical condition,

together with some invidious effect upon his

mental capacities resulting from the use of

codeine, supra.

Even though appellate counsel do not

advocate utilization of this circuit's standard

for effective assistance of counsel, supra, the

allegation on appeal is, in effect, that the

retained counsel for Morgan, prior to trial, and

Riebold’s appointed trial counsel] were so

ineffective that they rendered the trial a sham,

a mockery and a farce. These allegations are

wholly frivolous and without merit. We do not

look with favor on these bald, unfounded

appellate arguments .

II

Appeliants contend that the trial court

29

erred in refusing to grant a mistrial when FBI

Agent Behrenz, a certified public accountant,

stated on direct examination that the "first

count in the indictment . . . refers to one of

the kickbacks to Donald Morgan." Defense

counsel objected immediately to the use of the

word "kickback", alleging that it was highly

prejudicial and that its usage mandated a

mistrial. The trial court promptly ordered

that the testimony be stricken and that the

agent should "start over again" in his testimony.

Count I of the indictment states in part:

. « DONALD T. MORGAN . . . for endeavoring

to procure and for procuring a loan in

the amount of $200,000 . . . did stipulate

for, agree to receive and receive for his

personal use a fee, commission, and thing

of value, to-wit: $10,000.

This count clearly charges a "kickback." “Kick-

back" is defined in Ballentine's Law Dictionary,

p. 700, (3rd Ed. 1969), as including “the

payment of money or property t an individual for

causing his employer . . . to deal otherwise with,

the person making the payment."

In United States v. Engle, 458 F.2d 1017

(8th Cir.1972) the Court upheld the refusal to

grant a mistrial when a government agent

referred to unreported payment as "kickbacks":

Apellant next complains because

the court denied his motion for a mis-

trial when a witness for the Government,

in response to a question on direct

examination, referred to the payments

received by appellant as “kickbacks."

30

The court, upon motion, ordered the

question and answer stricken and

admonished the jury to disregard both.

However, appellant's motion for a

mistrial was denied. We are satisfied

the incident did not require a

mistrial. Indeed, we suspect the

agent's use of the term "kickbacks"

was warranted. In any event no

prejudice resulted.

458 F.2d, at 1020.

We hold that the use of the term "kickback" did

not warrant the trial court's grant of a mis-

trial. This is particularly true where, as

here, the term had been used a dozen times in

the Government's opening statement without

objection. Furthermore, testimony of the

conversation objected to related simply to

Count I. Error, even if present, could rise

no higher than harmless error because appellants

were sentenced to concurrent sentences on

numerous counts. Thus, error relative to one

count which is unrelated to other counts, as

here, could not effect the sentences. United

States v. Gamble, 541 F.2d 873 (10th Cir. 1976);

United States v. Smith, 532 F.2d 158 (10th

Cir. 1976).

III

Morgan contends that the trial court erred

in allowing the jurors to take notes during

the trial and that a mistrial should have been

granted. The trial court allowed the jurors to

take notes after one juror requested permission

to do so. The court did so because of the

complexity of the case, and then only after a

majority of the jurors indicated their desire to

3]

take notes. Although Morgan now contends that

the trial court's admonitions to the jury

relative to notetaking were inadequate, the

failed to offer any suggestions or admonitions

on notetaking to the trial court at the time

the matter arose.

This Court has not ruled on the propriety

of notetaking by jurors. While some circuits

have differed on this issue, the recent trend

is to allow notetaking under the guidance of

the trial court. That trend is well stated in

United States v. Braverman, 522 F.2d 218 (7th

Cir. 1975), cert. denied, 423 U.S. 985 (1975):

The decision to allow a jury to take

notes as well as the procedure used for

such note-taking are also matters

within the sound discretion of the

district court. United States vy.

Marquez, 449 F. 2d 89, 93 (2d Cir.

a7ty- cert. denied, 405 U.S. 963, 92

S.Ct. 1173, 31 L.Ed. 2d 239 (1972);

United States v. Pollack, 433 F.2d 967

ir. ). We find no abuse of

discretion here. Since the jury here

requested that they be permitted to make

notes during the playing of the tape,

the defendant's reliance on United

States v. Standard Oi] Co., 376 F 2d

th Cir. 1963), iS inapposite.

522 F. 2d, at 224.

We believe that the rule applied in Braverman,

supra, is the logical approach. The ultimate

purpose to be served is that of aid and assistance

to the jurors. It is well known that judges

and triai attorneys, trained by experience and

32

practice in the art of noting important, relevant

facts freely avail themselves of tire opportunity

of notetaking. The Braverman rule is analogous

to our holding that the trial court may allow

the submission of papers, documents, or articles

to the jury during the course of its delbera-

tions, whether admitted or not, in order to

guide and assist the jury in understanding and

resolving factual controversies. United States

v. Downen, 496 F.2d 314 (10th Cir. 1974), cert

denied, 419 U.S. 897 (1974). In Downen, supra,

we stated:

. We have held that it is within

the discretion of the Trial Court,

absent abuse working to the clear

prejudice of the defendant, to permit

the display of demonstrative or

illustrative exhibits admitted in

evidence both in the courtroom during

trial and in the jury room during

deliberations. Taylor v. Reo Motors,

Inc., 275 F.2d 699 (10th Cir. 1960);

Ahern v. Webb, 268 F.2d 45 (10th Cir.

1959); Millers’ National Insurance

Company, Chicago, Illinois v. Wichita

Flour Mills Company, 257 F.2d 93

(10th Cir. 1958); Carlson v. United

States, 187 F.2d 366 (10th Cir. 1951).

496 F.2d,at 320.

kk

To the same effect, we hold that the sub-

mission of papers, documents or articles, whether

or not admitted in evidence, to the jury for

view during trial or jury deliberations,

accompanied by careful cautionary instructions

as to their use and limited significance,

is within the discretion accorded the Trial

33

Court in order that it may guide and assist

the jury in understanding and judging the

factual controversy. Shane v. Warner Mfg.

Corp., 229 F.2d 207 (3rd Cir. 1956), dismissed

351 U.S. 959, 76 S. Ct. 860, 100 L. Ed. 1481

(1956); Kuhns v. Brugger, 390 Pa. 331, 135

A.2d 395, 68 A.L.R.2d 761; 5B C.J.S. Appeal and

Error Sec. 1782, 89 C.J.S. Trial Sec. 467.

496 F.2d, at 321.

Applying these standards to the circumstances

of this case, we hold that the trial court did

not abuse its discretion in allowing the jurors

to take notes. The trial court properly

admonished the jurors as to the manner in which

they were to take and use notes:

THE COURT: All right. We will

give each of you a stenographer's

notebook, and a pencil, and if any

of you have reason to have your

pencils sharpened, we have a pencil

Sharpener in the office and the

bailiff can sharpen your pencil for you.

Now, I want to make

certain admonitions to you. That is,

that whatever you put down is confiden-

tial. In other words, you can't go out

into the jury room and discuss it with

each other until the case is submitted

to you. In other words, you are not to

discuss this case in the jury room or

elsewhere.

If any notes have been

taken in the jury room up to now, they

are to be kept confidential. In other

words -- well, you can see what I am

34

talking about.

Another thing, I don't want

note-taking to distract you from

hearing the evidence. If you would

make your notes at some lull in the

proceedings, or when you retire to the

jury room, or something, it would be

better than to have you distracted.

Of course, if there's some

date or something you have to put

down while the case is going on, why,

that's all right. But I just didn't

want this note-taking to distract any

of you from hearing the evidence.

Do you all have a notebook

now and a pencil?

(R., Vol. IX, pp. 1287-1288.)

IV

Morgan contends that the 84 count indictment

returned was patently biased and embarrassing

to all defendants. He contends further that it |

caused great confusion in the minds of the jury,

led the jury to infer guilt, and constituted

a misjoinder of crimes and defendants. Morgan's

"broadside" challenge is that it “does not

require one trained in the law to conclude that

the 84 count indictment . . . is patently unfair,

prejudicial and a constitutional travesty to

defendant's rights . . .". He also urges that

"legal citations need not be made to support the

Statement that such an indictment as is found

herein must be shown to have embarrassed and

prejudiced the defendants in their defense...".

35

Morgan's attach seems to contend that the

trial court erred in refusing to sever the counts

and the defendants for trial. We hold that the

trial court did not err. The granting of a

motion to sever is a discretionary matter which

will not be set aside, absent an abuse of

discretion. Mutual participation of defendants

in an offense or series of offenses is consider-

ed a logical, basic ground for refusing to grat

a motion to sever. In United States v. Walton,

et al., F.2d (10th Cir. 1977) (Decided

March 14, 1977), we said:

. . One moved for severance prior

to trial. We held that a motion for

severance is directed to the sound

discretion of the trial court, citing

to United States v. Rodgers, 419 F.2d

1315 (10th Cir. 1969). We there held

that refusal to grant such a motion is

error only when thac discretion has been

abused. In Davis, as in Rodgers, we

noted that Fed. Rules Cr. Proc. 8(b),

18 U.S.C.A. permits the joinder of two

or more defendants in the same

indictment "if they are alleged to have

participated in the same act or

transaction or in the same series of

acts or transactions constituting an

offense or offenses .. ."

(Slip Opinion, p.6.)

See also: United States v. Branker, 395 F.2d

881 (2nd Cir. 1968), cert. denied, 393 U.S. 1029

(1969), where the court upheld the denial of

a motion to sever applicable to two of eight

defendants named in eighty (80) substantive counts.

36

Joinder of defendants and counts in the case

at bar was proper. In United States v. Eagleston,

417 F.2d 11 (10th Cir. 1969), we stated:

Eagleston complains of a mis-

joinder of offenses under Fed. R. Crim.

P. 8(a). Faubian complains of a mis-

‘as of defendants under Fed. R. Crim.

P. 8(b).

This court has held the joinder of

offenses proper if they are of the same

character. Hoover v. United States,

268 F.2d 787 (10th Cir. 1959); Mills v.

Aderhold, 110 F.2d 765 (10th Cir. 1940);

Archambault v. United States, 224 F.2d

925 (10th Cir. 1955). Therefore the

misjoinder claim of Eagleston is

without merit.

Under Fed. R. Crim. P. 8(b) when

there is a joinder of defendants and

offenses totally unconnected, there

is no room for judicial discretion and

the court must grant severance. Ingram

v. United 272 F.2d 567 (4th Cir. 1959).

In this case Eagleston participated in

the offenses charged in all three

counts, however, it is without question

that Faubian participated only in counts

two and three. Therefore, there was no

misjoinder of offenses regarding

Eagleston but there was a misjoinder

of defendants in regard to Faubian and

the conviction of Faubian must be

reversed and remanded to the trial court

for further proceedings. The government

37

argues that since counts two and three

were properly joined to count one under

Rule 8(a), the joinder of Faubian was

proper. Rule 8(a), however, does not

apply in cases where more than one

defendant is joined in the same

indictment. Such joinder is governed

by Rule 8(b). . ..

417 F. 2d, at 14.

We recognize that whenever defendants are

tried jointly on a multicount indictment there

is a remote possibility that the jury may infer

guilt on all the counts garnered simply from a

finding of guilt on one of the counts. This

conjectural possibility should not, however,

dictate nonuse of multicount indictments

under proper circumstances. United States v.

Meriwether, 486 F.2d 498 (5th Cir. 1973) cert.

denied, 417 U.S. 948 (1974). Where the evidence

overlaps and the offenses are similar, such as

here, and the operable events occurred within

a relatively short span of time, joinder of

offenses is proper. United States v. Riley,

530 F. 2d 767 (8th Cir. 1976); Fed. Rules Cr.P.

Rules 8a, 14, 18 U.S.C.A.

Morgan complains that Count 70, which is a

lengthy, detailed conspiracy charge, should not

have been included within the indictment. His

complaint is without merit. A conspiracy count

may be charged in an indictment together with

separate counts charging substantive offenses.

In United States v. Cooper, 464 F.2d 648 (10th

Cir. 1972), cert. denied, 409 U.S. 1107 (1973),

we Said:

38

. . The first improper joinder

asserted is that of including the

conspiracy charge and the separate

substantive offenses together in

the indictment. It is a general rule

that "a conspiracy count may properly

be joined with substantive counts where

it is alleged and shown that the offenses

are of the same or similar character

and are based upon two or more acts or

transactions connected together or

constituting parts of a common scheme

or plan." Miller v. United States,

410 F.2d 1290 (8th Cir. 1969), cert

denied, 396 U.S. 830, 90 S. Ct. 81,

24 L. Ed. 2d 80. Inclusion in the

indictment of the conspiracy count and

the separate substantive counts was

not improper under F.R.Crim.P. Rule 8(a).

464 F.2d, at 654.

y

Morgan contends that the trial court erred

in instructing the jury that the bank's “full

knowledge and consent" of the loans he made

would be a defense available to him. Morgan

did not object to the instruction given at

trial. On appeal, however, he argues that the

trial court should haye instructed that a defense

was available to him if the bank had “knowledge

or consent" of the loans. Morgan's contentions

are both untimely and without merit. In United

States v. MacClain, 501 F.2d 1006 (10th Cir. 1974).

we observed:

The trial court also erred, it is

asserted, by giving certain instructions

which had a prejudicial effect and by

39

failing to give a specific instruction

on 18 U.S.C. Sec. 2. Our search of the

record does not disclose that MacClain

either requested a specific instruction

regarding Sec. 2 or that he objected

to the instructions that were given.

he therefore is barred from raising any

such arguments under Rule 30,F.R.

Crim.P. That rules states, in part:

No party may assign as error any

portion of the charge or omission

therefrom unless he objects

thereto before the jury retires

to consider its verdict, stating

distinctly the matter to which

he objects and the grounds of his

Objection. See also, United States

v. Wheeler, 444 F.2d 385 (10th Cir.

1971); Lucero v. United States, 311

F.2d 457 (10th Cir. 1962), cert

denied, 372 U.S. 936, 83 S.Ct.

883, 9 L.Ed. 2d 767.

501 F.2d, at 1012.

See also: United States v. Day, 533 F.2d 524

(10th Cir. 1976); United States v. Ray, 488

F.2d 15 (10th Cir. 1973).

Riebold contends that the trial court erred

in giving an instruction on conspiracy. The

record reflects that the trial court not oniy

gave the standard conspiracy instruction but

that it was, in fact, the very instruction

requested by Riebold. Under these circumstances,

even had the instruction been erroneous,

which is not the case, Riebold could not now

40

raise the challenge. A defendant cannot

complain of error which he invited upon

himself. Hanks vy. United States, 388 F.2d

171 (10th Cir. 1968); O'Neal v. United States,

240 F.2d 700 (10th Cir. 1957); Head v. United

States, 199 F.2d 337 (10th Cir. 1952), cert.

denied, 345 U.S. 910 (1953). et

VI

We have carefully considered the remaining

allegations of error raised by appellants.

We hold that they are individually and

collectively without merit.

WE AFFIRM.

4]

APPENDIX B

MAY TERM - JUNE 14, 1977

Before the Honorable Oliver Seth, and the

Honorable James E. Barrett, Circuit Judges,

and the Honorah le Ewing T. Kerr,* District

Judge

*Sitting by designation

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

E. M. "MIKE" RIEBOLD, and

DONALD T. MORGAN,

)

)

|

vs. No. 76-1170

No. 76-1171

)

)

Defendants-Appellants.

This matter comes on for consideration of

the petition for rehearing filed by E. M.

Riebold, and the motion to join in that

petition filed by Donald T. Morgan.

Upon consideration whereof, it is ordered

that the motion of Donald T. Morgan to join

is granted. It is further ordered that the

petition for rehearing is denied.

aL K. Phillips

HO C. PHILLIPS, Clerk

A true copy Teste

Howard K. Phillips

Clerk, U.S. Court of

Appeals, Tenth Circuit

By s/Mary A. Sherman, Deputy Clerk

42

APPENDIX C

MAY TERM - July 1, 1977

Before the Honorable Olive, ‘eth,

The Honorable James E. Barre.*, Circuit Judges,

The Honorable Ewing T. Kerr, Senior District

Judge

UNITED STATES OF AMERICA,

Plaintiff-Appel lee,

vs. No. 76-1170

E. M. "MIKE" RIEBOLD,

a i ee ee ee Se i

Defendant-Appel lant.

UNITED STATES OF AMERICA, )

Plaintiff-Appel lee,

vs. No. 76-1171

DONALD T. MORGAN, )

)

Defendant-Appel lant.

This matter comes on for consideration of

appellants’ motion for stay of mandate pending

application for certiorari in the captioned

causes. The Court also has for consideration

the appellee's response to the petition for

stay of mandate.

Upon consideration whereof, it is ordered

that the motion for stay of mandate as to

43

appellant Riebold, No. 76-1170, is denied.

It is further ordered that the motion for

Stay of mandate as to appellant Morgan, No.

76-1171, is granted. The mandate shall be

Stayed until July 30, 1977, pending certiorari;

and that if on or before that date there is

filed with the Clerk of the Court of Appeals

for the Tenth Circuit a notice from the Cler<

of the Supreme Court of the United States

that appellant has timely filed a petition

for writ of certiorari, the stay shall

continue until final disposition by the

Supreme Court.

S/Howard K. Phillips

HOW K. PHILLIPS

CLERK

A true copy

Teste

Howard K. Phillips

Clerk, U.S. Court of

Appeals, Tenth Circuit

by S/Linda A. Hall

Deputy Clerk

as

APPENDIX D

MAY TERM - JULY 14, 1977

Before the Honorable Oliver Seth,

The Honorable James E. Barrett, Circuit Judges,

and The Honorable Ewing T. Kerr, Senior

District Judge

UNITED STATES OF AMERICA,

Plaintiff-Appel lee,

E. M. “MIKE” RIEBOLD,

Defendant-Appel lant.

This matter comes on for consideration

of appellant's motion and suggestions for

temporary stay of execution of the mandate.

Upon consideration whereof, the motion

is denied.

HOWARD K. PHILLIPS, Clerk

By S/Robert L. Hoecker

|

)

vs. No. 76-1170

)

)

)

)

“Robert L. Hoecker

Chief Deputy Clerk

A true copy

Teste

Howard K. Phillips

Clerk, U.S. Court of

Appeals, Tenth Circuit

By S/Linda A. Hall

Deputy Clerk

45

APPENDIX E

MAY TERM - June 21, 1977

Before the Honorable Oliver Seth,

The Honorable James E. Barrett, Circuit Judges,

The Honorable Ewing T. Kerr, Senior District

Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. No. 76-1170

E. M. "MIKE" RIEBOLD

and

DONALD T. MORGAN,

)

)

)

No. 76-1171

)

)

Defendants-Appel lants.

This matter comes on for consideration

of appellee's motion to publish the opinion

of the Court in the captioned cause.

Upon consideration whereof, the motion to

publish the opinion filed May 25, 1977, is

granted.

> Howard K. Phillips

H . PHILLIPS

Clerk

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