# Petition — Riebold v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 860

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2305%3A1. Public record. Not legal advice.