Petition for Writ of Certiorari — Kendall v. United States

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Supreme Court, U.S.

riLesa®

C\| Sep 25. 1985

8 5 -_ 5 l 3 | “OSEPH F. SPANIOL, JR.

N CLERK

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Guthe Supreme Court of the Hnited States

OcToBER TERM, 1985

GRAHAM LEE KENDALL,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STEPHEN JONES

JONES, BLAKLEY & JENNINGS

P. O. Box 472

Enid, Oklahoma 73702

405/242-5500

Counsel of Record for Petitioner

Graham Lee Kendall

September, 1985

ea Dy

QUESTIONS PRESENTED

1. Is the evidence sufficient to support a conviction for

conspiracy to possess marijuana with intent to distribute

when the accused’s single affirmative action is to introduce

two principals who only subsequently reach an agreement?

2. Does the Travel Act (18 U.S.C. § 1952) allow con-

viction for “causing” a violation of that Act, absent proof

that the accused had knowledge he was causing interstate

travel and absent proof he had knowledge of a business

enterprise?

salons

TABLE OF CONTENTS

QUESTIONS PRESENTED . othe

REPORT OF OPINION BELOW .._...---_---..

JURIBI See en. ee: ee

STATUTORY PROVISIONS INVOLVED ____. manent

STATEMENT OF THE CASE elke

REASONS FOR GRANTING THE WRIT:

II.

ITI.

There is a disagreement between the Circuit

Courts of Appeals (9th and 10th) as to the crit-

ical inquiry in evaluating the sufficiency of the

evidence in a conspiracy prosecution —

There is an irreconcilable conflict between the

Sixth and Tenth Circuits as to the degree of

knowledge that must be proven to uphold a

conviction for a violation of the Travel Act —_

The United States Court of Appeals for the

Tenth Circuit has, in this case, applied a stan-

dard which impermissibly broadens the ambit

of the Travel Act (18 U.S.C. § 1952), and is in-

consistent with this Court’s holding in Rewis v.

United States, 401 U.S. 808, 28 L.Ed.2d 493, 91

S.Ct. 1056 (1971) -

A. The decision below is contrary to this

Court’s holding in Rewis v. United States,

401 U.S. 808, 28 L.Ed.2d 493, 91 S.Ct. 1056

(1971), and the court failed to apply the

proper standard in determining the degree

of knowledge that is required to have been

proven to sustain a conviction

TABLE OF CONTENTS CONTINUED PAGE(S)

B. There was no proof that the petitioner had

actual knowledge of a business enterprise,

or in fact that a business enterprise did ac-

tually exist 22

CONCLUSION _._.. 24

CERTIFICATE OF SERVICE follows Petition

APPENDIX A:

Decision of the United States Court of Appeals for

the Tenth Circuit (July 3, 1985).

APPENDIX B:

Order Denying Petition for Rehearing.

—jy—

TABLE OF AUTHORITIES

Cases PAGE(S)

Rewis v. United States, 401 U.S. 808,

28 L.Ed.2d 493, 91 S.Ct. 1056 (1971) ._...20, 21, 22, 23-24

United States v. Alsobrook,

Fe £ ff. | eee emee seen 18-19

United States v. Davis,

Soe fae see Cae, eee) ob

United States v. Geittmann,

Bo Bo *) Be le Rk | | ee eerereners 5

United States v. Levine,

pe & Eo Le SB, . 4 enone tess 21-22

United States v. Melchor-Lopez,

Gt F.ae ee (ee ee _.16-17

United States Code

Title 18 U.S.C. §2 __. aent Kouean ie 2,3,4

p> 8 Et! | ok 2 SRC ncmeeres pA RAIL ELI D2 2, 4, 20

Title 18 U.S.C. § 1254(1) —..... . sedntinapisiedtie-—ioidaiels 1

SOREN DE NEARS ON ce eo eel

ARON

In the :

Supreme Court of the United States

Ocroser TeRM, 1985

GRAHAM LEE KENDALL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPORT OF OPINION BELOW

The Opinion of the United States Court of Appeals for

the Tenth Circuit is not yet reported. A copy of the opinion

and the order denying the petition for rehearing are in-

cluded in the Appendices (A and B respectively).

JURISDICTION

The jurisdiction of this Court is respectfully invoked

pursuant to the authority of 28 U.S.C. .§ 1254(1). The opin-

ion of the United States Court of Appeals for the Tenth

Circuit was filed on July 3, 1985, and the petition for re-

hearing denied on August 19, 1985. This petition for cer-

tiorari was filed within sixty (60) days of that date.

anion

STATUTORY PROVISION INVOLVED

18 U.S.C. §2 (1948) provides in pertinent part:

(a) Whoever committs an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, . . .

(b) Whoever willfully causes an act to be done

which if directly performed by him or another would

be an offense against the United States, is punishable

as a principal...

Title 18 U.S.C. $1952 (1976) provides in pertinent

part:

(a) Whoever travels in interstate or foreign com-

merce or uses any facility in interstate or foreign

-_- commerce, including the mail, with intent to...

(3) Otherwise promote, manage, establish, carry

on, or facilitate the promotion, management, estab-

lishment, or carry-on, of any unlawful activity, and

thereafter performs or attempts to perform any of

the acts specified in subparagraphs . . . (3), shall

be fined not more than $10,000 or imprisoned for

not more than five years, or both.

(b) As used in this section ‘unlawful activity’ means

(1) any business enterprise involving . . . narcotics or

controlled substances . . . offenses in violation of the

laws of the state in which they are committed or of

the United States ...

STATEMENT OF THE CASE

Graham Kendall petitions this Court to grant a writ of

certiorari to the United States Court of Appeals for the

Tenth Circuit.

This petition raises two substantial issues. The first

question is whether the accused can be convicted of con-

spiracy to possess marijuana with the intent to distribute,

when the only affirmative action taken by him was to in-

troduce the principals to the offense, who only subsequently

agreed to commit a crime. Petitioner submits that on the

facts of this case, there was insufficient evidence to prove

that he had agreed to join the conspiracy, or was even

aware of its existence.

The second question is whether a conviction for “caus-

ing” a violation of the Travel Act can be upheld absent

proof that the defendant had knowledge of the interstate

travel, and absent proof that the defendant was aware of

a business enterprise.' Petitioner submits that the ruling

of the Court of Appeals for the Tenth Circuit is overly

broad and impermissibly expands the ambit of the Travel

Act, and includes within its terms activities which Con-

gress did not intend.

The petitioner, Graham Lee Kendall, was charged in

three counts of a seven-count superseded indictment with

conspiracy to possess marijuana with intent to distribute,

in violation of 21 U.S.C. §841(a)(1) and 18 US.C. §2

(Count 1); conspiracy to import marijuana, 21 U.S.C. §§

1 There is a conflict between the Sixth and Tenth Circuit cases which

have addressed this issue.

nitions

846, 963 and 18 U.S.C. §2 (Count 3); and a violation of

the Travel Act, 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 1952

(Count V).

On June 1, 1983 a jury trial was held before the Hon-

orable Ralph G. Thompson, United States District Judge

for the Western District of Oklahoma. The jury returned

a verdict of guilty on Counts 1 and 5 (conspiracy to pos-

sess marijuana with intent to distribute and violation of

the Travel Act) and not guilty as to Count © “. onspiracy

to import marijuana). Petitioner filed a Motion for Judg-

ment of Acquittal or Alternatively for New Trial and Brief

in Support thereof on June 9, 1983. On May 15, 1985, the

trial court denied Mr. Kendall’s Motion for Judgment of

Acquittal or Alternatively for New Trial in all respects.

The petitioner appealed to the United States Court of Ap-

peals for the Tenth Circuit, and that court affirmed his

conviction in an Opinion issued on July 3, 1985 (Appendix

A). On August 7, 1985, Graham Kendall filed his Petition

for Rehearing or Alternatively for Rehearing En Banc, and

that petition was denied by Order dated August 19, 1985

(Appentix B). Petitioner filed a Motion for Stay of Man-

date on August 24, 1985, and the United States Court of

Appeals for the Tenth Circuit has not yet ruled upon that

motion. Mr. Kendall remains free on bond pending the

court’s ruling, and this Court’s action on the Petition for

Certiorari.

This criminal proceeding was originally initiated by

grand jury indictment wherein others (not Kendall) were

alleged to have been involved in a conspiracy to import

marijuana, conspiracy to possess with intent to distribute

marijuana, and violation of the Travel Act. Approximately

three months after the original indictment against the other

defendants, a superseded indictment was sought and re-

turned by grand jury bringing defendant Kendall into the

criminal proceeding.

Three of the four other defendants who were charged

in the original indictment, David Zamansky, Edward Ho-

ban, and Douglas Fanti, entered negotiated pleas prior to

trial. The other original defendant, William Geittmann,

after negotiations with the Government, had a bench trial

for only one of the seven counts charged in the superseded

indictment on a stipulated statement of facts.2, Apparently

the other six counts were dismissed as to Geittmann.

Defendant Kendall began trial by jury on the 23rd

day of May, 1983. The trial ended on the Ist day of June,

1983.

The general criminal activity alleged to have been per-

formed was an air smuggling venture in which an amount

in excess of 1,000 pounds of marijuana was to be imported

from Columbia into the United States of America. The al-

leged participants, also included two unindicted co-conspir-

ators who were the pilots of the subject aircraft for the

air smuggling venture, Lawrence Carr and Patrick Calla-

han. Both testified as Government witnesses at Mr. Ken-

dall’s trial.

The activity was initiated by Carr with the advent of

his move to Las Vegas, Nevada, and introduction to Calla-

2 Geittmann’s and Zamansky’s convictions were ultimately reversed.

United States v. Geittmann, 733 F.2d 1419 (10th Cir. 1984).

han in August, 1981 (App.Tr.Vol.1, p.97).* During the first

conversations between Callahan and Carr about smuggling

in August 1981, Callahan persuaded Carr to abandon this

idea at this particular time (App.Tr.Vol.1, p.97). Later they

initiated discussions about a smuggling venture in April,

1982, because Callahan was in desperate need of money due

to a losing streak playing poker, and Carr was still faced

with credit problems in Minnesota (App.Tr.Vol.1, p.98).

Callahan claims to be a professional poker player (App.

Tr. Vol.1, p.180).

In early summer 1982 they traveled to Kendall’s place

of business (Oklahoma Aircraft Corp., an aircraft sales cen-

ter) at C. E. Page Airport, near Yukon, Oklahoma (App.

Tr.Vol.1, pp.103-04).

During this meeting with Kendall, Callahan and Carr

inquired about various aircraft with long-range fuel ca-

pacities and useful load abilities (App.Tr.Vol.,p.105). The

evidence between Government witnesses, Callahan and

Carr, is in dispute as to whether they discussed the pur-

pose for requesting an aircraft with long-range fuel ca-

pacities (App.Tr Vol.1, pp.105,146,171,190; Vol.2, p.317).

Without Kendall’s assistance or knowledge, Callahan

and Carr ultimately purchased a new Piper Chieftan air-

craft from a Las Vegas Piper dealership by use of fraudu-

lent financial data, etc. (Tr.Voi.1, p.107).

Approximately two or three days after their fraudu-

lent purchase of the Piper Aircraft, Callahan and Carr flew

3 App.Tr. references are to the record on appeal to the United Siates

Court of Appeals for the Tenth Circuit.

the aircraft to Oklahoma Aircraft Corporation (App.Tr.Vol.

1,p.110). Upon their arrival at Oklahoma Aircraft Corpo-

ration, Callahan noticed a bladder tank positioned on a

pallet inside Kendall’s hanger (App.Tr.Vol.1, p.193). Upon

observing the bladder tank, Callahan approached an indi-

vidual who identified himself as “Les” and inquired as to

whether the bladder tank was available for purchase (App.

Tr.Vol.1, p.194). After conversing with Les, Callahan visited

Graham Kendall inside the offices at Oklahoma Aircraft

Corporation about the bladder tank and was told by Ken-

dall to speak to Les about the matter (App.Tr.Vol.1, p.196).

Callahan again spoke with Les about the bladder tank

and negotiated its purchase and installation in the new

Piper aircraft. Callalan paid Les the sum of ($1,600) (App.

Tr.Vol.1, p.196). Cal.ahan was aware that there was noth-

ing illegal about bladder tanks, as they are commonly used

to ferry aircraft on trans-oceanic flights (App.Tr.Vol.2,

p.305).

After completing his negotiations with Les in regard

to the bladder tank, Callahan and Carr left their aircraft

at Oklahoma Aircraft Corporation for Les and his co-worker

Henry to install the bladder tank (App.Tr.Vol.1, p.111).

After installation of the bladder tank, Callahan and Carr

flew the aircraft back to Miami, Oklahoma where it was

to remain until they were able to complete their arrange-

ments with other individuals for a smuggling venture from

Mazatlan, Mexico (App.Tr.Vol.1, p.112).

During mid-July, 1982, Callahan and Carr brought their

aircraft back to Oklahoma Aircraft Corporation to have the

bladder tank removed and the interior re-installed by Les

a ae

(App.Tr.Vol.1, p.114). Callahan and Carr did not see or

speak with Kendall while at Oklahoma Aircraft Corpora-

tion when the bladder tank was removed by Les (App.Tr.

Vol.1, p.200).

During the evening in which the bladder tank was first

removed, Callahan apparently had a conversation with Les

about his failed smuggling venture in Mazatlan, Mexico,

and Les suggested that Callahan confer wtih Kendall about

an individual named Billy Geittmann, with whom Kendall

was acquainted because of prior legitimate aircraft sales

(App.Tr.Vol.1, p.202; Vol.2, p.352).

The following morning Callahan talked with Kendall

about Geittmann and the possibility of Callahan working

with Geittmann (App.Tr.Vol.1, p.202). Kendall’s familiar-

ity with Geittmann was based not only upon prior legiti-

mate aircraft sales, but also on the fact that Kendall had

requested Geittmann’s assistance in recovering a C-46-air-

craft from Mexico (App.Tr.Vol.3, pp.351, 638). At Calla-

han’s request, Kendall drove with Callahan to a nearby pay

telephone to place a long distance call to Geittmann in Can-

cun, Mexico, and Kendall made the call with his credit card

(App.Tr.Vol.1, pp.203-04). Geittmann apparently was not

present at the time Kendall placed his call; however, a few

minutes later Geittmann returned the telephone call to

Kendall at the pay telephone. Kendall answered the phone

and established that it was Geittmann and immediately

handed the telephone to Callahan (App.Tr.Vol.1, p.204).

After conversing with Geittmann, Callahan obtained Geit-

mann’s telephone number and made his own arrangements

to stay at the Sleepy Peddler Motel in Oklahcma City until

nition

Geittmann could again contact Callahan in a few days to ar-

range a meeting in Aspen, Colorado (App.Tr.Vol.1, p.204).4

Geittmann contacted Callahan approximately on Au-

gust 3, 1982, and Callahan made his own arrangements to

travel to Geittmann’s residence in Aspen, Colorado on the

following day (App.Tr.Vol.1, pp.204-05).

Callahan traveled via commercial airlines from Okla-

homa City to Aspen on August 4, 1982, and returned to

Oklahoma City on that same date (App.Tr.Vol.1, p.206).

Geittmann and Callahan reached an agreement during Cal-

lahan’s visit to Aspen wherein Callahan would fly a load of

marijuana for Geittmann, and Geittmann would take care

of financing and all other arrangements (App.Tr.Vol.3, p.

289).

Later in the day on August 4, 1982, Geittmann returned

Callahan to the airport for his return flight to Oklahoma

City. While at the airport Geittmann returned a telephone

call to Kendall from a pay telephone at the airport (App.

Tr.Vol.1, p.208). After this telephone call, Geittmann told

Callahan that he (Callahan) apparentiy had a problem with

Kendall and suggested that he rectify this problem (App.

Tr.Vol.1, p.209). Callahan returned to Oklahoma City, and

on the following day met with Kendall at Oklahoma Air-

craft Corporation to discuss the problem (App.Tr.Vol.1,

pp.209-10). The record suggests that this problem was in

regard to some confusion on paperwork regarding an air-

craft transaction that had taken place between Kendall and

Callahan some 2 or 3 years prior to this time (App.Tr.Vol.3,

*It was this telephone call that formed the basis of the Travel Act

count.

p.657), or stemmed from Kendall’s dislike of Callahan and

loss of an anticipated aircraft sale to him (App.Tr.Vol.2,

p.292).

Callahan gratuitously offered to pay Kendall 20% of

Callahan’s expected earnings for his rate as pilot in the air

smuggling venture.® It is clear that Kendall never asked

for 20% of Callahan’s pilot fees, and that it was merely a

gratuitous offer by Callahan (App.Tr.Vol.1, pp.210,236, 278,

279).

After apparently having resolved his problem with

Kendall, whether it was in regard to an airplane transac-

tion several years prior, or because Kendall did not make

an anticipated aircraft sale to Callahan (App.Tr.Vol.2, p.

292), Callahan contacted Geittmann and indicated he had

resolved his problem (App.Tr.Vol.1, p.212). At that time,

Geittmann told Callahan that he did not yet have a trip

planned, but that he would schedule one very soon (App.

Tr.Vol.1, p.212).

Approximately 2 or 3 days later, Geitmann arranged

to send two individuals (co-defendants, Zamansky and Ho-

ban) to meet Callahan and Carr in Oklahoma City on or

5 Callahan originally testified on direct examination that he made his

gratuitous offer of 20% of his pilot fee to Kendall after his return trip

from his meeting with Geittmann in Aspen, Culorado on August 4, 1982

(App.Tr.Vol.1, pp.209-10). Callahan later testified during direct examina-

tion that the gratuitous 20% was first mentioned when Kendall and Calla-

han were driving to the pay telephone to make the initial contact with

Geittmann (App.Tr.Vol.2, p.278). During his re-direct examination, Cal-

lahan admits that during his grand jury testimony he testified that the

20% was offered to Kendall after his return from his meeting with Geitt-

mann in Aspen, Colorado on August 4, 1982; however, he suggests tha:

this was mistaken because he was unprepared at the time he appeared be-

fore the grand jury (App.Tr.Vol.3, pp.560-61 ).

a aN

about August 10 or 12, 1982 (App.Tr.Vol.1, p.212). Upon

the arrival of Zamansky and Hoban, Zamansky provided

Callahan $1,000 in cash which was to be used for airplane

fuel and other expenses of Callahan and Carr in taking

Zamansky and Hoban to examine prospective off-load air-

ports. Callahan suggested to Zamansky and Hoban that

Grandfield, Oklahoma be used as the off-load site for the

return trip with the marijuana cargo (App.Tr.Vol.1, p.213).

The following weekend, on either Saturday night, Au-

gust 14, or Sunday night, August 15, 1982, at approximately

10:00 p.m. the bladder tank was reinstalled by Les with the

assistance of Carr to prepare for a trip that had been plan-

ned by Geittmann to begin on August 17 or 18, 1982 (App.

Tr.Vol.1, pp.115, 214). Kendall was not present at either the

first or second bladder tank installation (both of which oc-

curred on weekend nights) (App.Tr.Vol.1, pp.165-66).

Callahan and Carr arranged to stay at the Sleepy Ped-

dler Motel in Oklahoma City, Oklahoma to await Geitt-

mann’s communication to begin the air smuggling venture.

Geittmann wired $2,500 to Callahan, for the purchase of

stereo equipment and tires to be taken in the airplane to

Cancun, Mexico, where Callahan and Carr would meet

Geittmann (App.Tr.Vol.1, p.216).

It was established during pre-trial discovery sessions

that the Government’s investigation began in early August,

1982, with its receipt of information from a confidential

informant as to the possibility of Callahan and Carr im-

porting marijuana by aircraft into the United States from

Columbia. With this information, the Government was able

to obtain permission to place a transponder on the subject

aircraft to be used by Callahan and Carr for the smuggling

venture. This transponder, which operates as a tracking

device, was installed on the aircraft, at C. E. Page Airport

in Yukon, Oklahoma.

On August 18, 1982, Callahan and Carr began their air

smuggling venture and departed C. E. Page Airport and

ultimately landed in Cancun, Mexico, where a meeting took

place with the pilots and the financier/manager of the en-

tire operation, William Geittmann, as well as with some

Mexican officials. Callahan and Carr departed Cancun on

August 20, 1982 bound for Columbia (App.Tr.Vol.1, p.125).

Callahan and Carr were successful in obtaining the

marijuana in Columbia, and began their journey into the

United States on August 21, 1982 (App.Tr.Vol.1, pp.133-34).

Arrangements had been made by Geittmann for a ground

crew (Zamansky, Hoban and Fanti) to be located at the

airport in Grandfield, Oklahoma. They were under Govern-

mert surveillance at the Grandfield Airport while awaiting

the arrival of the aircraft.

Because of severe ‘weather, Callahan and Carr re-

routed their aircraft to Southern Louisiana, and at the

same time Geittmann notified the ground crew to travel tu

the alternate off-load site at Miami Airport in Miami, Ok-

lahoma (App.Tr.Vol.1, p.134). Since re-entry of the aircraft

into the United States the aircraft had been under constant

surveillance through use of the transponder device previ-

ously installed in the aircraft. Because of a fuel shortage,

Callahan and Carr landed the aircraft at Legros Airport in

Esterwood, Louisiana and agents immediately apprehended

Callahan and Carr, as well as the marijuana (App.Tr.Vc!.1,

p.135).

—13——

At trial, Graham Kendall testified on his own behalf.

The crux of his testimony was that he was not a knowl-

edgeable and voluntary participant in the air smuggling

venture. Kendall had been in the aircraft business for over

22 years and had occasion to be acquainted with defendant

Geittmann through legitimate aircraft sales, and from en-

listing Geittmann’s assistance in recovering from Mexico

an aircraft owned by Kendall. Kendall admitted introduc-

ing Callahan to Geittmann, but not surreptitiously. Calla-

han and Geittmann had been customers in legitimate air-

craft transactions before with Kendall and had been at

Kendall’s place of business at the same time and were

merely introduced to one another.

On June 1, 1983, the jury returned verdicts of guilty

as to Count 1 (distribution conspiracy) and Count 5 (Travel

Act) and not guilty on Count 3 (importation conspiracy).

REASONS FOR GRANTING THE WRIT

I. THERE IS A DISAGREEMENT BETWEEN THE CIR-

CUIT COURTS OF APPEALS (9th and 10th) AS TO

THE CRITICAL INQUIRY IN EVALUATING THE SUF-

FICIENCY OF THE EVIDENCE IN A CONSPIRACY

PROSECUTION.

The court below held at page 11 of its opinion:

Neither Kendall’s knowledge alone nor his mere assc-

ciation with the conspirators, however, is enough to

convict him of conspiracy. See Jones v. United States,

365 F.2d 87,89 (10th Cir. 1966). The evidence must

also show that Kendall knowingly joined the conspir-

acy or knowingly and intentionally committed an act

in furtherance of it. United States v. Butler, 446 F.2d

at 979; Jones, 365 F.2d at 88. The Government argues

that Kendall’s introduction and recommendation of

Callahan to Geittmann constituted knowingly joining

or acting in furtherance of the conspiracy. (Appen-

dix A, page 9a).

In determining that the evidence was sufficient to up-

hold Graham Kendall’s conviction for conspiracy to possess

marijuana with intent to distribute, the court below noted

the following facts:

1. “Although sharply disputed by Kendall, Callahan

testified that on the way to the pay telephone after Kendall

had agreed to telephone Geittmann, he offered Kendall

20% of any deal he made with Geittmann in exchange for

Kendall’s servicing of the plane and the fuel bladder.” (Ap-

pendix A, page 9a).

2. “According to Callahan, Kendall told him he didn’t

require any part of the deal.” (Appendix A, page 9a).

3. “Callahan testified that he told Kendall of his plan-

ned meeting in Colorado with Geittmann and that Kendall

expressed his approval.” (Appendix A, page 9a).

4. “Geittmann testified that Kendall recommended

Callahan highly, and that he relied on Kendall’s recom-

mendation in deciding to meet with Callahan and in choos-

ing him as the pilot for the smuggling scheme.” (Appendix

A, page 9a).

5. “Geittmann also testified that while he and Callahan

were meeting in Aspen, Kendall called Geittmann to alert

him that he had done some checking on Callahan and didn’t

trust him.” (Appendix A, page 9a).

a we

6. In addition, other evidence suggested an ongoing

business and personal relationship with Geittmann that

Kendall wished to preserve (Appendix A, pages 9a, 10a).

The court held at page 13:

We agree that there is sufficient proof, direct and cir-

cumstantial, together with reasonable inferences to be

drawn therefrom, from which a jury could reasonably

conclude that Kendall knowingly joined, or knowingly

and intentionally committed an act in furtherance of

the conspiracy. (Appendix A, page 10a).

In evaluating the evidence the court failed to take note

of the following undisputed facts:

1. It was only after “Les” suggested that Callahan con-

tact Geittmann, that Callahan asked Kendall about Geitt-

mann (Tr., p.202).®

2. Kendall gained absolutely nothing, and in fact never

agreed to receive any compensation as a result of the tele-

phone call to Geittmann (Tr., p.279). (Kendall in fact de-

nies that any offer was ever made to him.)

3. The details of Callahan’s trip to Colorado were ar-

anged several days after Kendall’s introduction of Callahan

to Geittmann, and completely without his participation (Tr.

p.204).

4. The agreement for the smuggling venture was made

between Geittmann and Callahan without Kendall’s knowl-

edge or participation (Tr., p.212).

6 Tr. refers to the transcript of the trial.

—16—

An analysis of the above cited facts reveals that the

court below omitted to make one critical inquiry in its de-

termination that the evidence was sufficient. The issue that

the court failed to address was the complete lack of evi-

dence to establish that Graham Kendall had joined an il-

legal agreement with a specific illegal objective.

This decision conflicts with the Ninth Circuit holding

of United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir.

1980). There the Court of Appeals held that the govern-

ment must prove beyond a reasonable doubt the existence

of the defendant’s agreement to such an illegal purpose.

In Melchor-Lopez, the defendant’s involvement was much

more direct and “criminal” than was Graham Kendall’s.

In refusing to find the evidence sufficient to support con-

viction the Ninth Circuit Court of Appeals held at page 891:

The agreement need not be explicit, but may be in-

ferred from circumstantial evidence, United Staies v.

Thomas, 586 F.2d 123, 132 (9thCir. 1978); United

States v. Oropeza, 564 F.2d at 321, and once the exis-

tence of a conspiracy is established, ‘evidence estab-

lishing beyond a reasonable doubt a connection of a

defendant with a conspiracy, even though the connec-

is slight, is sufficient to convict him with knowing

participation in the conspiracy.’ (citations omitted).

On the other hand, there can be no conviction for

guilt by association, and it is clear that mere assoct-

ation with members of a conspiracy, the existence of

an opportunity to join a conspiracy, or simple knowl-

edge, approval of, or acquiescence in the object or

purpose of the conspiracy, without an intention and

agreement to accomplish a specific illegal objective is

not sufficient to make one a conspirator. (citations

omitted). While each-of these circumstances may be

a relevant factor to be considered in a given case

—]7—

where existence of an agreement is an issue, no mere

suspicion or surmise is permitted to replace the essen-

tial analysis of the qualitative nature of the acts in

question. (emphasis added).

The Ninth Circuit Court of Appeals would have found

the evidence insufficient to convict Graham Kendall of con-

spiracy to possess marjuana with intent to distribute. The

reason is obvious. The agreement between Geittmann and

Callahan was not reached until several days after Kendall

had placed the telephone call to Geittmann at Callahan’s

request. It is clear that no “specific illegal objective” even

existed at the time Kendall placed the telephone call.

The Ninth Circuit would find that Graham Kendall’s

acts could not reach the level of an agreement. In refer-

ence to another defendant in the Melchor-Lopez case, supra,

the court held at page 892:

Kommatas came closer to the line separating pre-

liminary negotiations and active participation, but he

did not cross it. At the December 7th meeting, in

Tucson, Kommatas made a number of statements

about heroin pricing, and about possible methods of

carrying out a New York drug delivery. No such

agreement was ever reached. As the subsequent tele-

phone calls make clear, the Tucson meeting did not

culminate in an agreement to purchase a controlled

substance, but in an agreement to negotiate such a

purchase. The law requires more than a conspiracy

to attempt to arrange a purchase; it requires an agree-

ment to carry out an illegal act. No such agreement

was proven.

The point is simply that the evidence was insufficient

to prove that Graham Kendall “agreed to a specific unlaw-

_——

ful objective” because at the time of his participation no

such specific unlawful objective existed. The standard as

announced by the Ninth Circuit Court of Appeals would

not have allowed conviction. It is for this reason that the

disagreement between the Ninth and Tenth Circuits is real,

and Graham Kendall stands convicted as a result of the

Tenth Circuit’s standard. Such an outcome should not be

determined upon the basis of the Circuit in which a case

is tried. In essence, the jury was allowed to guess and im-

pute Graham Kendall into a position of criminal liability.

Il. THERE IS AN IRRECONCILABLE CONFLICT BE-

TWEEN THE SIXTH AND TENTH CIRCUITS AS TO

THE DEGREE OF KNOWLEDGE THAT MUST BE

PROVEN TO UPHOLD A CONVICTION FOR A VIO-

LATION OF THE TRAVEL ACT.

Because of the tenuousness of the causal connection

between the defendant and the substantive violation, the

Sixth Circuit Court of Appeals has refused to uphold Travel

Act convictions where there has not beea proof beyond a

reasonable doubt that the defendant had knowledge that

he was causing interstate travel. In the case of United

States v. Alsobrook, 620 F.2d 139 (6th Cir. 1980), the court

held at page 144:

On two separate occasions, in United States v. Barnes,

383 F.2d 287 (6th Cir. 1967), and United States v.

Prince, 529 F.2d 1108 (6th Cir. 1976), this court has

reversed convictions under the Travel Act for the

reason that the proof was insufficient to demonstrate

the. the defendant knew that another person involved

_in an illegal business enterprise was traveling in in-

terstate commerce or was using interstate facilities

... we conclude, however, that under the law of this

nie

circuit as established by Barnes and Prince, it was

necessary for a conviction of Rolls that the jury find

beyond a reasonable doubt that Rolls had actual

knowledge of Alsobrook’s interstate travel. (emphasis

added).

In Kendall the fears voiced by the Sixth Circuit have

been realized. Graham Kendall has been convicted for

“causing” interstate travel when the record does not estab-

lish that Kendall suggested that Callahan travel anywhere

for any purpose. To the contrary, the arrangements for

interstate travel were made several days after the tele-

phone call to Geittmann and without the knowledge or

help of Graham Kendall. Nor does the record indicate that

Kendall had any knowledge that he was furthering a “busi-

ness enterprise.”

In direct opposition to the decision of the Sixth Cir-

cuit in the Alsobrook case, supra, is the court below’s hold-

ing that “it was not necessary under § 1952 to prove further

that Kendall knew that he was causing or aiding or abet-

ting interstate travel.” (Appendix A, page 12a). An analysis

of the cases will establish that the conflict is genuine and

irreconcilable, and will continue absent the intervention of

this Court in establishing a uniform standard. Criminal

liability should not be made to turn upon the geographic

area of the country in which an act is performed, when the

statute is Federal, and the same result was intended to

apply to all.

—20—

Ill. THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT HAS, IN THIS CASE, APPLIED

A STANDARD WHICH IMPERMISSIBLY BROADENS

THE AMBIT OF THE TRAVEL ACT (18 U.S.C. §

1952), AND IS INCONSISTENT WITH THIS COURT’S

HOLDING IN REWIS v. UNITED STATES, 401 U.S.

808, 28 L.Ed.2d 493, 91 S.Ct. 1056 (1971).

The result of (III) above was to deprive Graham Ken-

dall of liberty without due process of law. Viewed in a

light most favorable to the Government, Kendall, at Calla-

han’s request, placed a telephone call from Oklahoma to

Geittmann in Colorado. Thereafter Callahan and Geitt-

mann arranged to meet in Colorado. It is based upon this

evidence that Kendall was convicted of “causing” a viola-

tion of the Travel Act (Title 18 U.S.C. § 1952). Tue peti-

tioner asserts the Travel Act is not sc broad as to cover

unknowingly “causing” travel in furtherance of an un-

known business enterprise.

A. The Decision Below Is Contrary to This Court’s

Holding in Rewis v. United States, 401 U.S. 808,

28 L.Ed.2d 493, 91 S.Ct. 1056 (1971), and the

Court Failed to Apply the Proper Standard in De-

termining the Degree of Knowledge That Is Re-

quired to Have Been Proven to Sustain a Convic-

tion.

Graham Kendall was not alleged to have been a princi-

pal in the in portation and distribution scheme and “reason-

able foresevability” cannot support his conviction for caus-

ing a violation of the Travel Act. In Rewis v. United States,

401 U.S. 808, 28 L.Ed.2d 493, 91 Sup.Ct. 1056 (1971), this

Court reversed the convictions of two numbers operators

even though they could have reasonably foreseen that their

witliiine

customers would cross state lines for the purpose of patron-

izing the operation. The court explained its rejection of the

Government’s theory at pages 812 and 813:

The first half of this proposed interpretation — rea-

sonable foreseeability of interstate patronage — does

not merit acceptance. Wherever individuals actually

cross state lines for the purpose of patronizing a crim-

inal establishment, it will almost always be reasonable

to say that the operators of the establishment could

have foreseen that some of their customers would

come from out of state. So for practical purposes,

this alternative construction is almost as expansive as

interpretations that we have already rejected. In ad-

dition, there is little, if any, evidence that Congress

intended that foerseeability should govern criminal

liability under § 1952. (emphasis added)

It was the same “foreseeability” which was used to

support Graham Kendall’s conviction. The decisions relied

upon by the court below to uphold this conviction are dis-

tinguishable from the instant case, because the evidence

viewed in the light most favorable to the Government did

not establish that Kendall was a principal in an illegal busi-

ness enterprise.

Kendall was convicted of one count of conspiracy to

possess marijuana with intent to dsitribute (‘ye underly-

ing felony). But here it is critical to note that his associ-

ation with the scheme was based upon the single act of in-

troducing the principals Callahan and Geittmann. Unlike

the defendants in the cases relied upon below, Graham

Kendall was truly a “peripheral figure” in the underlying

possession scheme. In United States v. Levine, 457 F.2d

1186, 1188 (10th Cir. 1972), the court defined cause as that

it.

term is used in Title 18 U.S.C. § 2(b) as, “a principal acting

through an agent or one who procures or brings about the

commission of a crime.”

Thus, Graham Kendall, a “peripheral figure” was con-

victed of “causing” a violation of the Travel Act by a princi-

pal in the possession scheme, without knowledge that he

was causing, aiding, or abetting interstate trevel. The court

below held at page 16 of its opinion:

Where there is sufficient proof that travel was ap-

parent and interstate travel not unlikely, it was not

necessary under § 1952 to prove further that Kendall

knew he was causing or aiding and abetting interstate

travel. United States v. Villano, 529 F.2d at 1054. (em-

phasis added).

Such a broad interpretation of the Travel Act is un-

supported by the decisions of the lower court, and violates

the limiting language in the decision of this Court in Rewis

v. United States, 401 U.S. 808, 28 L.Ed.2d 493, 91 Sup.Ct.

1056 (1971).

B. There Was No Proof That the Petitioner Had Ac-

tual Knowledge of a Business Enterprise, Or in Fact

That a Business Enterprise Did Actually Exist.

The relationship between Graham Kendall’s telephone

call to Geittmann and a violation of the Travel Act was

too tenuous to support a conviction for another critical rea-

son. The Travel Act only prohibits interstate travel in

furtherance of a “business enterprise”. A business enter-

prise is defined as a continuing course of conduct rather

than sporadic casual involvement in a prescribed activity

(Rewis v. United States, 401 U.S. 808, 811, n.6 (1971)).

—=-23——

However, the panel determined that based upon the past

activities of Callahan, Carr and Geittmann, there was suf-

ficient evidence to indicate a continuing course of unlawful

activity. Neither the Government’s brief or the record sug-

gests, and the court below did not hold, that Kendall was

aware of the extent of Carr and Callahan’s past activities

or the extent of Geittmann’s illegal conduct. To the con-

trary, it is unclear whose “business enterprise” is relied

upon by the court below to uphold Kendall’s conviction. It

certainly was not his own. Viewed in a light most favor-

able to the Government the evidence only demonstrates

that Kendall called Geittmann at Callahan’s request for the

purpose of one smuggling venture. The court below relies

heavily upon the case of United States v. Davis, 666 F.2d

195 (5th Cir. 1982), in its determination that the evidence

was sufficient to establish business enterprise. However, in

the Davis case the court found that “Mr. Davis and Coch-

ran had for some time engaged in a continuous business

relationship in illegal drug trafficking”, supra at page 202.

The key factor was that Davis, himself, had been proven

to be a participant in drug smuggling enterprises. Here the

record is completely devoid of evidence that Kendall was

in any way involved in past smuggling ventures, or was

aware of the extent of Carr and Callahan’s past activities

or Geittmann’s illegal conduct. Surely to sustain a convic-

tion for causing a violation of the Travel Act the evidence

must prove beyond a reasonable doubt that the defendant

at least had knowledge of the business enterprise. Any

other interpretation of the Travel Act imputes too much

to the defendant, and is inconsistent with the past decisions

of the court below. In Rewis v. United States, 401 U.S. 808

(1971), this Court held, in rejecting another broad interpre-

tation of the statute, at page 812:

In short, neither statutory language nor legislative

history support such a broad ranging interpretation

of § 1952. And even if this lack of support were less

apparent, ambiguity concerning the ambit of criminal

statute should be resolved in favor of lenity, Bell v.

United States, 349 U.S. 81, 83, 99 L.Ed. 905, 910, 75

Sup.Ct. 620 (1955).

CONCLUSION

Petition for a writ of certiorari should be granted and

the judgments of conviction should be reversed with in-

structions that the cases be dismissed.

Respectfully submitted,

STEPHEN JONES

JONES, BLAKLEY & JENNINGS

Suite 1100, Broadway Tower

P. O. Box 472

Enid, Oklahoma 73702

405/242-5500

Attorneys for Petitioner

Graham Lee Kendall

September, 1985

CERTIFICATE OF SERVICE

I hereby certify that three (3) true and correct copies

of the above and foregoing Petition for a Writ of Certiorari

to the United States Court of Appeals for the Tenth Circuit

were served on the required parties by placing same in the

United States Mail with postage fully prepaid, this _._____

day of September, 1985, to:

Rex E. Lee

Solicitor General

Office of the Solicitor General

Department of Justice

Tenth and Constitution Avenue

Washington, D.C. 20530

Stephen Jones

AGS

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APPENDICES

APPENDIX A

PUBLISH

[Filed July 3, 1985]

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

GRAHAM LEE KENDALL,

)

) No. 83-1908

)

Defendant-Appellant. )

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CR-83-20-T)

Carl Hughes of Oklahoma City, Oklahoma, for Defendant-

Appellant.

Teresa Black, Assistant United States Attorney (William

S. Price, United States Attorney; and James F. Robinson,

Assistant United States Attorney, on the brief), of Okla-

homa City, Oklahoma, for Plaintiff-Appellee.

Before SETH, BREITENSTEIN, and SEYMOUR, Circuit

Judges. -

SEYMOUR, Circuit Judge.

Graham Lee Kendall was indicted on one count of con-

spiracy to possess marijuana with intent to distribute, 21

U.S.C. §§ 841(a) (1), 846 (1982) and 18 U.S.C. §2 (1982),

one count of conspiracy to import marijuana, 21 U.S.C. §§

952, 963 (1982) and 18 U.S.C. § 2, and one count of violat-

ing the Travel Act, 18 U.S.C. § 1952 (1982). After a jury

{APPENDIX}

trial, he was convicted of one count of conspiracy to pos-

sess marijuana with intent to distribute and one count of

violating the Travel Act. On appeal, he argues that: (1)

the evidence is insufficient to support a finding of guilt for

conspiracy to possess marijuana with intent to distribute;

(2) the Government failed to prove interstate travel or the

existence of a business enterprise within the meaning of the

Travel Act; (3) the trial court erred in admitting evidence

of crimes or acts not charged in the indictment; and (4) the

Government’s refusal to disclose evidence of other crimes,

wrongs, or bad acts before trial violated his Fifth Amend-

ment right to due process and his Sixth Amendment right

to confrontation and cross-examination. We disagree and

affirm.

BACKGROUND

In setting forth the circumstances giving rise to this

appeal, we view the evidence in the light most favorable to

the jury’s verdict. United States v. Petersen, 611 F.2d 1313,

1317 (10th Cir. 1979), cert. denied, 447 U.S. 905 (1980).

In August 1981, Larry Carr approached Patrick Calli-

han with the suggestion that the two of them buy an air-

plane and enter the drug smuggling business. Carr and

Callihan had previously been associated in an unsuccessful

business venture and both were in desperate need of money.

Callihan initially balked at the idea but, in the early sum-

mer of 1982, they agreed to try to find an airplane and

sources of employment in the drug trade. Callihan, an ex-

perienced pilot, knew defendant Kendall from earlier legiti-

mate aircraft dealings. Kendall was an experienced and

very successful airplane dealer, with contacts around the

country and an industry-wide reputation for his knowledge

and expertise.

In June, 1982, Carr and Callihan traveled to Oklahoma

City to talk with Kendall at his place of business, Okla-

homa Aircraft, located at Page Airport near Oklahoma City.

[APPENDIX]

During this meeting, Callihan and Carr asked Kendall about

the availability of various aircraft, including their long-

range fuel capacities and useful load capabilities. Callihan

told Kendall that he and Carr were planning to smuggle

and that they were looking for a long-range airplane with

plenty of room for hauling marijuana. Kendall described

several aircraft but, because neither Carr nor Callihan were

qualified to fly these particular planes, and because Kendall

insisted on cash-only terms for the purchase of a plane,

Callihan and Carr decided to look elsewhere.

Sometime later, Callihan and Carr, through fraudulent

means, purchased a Piper Navajo Chieftain aircraft in Las

Vegas from a party unrelated to Kendall. They flew this

plane back to Oklahoma Aircraft. Upon their arrival Calli-

han noticed a bladder fuel tank (which can be installed

within a plane to increase its range) positioned on a fork-

lift inside Kendall’s hangar. Callihan first spoke with an

individual named Les, and then with Kendall, about pur-

chasing the bladder and having it installed in his plane.

Kendall told Callihan to see Les. and Callihan paid Les to

install the bladder. During this same visit, Kendall showed

Callihan an aircraft owned by William Geittmann, an ac-

quaintance of Kendall. Kendall pointed out the plane’s long-

range fuel capabilities and recommended the fuel system to

Callihan noting that it was particularly well suited for trips

to South America.

In July 1982, Callihan and Carr took part in an un-

successful attempt to smuggle marijuana into the United

States from Mazatlan, Mexico. Failing in this venture, they

flew back to Oklahoma Aircraft and had Les remove the

bladder from the plane. While Callihan’s plane was sitting

in the hangar at Oklahoma Aircraft, Geittmann saw the

plane and noted that it was well suited to smuggling. Geitt-

mann, a long-time and very successful drug smuggler, asked

Kendall about Callihan’s plane and whether the owner

might be interested in flying for him. Kendall told Geitt-

man that he knew Callihan wanted to work and was avail-

[APPENDIX }

able. Sometime during this period, Kendall also asked

Geittmann to check the registration numbers of Callihan’s

plane while Geittmann was in Mexico, to determine if the

plane was “hot” and whether the Mexican police had spot-

ted the registration tail numbers or were looking for the

plane. Kendall told Geittmann that the plane had been

fired upon in Mexico when Callihan had earlier tried to

pick up the load of marijuana near Mazatlan.

During his stay at Oklahoma Aircraft, Callihan spoke

with Kendall and asked about the possibility of working

on a smuggling venture with Geittmann. Having known

Geititmann since 1974, Kendall spoke highly of him and

told Callihan that the two of them would work well to-

gether. Kendall then drove Callihan to a nearby pay phone

to call Geittmann. En route to the pay phone Callihan

offered Kendall twenty percent of any deal he made with

Geittmann. Kendall then placed a long distance call to

Geittmann using his telephone credit card. After telling

Geittmann that he had someone he wanted him to talk to,

Kendall hung up to await a return call. When Geittmann

called several minutes later Kendall answered and spoke to

him, recommended Callihan as reliable and trustworthy,

and then handed the telephone to Callihan.

Geittmann and Callihan arranged to talk further and

on August 3, 1982, Geittmann called Callihan to arrange a

meeting at Geittmann’s home in Aspen, Colorado. Calli-

han called Kendall to tell him of this scheduled meeting,

and Kendall expressed his approval. On August 4, Callihan

traveled on a commercial flight from Oklahoma City to

Aspen, where he was met by Geittmann. Callihan and

Geittmann discussed flying marijuana and cocaine into the

United States. They agreed that Callihan would fly and

provide the aircraft and related servicing, while Geittmann

would provide the financing, ground crew, facilities, and se-

curity in Mexico and South America. No specific trip was

arranged, but Geittmann told Callihan he would contact him

very soon. During this meeting, Geittmann received a tele-

{APPENDIX}

phone call from Kendall. Kendall told Geittmann that he

had discussed a few things about Callihan he didn’t like

and that Callihan was not trustworthy. Geittmann in-

formed Callihan that there was a problem with Kendall.

Callihan and Kendall subsequently met in Oklahoma City

to settle thier differences and each separately telephoned

Geittmann to inform him of the settlement.

Several days after his return to Oklahoma City, Geitt-

mann contacted Callihan and told him that a smuggling

trip had been arranged. On about August 10, Geittmann

sent two men to Oklahoma City to serve as a ground crew

for the venture. The two men, David Zamansky and Ed-

ward Hoban, met with Callihan and Carr and they all

visited a proposed landing site in southwestern Oklahoma.

Callihan then had the bladder reinstalled in his plane, in-

formed Kendall of the installation, and with Kendall’s per-

mission, stored the refitted plane at Oklahoma Aircraft.

On August 18, Callihan and Carr flew their plane to

Cancun, Mexico. There they met Geittmann, who had ar-

ranged for their arrival in Cancun, had bribed several local

officials, and had scheduled their departure to South Amer-

ica. On August 20, 1982, Callihan and Carr flew to Banan-

quilla, Colombia, loaded their plane with approximately

1,500 pounds of marijuana, and returned to Cancun. They

departed Cancun for the United States on August 21. Their

destination was Oklahoma but because of severe weather,

they diverted to Louisiana. Upon landing in Louisiana, they

were immediately arrested by government agents.!

Callihan and Carr, unindicted co-conspirators in this

case, were indicted in Louisiana and pleaded guilty as part

of an agreement to testify against Geittmann and Kendall.

Geittmann, Zamansky, Hoban, and Kendall were indicted

1 ‘fhe plane had been under constant surveillance through the use of a

transponder device previously installed at Oklahoma Aircraft pursuant to

& court order.

[APPENDIX]

on various counts of conspiracy, narcotics violations, and

Travel Act violations. Zamansky and Geittmann also agreed

to testify against Kendall at trial.

Il.

SUFFICIENCY OF THE EVIDENCE

Kendall first argues that there is insufficient evidence

to prove that he knowingly and willfully joined in a con-

spiracy to possess marijuana with the intent to distribute.

He also argues that the evidence that does exist supports

oniy a conviction for conspiracy to import marijuana, a

charge o1 which he was acquitted, and that a conviction for

conspiracy to possess with intent to distribute is imper-

missibly inconsistent. In reviewing a criminal conviction,

we examine the evidence in the light most favorable to the

Government in order to determine whether the evidence

both direct and circumstantial, together with al] reasonable

inferences to be drawn therefrom, is substantial enough to

establish guilt beyond a reasonable doubt. See Glassez v.

United States, 315 U.S. 60, 80 (1942); United States v. Pill-

ing, 721 F.2d 286, 288 (10th Cir. 1983); United States v.

Twilligear, 460 F.2d 79, 81-82 (10th Cir. 1972).

A conspiracy is a combination of two or more persons

acting in concert to accomplish an unlawful purpose or to

accomplish a lawful purpose by unlawful means. The evi-

dence must show circumstances to warrant a jury finding

that the conspirators had a unity of purpose or a common

design and understanding. American Tobacco Co. v. United

States, 328 U.S. 781, 810 (1946); United States v. Metro-

politan Enterprises, Inc., 728 F.2d 444, 450-51 (10th Cir.

1984). In a conspiracy prosecution, the critical inquiry is

whether the circumstances, acts, and conduct of the parties

are of such a character that the minds of reasonable men

may conclude therefrom that an unlawful agreement ex-

ists. United States v. Butler, 446 F.2d 975, 979 (10th Cir.

1971); Nolan v. United States, 423 F.2d 1031, 1047 (10th Cir.

1969), cert. denied, 400 U.S. 848 (1970); Jones v. United

[APPENDIX)

States, 251 F.2d 288, 290 (10th Cir.), cert. denied, 356 U.S.

919 (1958). The conspiracy is complete “when one or more

of the conspirators knowingly commit an act in furtherance

of the object of the agreement.” United State: v. Thomas,

468 F.2d 422, 424 (10th Cir. 1972), cert. denied, «:10 U.S. 935

(1973). The agreement need not be shown to have been

explicit. It may be inferred from the facts and circum-

stances of the case. Lannelli v. United States, 420 U.S. 770,

777 n.10 (1975); United States v. Metropolitan Enterprises,

Inc., 728 F.2d at 451; United States v. Dumas, 688 F.2d 84,

86 (10th Cir. 1982). The evidence must show that Kendall

knew a conspiracy to possess marijuana with intent to dis-

tribute existed and that he knowingly participated in the

conspiracy. Id.; see also United States v. Butler, 446 F.2d

at 978.

The record contains sufficient evidence that Kendall

knew Carr and Callihan had agreed to possess and smuggle

marijuana. Callihan and Carr carried out an elaborate

scheme to obtain an airplane. According to Callihan, he

told Kendall that he and Carr wanted to buy a plane to

smuggle marijuana, and both Carr and Callihan testified to

a lengthy conversation with Kendall concerning the quan-

tity of marijuana various planes could hold. Callihan testi-

fied that Kendall showed him the plane belonging to Geitt-

mann, that Kendall specifically mentioned this plane’s fuel

capacity and recommended it as a good plane for smuggling

from South America, and that Kendall told him it was just

what he needed. He also testified that Kendall knew about

the installation of the fuel bladder and that Kendall di-

rected him to the person who actually installed the bladder.

In addition, Geittmann testified that Kendall asked him

to check the registration numbers of Callihan’s plane in

Mexico after Carr’s and Callihan’s ill-fated venture in Maz-

atlan. Given the quantity of marijuana which Carr and

Callihan intended to possess and smuggle 1.500 pounds, in-

tent to distribute could reasonably be inferred. See, e.g.,

United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir. 1983);

(APPENDIX)

United States v. Miller, 693 F.2d 1051, 1054 (11th Cir. 1982);

United States v. Goldstein, 635 F.2d 356, 362-63 (5th Cir.

1980); cert. denied, 452 U.S. 962 (1981); United States v.

Rodriguez, 585 F.2d 1234, 1246 (5th Cir. 1978); cert. denied,

449 U.S. 835 (1980), aff'd on rehearing en banc, 612 F.2d

906 (1980).

The Government also sought to establish the extent

of Kendall’s knowledge and familiarity with Geittmann’s

smuggling activities and influence. Callihan testified that

Kendall responded favorably to his request for an intro-

duction to Geittmann and that Kendall noted Geittmann’s

reputation for paying his bills, keeping his word, and being

the “most active young man in the [drug smuggling] busi-

ness” Rec., vol. VIII, at 203. Callihan testified that when

Kendall showed him a plane specially “plumbed” for long-

range smuggling operations, Kendall specifically told him

it belonged to Geittmann. Geittmann testified that he had

purchased three airplanes from Kendall in 1982, that on

one occasion Kendall showed him an aircraft specially

“plumbed” for long-range flights, and that he bought the

plane because of this feature. As noted earlier, Geittmann

testified that Kendall asked him to use his Mexican con-

nections and influence in securing, through bribery, the re-

lease of a plane of Kendall’s which had been confiscated

by Mexican authorities. He also testified that Kendall, dur-

ing a phone conversation with Geittmann, remarked that

he knew Geittmann “overpaid everybody” that worked with

him in the drug business. Rec., vol. X, at 593.

Kendall admitted that he knew of Geittmann’s prior

involvement in drug smuggling, that Geittmann had told

him that he had “a reputation for fixing things in Mexico,”

rec., vol. XII, at 915, and that Kendall had relied on Geitt-

mann’s influence in liexico in the past, including the use

of bribery to recover the plane confiscated in Mexico. Fi-

nally, Kendall testified that when he introduced Callihan

to Geittmann, he knew that Geittmann needed a pilot.

[APPENDIX]

Neither Kendall’s knowledge alone nor his mere asso-

ciation with the conspirators, however, is enough to convict

him of conspiracy. See Jones v. United States, 365 F.2d 87,

89 (10th Cir. 1966). The evidence must also show that Ken-

dall knowingly joined the conspiracy, or knowingly and in-

tentionally committed an act in furtherance of it. United

States v. Butler, 446 F.2d at 979; Jones, 365 F.2d at 88. The

Government argues that Kendall’s introduction and recom-

mendation of Callihan to Geittmann constituted knowingly

joining or acting in furtherance of the conspiracy.

The telephone call is the crux of the Government’s case

against Kendall. Kendall contends that assisting Callihan

to contact Geittmann cannot reasonably be construed as

joining or furthering a conspiracy. We disagree. Although

sharply disputed by Kendall, Callihan testified that on the

way to the pay phone after Kendall had agreed to tele-

phone Geittmann, he offered Kendall twenty percent of any

deal he made with Geittmann in exchange for Kendall‘s

servicing of the plane and the fuel bladder. According to

Callihan, Kendall told him he didn’t require any part of

the deal. Callihan also testified that he told Kendall of his

planned meeting in Colorado with Geittmann and that Ken-

dall expressed his approval. Geittmann testified that Ken-

dall recommended Callihan highly, and that he relied on

Kendall’s recommendation in deciding to meet with Calli-

han and in choosing him as the pilot for the smuggling

scheme. Geittmann also testified that while he and Calli-

han were meeting in Aspen, Kendall called Geittmann to

alert him that he had done some checking on Callihan and ~

didn’t trust him. In addition, other evidence suggested an

ongoing business and personal relationship with Geittmann

that Kendall wished to preserve.

The Government contends that this evidence supports

its claim that Kendall was an indispensable part of Calli-

han’s and Carr’s, and subsequently Geittmann’s plan to pos-

sess, import, and distribute marijuana. The Government

argues that without Kendall’s help, Callihan would not have

10a

{APPENDIX}

been able to carry out his plan and that Kendall, in intro-

ducing Callihan to Geittmann, aeted with the intent to

further the goal of the conspiracy. We agree that there

is sufficient proof, direct and circumstantial, together with

reasonable inferences to be drawn therefrom, from which

a jury could reasonably conclude that Kendall knowingly

joined, or knowingly and intentionally committed an act in

furtherance of the conspiracy.

Kendall argues that his acquittal on the charge of con-

spiring to import marijuana is a fatal inconsistency in this

case. He contends that any evidence that does exist sup-

ports only a finding of knowledge and assistance of impor-

tation, not possession with intent to distribute. According to

Kendall, acquittal on the importation conspiracy charge re-

quires reversal of the conviction for conspiracy to possess.

We are not persuaded. It is well established that inconsis-

tency in a verdict is not a sufficient reason for setting it

aside. United Statets v. Powell, 105 S.Ct. 471 (1984); Dunn v.

United States, 284 U.S. 390, 393 (1932); United States v.

Spitz, 678 F.2d 878, 882 (10th Cir. 1982); Lowther v. United

States, 455 F.2d 657, 663 (10th Cir.), cert. ¢ mied, 409 U.S.

857 (1972). “[I]t is not a proper appellate function to at-

tempt to analyze the collective mind of a jury.” United

States v. Dennett, 551 F.2d 261, 262 (10th Cir. 1977). Be-

cause there is sufficient evidence to support a verdict of

guilty of conspiracy to possess with intent to distribute

marijuana, Kendall’s acquittal on the importation charge

does not require reversal.

lla

{APPENDIX}

ITI.

TRAVEL ACT

Kendall next argues that the evidence fails to show a

violation of the Travel Act, §18 U.S.C. § 1952.2 Kendall

does not dispute that Callihan traveled in interstate com-

merce with the intent to perform or facilitate unlawful

activity, or that Callihan later performed an illegal act. He

does argue, however, that the evidence fails to show either

(1) that he “caused” Callihan’s interstate travel, or (2) the

existence of a business enterprise within the meaning of

the Travel Act.

Kendall contends the evidence shows only that he

placed an interstate telephone call to Geittmann on Calli-

han’s behalf. He asserts there is no evidence that he knew

Callihan planned interstate travel to meet with Geittmann,

or that he directed, requested, or suggested that Callihan

travel anywhere for any purpose. We disagree. The evi-

dence in the record supports the reasonable inference that

Kendall, knowing both Callihan’s desire to be hired as a

pilot for marijuana smuggling and Geittmann’s need for a

pilot and plane, introduced the two men for the purpose of

= 18 US.C. § 1952 provides in pertinent part:

“(a) Whoever travels in interstate or foreign commerce or uses any

facility in interstate or foreign commerce, including the mail, with

intent to —...

(3) otherwise promote, manage, establish, carry on, or facilitate

the promotion, management, establishment, or carrying on, of any

unlawful activity, and thereafter performs or attempts to perform

any of the acts specified in subparagraphs . . . (3), shall be fined

not more than $10,000 or imprisoned for not more than five years,

or both.

(b) As used in this section ‘unlawful activity’ means (1) any busi-

ness enterprise involving . . . narcotics or controlled substances . . .

offenses in violation of the laws of the State in which they are com-

mitted or of the United States... .”

12a

[APPENDIX) 3

assisting them in an illegal narcotics venture. This intro-

duction, in the context of this case, constitutes a sufficient

causal connection necessary for a violation of 18 U.S.C. § 2.8

We are also unpersuaded by Kendall’s argument con-

cerning the extent of his knowledge of interstate travel by

Callihan. The evidence supports a reasonable inference that

Kendall, knowing that Geittmann did not live in Oklahoma

at the time of the introduction, could reasonably have

known or anticipated that Callihan and Geittmann would

have to meet to arrange the details of the smuggling trip

and that interstate travel for this purpose was very likely. ~

There is no requirement in the Travel Act that a defendant

or co-conspirator have knowledge of the intended inter-

state means. United States v. Barbieri, 614 F.2d 715, 720

(10th Cir. 1980); see also, United States v. Villano, 529 F.2d

1046, 1054 (10th Cir.), cert. denied, 426 U.S. 953 (1976);

United States v. LeFaivre, 507 F.2d 1288, 1297-98 (4th Cir.

1974), cert. denied, 420 U.S. 1004 (1975). Where there is

sufficient proof that travel was apparent and interstate

travel not unlikely, it was not necessary under section 1952

to prove further that Kendall knew he was causing or aid-

ing and abetting interstate travel. United States v. Villano,

529 F.2d at 1054.

Kendall next argues that the evidence fails to show

the existence of a “business enterprise” within the mean-

ing of section 1952(b) (1) because Callihan and Geittmann

3 Title 18 US.C. §2 is the federal aiding and abetting statute, which

states:

“(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its commission,

(b) Whoever willfully causes an act to be done which if directly

performed by him or another would be an offense against the United

States, is punishable as a principal... .”

Although the indictment did not expressly cite 18 U.S.C. § 2, Kendall was

specifically charged with “causing” a violation of the Travel Act.

13a

[APPENDIX)}

attempted only one smuggling venture. He argues that a

Travel Act “business enterprise” cannot be predicated on

one illegal act.

The Travel Act defines unlawful activity to include

“any business enterprise involving . . . narcotics or con-

trolled substances.” 18 U.S.C. § 1952(b)(1). The term

“business enterprise” means a continuing course of con-

duct rather than sporadic casual involvement in a pro-

scribed activity. Rewis v. United States, 401 U.S. 808, 811

n.6 (1971); United States v. Corbin, 662 F.2d 1066, 1072

(4th Cir. 1981); United States v. Donaway, 447 F.2d 940,

944 (9th Cir. 1971); United States v. Pauldino, 443 F.2d

1108, 1112 (10th Cir.), cert. denied, 404 U.S. 882 (1971);

United States v. Zizzo, 338 F.2d 577, 580 (7th Cir. 1964),

cert. denied, 381 U.S. 915 (1965). In deciding whether

Callihan’s actions constitute a continuing course of conduct,

we are guided by the legislative history and policies under-

lying the Travel Act. As the Supreme Court pointed out

in Rewis, the legislative history of the Act is limited but

does reveal that section 1952 was aimed primarily at or-

ganized crime and specifically at persons residing in one

state while operating illegal activities in another. 401 U.S.

at 811-12. The reach of the statute is not, however, limited

to such circumstances. See Erlenbaugh v. United States,

409 U.S. 239, 247 n.21 (1972); United States v. Villano, 529

F.2d at 1052-53.

Callihan and Geittmann fall within the category of per-

sons residing in one state while operating illegal activities

in another. In addition, Callihan and Carr both testified -

that they agreed and intended to get into the business of

smuggling. They concocted an elaborate scheme by which

to obtain an airplane and actively sought out employers for

their services. They had already atempted to smuggle mari-

juana from Mexico only shortly before Callihan met with

Geittmann to plan their smuggling venture. This was Calli-

han’s and Carr’s second attempt to smuggle marijuana, and

Callihan testified that when he returned to Oklahoma City

14a

(APPENDIX)

after his meeting in Aspen with Geittmann, he told Ken-

dall that the two had discussed three future ventures. This

evidence indicates a continuing course of unlawful conduct

and not a lone, isolated attempt or casual involvement.

This conclusion is supported by United States v. Davis,

666 F.2d 195 (Sth Cir. 1982), where the court upheld a find-

ing of a business enterprise despite the fact that only one

illegal drug transaction was proven. The court emphasized

the continuing ‘nature of the defendants’ relationship in il-

legal drug trafficking and the prior involvement of one de-

fendant in other illegal drug transactions. Id. at 202. In

United States v. Corbin, 662 F.2d at 1072-73, the court re-

versed a Travel Act conviction of two defendants who had

been arrested immediately after a commercial airline flight

while in possession of a large quantity of illegal drugs. In

Corbin, however, the only evidence offered to prove the ex-

istence of a business enterprise was the large quantity of

drugs involved, and the court refused to accept this as suf-

ficient proof of a continuous course of conduct. It empha-

sized that no evidence was introduced to prove either de-

fendant had distributed drugs in the past or planned to do

so in the future, that neither defendant was connected to

an ongoing enterprise, and that there was no evidence con-

cerning the source or the price of the drugs. The court

characterized the defendants’ activity as one isolated pos-

session, and thus outside the scope of the Travel Act.

In the instant case evidence was introduced to show

Callihan’s past smuggling-related activities, Callihan’s plans

for future smuggling, and Geittmann’s long-standing and

wide-ranging smuggling activities. This was a large, com-

plex, and lucrative smuggling venture involving a large

quantity of marijuana and a large number of people in the

United States, Mexico, and Colombia. The entire venture

was set in motion when Callihan contacted Geittmann and

then flew to Colorado to meet with him. We believe that

this is precisely the use of interstate facilities and illegal

activity that Congress sought to prohibit in enacting the

15a

[APPENDIX]

Travel Act. There was sufficient evidence to show that

Kendall caused Callihan to violate the Travel Act and that

the smuggling venture was a “business enterprise” within

the meaning of the Act.‘

IV.

Evidence of Other Wrongs

Kendali next argues that the trial court erred in ad-

mitting evidence of his alleged earlier crimes, wrongs, or

acts. He contends that such evidence was not admissible’

to prove his character and did not come within any pur-

pose permissible under Fed. R. Evid. 404(b); that even if

relevant, the value of such evidence was substantially out-

weighed by the danger of unfair prejudice, citing Fed. R.

Evid. 403; and that the admission of such prejudicial evi-

dence was an abuse of discretion requiring a new trial. Be-

cause the evidence was crucial to the Government’s case

against Kendall and because this claim raises serious evi-

dentiary issues, we review the evidence and the actions of

the trial court in detail.

Rule 404(b) provides that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of

a person in order to show that he acted in conformity there-

with.”® Such evidence may be admitted for other purposes,

4 Kendall's reliance on United States v. Donaway, 447 F.2d 940 (9th

Cir. 1971), is misplaced. In Donaway, the defendant was convicted of

violating the Travel Act by placing one bet with a bookie who was part

of a much larger conspiracy to fix horse races. The defendant had no

other connection with any members of the conspiracy and was acquitted

of the conspiracy charge. The court, in refusing to characterize this con-

duct as engaging in an illegal business enterprise, emphasized the one bet

and the absence of any other participation by the defendant. Clearly, such

conduct is more accurately described as casual, or emt, and thus not

within the scope of the Travel Act.

5 To fall within the scope of 404(b), an act need not be criminal, so

long as it tends to impugn a defendant's character. United States v.

l6a

[APPEND?X)

such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.

Id.; United States v. Biswell, 700 F.2d 1310, 1317 (10th Cir.

1983); United States v. Nolan, 551 F.2d 266, 270 (10th Cir.),

cert. denied, 434 U.S. 904 (1977); United States v. Freeman,

514 F.2d 1184, 1189-90 (10th Cir. 1975); United States v.

Parker, 469 F.2d 884, 889 (10th Cir. 1972). In Nolan, we

enumerated some guidelines to test whether evidence of

such crimes or acts should be admitted. The evidence (1)

must tend to establish intent, knowledge, motive, identity,

or absence of mistake or accident; (2) must also be so re-

lated to the charged offense that it serves to establish in-

tent, knowledge, motive, identity, or absence of mistake or

accident; and (3) must have real probative value, not just

possible worth. 551 F.2d at 271. The uncharged crime or

act must also be close in time to the crime charged. Id. at

272. See also United States v. Burkhart, 458 F.2d 201, 204

(10th Cir. 1972) (en banc). This court has previously

stated:

“TE]ven relevant evidence should be excluded under

Rule 403 ‘if its probative value is substantially out-

weighed by the danger of unfair prejudice.’ While

trial courts have discretion in striking the balance be-

tween probative value and unfair prejudice. .. . they

must be particularly sensitive to the potential preju-

dice that is always inherent in evidence of an ac-

cused’s prior uncharged crimes or wrongs. . . . Al-

though Rule 403 provides broad umbrella protection

from unfair or undue prejudice, the specific provision

in Rule 404(a) prohibiting evidence of uncharged

crimes to show bad character or tendencies toward

criminality not only reflects the special danger of

5 (Continued )

Terebecki, 692 F.2d 1345, 1348 n.2 (11th Cir. 1982); United States v.

Beechum, 582 F.2d 898, 902 n.1 (SthCir. 1978), cert. denied, 440 US.

920 (1979); United States v. Cooper, 577 F.2d 1079, 1087-88 (6th Cir.

1978), cert. denied, 439 US. 868 (1978).

ee ee ee ee ee

17a

[APPENDIX]

other crimes evidence but should alert trial courts to

be particularly careful in admitting such evidence.

United States v. Carleo, 576 F.2d 846, 849 (10th Cir.), cert.

denied, 439 U.S. 850 (1978) (citations omitted).

In Biswell, we reviewed the problems associated with

Rule 404(b) evidence and the standards governing its use.

In an effort to ensure that such evidence is not used in an

unfair or impermissible manner, we held that where evi-

dence is offered under Rule 404(b), the Government bears

the burden of showing how the proffered evidence is rele-

vant to one or more issues in the case. 700 F.2d at 1317.

The Biswell standard is clear. The Government must artic-

ulate precisely the evidentiary hypothesis by which a fact

of consequence may be inferred from the evidence of other

acts. In addition, the trial court must specifically identify

the purpose for which such evidence is offered and a broad

statement merely invoking or restating Rule 404(b) will

not suffice. A specific articulation of the relevant purpose

and specific inferences to be drawn from each proffer of

evidence of other acts will enable the trial court to more

accurately make an informed decision and weigh the proba-

tive value of such evidence against the risks of prejudice

specified in Rule 403. This requirement is an attempt to

ensure that a decision to admit or exclude be made only

after issues and reasons are exposed and clearly stated. See

id. at 1317 n.5. In addition, specific and clear reasoning and

findings in the trial record will greatly aid an appellate

court in its review of these evidentiary issues.

Before trial, Kendall sought discovery of evidence of

other crimes, wrongs, or bad acts which the Government

intended to present as evidence at trial. The trial court

denied Kendall’s request that the Government be ordered

to produce such evidence before trial. The court, however,

did enter a pretrial order prohibiting the Government from

offering such evidence without prior court approval. The

order stated, in pertinent part:

18a

[APPENDIX)

“The evidence here in dispute is governed by the

provisions of Rule 404, Federal Rules of Evidence.

While the government states that it does not know

whether it will use such evidence, it is clear that the

potential for prejudice by the improper admission of

such evidence is sufficient to require the Court to

carefully consider the reasons for which the evidence

would be offered.

Accordingly, counsel for the government is prohibited

from offering any evidence of prior or subsequent

crimes, wrongs or bad acts, n>t charged in the indict-

ment, without first informing the Court and counsel

for the defense of the specific evidence to be offered

so that the Court may consider the arguments of

counsel, outside the presence of the jury, regarding

the admissibility of said evidence.”

Rec., vol. II, at 356.

Kendall claims the first error occurred when, in direct

contravention of the pretrial order, the Government elicited

testimony concerning an earlier sale by Kendall of an air-

plane subsequently used in drug smuggling. On direct ex-

amination, Geittmann was asked about his involvement in

a prior marijuana smuggling venture that resulted in his

conviction in 1975. When asked the identity of the pilot

and the source of the airplane used in that venture, Geitt-

mann responded that he had financed the purchase through

the pilot, and that the pilot had purchased the airplane

from Kendall. Defense counsel promptly objected and

moved for a mistrial. This motion was denied, but the

trial court admonished the Government and, at the request

of defense counsel, instructed the jury to disregard the

testimony. The court agreed that the Government had vio-

lated the pretrial order, but concluded that the violation

was an oversight that under the circumstances did not re-

quire a mistrial. Any potential prejudicial effect was mini-

mized by the court’s proper and timely admonition that

19a

LAPPENDIX)

the jurors disregard the testimony. There is no evidence

that the Government’s actions were more than an oversight

and Kendail does not allege that the Government acted in

bad faith. Reviewing the record as a whole, we conclude

that the trial court correctly refused to declare a mistrial.

Kendall next argues that the court erred in admitting

evidence of prior airplane sales by Kendall to Geittmann.

Later in Geittmann’s direct examination, after the Govern-

ment complied with the pretrial order, Geittman testified

about two aircraft that he purchased from Kendall in 1982.

Over defense objection, he testified that during the sale of

the first aircraft, Kendall showed Geittmann that the air-

craft had been “plumbed” to accommodate extra fuel, and

that Kendall had personally demonstrated the plane and

this special fuel feature to him. Finally, he testified that

two weeks after this first sale he traded in the piane for

a second identical model because “[it] was a little better

outfitted . . . it had 350 gallons of fuel built into it which

would enable me to go just about anyplace I wanted to go

in Central, South America.” Rec., vol. X, at 584.

Kendall argues that this is not Rule 404(b) evidence.

At trial, the Government contended that the evidence of

these sales and the manner in which the special fuel sys-

tem was presented by Kendall was relevant to show that

Kendall had dealt with Geittmann before meeting Callihan;

that Kendall knew Geittmann and the nature of his busi-

ness; and that the plane had been prepared and could be

used for smuggling purposes. The trial court concluded that

these reasons justified admission of the evidence under Rule

404(b). We agree that the evidence is within the scope of

Rule 404(b) and tnat the Government made a sufficient

showing of the purpose for, and inferences to be drawn

from, the evidence. The sales were close in time to Ken-

dali’s introduction of Callihan to Geittmann, and the testi-

mony concerning the two sales had real probative value.

The evidence is relevant to whether Kendall knew of Geitt-

mann’s activities and needs, from which a jury could infer

20a

(APPENDIX)

the critical element of Kendall’s intent and knowledge in

introducing Callihan to Geittmann. It thus meets the re-

quirements for Rule 404(b) evidence set forth in Nolan. In

addition, the Government’s explanation and the trial court’s

findings in the record were sufficiently explicit and clear

within the meaning of Biswell. The trial court did not err

in admitting this evidence.

Kendall next argues that the court erred in admitting

evidence of Kendall’s request that Geittmann check the

status of Callihan’s plane in Mexico. Over defense counsel’s

objection, Geittmann testified that in July or August 1982,

Kendall asked him to check the airplane’s tail registration

numbers in Mexico. Geittmann stated that “[h]e told me

the aircraft had been fired upon on one of the beaches south

of Mazatlan. They were down there to pick up some mari-

juana.And he wanted to know if the plane was hot, if the

Mexican police had gotten the numbers off the tail and if

they were looking for it.” Rec., vol. X, at 606. The Govern-

ment complied with the pretrial order and offered its rea-

sons for admission prior to the testimony. The Government

claimed that “it shows knowledge, aiding and assisting by

Mr. Kendall of Mr. Callihan in this particular venture, and

that if this plane was hot, then it could not fly into Cancun

for this particular venture”. Kec., vol. X, at 603. The trial

court agreed that the evidence was within Rule 404(b), and

while acknowledging that the evidence might be damaging

to Kendall, nevertheless found that it was not sufficiently

prejudicial to require exclusion. The court also gave an

appropriate limiting instruction to the jury.

On appeal, Kendall argues that this evidence did not

meet the Rule 404(b) foundation requirements and that

any probative value was outweighed by the risk of sub-

stantial prejudice. We disagree. The conversation took

place shortly before Kendall introduced Callihan to Geitt-

mann. The evidence is relevant to prove that Kendall knew

about Callihan’s and Carr’s smuggling activities and plans;

that Kendall aided and assisted them in preparing for and

21a

[APPENDIX}

furthering these plans; that Kendall knew how they were

using their airplane; and that Kendall knew of both Geitt-

man’s influence in Mexico and his involvement in smug-

gling activities. This proof is relevant to the issue of Ken-

dall’s knowledge of, and participation in, the conspiracies

charged. The evidence meets the requirements of Nolan.

The Government’s explanation and the trial court’s findings

and actions were sufficiently explicit and clear to comply

with Biswell,

Kendall next claims that error occurred when the Gov-

ernment asked Geittmann about a conversation with Ken-

dall concerning an aircraft that Kendall owned and that

had been seized in Mexico. Kendall argues that this evi-

dence of prior acts is impermissible character evidence,

does not fall within Rule 404(b), and was substantially

prejudicial. We are not persuaded. Earlier, on direct ex-

amination, Geittmann had testified about a prior business

relationship with Kendall, in which Geittmann had assisted

Kendall in trying to recover a C-46 aircraft from Mexico.

This testimony occurred at a point in the trial when the

prosecution was attempting to establish the extent of prior

dealings between Kendall and Geittmann. In describing

his efforts to free the plane, Geittmann stated, “I’m sure

it’s still down there where it had been seized or where it

had been taken to after it was seized.” Rec., vol. X, at 607.

Defense counsel did not object to this testimony.

On redirect examination, Geittmann elaborated on the

details of this seizure, and testified that Kendall told him

the plane had been seized because it was carrying contra-

band electronics from the United States to Mexico. Al-

though Kendall now challenges this testimony, he did not

object at trial. Furthermore, Kendall’s defense counsel, on

and explaining the events surrounding the seizure, stress-

ing that the activities, while illegal in Mexico, were not

illegal in the United States. Later, on direct examination,

Kendall himself testified that the plane had violated Mexi-

22a

LAPPENDEX)

can law and had been confiscated, and that he tried to use

Geittmann to recover it. On cross-examination of Kendall,

the Government, over objection, attempted to inquire fur-

ther into the events surrounding the aircraft’s seizure. Ken-

dall adi..:tted that he knew that the aircraft was being used

for illegal purposes, that he and Geittmann had attempted

te recover the plane by bribing certain officials, and that he

had relied on Geittmann to make the bribe payments.

Kendall’s own testimony about the seizure on direct

and cross-examination does not pose a Rule 404(b) prob-

lem. Through his counsel, Kendall raised the issue of his

own knowledge of, and participation in, the events sur-

rounding the contraband seizure of the plane. Having thus

raised this issue, he cannot complain now about the Gov-

ernment’s:-cross-examination in this area.

The question is whether Geittmann’s direct examination

testimony concerning these events is admissible under Rule

404(b). The trial court concluded that this evidence quali-

fied under Rule 404(b) as relevant to show Kendall’s mo-

tive and lack of mistake or accident. The events surround-

ing the aircraft seizure occurred shortly before Kendall

introduced Callihan to Geittmann. This evidence showed

that Kendall, faced with the loss of a plane for carrying

contraband, chose to enlist the aid of Geittmann. There

was evidence introduced to show Geittmann’s influential

contacts with certain Mexican officials and his ability to

engage in illicit activities in Mexico. This ability and in-

fluence was crucial: to Geittmann’s success as a drug smug-

gler. The extent to which Kendall knew of and relied on

Geittmann’s illicit influence is relevant to the issues of Ken-

dall’s knowledge of Geittmann’s activities, Kendaii’s motives

for dealing with and later assisting Geittmann, and the lack

of mistake ur accident by Kendall when he introduced Calli-

han to Geittmann. As we stated earlier, these issues were

central to the conspiracy charges against Kendall. The re-

quirements of Nolan and Biswell were met.

23a

LAPPENDIX)

There was also no abuse of discretion when the trial

court concluded that the evidence was not so prejudicial

as to bar its adm-:_.on under Rule 403. While Geittmann’s

testimony was certainly damaging to Kendall, its probative

value sufficiently outweighed any potential prejudicial im-

pact. Kendall’s defense counsel chose to pursue the inquiry

and focus attention on the seizure while examining both

Geittmann and Kendall, and Kendall was acquitted on the

charge of conspiring to import marijuana. We are not per-

suaded that Geittmann’s ini.iai testimony was so preju-

dicial that its admission constitutes reversible error. The

evidence was properly admitted.

Finally, Kendz 1 claims that the prosecution committed

reversible error in its closing argument when it referred

vo the aircraft seizure in Mexico as being related to “smug-

gling.” Rec., vol. XII, at 955. The trial court overruled

defense counsel’s objection that the term “smuggling” had

no foundation in the record. On appeal, Kendall argues that

this comment caused incurable damage anti was highly

prejudicial. We disagree. While Geittmann and Kendall

never used the term “smuggling” when describing the air-

craft seizure in Mexico, there was ample testimony by both

that the plane was carrying contraband into Mexico il-

legally. The prosecution’s use f the term “smuggling” was

thus based on a sufficient evidentiary foundation in the

record. See United States v. Perez, 493 F.2d 1339, 1343

(10th Cir. 1974); cf. Marks v. United States, 26° ¥'.2d 377,

383 (10th Cir. 1958), cert. denied, 358 U.S. 229 (1959).

Moreover, not all improper comments require a new

trial or reversal on appeal. It is only when a remark could

have influenced the jury’s verdict and the trial court failed

to take appropriate steps to remove it from the jury’s con-

sideration that there is reversible error. Devine v. United

States, 403 F.2d 93, 96, cert. denied, 394 U.S. 1003 (1969);

Marks, 260 F.2d at 383. Here, it is by no means apparent

that this single remark could have influenced the jury’s

verdict. As we noted earlier, Geittmann and Kendall testi-

24a

[APPENDIX]

fied extensively and in great detail to the aircraft seizure

and its carrying of contraband. This testimony was prop-

erly admitted. In addition, the use of the word “smiiggling”

would be much more likely to have an impact, if at all, on

the jury’s deliberations concerning the charge of conspiracy

to import marijuana, a charge of which Kendall was ac-

quitted.

Pretrial Disclosure

Kendall also claims that the Government’s refusal to

disclose its Rule 404(b) evidence before trial violated his

Fifth Amendment right to due process and his Sixth

Amendment right of confrontation and cross-examination.

He argues that (1) given the risk of unfairness inherent

in Rule 404(b) evidence, due process requires that a de-

fendant be given pretrial notice of such evidence the Gov-

ernment intends to use, and (2) without such notice, a

defendant cannot adequately prepare his case and is effec-

tively prevented from meaningful confrontation and cross-

examination at trial.

“There is no general constitutional right. to discovery

in a criminal case.” Weatherford v. Bursey, 429 U.S. 545,

559. (1977); See Chaney v. Brown, 730 F.2d 1334, 1339 (10th

Cir.), cert. denied, 105 S: Ct. 601 (1984). The Government

is generally not required to disclose’ its witnesses or their

testimony before trial. See Weatherford, 429 U.S. at 559;

United States v. Rosales, 680 F.2d 1304, 1305 (10th Cir.

1981); United States v. Pennick, 500 F.2d 184, 186 (10th

Cir.), cert. denied, 419 U.S. 1051 (1974); United States v.

Baca, 494 F.2d 424, 427 (10th Cir. 1974). The one signifi-

cant exception to this rule is exculpatory evidence; the

government’s failure to disclose such evidence before trial

is a violation of due process. Brady v..Maryland, 373 U.S.

83 (1963); Chaney, 730 F.2d at 1339-40. The Supreme Court-

has made it clear, however, that Brady does not extend

beyond such exculpatory evidence. Weatherford, 429 U.S.

25a

[APPENDIX}

at 559. Cf., United States v. Flores, 540 F.2d 432, 438 (9th

Cir. 1976) (Brady does not create any pretrial discovery

privileges not contained in the Federal Rules of Criminal

Procedure). Because the evidence of which Kendall com-

plains was not exculpatory or discoverable under the Fed-

eral Rules of Criminal Procedure, the Government’s failure

to disclose its 404(b) evidence does not violate due process.®

Kendall cites no authority, nor have we been able to dis-

cover any, for the proposition that pretrial disclosure of

Rule 404(b) evidence is required by the Sixth Amendment.

Given the clear language of Weatherford, 429 U.S. at 559,

we conclude that there is no general Sixth Amendment

right to such pretrial disclosure.

Kendall also argues that even if pretrial discovery of

Rule 404(b) evidence is not constitutionally required, the

lack of such disclosure in his case so impaired his ability

to confront and cross-examine witnesses, and resulted in

such unfairness and prejudice, that reversal is required.

We are not persuaded.

To begin with, Kendal]l has made no showing whatso-

ever of how his right to a fair trial or ability to confront

and cross-examine witnesses was adversely affected by the

lack of pretrial disclosure. His vague and broad claim of

unfairness and prejudice is not supported by any showing

of how pretrial disclosure of Rule 404(b) evidence could

have influenced the conduct of the trial. Furthermore, the

current limitations on the use of Rule 404(b) evidence af-

ford a defendant sufficient. protection against unfair and

6 In support of his argument that due process requires pretrial disclosure,

Kendall relies on several state court decisions, including a decision of the

Oklahoma Court of Criminal Appeals in Burks v. State, 594 P.2d 771

(Okla.Cr. 1979). The court in Burks held that pretrial disclosure of Rule

404(b) evidence was required. While the decision is arguably based on

due process grounds, the court was also exercising its authority to inter-

pret the relevant state statute in aid of its appellate jurisdiction. Id. at

776. We therefore decline to adopt the holding of the Burks decision.

26a

[APPENDIX]

unduly prejudicial effect. See Nolan, 551 F.2d at 271; Bis-

well, 700 F.2d at 1317-18. These requirements were fully

met by the Government in this case, and all such evidence

was properly admitted. Finally, the pretrial order, pro-

hibiting the Government’s use of 404(b) evidence without

prior court approval, provided Kendall with substantial ad-

ditional protection against the risks inherent in the use of

404(b) evidence.

This case does not fall within that line of decisions

where a defendant is found to have been unduly prejudiced

by the use of surprise evidence. See, e.g., United States v.

Tamura, 694 F.2d 591, 599 (9th Cir. 1982); United States v.

Baum, 482 F.2d 1325, 1331-32 (2d Cir. 1973). As these de-

cisions recognize, a defendant confronted with such sur-

prise at trial must be afforded a fair opportunity to meet

it and to adjust his trial strategy if necessary. If a defen-

dant is not given this opportunity, such as a grant of a

continuance, then the resulting unfairness may require re-

versal. In Kendall’s case, however, no objection was made,

on the basis of surprise, to the introduction of any of the

Government’s Rule 404(b) evidence. At no time did de-

fense counsel request a continuance, nor does the record

show that defense counsel was unable to respond to the

evidence or the reasons offered for its admission. The Gov-

ernment’s refusal to provide its 404(b) evidence before trial

was not reversible error.

AFFIRMED.

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JULY TERM — August 19, 1985

Before Honorable William J. Holloway, Honorable Jean S.

Breitenstein, Honorable Oliver Seth, Honorable James E.

Barrett, Honorable Monroe G. McKay, Honorable James K.

Logan, Honorable Stephanie K. Seymour, and Honorable

John P. Moore, Circuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

)

) No. 83-1908

GRAHAM LEE KENDALL, )

Defendant-Appellant. )

This matter comes on for consideration of Appellant’s

petition for rehearing and suggestion for rehearing en banc

in the captioned cause.

Upon consideration whereof, the petition for rehearing

is denied by the panel that rendered the decision sought to

be reheard.

The petition for rehearing having been denied by the

panel to whom the case was argued and submitted, and no

member of the panel nor judge in regular active service on

the Court having requested that the Court be polled on re-

hearing en banc, Rule 35, Federal Rules of Appellate Pro-

cedure, the suggestion for rehearing en banc is denied.

(s) Howard K. Phillips

HOWARD K. PHILLIPS, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.