766 F.2d 1426 (10th Cir. 1985), 83-1908, United States v. Kendall

Docket Nº:83-1908.
Citation:766 F.2d 1426
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Graham Lee KENDALL, Defendant-Appellant.
Case Date:July 03, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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766 F.2d 1426 (10th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Graham Lee KENDALL, Defendant-Appellant.

No. 83-1908.

United States Court of Appeals, Tenth Circuit

July 3, 1985

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Carl Hughes, Oklahoma City, Okl., for defendant-appellant.

Teresa Black, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., and James F. Robinson, Asst. U.S. Atty., Oklahoma City, Okl., on brief), for plaintiff-appellee.

Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Graham Lee Kendall was indicted on one count of conspiracy to possess marijuana with intent to distribute, 21 U.S.C. Secs. 841(a)(1), 846 (1982) and 18 U.S.C. Sec. 2 (1982), one count of conspiracy to import marijuana, 21 U.S.C. Secs. 952, 963 (1982) and 18 U.S.C. Sec. 2, and one count of violating the Travel Act, 18 U.S.C. Sec. 1952 (1982). After a jury trial, he was convicted of one count of conspiracy to possess 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 Amendment right to due process and his Sixth Amendment right to confrontation and cross-examination. We disagree and affirm.

I.

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, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980).

In August 1981, Larry Carr approached Patrick Callihan with the suggestion that the two of them buy an airplane 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 summer of 1982, they agreed to try to find an airplane and sources of employment in the drug trade. Callihan, an experienced pilot, knew defendant Kendall from earlier legitimate 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, Oklahoma Aircraft, located at Page Airport near Oklahoma City. 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

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Piper Navajo Chieftain aircraft in Las Vegas from a party unrelated to Kendall. They flew this plane back to Oklahoma Aircraft. Upon their arrival Callihan noticed a bladder fuel tank (which can be installed within a plane to increase its range) positioned on a forklift inside Kendall's hangar. Callihan first spoke with an individual named Les, and then with Kendall, about purchasing 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 acquaintance 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 unsuccessful 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. Geittmann, 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 Geittmann that he knew Callihan wanted to work and was available. 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 spotted 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 Geittmann since 1974, Kendall spoke highly of him and told Callihan that the two of them would work well together. 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. Callihan 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 security 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 telephone call from Kendall. Kendall told Geittmann that he had discovered a few things about Callihan he didn't like and that Callihan was not trustworthy. Geittmann informed Callihan that there was a problem with Kendall. Callihan and Kendall subsequently met in Oklahoma City to settle their differences and each separately telephoned Geittmann to inform him of the settlement.

Several days after his return to Oklahoma City, Geittmann 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 Edward

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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, informed Kendall of the installation, and with Kendall's permission, 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 arranged for their arrival in Cancun, had bribed several local officials, and had scheduled their departure to South America. On August 20, 1982, Callihan and Carr flew to Bananquilla, 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. 1

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 on various counts of conspiracy, narcotics violations, and Travel Act violations. Zamansky and Geittmann also agreed to testify against Kendall at trial.

II.

SUFFICIENCY OF THE EVIDENCE

Kendall first argues that there is insufficient evidence to prove that he knowingly and willfully joined in a conspiracy to possess marijuana with the intent to distribute. He also argues that the evidence that does exist supports only a conviction for conspiracy to import marijuana, a charge of which he was acquitted, and that a conviction for conspiracy to possess with intent to distribute is impermissibly 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 all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86...

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