F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 29 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 99-3042 v. (D. Kansas) VICTOR SHANE KIISTER, (D.C. No. CR-97-40036-02)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and LUCERO , Circuit Judges.
Victor Shane Kiister was convicted by a jury of conspiracy to possess with
the intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and
possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), and was sentenced to 151 months imprisonment. 1 Kiister appeals his
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1 Kiister’s sentence in this case was ordered to run concurrently with his sentence imposed in a separate district court conviction, United States v. Kiister, (continued...) conviction on three grounds, alleging that (1) the district court erred in denying
his motion to suppress items seized in a search of his property, as the affidavit
used to obtain the search warrants relied on stale information and omitted other
information that would have vitiated probable cause; (2) there was insufficient
evidence to support his conspiracy conviction; and (3) the trial court improperly
admitted evidence of his previous bad acts. For the reasons stated below, we
affirm.
BACKGROUND
On April 29, 1997, Kiister was arrested near the home of John Autem for
possession of approximately one pound of methamphetamine. A police videotape
shows that after Kiister and Autem entered the outbuilding near Autem’s home,
Autem indicated that a small package on the table was for him. Kiister lifted his
shirt, stuck the package down his pants, and left the building. Detective Sergeant
Tim Holsinger testified that when police officers who were stationed at the scene
approached Kiister, he turned his back, fumbled with his pants, and dropped the
package to the ground. Laboratory tests confirmed that the package contained
methamphetamine.
1 (...continued) No. CR-97-40061-01 (D. Kan. Jan. 26, 1999). By separate Order and Judgment issued today, we also affirm Kiister’s sentence in that matter.
-2- This particular transaction was the culmination of contacts between Kiister,
Autem, Denzil West, and Orvil and Carol Ritter. West testified at trial that
Kiister, over the previous year, had repeatedly asked him for methamphetamine.
Kiister had apparently learned of West’s involvement in methamphetamine
trafficking when West was arrested in 1996 on unrelated drug charges. West
testified that Kiister repeatedly requested one pound of methamphetamine, telling
him that if West could supply it, “he had a chance to get rid of some.” R. Vol. 4
at 295. While West initially took no action on Kiister’s requests, the two did
discuss the price of one pound of methamphetamine.
Around April 21, 1997, West was approached by John Autem, who
indicated his interest in getting several pounds of methamphetamine. In the
course of a series of meetings and phone calls with Autem, West agreed to get
four pounds of methamphetamine from his suppliers and to sell it to Autem. West
testified that around April 26, 1997, he also called Kiister and told him that they
needed to “get together” because they could “make some money.” R. Vol. 4 at
298, 307. He also testified that he planned on “fronting” the methamphetamine to
Kiister, 2 and that because of their previous conversations, Kiister “knew what we
2 The term "fronting," as used in the drug trade, refers to situations when a seller of drugs gives the drugs to a buyer on credit with the understanding that when the buyer resells the drugs to the customers, the proceeds of those sales are to be used to pay the supplier. See United States v. Mosley, 965 F.2d 906, 908 (continued...)
-3- was [sic] talking about” despite the fact that neither drugs, money, nor any
amounts were mentioned at that time. R. Vol. IV at 298.
The police knew about this transaction through Autem, who had been
working as a confidential informant since his December 1996 arrest on drug and
weapons charges. Autem told police that the transaction would take place at his
farm on April 29, 1997. That day, West obtained four pounds of
methamphetamine from his suppliers, Orvil and Carol Ritter, and drove to
Autem’s farm. The police were already present, and had set up video and audio
surveillance equipment in the outbuilding near Autem’s home. When West
arrived at the outbuilding, he exchanged three pounds of methamphetamine for
$45,000 provided to Autem by the government. West and Autem then agreed that
Autem would inform Kiister, who lived nearby, that the load had arrived and that
Kiister could come over to pick up his share. West then left to meet the Ritters
and was arrested by police when he pulled into a nearby café. When the Ritters
arrived at the café, they were also arrested.
At the direction of the police, Autem removed all but one pound of
methamphetamine from the table in the outbuilding. He then called Kiister,
2 (...continued) (10th Cir. 1992).
-4- telling him that West was there and that Kiister should come over. When Kiister
arrived, the previously described transaction was recorded on videotape and
audiotape, and Kiister was arrested.
Following Kiister’s arrest, officers obtained several warrants to search
Kiister’s home, rental properties, and vehicles. The lengthy warrant affidavit
prepared by Detective Holsinger described the types of items law enforcement
agents expect to find at the home of known drug traffickers, including drugs,
plastic bags, scales, cutting agents, communication devices, large amounts of
cash, records, receipts, and weapons. The affidavit then stated a multitude of
reasons why the police concluded Kiister was currently dealing drugs, including:
(1) statements from a confidential informant (“Informant 1”) who said he/she had
sold methamphetamine for Kiister during 1993 and 1994, (2) during a previous
1995 search for firearms, ammunition, and documents, the police had
photographed a letter purportedly written by convicted drug dealer Michael
Harshman that gave Kiister permission to collect money from persons owing
Harshman for drug transactions, (3) statements from Harshman’s girlfriend that
Harshman told her he had purchased large quantities of methamphetamine from
Kiister in 1996, (4) evidence that Kiister repeatedly telephoned other known drug
dealers, including West and Harshman, (5) during a previous 1996 search for
stolen property, officers discovered a receipt for a large quantity of iodine
-5- crystals, which are sometimes used to manufacture methamphetamine, (6) a
second confidential informant’s (“Informant 2”) 1997 statements that both he and
Kiister had obtained methamphetamine from West several years ago, and that
recently Kiister had told the informant that he had delivered iodine crystals to
someone who would make methamphetamine, and (7) additional statements from
Informant 2 that West and Kiister were still involved in drug transactions and
were currently making plans for future drug transactions.
In executing these warrants on Kiister’s property, the police seized an UZI
9 millimeter pistol with the serial number obliterated; ammunition; gunpowder;
other various firearms equipment; a book entitled “Clear Your Record and Own a
Gun”; an October 1995 bill of sale from Kiister purporting to transfer “[a]ll of my
guns” to Jennifer Stevens for $1.00; a Ducks Unlimited auction ticket, dated
September 1996, for a Browning BPS gun; a receipt from JR Enterprises for a
November 1996 purchase of a Browning firearm; police scanners; scales; two
receipts for iodine crystals; a telephone index and Rolodex cards containing
West’s name and telephone number; the previously photographed letter allegedly
sent by Harshman; and receipts for substantial purchases made by Kiister between
January 1, 1993, and the date of the search. 3 Subsequent searches of Kiister’s
The police also seized a pair of night vision goggles. At trial, the court 3
excluded this item.
-6- vehicles produced numerous small plastic bags and a catalog from the company
from which Kiister had purchased the iodine crystals.
On May 28, 1997, a federal grand jury indicted Kiister, West, and Orvil and
Carol Ritter on a four-count indictment. Count 1 charged that the four defendants
conspired to possess with the intent to distribute methamphetamine, in violation
of 21 U.S.C. § 846. Count 2 charged West and the Ritters with possession with
the intent to distribute one kilogram or more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) . Count 3 charged Kiister with possession with intent to
distribute 100 grams or more of methamphetamine, also in violation of 21 U.S.C.
§ 841(a)(1), and Count 4 charged Kiister with being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g), 924(a)(2). West and the Ritters
pleaded guilty to the charges, but Kiister maintained his innocence, contending he
did not know the package he took from Autem contained methamphetamine.
Prior to trial, Kiister sought to have the evidence which was seized from his
property and vehicles suppressed, arguing that the officer who had prepared the
affidavit omitted key information that would have vitiated probable cause had it
been included. Kiister also filed a motion in limine to prevent the introduction of
evidence of any prior crimes or other bad acts Kiister may have committed. The
district court denied both motions, electing to make individual evidentiary rulings
during trial on the proffered evidence.
-7- At trial, the government sought to introduce the evidence seized during the
searches. The district court allowed all but one of these items. 4 At the conclusion
of trial, the jury convicted Kiister on Count 1 for conspiracy to possess with
intent to distribute methamphetamine and on Count 3 for possession with intent to
distribute methamphetamine, but acquitted him on the firearm possession count.
The court subsequently denied Kiister’s Motion for Acquittal and Motion for New
Trial and his Second Motion for New Trial. This appeal followed.
I. Denial of Suppression Motion
In support of his contention that the police lacked probable cause to search
his property in April 1997, Kiister argues that much of the information set forth in
the affidavit was stale and failed to provide sufficient basis to believe that the
items sought would be found in the places named in the warrants. Interwoven
with this argument is his further contention that, in applying for the search
warrant, police failed to inform the issuing judge that in their 1995 and 1996
searches of his property they did not see any drugs or tangible drug proceeds.
Expanding that line of reasoning, Kiister also alleges that the search warrant
affidavit omitted mention of two 1994 searches of his property, in which no drugs
were found. Finally, he contends that the affidavit omitted “important facts”
4 See supra note 3.
-8- about the prior criminal history of Informant 2, whom Kiister alleges is John
Autem. 5 In sum, Kiister contends that considering the totality of the
circumstances, there was no probable cause to support the search warrants and
that, at the very least, he should have been granted an evidentiary hearing on the
issue.
When reviewing a district court's denial of a motion to suppress, we accept
the court's factual findings unless they are clearly erroneous, and consider the
evidence in the light most favorable to the government. See United States v.
Flores , 149 F.3d 1272, 1277 (10th Cir. 1998), cert. denied , 119 S. Ct. 849 (1999).
“Keeping in mind that the ultimate burden is on the defendant to prove that the
challenged seizure was illegal under the Fourth Amendment, the ultimate
determination of reasonableness under the Fourth Amendment is a question of law
reviewable de novo.” See United States v. Long , 176 F.3d 1304, 1307 (10th Cir.),
cert denied , 120 S. Ct. 283 (1999). Additionally, we review the district court’s
denial of an evidentiary hearing for an abuse of discretion. See United States v.
Chavez-Marquez , 66 F.3d 259, 261 (10th Cir. 1995).
Four months prior to the affidavit’s preparation, police discovered in 5
Autem’s home 300 pounds of marijuana, an undisclosed amount of methamphetamine, an unregistered machine gun, a silencer, various other weapons, and over $10,000 in cash. See R. Vol 3 at 182-89.
-9- The task of an issuing judge, in determining probable cause for search
warrants, is “simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). The issuing judge is
permitted to draw reasonable inferences from the affidavits, see United States v.
Rowland , 145 F.3d 1194, 1205 (10th Cir. 1998), and may even rely on hearsay
statements, provided they are sufficiently reliable, see Clanton v. Cooper , 129
F.3d 1147, 1155 (10th Cir. 1997).
A. Allegedly Stale Information
Kiister contends that information about his alleged drug trafficking during
1993 to 1996 was impermissibly stale and provided no probable cause that
evidence of present drug trafficking would be found on his property. We
disagree. While “[p]robable cause to search cannot be based on stale information
that no longer suggests that the items sought will be found in the place to be
searched,” United States v. Snow , 919 F.2d 1458, 1459 (10th Cir. 1990), the
question of whether the information in the affidavit is stale does not depend upon
the time elapsed between the facts and the issuance of the warrant. Instead, we
look to “the nature of the criminal activity, the length of the activity, and the
-10- nature of the property to be seized.” Id. at 1460 (quoting United States v. Shomo ,
786 F.2d 981, 984 (10th Cir. 1986)). Where the affidavit describes ongoing and
continuous criminal activity, the passage of time is less critical. See United
States v. Pace , 981 F.2d 1123, 1133-34 (10th Cir. 1992).
In investigating Kiister’s activities over several years, police gathered
reliable information that Kiister was involved in ongoing and continuous
methamphetamine distribution. The warrant affidavit recites that from 1994 until
the date of the warrant, law enforcement officers received numerous tips from
“informants and individuals prosecuted for drug-related offenses that Victor
Kiister was selling, distributing, and delivering methamphetamine.” R. Vol. I
Doc. 60, Ex. 1 at 7. Informant 1 told police that he sold a substantial amount of
methamphetamine for Kiister and that Kiister also sold methamphetamine to
Eddie Taylor. Informant 2 told police that both he and Kiister had obtained
methamphetamine from West for several years, that Kiister offered to front him
methamphetamine, and that Kiister also supplied Eddie Taylor with
methamphetamine. Taylor himself admitted buying methamphetamine from
Kiister and from Harshman. Harshman admitted supplying methamphetamine to
Taylor. Harshman’s girlfriend told police that Harshman had bought large
quantities of methamphetamine from Kiister. The letter found in Kiister’s home
indicated that Kiister and the author had drug dealings together; substantial
-11- evidence indicated that the author was Harshman. Telephone records over this
period reveal that Kiister was in frequent contact with West and with Harshman,
even after Harshman’s incarceration for drug trafficking. Most recently,
Informant 2 told police that Kiister and West were still involved in drug
trafficking and were currently making plans for future drug transactions.
These witness statements, all recited in the affidavit, reveal a web of
methamphetamine distribution that continued up to the time of the affidavit.
Though the witness statements were not highly detailed, their consistency
indicates their probable accuracy. See United States v. Le , 173 F.3d 1258, 1266
(10th Cir. 1999) (“Consistency between the reports of two independent informants
helps to validate both accounts.”) (quoting United States v. Schaefer , 87 F.3d 562,
566 (1st Cir. 1996)). When presented with the information in the affidavit, a
detached magistrate could reasonably conclude that Kiister was involved in an
ongoing methamphetamine sales and distribution scheme. The information,
therefore, was not impermissibly stale.
The affidavit thus provides probable cause that evidence of Kiister’s drug
trafficking would be found on his property. As we have frequently held, “courts
often rely on the opinion of police officers as to where contraband may be kept.”
United States v. $149,442.43 , 965 F.2d 868, 874 (10th Cir. 1992). Furthermore,
“[w]here a suspect has no place of business separate from his residence, it is
-12- reasonable for an officer to conclude that evidence may be at the suspect’s
residence.” Id. The affidavit mentioned that previous searches of Kiister’s home
had produced a letter tying Kiister to a methamphetamine distribution scheme,
financial records showing large bank deposits, and receipts for iodine crystals,
which, as Detective Holsinger described, are often used in the manufacture of
methamphetamine. In sum, we conclude that the affidavit, on its face, provided
probable cause sufficient to support a search of Kiister’s property for evidence of
drug trafficking.
B. Omitted Information and Evidentiary Hearing
Kiister argues, however, that any probable cause is vitiated by the
information omitted from the affidavit. In Franks v. Delaware , the Supreme
Court held that it is a violation of the Fourth Amendment for an arrest warrant
affiant to “knowingly and intentionally, or with reckless disregard for the truth,”
include false statements in the affidavit. 438 U.S. 154, 155 (1978). We have held
that the standards of “deliberate falsehood” and “reckless disregard” set forth in
Franks apply “to material omissions, as well as affirmative falsehoods.” Stewart
v. Donges , 915 F.2d 572, 582 (10th Cir. 1990).
Under Franks and Stewart , an evidentiary hearing is required only when the
defendant makes a substantial preliminary showing (1) that the affiant knowingly
-13- or recklessly either included affirmatively false statements or omitted material
facts, and (2) that the affidavit, with its necessary corrections, would not support
probable cause. See Franks , 438 U.S. at 155-56; Stewart , 915 F.2d at 582-83 .
Where information has been omitted from an affidavit, we determine the existence
of probable cause “by examining the affidavit as if the omitted information had
been included and inquiring if the affidavit would still have given rise to probable
cause for the warrant.” Stewart , 915 F.2d at 582 n.13. If the information omitted
is not material to the issuing judge’s determination of probable cause, no
evidentiary hearing is necessary.
Relying on Franks and Stewart , the district court found that Kiister had
failed to make the required preliminary showing that the officers knowingly or
recklessly omitted from the affidavits material information that would have
vitiated probable cause. See Order (Sept. 5, 1997), R. Vol. I, Doc. 67 at 24.
Accordingly, it denied Kiister’s motion for an evidentiary hearing. We agree with
the district court that the defendant failed to meet this preliminary burden.
It is undisputed that the previous searches were all conducted by the same
sheriff’s department, and that Detective Holsinger was the affiant on at least one
of those previous searches. It is therefore a reasonable inference that, at the time
he applied for the April 1997 warrant, Detective Holsinger was aware of the
previous searches and their results. However, from the record we are unable to
-14- say that his omission of this information demonstrated “reckless disregard for the
truth.”
Regardless, Kiister has not demonstrated that the omitted information
would have vitiated probable cause had it been included in the affidavit. If the
issuing judge “would not have altered his probable cause determination even if he
had been presented with the omitted material, then the warrant should be upheld.”
United States v. Kennedy , 131 F.3d 1371, 1377 (10th Cir. 1997).
While the affidavit does not specifically state that prior searches of
Kiister’s property had produced no drugs, the affidavit clearly explains that
neither the 1995 nor the 1996 warrants were issued for drugs. 6 According to the
affidavit, the December 1995 warrant was issued for firearms, ammunition, and
paperwork related to firearms transactions. In this 1995 search, police seized
several firearms for which charges were brought against Kiister. 7 The December
1996 warrant was obtained to search for stolen tubs of animal feed and related
paperwork. In executing this warrant, officers seized the stolen property and
again brought charges against Kiister. The fact that the police, while executing
warrants for guns and stolen property, did not discover drugs or indisputable
6 Kiister does not explain the object of the two 1994 searches nor does he explain their relevance, other to suggest that neither search produced drugs. 7 Thus, the fact that the police may have unsuccessfully employed a trained drug dog in the 1995 search for guns, as Kiister contends, see Appellant’s Br. at 12, becomes less significant.
-15- evidence of drug trafficking does not suggest that such evidence would not be
found in a later search conducted specifically for that purpose. 8 More to the
point, the information in the affidavit, as described above, overwhelmingly
provided probable cause for the issuance of a warrant, even if the omitted
material is included.
Kiister’s last contention, that police knowingly omitted material facts of the
criminal history of Informant 2, lacks merit. Such information, had it been
included in the affidavit, would not have vitiated probable cause.
In sum, we conclude that the district court did not err in denying Kiister’s
motion to suppress nor in denying him an evidentiary hearing.
II. Conspiracy
Kiister next argues that there was insufficient evidence to support his
conspiracy conviction. Count 1 of the indictment charged Kiister, West, and
Orvil and Carol Ritter with conspiracy to “possess with the intent to distribute or
dispense 1 kilogram or more of a mixture or substance containing a detectable
amount of methamphetamine.” R. Vol. 1, Doc. 1 at 1. Kiister argues that the
Furthermore, a formal recitation of the results of the previous searches 8
would have required the government to explain that, at least twice previously, the government had found precisely the contraband specified in the warrant applications: firearms in 1995 and stolen property in 1996.
-16- evidence presented at trial does not support a finding that he was part of this
conspiracy, but merely suggests that he agreed, on very uncertain terms, to
purchase a single pound of methamphetamine. He further argues that his
transaction was independent of the arrangements of the “true conspirators”:
West, Orvil and Carol Ritter. See Appellant’s Br. at 22. Kiister suggests that
West’s testimony that he had never previously sold methamphetamine to Kiister
and that the arrangement between them was simply that “there was a load
coming” and that Kiister “was to get a pack,” R. Vol. 4 at 308, demonstrates that
Kiister was merely a “passive participant waiting for events out of his control or
knowledge.” Appellant’s Br. at 22.
When reviewing the sufficiency of the evidence to support a jury verdict,
we review the record de novo, viewing the evidence in the light most favorable to
the government. See United States v. Beers , 189 F.3d 1297, 1301 (10th Cir.
1999). We will only overturn the verdict if no reasonable jury could find the
defendant guilty beyond a reasonable doubt. See id. “To the extent that the
evidence conflicts, we accept the jury's resolution of conflicting evidence and its
assessment of the credibility of witnesses.” United States v. Ivy , 83 F.3d 1266,
1284 (10th Cir. 1996) (quoting United States v. Sapp , 53 F.3d 1100, 1103 (10th
Cir. 1995)).
-17- “To obtain a conviction for conspiracy, the government must show [1] that
two or more persons agreed to violate the law, [2] that the Defendant knew at
least the essential objectives of the conspiracy, . . . [3] that the Defendant
knowingly and voluntarily became a part of it, and [4] that the alleged
coconspirators were interdependent.” Ivy , 83 F.3d at 1285 (alteration in original)
(internal quotations omitted). Kiister challenges the last of these elements,
arguing that there was insufficient evidence for the jury to find that he and the
four alleged coconspirators were interdependent.
“Interdependence exists if the alleged coconspirators were united in a
common unlawful goal or purpose, and if a defendant's activities facilitated the
endeavors of another alleged coconspirator or facilitated the venture as a whole.”
United States v. Ailsworth , 138 F.3d 843, 851 (10th Cir. 1998) (internal citations
and quotations omitted). In the context of a conspiracy to distribute illegal drugs,
“[w]hat is needed is proof that [the coconspirators] intended to act together for
their shared mutual benefit within the scope of the conspiracy.” United States v.
Evans , 970 F.2d 663, 671 (10th Cir. 1992).
“[W]here large quantities of drugs are being distributed through a key
distributor, each major buyer may be presumed to know that he is part of a wide-
ranging venture, the success of which depends on performance by others whose
identity he may not even know.” United States v. Edwards , 69 F.3d 419, 431
-18- (10th Cir. 1995) (internal quotation marks omitted). While proof of a buyer-seller
relationship alone is not enough to tie the buyer to a larger conspiracy, see Evans ,
970 F.2d at 673, “[e]vidence that an intermediate distributor bought from a
supplier might be sufficient to link that buyer to a conspiracy to distribute drugs
[where] both buyer and seller share the distribution objective.” Ivy , 83 F.3d at
1285. Thus, “the purpose of the buyer-seller rule is to separate consumers, who
do not plan to redistribute drugs for profit, from street-level, mid-level, and other
distributors, who do intend to redistribute drugs for profit, thereby furthering the
objective of the conspiracy.” Id. at 1285-86.
The government presented evidence that after learning of West’s prior
methamphetamine involvement, Kiister repeatedly asked him for one pound of
methamphetamine. West testified that Kiister indicated that he had a ready
market for the drug if West could supply it. 9 The evidence suggests that the two
agreed that when West obtained his next load, that Kiister would get one pound of
it. When West contacted Kiister to tell him that a load would be arriving soon, he
9 This case thus differs from our decision in United States v. McIntyre, 836 F.2d 467 (10th Cir. 1987), where we held that the government had failed to demonstrate that the defendant, a drug purchaser, shared in his seller’s distribution objective. In that case, we found “no indication that defendant was making a profit or distributing cocaine when he merely shared his purchases with his friends present at the time of sale.” Id. at 471. Here, the evidence suggests that Kiister intended to resell methamphetamine for profit.
-19- indicated to Kiister that they could both “make some money” on the transaction.
R. Vol. 4 at 307. From the conversations between Autem, West, and Kiister, it is
a reasonable inference that Kiister knew that he was one of two or more
distributors West was supplying with this load. Thus, a reasonable jury could
infer that Kiister understood that West and his unknown supplier planned to
distribute several pounds of methamphetamine for profit, and that Kiister agreed
to cooperate in achieving that object. As the district court stated in denying
Kiister’s motion to acquit, “[b]y leading West to believe that he would take part
of the load and also by actually taking possession of his part, Kiister acted in
furtherance of the conspiracy’s objective and became a knowing participant.”
United States v. Kiister , No. CR-97-40036-02, slip op. at 8 (D. Kan. Feb. 12,
1998) . Furthermore, “Kiister’s retail market complimented West’s wholesale
market and was integral to the conspiracy’s success.” Id. at 10. Kiister depended
upon West to provide the methamphetamine he planned to sell. West, in turn,
obtained the methamphetamine from Orvil and Carol Ritter. Because West
fronted the methamphetamine to Kiister, West’s profit ultimately depended on
Kiister’s ability to sell it. 10
Kiister makes much of our decision in Edwards, in which we held that the 10
codefendants’ pooling of money to obtain a lower price for drugs was a factor indicating interdependence. See 69 F.3d at 431-32. He suggests that because there was no evidence of pooling of resources in the present case that the (continued...)
-20- In sum, there was substantial evidence on which a reasonable jury could
find the interdependent element of the conspiracy charge, and the district court
therefore did not err in denying Kiister’s motion to acquit.
III. Prior Bad Acts Evidence
Finally, Kiister contends that the district court admitted evidence of his
prior bad acts in violation of Federal Rules of Evidence 403 and 404(b), and that
the admission of this prejudicial evidence denied him a fair trial. Specifically, he
complains that the district court erroneously admitted (1) testimony from Michael
Harshman that Kiister sold drugs in 1994 and 1995, (2) testimony that Kiister
spent $227,000 from 1993 to 1997, and that this money was unaccounted for and
unexplained, (3) testimony that Kiister had at least two guns after he had been
convicted of a felony, (4) testimony relating to receipts for iodine crystals seized
from Kiister’s property, (5) argument that Kiister’s reputation was as a drug
distributor, and (6) testimony early in the trial that Kiister’s relationship with
10 (...continued) government has failed to demonstrate that the coconspirators were interdependent. However, in Edwards we did not indicate that the pooling of funds was a prerequisite to a finding of interdependence; we merely listed that factor, among others, as evidence that the defendants in that case had relied upon each other for the success of the conspiracy. Additionally, while the pooling of resources may indicate interdependence between several equal-level purchasers, the concept is less applicable in a vertical conspiracy such as this.
-21- Autem was that “they were still doing the narcotics trafficking together.” R. Vol.
3 at 28. The government contends that this evidence was admissible under Rule
404(b) to rebut Kiister’s trial defense that his possession of the one pound of
methamphetamine was not intentional, but was merely an accident or mistake.
We review the denial of a motion for a new trial for abuse of discretion.
See Unit Drilling Co. v. Enron Oil & Gas Co. , 108 F.3d 1186, 1193 (10th Cir.
1997). Because the issue of whether a new trial should be granted hinges on the
admissibility of evidence, our determination will be governed by our review of
the admission of the evidence for abuse of discretion. See United States v.
Quintana , 70 F.3d 1167, 1170 (10th Cir. 1995).
Under Fed. R. Evid. 404(b), “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith.” However, it may “be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. As the district court noted,
[i]ntent, knowledge, motive and absence of mistake were at issue in this trial. Kiister’s defense at trial was that he was merely present at the crime scene, that he did not know the package in his possession contained methamphetamine, that he did not have any agreement with West to purchase methamphetamine, and that he had no intent to distribute methamphetamine. Plainly, these are proper purposes for introducing 404(b) evidence.
-22- United States v. Kiister , No. CR-97-40036-02, slip op. at 8 (D. Kan. Feb. 12,
1998) at 13. We agree. The government’s introduction of the evidence of
Kiister’s prior drug transactions and unexplained wealth was admissible under
404(b) to rebut Kiister’s claim that he was ignorant of the contents of the package
he possessed and that he had no motivation to buy or to sell drugs. We find no
abuse of discretion in the admission of this evidence.
Similarly, evidence that Kiister possessed two firearms after he had been
convicted of a felony was admitted to rebut Kiister’s defense that the gun found
in his house had been planted. The jury, however, acquitted Kiister of the charge
of felony possession of a firearm. We agree with the district court that this
verdict suggests the jury followed the court’s limiting instruction and considered
the evidence only for the purpose for which it was offered: to show Kiister’s
motive, plan, and intent to possess weapons in violation of the law. Therefore,
we find no abuse of discretion in the admission of this evidence.
With respect to the receipts for iodine crystals found on Kiister’s property,
we note that Kiister raised no objection to the admission of the receipts
themselves, even when Detective Holsinger testified that the receipts were seized
because “iodine crystals is one of the main precursors . . . used to manufacture
methamphetamine.” R. Vol. 3 at 91-92. Detective Holsinger further explained:
“One of the things that caught our attention about this was that he had ordered
-23- such a large amount of the iodine crystals.” Id. at 92. Kiister raised no objection
until redirect, when Detective Holsinger was asked if he knew how much iodine
would be used to treat a horse’s hoof, 11 and then the objections raised were
foundation and basis for knowledge. See R. Vol. 4 at 209-11. Kiister’s failure to
contemporaneously and specifically object to the evidence when it was presented
limits our review to one for plain error, see United States v. Mendoza-Salgado ,
964 F.2d 993, 1008 (10th Cir. 1992), of which we find none. 12
Alternatively, even assuming for purposes of argument that the district
court abused its discretion in admitting any or all of the contested evidence, any
such error was harmless and provides no grounds for disturbing Kiister’s
conviction. See Fed. R. Crim. P. 52(a); United States v. Cass , 127 F.3d 1218,
1225 (10th Cir. 1997). An error in admitting evidence is considered harmless
“unless a substantial right of [a] party is affected.” Fed. R. Evid. 103(a). We
have stated that an error affecting a substantial right of a party is an error which
had a “‘substantial influence’ on the outcome or [which] leaves one in ‘grave
Kiister’s trial testimony was that he used iodine crystals in treating 11
animals’ hooves. 12 Kiister errs in his assertion that, because he filed a pre-trial motion in limine, he was not required to raise contemporaneous objections during trial. He fails to satisfy United States v. Mejia-Alarcon, 995 F.2d 982, 986-88 (10th Cir.1993), which relieves a party of making objections only when the court has issued a definitive ruling on the motion. Here, the district court specifically declined to make a definitive pre-trial ruling, electing instead to make individualized decisions throughout trial. See R. Vol. 3 at 10.
-24- doubt’ as to whether it had such effect.” United States v. Rivera , 900 F.2d 1462,
1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United States , 328 U.S.
750, 765 (1946)). 13
The key items of evidence presented by the government—the testimony of
West and the recorded conversations between Autem and Kiister—are not
challenged on appeal. As discussed above, West testified that following his arrest
on methamphetamine charges, Kiister spoke with him several times about having
an available market if West could get some methamphetamine for him. West
further testified that during one of these discussions, the two discussed the price
for the methamphetamine. Kiister said that he wanted a pound of
methamphetamine and the two agreed that when West received a load that he
would contact Kiister about it. West testified that a few days prior to April 29,
1997, he contacted Kiister and told him that a load of several pounds would be
arriving soon. This testimony is not evidence of any prior act but relates directly
to the charged crimes.
The taped phone call between Autem and Kiister demonstrated that Kiister
knew the reason why he should drive to Autem’s house to meet with West. The
When conducting our harmless error analysis, we review the record as a 13
whole, see United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999), and the burden of proving that an error is harmless falls on the government, see Rivera, 900 F.2d at 1469 n.4.
-25- audiotape and videotape of the conversation held between Kiister and Autem just
prior to Kiister’s arrest further illustrates that he was a knowing participant in the
conspiracy to possess methamphetamine with the intent to distribute it and that he
knowingly took possession of the methamphetamine for that purpose. Together,
these taped conversations and West’s testimony provided “compelling evidence
that irrefutably contradicted Kiister’s denial of knowledge and defense of
innocent intent.” United States v. Kiister , No. CR-97-40036-02, slip op. at 15 (D.
Kan. Aug. 7, 1998) .
Based on a review of the entire record, we conclude that the alleged errors
did not have a substantial effect on the outcome.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge
-26-