United States v. Kiister

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This order and judgment is not binding precedent, except under the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

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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)).

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 “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

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(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.

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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...)

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 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.

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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.

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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

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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.

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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.

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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

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