dissenting.
I must respectfully dissent from the majority’s opinion that defendant’s convictions on all counts must be reversed. I disagree with the conclusion that the defendant’s trial was fundamentally unfair. I dissent from the majority’s position that evidence of the two drug transactions not specified in the indictment — the Denver and Milwaukee incidents — was impermissibly admitted as proof of a continuing criminal enterprise. I am not persuaded that the trial court abused its discretion in denying a continuance.
In reviewing the record in a case of this kind, we must look to the record as a whole, and view the evidence, and all reasonable inferences which follow, in the light most favorable to the government. United States v. Tolman, 826 F.2d 971 (10th Cir.1987). A determination of whether evidence is relevant lies within the sound discretion of the trial court, and that discretion should not be subject to reversal, in the absence of abuse. United States v. Neal, 718 F.2d 1505, 1509-10 (10th Cir.1983), cert. den. 469 U.S. 818, 105 S.Ct. 87, 83 L.Ed.2d 34.
Likewise, the trial court has broad discretion in determining whether otherwise relevant evidence should be excluded when the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Clearly evidence of other criminal acts is not admissible solely to prove a defendant’s criminal disposition, but such evidence may be admissible under Federal Rule of Evidence 404(b) when necessary to show knowledge, motive, identity or intent on the part of a defendant.
Apart from the count involving a continuing criminal enterprise, the two indictments in this case charged defendant and others with at least twelve violations of narcotic laws. The court instructed the jury to consider each defendant and each count of the indictments separately, with the proviso that only if the jury found a defendant to be guilty beyond a reasonable doubt on each count could they find him guilty on that count. As noted, the jury returned verdicts of guilt on all counts, and my review of the record discloses that those verdicts are fully supported by the evidence. Indeed, resolving issues of credibility in favor of the government, the evidence of defendant’s guilt was overwhelming.
The trial court admitted evidence concerning the trip by Cecil Ford to Denver, Colorado, and the trip by Ariza and Sebolt to Milwaukee, Wisconsin, which occurred one week before the cocaine importation into Talahina, Oklahoma. This evidence was admitted as being relevant and closely connected and clearly admissible under the provisions of Federal Rule of Evidence 404(b). Such evidence is admissible under the rule for proof of motive, intent, knowledge, plan and absence of mistake or accident when these elements are at issue in the case.
The record discloses that these very matters were at issue during the trial. The government introduced substantial evidence showing that defendant Rivera directed a plan to import and distribute cocaine. Defendant testified that he had no knowledge of any such plan, contending that he was an innocent businessman and merely a victim of circumstances. He offered evidence that his dealings with the six coconspirators were in his capacity as an airplane broker and completely innocent.
In light of this testimony, evidence of defendant’s drug transactions during the same period of time in which he disclaimed any knowledge of the plan to import and distribute cocaine was fairly admissible to *927show identity, motive, intent, knowledge, plan and absence of mistake or accident. In addition, such evidence tended to prove that defendant acted as a director or manager of criminal activities under the count involving a continuing criminal enterprise.
Criminal intent is a state of mind which negates innocent motive. Evidence of other crimes which tend to undermine a defendant’s “innocent explanation” for his activities is clearly admissible, when tested under the standards of Rule 404(b). See United States v. Rothbart, 723 F.2d 752 (10th Cir.1983). See also United States v. Jacobson, 578 F.2d 863 (10th Cir.1978), cert. den. 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 [in prosecution for conspiracy to distribute methamphetamines, where defendant testified he had nothing to do with drugs and was victim of circumstances, evidence of uncharged drug sales properly admitted]; United States v. Carlson, 547 F.2d 1346, 1354, n. 5 (8th Cir.1976), cert. den. 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977) [cocaine transaction occurring six days before crime charged was relevant to show intent, knowledge, common plan or scheme]; United States v. Smith, 726 F.2d 183, 185-86 (5th Cir.1984) [testimony that defendant had sold drugs to witness prior to date of charged crime was properly admitted to show scheme by establishing ongoing pattern of drug transactions]; Llach v. United States, 739 F.2d 1322, 1327 (8th Cir.1984) [evidence of defendant’s involvement in prior importation, distribution and sale of drugs was admissible to prove common scheme or plan].
The defendant claims lack of notice that the government would use “other crimes” evidence. In fact, the defense knew three or four days before the trial started that the government intended to use evidence of the Denver and Milwaukee incidents. (Record, Supp.Vol. V, pp. 688-690). In any event, there is no requirement that the government give notice of its intent to use Rule 404(b) evidence. See Rule 404(b), Fed.R.Evid., and discussion, Weinstein’s Evidence, Vol. 2, pp. 404-58. Rather, the use of such evidence is committed to the discretion of the trial judge. See United States v. Kendall, 766 F.2d 1426, 1440-41 (10th Cir.1985), cert. den. 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889.
Because the contentions in this case are similar to those disposed of in United States v. Kendall, supra, a quote from our holding in that case is appropriate:
“ ‘There is no general constitutional right to discovery in a criminal case.’ Weatherford v. Bursey, 429 U.S. 545, 559 [97 S.Ct. 837, 845, 51 L.Ed.2d 30] ...; See Chaney v. Brown, 730 F.2d 1334, 1339 (10th Cir.)_ The Government is generally not required to disclose its witnesses or their testimony before trial. ... United States v. Baca, 494 F.2d 424, 427 (10th Cir.1974). The one significant 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 [83 S.Ct. 1194, 10 L.Ed. 2d 215].... The Supreme Court has made it clear, however, that Brady does not extend beyond such exculpatory evidence. ... (Brady does not create any pretrial discovery privileges not contained in the Federal Rules of Criminal Procedure.) Because the evidence of which Kendall complains was not exculpatory or discoverable under the Federal 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 discover 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 [97 S.Ct. at 845] ... we conclude that there is no general Sixth Amendment right to such pretrial disclosure.”
766 F.2d at 1440-41 (footnote and some citations omitted.)
Here, I believe that evidence of the Denver and Milwaukee trips was admissible under Rule 404(b) as substantive and circumstantial evidence to prove Count VII, which charged defendant with narcotic violations which were a part of a continuing series of narcotic violations undertaken by *928defendant Rivera in concert, with at least five other persons. 21 U.S.C. § 848.
While due process requires that an indictment give the defendant notice of the charges against him so that he can prepare his defense, and be protected against double jeopardy, it is clear that defendant is protected from double jeopardy since the entire record of the proceedings here may be referred to if a claim arises that a subsequent prosecution constitutes double jeopardy. See Woodring v. United States, 376 F.2d 619, 622 (10th Cir.1967), cert. den. 389 U.S. 885, 88 S.Ct. 153, 19 L.Ed.2d 182.
Count VII of the indictment specifically put defendant on notice that his acts occurred between January 1, 1983, and July 1, 1983; that his acts were part of a continuing series of violations of the drug laws, the nature of which involved the importation, possession and distribution of cocaine; that he acted as a manager of at least five persons; and that he derived substantial income from his activities. This charge was sufficient to apprise defendant of the nature of the charge against him and to allow him to prepare his defense.
Every court which has considered the issue to date has held that an indictment charging a continuing criminal enterprise is sufficient if it sets forth in the statutory language the elements of a continuing criminal enterprise. United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978), cert. den. 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454; United States v. Sperling, 506 F.2d 1323, 1344 (2nd Cir.1974), cert. den. 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439; United States v. Martinez-Torres, 556 F.Supp. 1255 (S.D.N.Y.1983); United States v. Bergdoll, 412 F.Supp. 1308 (D.Del.1976); United States v. Collier, 358 F.Supp. 1351, 1355 (E.D.Mich. 1973). Underlying these holdings is the rationale that the statute does not require that three offenses be listed in the indictment.
Defendant cites United States v. Becton, 751 F.2d 250 (8th Cir.1984), cert. den. 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615, as the most “pertinent” decision on the issue of the sufficiency of the charge of a continuing criminal enterprise. In Becton, however, the court never reached the issue of whether the underlying violations must be listed in the charge. Instead, the Bec-ton court decided that the defendant had actual notice of the underlying violations and therefore could not challenge the sufficiency of the indictment. Id. at 256-57. While it is true that the court said it would be preferable to list the underlying violations in a continuing criminal enterprise count, the court did not say or even imply that due process requires that the violations be listed in the indictment.
A more pertinent decision on the issue at hand is United States v. Sperling, 506 F.2d 1323 (2nd Cir.1974), cert. den. 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439. In that case, the defendant asserted that the indictment charging him with operating a continuing criminal enterprise was deficient “because it failed to specify the names of the persons with whom he acted in concert and as to whom he occupied a position of organizer, and because it failed to specify each violation constituting the continuing series of violations proscribed by the statute.” Id. at 1344 (emphasis added). The court responded: “These contentions are wholly devoid of merit. Count Two (the continuing criminal enterprise count) tracks the statutory language. It contains every element of the offense charged. It satisfies the requirement that a defendant be given notice of the charges against him so that he can prepare his defense and plead the judgment in bar of any future prosecution for the same offense.” Id. The court went on to say: “[W]e reaffirm that § 848 is aimed at ‘the business of trafficking in the prohibited drugs on a continuing, serious, widespread, supervisory, and substantial basis.’ (Citation omitted.) The indictment as amplified by the bill of particulars made it crystal clear to Sperling that this was the nature of the government’s case and afforded him an opportunity fairly and adequately to prepare his defense.” 506 *929F.2d at 1344-45.1
The Ninth Circuit adopted this same rule in United States v. Sterling, 742 F.2d 521 (9th Cir.1984), cert. den. 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985). In Sterling, the government introduced evidence at trial of the defendant’s drug-related activities dating back to 1971. The government contended that the jury could have used evidence of these violations to satisfy the “continuing series of violations” requirement. The court stated: “We agree with the Second Circuit (the Sperling decision) that there is no legal requirement that the violations which make up the continuing series be specifically listed in the indictment.” 742 F.2d at 526.
Another case closely related to the present appeal was the district court decision of United States v. Martinez-Torres, supra, 556 F.Supp. 1255. In that case, the trial judge instructed the jury that it could find violations of the drug laws (for a continuing criminal charge) other than the specific ones named in the indictment. Id. at 1270, n. 11. The defendant objected, arguing that such an instruction would be a violation of due process since the defendant was not given notice of the possible violations. The court, relying on Sperling, concluded that the jury could use violations not listed in the indictment. The court noted that the continuing criminal enterprise count did not limit itself to the specific violations named in the indictment.
These cases are consistent with the principles of due process as set forth in Tenth Circuit decisions. It is true that the indictment must sufficiently apprise the defendant of what he must be prepared to meet. United States v. Salazar, 720 F.2d 1482, 1486 (10th Cir.1983), cert. den. 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783. In applying this principle, though, it should be noted that “an indictment generally is sufficient if it sets forth the offense in the words of the statute so long as the statute adequately states the elements of the offense.” Id. [citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 50 (1974) ]. Furthermore, the sufficiency of an indictment “is not a question of whether it could have been more definite and certain.” Salazar, 720 F.2d at 1487 [citing United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed.2d 92 (1953)]. Rather, an indictment may be drafted in general terms so long as it apprises the defendant of the nature of the charge against him. See, e.g., United States v. Boston, 718 F.2d 1511, 1515 (10th Cir.1983), cert. den. 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825, rehearing den. 467 U.S. 1268, 104 S.Ct. 3563, 82 L.Ed.2d 864 [in indictment for violation of the Hobbs Act, in which interference with commerce is an essential element, it is not necessary for the indictment to allege the exact nature of the interference with commerce].
An indictment is intended to put the defendant on notice of the charges against him; it is not intended to be an exhaustive list of the evidence which the government intends to introduce at trial. See, e.g., United States v. Williams, 679 F.2d 504 (5th Cir.1982), cert. den. 459 U.S. 1111, 103 S.Ct. 742, 74 L.Ed.2d 963 [Rule 7(c) does *930not require that the indictment set forth facts and evidentiary details necessary to establish each of the elements of the charged offense]; United States v. Carr, 582 F.2d 242 (2nd Cir.1978) [the government is not required to set forth evidentia-ry matter in an indictment]. See also United States v. Bernstein, 533 F.2d 775 (2nd Cir.1976), cert. den. 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 [bill of particulars may be sought to provide evidentiary details of the charge].
Proving a series of violations in a continuing criminal enterprise is comparable to proving overt acts in a conspiracy charge. In United States v. Johnson, supra, 575 F.2d 1347, 1357, the court discussed the continuing criminal enterprise charge, stating: “[I]n an analogous situation, when a conspiracy is alleged the government is not limited to proving at trial only those overt acts which it has stated either in the indictment or in the bill of particulars. Thus, we have held that it is not prejudicial for the government to show other acts of the conspirators occurring during the life of the conspiracy.” In a continuing criminal enterprise charge, then, the government should not be limited to proving violations specifically listed in the indictment so long as the indictment gives notice of the nature of the charge.
Defendant had actual notice of the government’s intention to use the Denver and Milwaukee acts. As discussed infra, I cannot say that the refusal to continue the case was an abuse of discretion. If the notice was short under the circumstances of this case, it was not error to use such evidence.2
Failure to Grant a Continuance
The standard of review for a denial of continuance is whether or not there has been an abuse of discretion. United States v. Jones, 730 F.2d 593, 596 (10th Cir.1984). Furthermore, a denial of a continuance will not be reversed unless the denial was arbitrary and unreasonable and materially prejudicial to the defendant. United States v. West, 828 F.2d 1468 (10th Cir.1987).
In this case, I am unable to find that the trial judge’s denial of a continuance was an abuse of discretion, or to find that defendant was materially prejudiced by such denial.
Attorney Meier was appointed as defense counsel on January 24, 1985, and trial was set for March 18th. He promptly filed a motion for discovery, which was granted. On January 27th, Meier filed a motion to withdraw from the case because of “defendant’s lack of confidence” in Meier’s judgment. The trial court denied this motion, and its action was proper. See United States v. Johnson, 585 F.2d 374 (8th Cir.1978), cert. den. 440 U.S. 921, 99 S.Ct. 1246, 59 L.Ed.2d 473 (1979).
On March 11, 1985, D.D. Hayes entered his appearance as defendant’s retained counsel. On March 13th, Hayes moved for a continuance for the purpose of going over business records recently received from Miami. The motion was denied. On the morning of the trial, March 18th, Hayes renewed his request for a continuance. At *931that time, the trial court inquired into Meier’s preparation for trial. Meier stated that he had spent a substantial number of hours on the casé. Meier also stated that the defendant had lost confidence “in my willingness to advocate his cause, which I am ready and able to do.” (Record, Supp. Vol. II, p. 8. Emphasis supplied.)
The motion for continuance was overruled, but the court directed that Meier continue to represent Rivera, “at government expense,” and Meier did sit at the counsel table, assisting the defense throughout the trial.3
Under all the circumstances presented in this record, I cannot find that there was a clear abuse of discretion in the denial of a continuance. Defendant was represented in fact by two attorneys throughout his trial, one of which had clearly indicated to the court that he was willing and able to proceed with the trial.
In addition, it is my opinion that defendant has failed to establish that he sustained any prejudice because of the denial of his motion for continuance. The continuance was sought for the purpose of allowing examination of boxes of the defendant’s business records. In fact, the defense introduced numerous business records in its attempt to persuade the jury that defendant was a legitimate businessman engaged in brokering the sale of airplanes. He also introduced copies of past due personal bills, etc., for the purpose of establishing that he had no financial resources to support the cocaine importation scheme.4
In my view, following an examination of the issues at the trial, a continuance would not have had any effect on the evidence presented at trial. There is not a hint in the record that any documentary evidence exists which could have refuted the testimony of Rivera’s six co-conspirators, his former girlfriend and various disinterested witnesses whose testimony was extremely damaging to the defendant. For example, there would be no documentary evidence which could refute Leslie Tottenhoff’s testimony that she carried a large amount of cash for the defendant, or the testimony of disinterested witnesses who testified as to defendant’s whereabouts on the night of July 1, 1983.
Ineffective Assistance of Counsel
The defendant has also asserted that he was denied effective assistance of counsel. His claim focuses primarily on attorney Meier’s failure to gather defendant’s business records together prior to trial.
The standard for determining whether counsel was ineffective is clearly set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on such a claim, the defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. In my opinion, defendant has failed to make any such showing.
As noted in the discussion of the denial of a continuance, the defendant has not demonstrated even a reasonable possibility that his records contained exculpatory evidence which would have affected the outcome of the trial. Thus, absent a showing of prejudice, the law states that a conviction may not be reversed for lack of preparation on the attorney’s part.
Despite the majority’s characterization of attorney Meier’s preparation as questionable, in my opinion nothing in the record indicates that Meier’s representation was inadequate. Indeed, any deficiency in preparation is more likely attributable to the defendant’s lack of cooperation with Meier.
In reviewing a claim of ineffective assistance of counsel, the court should keep in mind the dictate of the United States Supreme Court in Strickland:
*932“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess (sic) counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. (Citation omitted.) A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy-’ ”
At 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95.
In discussing the duty to investigate, the Court went on to say that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” At 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
It is clear in the instant case that Meier believed the government’s evidence against his client was overwhelming. The record and the jury’s verdict bears out that belief. The court cannot conclude that it was unreasonable for Meier to forego spending his time before trial on an exhaustive review of the defendant's records. This is especially true in light of the defendant’s lack of cooperation with his attorney and the fact that the records ultimately produced no exculpatory evidence. See United States v. Decoster, 624 F.2d 196, 210 (D.C. Cir. en banc 1979) [claims that defense counsel has been ineffective by reason of failure to investigate must be examined in light of strength of the government’s case].5 The simple fact is that the defendant’s documentary records could not have addressed the testimony against him in this case. His records could have shown only that he had brokered planes in the past, a fact which does not address the central issues in this case.
The defendant was entitled to a fair trial. I believe the record shows that the trial he received was fundamentally fair. It is apparent that the government produced overwhelming evidence of the defendant’s guilt. That evidence convinced an impartial jury of the defendant’s guilt, and I believe the jury’s decision should be upheld.
Other Issues On Appeal
I concur in Section III-A of the majority’s opinion, which held there was sufficient evidence to prove “substantial income” for the continuing criminal enterprise charge.
Because I would recommend upholding the jury verdict, I would not require the district court to hold a bond hearing. (Majority Opinion, Section III — B.)
I would also concur in Section III — C of the majority opinion, except that I believe the defendant was improperly sentenced. The defendant was sentenced consecutively on the continuing criminal enterprise charge and on several conspiracy charges. The government concedes on appeal that the drug conspiracy charges under 21 U.S. C. §§ 846 and 963 are lesser included offenses of 21 U.S.C. § 848. Accordingly, I would remand the case in order to correct this sentencing error.
. The continuing criminal enterprise count in the Sperling case (reported in 692 F.2d at 231-32, n. 5) alleged:
"From on or about the 1st day of May, 1971, and continuously thereafter up to and including the date of the filing of this indictment, ... the defendant, unlawfully ... and knowingly did engage in a continuing criminal enterprise in that he unlawfully, willfully, intentionally, and knowingly did violate Title 21 [U.S.C.] Section 841(a)(1) and 841(b)(1)(a) as alleged in Counts Eight, Nine, and Ten of this indictment which are incorporated by reference herein, which violations were a part of a continuing series of violations of said statutes undertaken by the defendant in concert with at least five other persons with respect to whom the defendant occupied a position of organizer, supervisor and manager and from which continuing series of violations the defendant obtained substantial income and resources."
On appeal, the Second Circuit overturned Counts Eight, Nine and Ten for insufficient evidence. The Court upheld the continuing criminal enterprise conviction, however, because there was independent evidence supporting that conviction. Thus, Sperling was not a case where the offenses charged in the indictment were the proof used to satisfy the "continuing series" element. See Majority Opinion, p. 916.
. As in other aspects of the government’s case, the probative value of the evidence concerning the Denver and Milwaukee trips depended upon the credibility of the witnesses. Rivera’s testimony concerning these trips was as follows (Rivera Direct Examination):
"Q. Did you, in fact, ever go to Milwaukee, Wisconsin, in June of '83 to pick up some cocaine and give it to Rogers Ariza and Bill Sebolt?
"A. No, I did not.
“Q. Do you know whether they went up there or not?
"A. I don’t have the slightest idea.
"Q. How long have you known about this accusation that you were involved in cocaine transportation in Wisconsin?
"A. About two days before the trial.
“Q. You’re not charged with that in the indictment?
"A. No, I’m not.
(Prosecutor:) Objection, Your Honor, to leading his witness, and it’s a legal conclusion on his part.
The Court: Sustained.
"Q. There has been testimony that you sent Cecil Ford to Colorado on the same sort of mission. Did you do that?
"A. No, I did not.
"Q. How long prior to trial did you know about that accusation?
"A. It was the same thing, about two days (before the trial)."
. Meier took an active part in the defense by cross-examining some of the government’s witnesses.
. The existence of defendant's business records is somewhat in question for defendant testified that sometime after July 1, 1983, two unidenti-fled "lawyer-type” men showed up at his door in Miami, demanding to see his business records on certain aircraft, including the wrecked Cessna. Rivera testified that the two men carried away his files. (Record, Supp.Vol. VII, pp. 1085-86.)
. See abo United States v. Katz, 425 F.2d 928, 930 (2nd Cir.1970), where Judge Friendly stated:
"Determination of the effectiveness of counsel cannot be divorced from the factual situation with which he is confronted. When, as here, the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do. If he simply puts the prosecution to its proof and argues its burden to convince the jury beyond a reasonable doubt, the defendant may think him lacking in aggressiveness, and surely will if conviction occurs."