## Facts

- Edward G. Bush met Kathleen Kohse, a bartender, at a lounge in Kalispell, Montana, and recruited her for purported work as a “film courier.”
- Bush repeatedly contacted Kohse, arranged application paperwork, and induced her to quit her job based on the promised position.
- Bush arranged an airline ticket for Kohse to travel to Los Angeles, where he met her and changed her role from “courier” to “photographer,” despite knowing she had no photography experience.
- Bush provided Kohse three cameras, an aluminum camera case, and approximately $1,200, and instructed her to travel to Lima, Peru, allegedly to take photographs at a zoo.
- In Lima, Kohse met an associate (“Dan”), who took her to the zoo, took the camera case, and did not return as promised.
- After several days, Kohse returned to the United States through Los Angeles; customs authorities discovered cocaine hidden in a compartment in the lining of the camera case and arrested her.
- Kohse testified she did not place cocaine in the case, did not know it was present, and did not see anyone place it there.
- Montana charged Bush with solicitation to possess dangerous drugs, alternatively solicitation to possess dangerous drugs with intent to sell.
- A jury convicted Bush of solicitation to possess dangerous drugs, and the trial court imposed a five-year sentence.

## Issues

1. Whether the evidence was sufficient to prove Bush solicited Kohse to possess dangerous drugs when she allegedly lacked knowledge of the cocaine.
2. Whether Montana’s solicitation statute requires the person solicited to share the criminal intent or know the criminal objective of the solicitor.

## Decision

- The Montana Supreme Court affirmed the conviction.
- The court held the solicitation statute did not require Kohse to know of the cocaine or share Bush’s criminal intent.
- The court concluded the evidence supported that Bush, acting with the purpose that a drug-possession offense occur, facilitated Kohse’s possession of cocaine by orchestrating her travel and control of the cocaine-laden case.

## Legal Principles

- Criminal solicitation focuses on the solicitor’s purpose and conduct in commanding, encouraging, or facilitating the commission of a felony through another.
- Solicitation may be established even when the person used to accomplish the target offense is an “innocent agent” who lacks knowledge of the criminal plan.
- The solicitor’s liability does not depend on whether the other person is capable of committing, or is guilty of, the substantive offense; the offense is complete upon the solicitor’s purposeful acts of solicitation/facilitation.
- Evidence of coordinated recruitment, deception, provision of instrumentalities, and arrangement of travel can support an inference of intent to cause another’s possession of contraband.

## Conclusion

The court affirmed Bush’s solicitation conviction, holding that Montana law permits solicitation liability where the defendant purposefully facilitates a dangerous-drug offense through an unwitting carrier, and that the evidence supported the jury’s finding of Bush’s intent and facilitative conduct.


State v. Bush, 636 P.2d 849 (Mont. 1981)