U.S. v. Gonzalez-Maldonado

• Decision Date: 03 March 1997
• Docket Number: GONZALEZ-MALDONADO,96-1296,Nos. 96-1120,s. 96-1120
• Citation: 115 F.3d 9
• Parties: 47 Fed. R. Evid. Serv. 174 UNITED STATES, Appellee, v. Honorio, a/k/a NORI, a/k/a John Doe 94 CR360-3, a/k/a Onorio Gonzalez-Maldonado, Defendant--Appellant. UNITED STATES, Appellee, v. German MONTALVO, a/k/a ITO, a/k/a John Doe 94 CR360-2, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 9

115 F.3d 9

47 Fed. R. Evid. Serv. 174

UNITED STATES, Appellee, v. Honorio GONZALEZ-MALDONADO, a/k/a NORI, a/k/a John Doe 94

CR360-3, a/k/a Onorio Gonzalez-Maldonado,

Defendant--Appellant.

UNITED STATES, Appellee, v. German MONTALVO, a/k/a ITO, a/k/a John Doe 94 CR360-2,

Defendant--Appellant.

Nos. 96-1120, 96-1296.

United States Court of Appeals First Circuit.

Heard March 3, 1997.

Decided May 30, 1997.

Jose A. Pagan-Nieves, San Juan, PR, by appointment of the Court, with whom Jose A Pagan Nieves Law Offices, was on brief, for appellant Honorio Gonzalez-Maldonado.

Judith H. Mizner, Newburyport, MA, with whom Ricardo R. Pesquera-Annexy was on brief, for appellant German Montalvo.

Lena Watkins, Attorney, Washington, DC, with whom John C. Keeney, Acting Assistant Attorney General, Washington, DC, Theresa M.B. Van Vliet, Chief, Criminal Division, Narcotic and Dangerous Drug Section, U.S. Department of Justice, Fort Lauderdale, FL, and Guillermo Gil, Acting United States Attorney, Washington, DC, were on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

TORRUELLA, Chief Judge.

Appellants Honorio Gonzalez-Maldonado ("Gonzalez-Maldonado") and German Montalvo ("Montalvo") appeal their convictions on charges of money laundering in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i) and conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. For the reasons stated herein we vacate their convictions and remand to the district court.

On appeal from a conviction, we review the facts in the light most favorable to the verdict. See United States v. Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996). On that basis, the jury could have found the following facts.

In the spring of 1993, the FBI began a money laundering investigation. An undercover FBI agent, Agent Martn Suarez, and an informant infiltrated a money laundering organization that worked under the direction of a man known as "Honcho." Honcho communicated to Agent Suarez and the informant that they would be contacted through their pager, by a person using the code "Romero 55." On May 24, 1994, Agent Suarez received a page from Romero 55 and contacted him by phone. Agent Suarez, the informant, and Romero 55--who was later identified as Julio Robles-Torres ("Robles")--arranged to meet the following day, at which time Romero 55 delivered approximately $600,000 to Agent Suarez and the informant. The conversation that took place at the meeting was recorded, although there were periods when the recorder malfunctioned.

At trial, the court admitted the taped conversation into evidence over the objection of defense counsel. Agent Suarez testified that during the interrupted portion of the tape, Robles indicated that he had started an individual named "Papo" in "this business" and that Papo had made six million dollars. Agent Suarez testified that, in the context of the conversation, he interpreted "this business" to mean the drug business. The exchange between Agent Suarez and government counsel went as follows:

Agent Suarez: I recall that he had mentioned that he had started Papo in this business. He had--also mentioned that Papo was in the car repair business.

Government: Okay. When you say that he started--he, Robles, had started Papo in that business, what business is he talking about?

Agent Suarez: In the drug business.

Tr. 2 at 278.

During the taped conversation, Robles also stated that he had given a lottery ticket in the amount of $250,000 to a friend of Papo. Agent Suarez testified that drug smugglers buy winning lottery tickets in order to launder money. There was no mention of Montalvo or Gonzalez-Maldonado during the taped conversation.

Based on the delivery of $600,000 and the conversation between Agent Suarez and Robles, the government obtained a court order authorizing the interception of communications on Robles' cellular phone. At trial, the government introduced more than sixty of these intercepted calls. The government states that in fifteen of those calls, appellant Montalvo, identified as "Ito," spoke with Robles; and in ten calls, Gonzalez-Maldonado, identified as "Nori," spoke with Robles.

On June 27, 1994, FBI Special Agent Daniel Gonzalez intercepted a conversation between Robles and Papo. During that conversation, Robles and Papo referred to "tickets." Agent Gonzalez, over objection, testified that the word "ticket" referred to money. Neither appellant participated in or was mentioned during the call.

On June 28, 1994, six conversations were intercepted by police. The jury could have concluded that appellant Montalvo participated in one of these calls. The first call was to appellant Gonzalez-Maldonado at his store, Mazda Fever. Gonzalez-Maldonado indicated that he had four tickets, and Robles said that they could combine their tickets.

Based on these calls, another FBI Special Agent, Michael Plichta, set up surveillance at Mazda Fever. He observed Robles arrive in a gray Volvo around 4:00 p.m., on June 28, meet briefly with an unidentified male, and then drive around back, where he remained, out of sight, for twenty minutes. At 4:20 p.m., an individual identified only as "Chepe" called Robles, who stated that he was picking up the tickets at that moment and that he would proceed to deliver them. When Robles departed, he was followed to a Ponderosa restaurant, where he met briefly with two men. Shortly thereafter, the two men were detained and $715,309 was seized from a suitcase and a cardboard box found in their car.

The following day, Papo and Robles had three telephone conversations about the seizure, including the question of who would assume responsibility for the lost money.

In recorded conversations on July 8, 1994, Robles confirmed with Montalvo and an individual identified as "Gurucho" that Gonzalez-Maldonado had all the tickets. In his conversation with Gurucho, Robles indicated that Gurucho should contact Gonzalez-Maldonado about a delivery. Gonzalez informed Robles that Gurucho had directed them to make a delivery to an individual identified as "Nina" at the Condado Plaza Hotel.

On July 9, 1994, the FBI established surveillance at the Condado Plaza Hotel. FBI Special Agent Jane Peltier testified that Robles went to Mazda Fever around 8:30 a.m. Shortly after, he left Mazda Fever and proceeded to the Condado Plaza Hotel parking garage, arriving around 9:00 a.m. Carrying a gray bag, he went to the eighth floor, and then left the hotel empty-handed. FBI agents entered room 825 and recovered the gray bag and seized $243,600 from the safe in the room.

At the time of Montalvo's arrest, police seized, among other things, a photocopy of a Puerto Rico lottery check, two pagers, and two notebooks. In addition to Montalvo and Gonzalez-Maldonado, the police arrested Robles. The three were to be tried together until, in March 1995, Robles was found incompetent to stand trial and the case against him was severed.

Appellants assert several claims on appeal. We find some of those claims valid, warranting reversal of the convictions. In order to give as much guidance as possible to the district court, we also discuss some of the other claims that are likely to resurface if there is a new trial.

I. The Psychiatric Testimony of Dr. Jose Fumero

Appellants argue that the district court erred in excluding the testimony of Dr. Fumero, the psychiatrist who had, at the court's direction, initially examined Robles for competency. This claim includes two distinct arguments. First, appellants claim that the court erred in excluding Dr. Fumero's testimony after defense counsel had relied on an earlier ruling that the testimony would be allowed. Second, appellants assert that the court's decision to exclude Fumero's testimony was based on the mistaken belief that the testimony was offered only to address the issue of Robles' competency as a witness. Appellants contend that the testimony was actually offered to:

provide information concerning Robles' medical history and his diagnosed schizophrenia, and the possible ramifications of Robles' illness for evaluation of the evidence to be introduced at trial--to provide information relevant to whether, as a result of his mental disease or defect Robles was unable to appreciate the nature and quality or wrongfulness of his acts in May-June, 1994; or whether aspects of his illness were relevant to assessing the reliability and meaning of Robles' statements.

Brief of Appellant Montalvo, at 17. We deal with each claim in turn.

A. Opening Statements

Prior to trial, defense counsel met with Dr. Fumero, who had conducted the competency examination of Robles. Fumero opined that Robles was suffering from a mental illness at the time of the offenses and that his mental illness resulted in a tendency to exaggerate. Defense counsel informed the court that he intended to have Fumero testify at trial, arguing that Fumero's testimony should be admitted so that the jury could determine the weight to be given to the taped conversations. Tr. 1 at 7. The court stated that it would "let Dr. Fumero testify and then let that go to the jury." ¹ Tr. 1 at 21.

During opening statements, counsel for both defendants made reference to Robles' mental state. Counsel for Gonzalez-Maldonado promised the jury that he would produce a psychiatrist who would testify that a person in Robles' condition "exaggerates, and that everything that he talks about is greater." Tr. 1 at 163. Counsel for Montalvo, in his opening statement, stated:

The expert selected by this Court, Dr. Fumero, selected by this Court, will come here, will sit there and will testify that during this conspiracy ... Mr. Julio Robles-Torres was mentally insane. Therefore, you cannot trust him. You cannot put much attention to what he's saying because he exaggerates.

Tr....