U.S. v. Montemayor, 81-2202

Decision Date24 August 1982
Docket NumberNo. 81-2202,81-2202
Parties11 Fed. R. Evid. Serv. 905 UNITED STATES of America, Plaintiff-Appellee, v. Alfredo MONTEMAYOR, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

G. Rudolph Garza, Jr., Corpus Christi, Tex., for defendant-appellant.

Carl Walker, Jr., U. S. Atty., Houston, Tex., James R. Gough, John M. Potter, Robert A. Berg, Asst. U. S. Attys., Corpus Christi, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, GEE and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from a judgment of conviction for drug offenses under 21 U.S.C. §§ 841 and 846. The question is whether appellant's right to a fair trial was prejudiced by evidence of extraneous wrongdoing and by several acts of alleged prosecutorial misconduct. We hold that any error committed in these matters was harmless, for the overwhelming weight of the evidence supports the jury's verdict that appellant was guilty as charged. Appellant's conviction is therefore affirmed.

I.

Appellant Alfredo Montemayor ("Montemayor") was indicted and convicted on one count of possession with intent to distribute cocaine on December 3, 1980 (Count One), one count of distribution of cocaine on the same day (Count Two), and one count of conspiracy to distribute cocaine during the period December 1 to 3, 1980 (Count Seven). 1 Kenneth Wayne Scott ("Scott") was named a co-defendant and co-conspirator in the indictment. Shortly before trial, Scott accepted an offer of leniency from the government, and became one of its key witnesses against Montemayor. Scott's case was therefore severed from Montemayor's.

The government's evidence shows that on December 3, 1980, Scott sold cocaine to Sharon Trayler, an undercover agent for the Nueces County Sheriff's Department- Organized Crime Unit, and that Montemayor was Scott's source for this sale. Scott's testimony respecting Montemayor's involvement in the cocaine sale to Agent Trayler was corroborated, in almost every detail, by Agent Trayler herself and by the police officers who conducted surveillance on Montemayor. Montemayor's defense was that he met Scott, at the place where the cocaine was delivered to Scott, in order to collect a debt Scott owed him, and that Scott was lying about his involvement in the cocaine sale. Defense counsel sought to show that another individual was Scott's source. Montemayor did not testify. The government's evidence, however, was accepted by the jury, and it thoroughly demonstrated Montemayor's guilt. See United States v. Wilkerson, 534 F.2d 43, 44 (5th Cir. 1976).

II.

Montemayor contends that his right to a fair trial was unduly prejudiced because of the introduction into evidence of certain extraneous offenses or bad acts committed by him, and that during the course of the trial, the prosecutor committed several acts of misconduct, particularly during his closing arguments.

A. EXTRANEOUS OFFENSES.

1. The Bank. Agent Trayler testified that Scott, unaware she was an agent and believing her to be a purchaser, told her on December 3, 1980, that his source, a man who owned a health spa business, was going to a bank that morning to deliver five ounces of cocaine. Agent Raul Tovar, who was shadowing Montemayor, testified that he, in fact, followed Montemayor from his health spa to a bank that very morning.

Defense counsel objected to Trayler's testimony on grounds of hearsay, and the court granted him a running objection; however, he made no objection on the basis of an extraneous offense or bad act. 2 When a defendant objects to testimony on one ground at trial, and then urges on appeal that the objection should have been sustained on another ground, the plain error standard applies. United States v. Pool, 660 F.2d 547, 559 n. 4 (5th Cir. 1981). The introduction of this evidence, however, was not error, for the delivery of the cocaine to the bank was relevant evidence to prove the conspiracy count. United States v. Gonzales, 661 F.2d 488, 493-94 (5th Cir. 1981). Moreover, we hold that this evidence was admissible under United States v. Beechum, 582 F.2d 898, 911 n. 15 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), to show that Montemayor was Scott's source for the cocaine sale to Agent Trayler. 3

2. The Prison. Shortly after their arrest, Montemayor drove Scott to San Antonio to see an attorney and a paralegal. When Montemayor and Scott went to San Antonio, they were both being represented by attorney Max Luther. Luther had previously represented Montemayor on some oil transactions, and Montemayor made the initial contact with Luther in relation to the instant offenses. The attorney they saw in San Antonio, however, was Oscar Gonzales, who was afterwards hired by Montemayor to represent him at trial, and who, in fact, acted as Montemayor's trial counsel. The paralegal seen on this occasion, Oscar DeLeon, prepared several motions to be filed by Luther on behalf of Scott and Montemayor which Montemayor told Scott would "get" them "off." In the presence of Gonzales, Scott signed an affidavit prepared by Gonzales which exonerated Montemayor from any connection with the sale to Agent Trayler. At trial, Montemayor sought to impeach Scott with this affidavit. During defense counsel's cross-examination, the following exchange occurred:

"Q Why did you tell Mr. Luther, 'Mr. Luther, I want to cooperate to straighten my life up and I need you to fire Montemayor or I'll take the case,' why did you have to fire Max Luther?

"A Well, it was the understanding between him that he had a conflict due to me coming forth and telling him the truth of the situation. Beforehand, I was under the impression that through all this time that we had the case beat. There was-

"Q I'm sorry, all this time, you thought you had this case beat, is that correct?

"A Right, from day one, there was nothing but positive thinking. Mr. Montemayor had kind of started the ball rolling. He got Mr. Max Luther as our attorney. I did not have to pay anything. We had talked and-about what we would say, what we would discuss, and all this is part of that letter. We came to you-

"Q You mean that affidavit?

"A The affidavit. You were being deceived.

"Q I was being deceived?

"A Yes.

"Q Okay.

"A There was a paralegal that Al had told me he taught law in prison and he was preparing motions-"

Defense counsel moved for a mistrial, but the trial court denied the motion. Defense counsel made no request for a curative instruction, and none was given at that point.

On redirect examination, Scott testified without objection that Montemayor told him he had taught law to Oscar DeLeon. Later, the following exchange took place:

"Q (By Mr. Berg) Has Mr. Montemayor ever been a law professor any place that you know of?

"A He said at one time that he had practiced law in prison.

"MR. GONZALES: Your Honor, at this time we move for a mistrial.

"THE COURT: Motion is denied.

"Q (By Mr. Berg) Have you ever been in prison?

"A No sir."

Scott was excused from the witness stand, and after the noon recess, the trial court, in response to defense counsel's request, instructed the jury as follows:

"THE COURT: Ladies and gentlemen of the jury, before our recess at noon there was a question asked as to whether or not-was asked of the witness Scott as to whether or not Alfredo Montemayor had been a professor of law. You will disregard the answer to that question, and you will disregard the question, and just put it out of your mind because it is not a part of the testimony of the case." (Emphasis added.)

It was clearly proper to show a close relationship between appellant and DeLeon. Although the evidence that prison was the place at which Montemayor had taught law, or that he was "a law professor," was improper, we hold that the instruction given to the jury cured the error and its prejudicial effect in view of the overwhelming evidence of Montemayor's guilt. United States v. Greene, 578 F.2d 648, 653 (5th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979); United States v. Rojas, 537 F.2d 216, 221-22 (5th Cir. 1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977).

3. Witness Garcia's Conviction. Montemayor produced Ramon Garcia to explain why Montemayor met Scott at the time and place where the cocaine was delivered to Scott for the sale to Agent Trayler. On cross-examination, the government impeached Garcia with what the prosecutor thought was a felony conviction, but, what was, in fact, a misdemeanor conviction of conspiracy to possess marihuana with intent to distribute. The trial court instructed the jury to disregard this evidence, and we hold that the trial court's instruction cured the prosecutor's unintentional error.

4. Witness Elliott. Montemayor's wife, Carla Montemayor, testified that Montemayor did not participate in the internal operation of their health spa business, because it was a spa for women only. On rebuttal, the government produced Mrs. Jane Osborne Elliott. Before she testified, defense counsel, out of the presence of the jury, objected to the prosecution calling her to show that she had an argument with Montemayor in the women's area at the spa, as this was "another unrelated matter." The government countered by stating that this impeached Carla Montemayor's testimony. Defense counsel then said, "Well, if he wants to get into it, Your Honor, it is all right. It is improper, but it is also a rabbit trail." The prosecutor remarked that Elliott would also impeach attorney Luther's testimony, and stated, "I only have one or two more witnesses after this, and this won't take three minutes." The Court said, "All right, I will let you go on," and the out-of-court hearing concluded.

Mrs. Elliott then testified, without objection, stating she had been a "member" of the spa. The government thereupon...

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