703 F.2d 109 (5th Cir. 1983), 82-2129, United States v. Montemayor

Docket Nº:82-2129.
Citation:703 F.2d 109
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Meynardo MONTEMAYOR and Manuel Montemayor, Defendants-Appellants.
Case Date:April 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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703 F.2d 109 (5th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Meynardo MONTEMAYOR and Manuel Montemayor, Defendants-Appellants.

No. 82-2129.

United States Court of Appeals, Fifth Circuit

April 4, 1983

Page 110

[Copyrighted Material Omitted]

Page 111

Michael J. Guinan, George E. Becker, Chicago, Ill., for defendants-appellants.

John M. Potter, Asst. U.S. Atty., Houston, Tex., R. Christopher Locke, Atty., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before JOHNSON, WILLIAMS and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

On November 17, 1981, a sixteen-count indictment was filed which charged eight different individuals with various narcotics offenses. Eleven of the sixteen counts were applicable to defendants Manuel and Meynardo Montemayor. Seven of the eleven counts charged substantive offenses. The remaining four counts charged defendants with conspiracy offenses. Count 3 charged defendants with conspiracy to distribute cocaine; Count 4, with conspiracy to distribute heroin; Count 5, with conspiracy to distribute marihuana. Each of these offenses was in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Count 9 charged defendants with conspiracy to manufacture and distribute heroin, knowing it would be imported into the United States, in violation of 21 U.S.C. Secs. 959 and 963.

On January 26, 1982, a jury trial commenced with three of the eight named defendants on trial. 1 On January 28, at the close of the evidence, the district court dismissed the substantive counts. On February 1, the jury returned a verdict of guilty on each of the four conspiracy counts. After a poll of the jury revealed that one juror did not agree with the guilty verdict against co-defendant Alifonso Arredondo, the court granted a mistrial as to Arredondo.

Defendants Manuel and Meynardo Montemayor appeal their conviction on the four conspiracy counts. They claim that (1) the evidence was insufficient to convict them on any of the four counts, (2) the district court erred in admitting coconspirator hearsay statements, (3) the district court erred in denying defendants' motion to dismiss the indictment for vagueness and motions for a bill of particulars and for disclosure of the grand jury transcript, (4) the district court abused its discretion in admitting scientific evidence showing cocaine residue on items used by the conspirators, and (5) the district court erred in polling the jury separately as to each of the three

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defendants to determine if the guilty verdicts returned were unanimous. We find no merit in defendants' last four contentions and we find the evidence sufficient to sustain the conviction for conspiracy to distribute cocaine. We therefore affirm the conviction on Count 3 for conspiracy to distribute cocaine and vacate the convictions on the other three conspiracy counts.

I. Facts

Construed most favorably to the prosecution, the record reflects support for the following version of events. In 1975, Benito Montemayor's stepson, Ricky Lee Bowman, 2 who was on leave from the military, helped his stepfather and Salvador Flores count large sums of money and weigh and package marihuana in Benito's trailer in Chicago, Illinois. Both Bowman and Flores went to Mississippi to have boxes welded underneath a 1972 Dodge van in order to transport the marihuana. Benito returned to Chicago by plane and Flores took the van to Texas. Flores brought the van back to Chicago loaded with marihuana which Bowman helped him unload and take into Benito's house. After Bowman's undesirable discharge from the Army in March 1976, Bowman, along with his mother Eva, and Flores, assisted Benito in packaging marihuana and cocaine and in counting large sums of money--roughly amounts of $20,000 to $30,000 per person--three or four times a week. 3 Bowman testified that in 1976 he helped Benito package marihuana about fifteen to twenty times and helped package cocaine about five to seven times; he testified that pursuant to Benito's instructions he helped unload cocaine and marihuana from the Dodge van in Chicago on fifteen to twenty occasions. Bowman also testified that the cocaine and marihuana came from somewhere in Mexico and that Flores, who drove the van, told him that he, Flores, always crossed the border at Laredo.

Drug Enforcement Administration (DEA) Agent Frank Tucci, working in an undercover capacity, purchased one pound of heroin from Flores in March 1976 in Chicago. Agent Tucci later spoke over the phone to a man who identified himself only as Flores' boss about both the purchase of the one pound of heroin and additional purchases of heroin. The boss told Agent Tucci that he "operated big" and could swing "six, seven, eight" as many as Tucci wanted, "in a day." Agent Tucci later spoke to Benito in person at his trailer and recognized his voice as the voice of the person who had identified himself on the phone as Flores' boss.

Defendant Meynardo entered the picture in the summer of 1977 in Chicago where he took part in a conversation about heroin with his brothers Benito, Matias, and Reyes. At that time, Bowman heard Meynardo and Reyes agree with Matias to go to Detroit to "take care of the deal"--to pick up thirty-two kilos of heroin.

Around August or September 1977, Benito, along with his wife and children, moved to a house in Monterrey, Mexico. Bowman testified that in the fall of 1977 there were at least five meetings in a brothel in that city. Defendants Manuel and Meynardo were both present at all of those meetings along with three of their brothers--Benito, Matias, and Reyes--and Bowman. The topic of discussion at these meetings was multikilogram cocaine and heroin deals in Detroit. Bowman testified that there was a period when Matias, who was the lead brother, had to get the approval of all of his brothers before a cocaine deal could be approved, or, in their parlance, could "go down." Bowman's testimony was that all the brothers agreed that a particular cocaine deal was a "good deal" and that Meynardo, Manuel and the other brothers gave their approval to various transactions. Also during the fall of 1977, after the move to Monterrey, Bowman helped load and unload large amounts of money and drugs concealed behind the taillights and fender wells of a Chevrolet Blazer. Bowman testified that defendant Meynardo, along with Benito,

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Matias, Reyes, and a banker, was present on one occasion when Bowman helped count $500,000. Bowman was unable to recall whether Meynardo had helped count the money. The only time Bowman took the Blazer out it was loaded with cocaine and he took it to Huero Macias' 4 house in Cerralvo, Mexico.

On another occasion in the fall of 1977, Bowman went to Meynardo's house in Laredo where Bowman heard Benito and Meynardo talking about a load of marihuana that had not arrived. Meynardo protested to Benito that "it wasn't his fault."

Another event in the fall of 1977 was a birthday celebration for Matias near Cerralvo. 5 Among the guests were defendants Manuel and Meynardo, Bowman, Reyes, Matias, Benito, Robie (a sixth brother), Matias' bodyguards, workhands, a band, and some women from the brothel. Defendants Manuel and Meynardo, Bowman, Benito, Matias, Reyes, and Macias (the chemist) took a twenty-minute walk into the woods until they arrived at a cave which Benito called their "heroin lab." Everyone, including defendants Manuel and Meynardo, went inside the cave where two workhands were using wooden paddles to stir heroin in two large vats over a fire. The hands were skimming a brown substance off the top of the heroin and throwing it in piles on the ground. After observing for ten to twenty minutes, everyone except the two workhands went back to the ranch. When Bowman returned to Monterrey, he was instructed to clean the brown skim off both his own boots and Benito's. What Bowman finally had to do was to burn Benito's boots, which were badly corroded on the bottom, and all of their clothes.

Other heroin transactions took place in Chicago during this same period of time until about February 1978. These involved ten to eleven sales of pounds of heroin on credit by Reyes to Carlos Gutierrez, who at the time of trial was incarcerated in Chicago. On the occasion of one of these sales, Benito and Matias were also present and Reyes obtained Matias' approval before selling Gutierrez an additional pound. On another occasion when they were "sniffing" cocaine, Reyes told Gutierrez that his (Reyes') brothers were bringing cocaine to Chicago, although Reyes did not name the brothers.

In the fall of 1979, there were several drug-related meetings and get togethers in the guesthouse behind Benito's house in McAllen, Texas. Defendants Manuel and Meynardo attended these meetings and parties which occurred during a three-week period when Bowman stayed at the guesthouse. Although Bowman did not actually see the weighing and packaging, he stated that defendants Manuel and Meynardo, along with Benito, Matias, and Pancho, weighed and packaged cocaine on the pool table at...

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