860 F.2d 706 (7th Cir. 1988), 87-1262, United States v. Moya-Gomez

Docket Nº:87-1262, 87-1280, 87-1310, 87-1390 and 87-1670.
Citation:860 F.2d 706
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rigoberto MOYA-GOMEZ; Celestino Orlando Estevez; Amado Raphael Leon; Adalberto Herrera; and Menelao Orlando Estevez, Defendants-Appellants.
Case Date:September 30, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 706

860 F.2d 706 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Rigoberto MOYA-GOMEZ; Celestino Orlando Estevez; Amado

Raphael Leon; Adalberto Herrera; and Menelao

Orlando Estevez, Defendants-Appellants.

Nos. 87-1262, 87-1280, 87-1310, 87-1390 and 87-1670.

United States Court of Appeals, Seventh Circuit

September 30, 1988

Argued Jan. 14, 1988.

Rehearing and Rehearing En Banc Denied in No. 87-1670 Dec.

22, 1988.

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Catherine M. Canright, Milwaukee, Wis., Thomas H. Taylor, Madison, Wis., Michael Ociacovski Weisz, Miami, Fla., for defendants-appellants.

Eric J. Klumb, R. Wagner, Asst. U.S. Attys., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

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RIPPLE, Circuit Judge.

The appellants are five defendants who were convicted of various offenses under the federal narcotics laws. Their appeals raise a plethora of difficult issues for our consideration. We affirm the convictions of all defendants. However, we vacate Menelao Orlando Estevez' sentence and remand his case to the district court for resentencing.



  1. Facts

    This case arises out of an extensive cocaine network centered in Milwaukee, Wisconsin. Testimony at trial revealed the following. Evilio Pinto, 1 an unindicted conspirator, was introduced to Rigoberto Moya-Gomez sometime in the spring of 1985. A short time later, Mr. Pinto learned that Mr. Moya-Gomez was transporting two to three kilograms of cocaine twice monthly from Miami, Florida to Milwaukee. Mr. Pinto decided to join Mr. Moya-Gomez in this criminal venture. In late March 1985, Mr. Pinto and Mr. Moya-Gomez traveled to Miami to purchase cocaine from Mr. Moya-Gomez' source. That source turned out to be Menelao Orlando Estevez. Thereafter, Mr. Pinto and Mr. Moya-Gomez became part of a cocaine organization that was headed by Menelao Orlando Estevez and included his father Celestino Orlando Estevez 2 and his brother Omar Estevez. At the outset, the Milwaukee end of the cocaine enterprise was managed by Mr. Moya-Gomez. In August 1985, however, Mr. Moya-Gomez had a falling out with the Estevez family. As a result, Orlando bought out Mr. Moya-Gomez' cocaine connections and thereafter headed both the Florida and Wisconsin ends of the business.

    During the course of the conspiracy, members of the group regularly transported large quantities of cocaine from Miami to Milwaukee. The cocaine would be driven to Milwaukee, usually concealed in the spare tires of various vehicles. Upon its arrival in Milwaukee, the cocaine would be hidden and then distributed from residences and motel rooms obtained by the Estevez family for that purpose. Extensive records of all drug transactions were maintained. Approximately every two weeks, the money made from the sale of cocaine would be driven back to Florida. Lawrence Jackman, a member of the conspiracy, pleaded guilty and testified at trial about these various activities. As is evident in our later discussion of the sufficiency of the evidence claims raised by several of the defendants, Mr. Jackman's testimony--along with that of Evilio Pinto--proved crucial to the government's success in obtaining convictions against the defendants.

    Over a nine-month period, state and federal officials conducted an investigation into the Estevez organization. Several of the defendants were placed under surveillance. Searches of discarded garbage at residences associated with the defendants regularly turned up evidence of narcotics trafficking such as plastic bags with cocaine residue, drug records, and narcotics paraphernalia. In addition, investigating officers discovered that various vehicles were registered under false names at addresses under surveillance. In the culmination of their efforts, on June 30, 1986 at approximately 7:40 a.m., federal and state officers and agents executed simultaneous search warrants at a house located at 173 North 63rd Street, Milwaukee and a house located at 8495 Woodvale Drive, Oak Creek, a suburb of Milwaukee. Celestino was arrested at the 63rd Street house. Agents of the Drug Enforcement Agency (DEA) searched the house and seized approximately 750 grams of cocaine from an orange safe in the closet of a bedroom, three handguns, and numerous drug paraphernalia, drug notes and documents.

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    Amado Raphael Leon and Adalberto Herrera were arrested at the Oak Creek residence. DEA agents also searched that house and seized approximately 17 kilograms of cocaine from a gray safe in the master bedroom, three handguns, $18,000 in United States currency, and numerous drug paraphernalia, drug notes and documents. On July 11, 1986, pursuant to a second search warrant, officials discovered an additional 12 kilograms of cocaine hidden in a brown Ford LTD parked in the garage at the Oak Creek residence. The keys to the LTD had been found on Celestino's person at the time of his arrest.

    Neither Rigoberto Moya-Gomez nor Orlando Estevez was present at either the 63rd Street house or the Oak Creek house on the morning of the searches. However, they did not escape the authorities for very long. Mr. Moya-Gomez was arrested on August 21, 1986 following a high-speed car chase. Orlando Estevez was arrested on August 27, 1986 during the execution of a search warrant at his residence in Miami. A search of his Miami residence uncovered an arsenal of weapons, a sum of money in excess of $21,000, two address books, numerous documents bearing the names of other codefendants, several documents detailing large cash purchases, a document entitled "Cocaine Handbook--An Essential Reference," and other miscellaneous drug-related items.

  2. Procedural History

    Celestino Estevez, Amado Leon, and Adalberto Herrera were named in the original indictment, returned by a federal grand jury on July 8, 1986. Thereafter, on August 26, 1986, the government obtained a superseding indictment that named an additional sixteen defendants, including Rigoberto Moya-Gomez and Orlando Estevez. In count 1 of the superseding indictment, the government charged all of the defendants with conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. 3 In various other counts, the government charged some of the defendants with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). 4 In addition, the superseding indictment provided for the forfeiture of any property belonging to any of the defendants that was obtained with drug proceeds, including certain items listed therein. 5 On September 9, 1986, the grand jury returned a second superseding indictment. The second superseding indictment was identical to the superseding indictment except that several assets were added to the forfeiture provision and two counts were added charging Celestino Estevez and Orlando Estevez with operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. 6

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    Seven of the defendants named in the indictment 7 were tried jointly in the Eastern District of Wisconsin, Judge Terence Evans presiding. The trial commenced on November 17, 1986 and ended on December 17, 1986. 8 Following a month of trial, the jury returned verdicts of guilty as to all defendants on all charges. The jury also returned a special verdict of forfeiture as to those assets specifically described in the forfeiture provision of the indictment.


    Appeal of Menelao Orlando Estevez, No. 87-1670

    Orlando Estevez was convicted of one count of conspiracy to possess cocaine with intent to distribute (count 1), six counts of possession of cocaine with intent to distribute (counts 3, 4, 7, 9, 13, and 14) and one count of conducting a continuing criminal enterprise (count 20). The district court sentenced Orlando to fifty years imprisonment on count 20, twenty years imprisonment on counts 4, 7, 9, and 13 to run concurrent with each other and consecutive to count 20, and fifteen years imprisonment on counts 3 and 14 to run concurrent with each other and concurrent with the sentence imposed on counts 4, 7, 9, and 13. Orlando asserts six reasons why he is entitled to a new trial: (1) the district court violated his sixth amendment right to counsel of choice by issuing a pretrial restraining order pursuant to the criminal forfeiture statute that encompassed attorneys' fees; (2) the district court violated his fifth amendment due process rights by refusing to hold a prompt, adversary, postrestraint evidentiary hearing to determine whether the restraining order was valid; (3) the district court erred by permitting him to proceed pro se without knowingly, intelligently, and voluntarily having waived his sixth amendment right to counsel; (4) the district court violated his speedy trial rights by denying him a continuance; (5) the district court violated his due process rights by denying him access to a law library, and equipment and services necessary for preparing a defense; and (6) the district court violated his due process rights by sentencing him to seventy years in prison. We address each of these contentions seriatim.

  3. Criminal Forfeiture

    The most significant issue raised by these consolidated appeals concerns the criminal forfeiture provision in the indictment. The issues that we must decide are (1) whether the pretrial restraint of a defendant's assets pursuant to the criminal forfeiture statute, 21 U.S.C. Sec. 853, including funds that the defendant would otherwise use to pay attorneys' fees, violates the...

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