U.S. v. Montoya

• Decision Date: 19 December 1989
• Docket Number: 88-1418 and 88-1419,Nos. 88-1417,s. 88-1417
• Citation: 891 F.2d 1273
• Parties: 29 Fed. R. Evid. Serv. 298 UNITED STATES of America, Plaintiff-Appellee, v. Juan MONTOYA, Augustine Gomez, and Augustine Ramirez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1273

891 F.2d 1273

29 Fed. R. Evid. Serv. 298

UNITED STATES of America, Plaintiff-Appellee, v. Juan MONTOYA, Augustine Gomez, and Augustine Ramirez Defendants-Appellants.

Nos. 88-1417, 88-1418 and 88-1419.

United States Court of Appeals Seventh Circuit.

Argued Feb. 13, 1989.

Decided Dec. 19, 1989.

Elliott M. Samuels, Kathryn Hall, Jerry B. Kurz, argued, Chicago, Ill., Leonard C. Remencius and Mary J. Gaziano, argued, Remencius & Associates, Rockford, Ill., for defendants-appellants.

Keith C. Seyfert, Asst. U.S. Atty., Office of the U.S. Atty., Rockford, Ill. and James T. Zuba (argued), for plaintiff-appellee.

Before WOOD, Jr., POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Defendants Juan Montoya, Augustine Gomez and Augustine Ramirez were convicted of conspiracy to possess with intent to distribute and to distribute cocaine and 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846. Montoya was also convicted of distributing approximately 12.36 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Gomez and Ramirez appeal their convictions and sentences on the conspiracy charge. Montoya appeals his sentence for conspiracy and distribution of cocaine. We remand Ramirez's case to the district court for resentencing. In all other respects, we affirm.

I. FACTUAL BACKGROUND

Montoya, Gomez and Ramirez were convicted in the United States District Court for the Northern District of Illinois for their involvement with an international drug trafficking conspiracy operating in Rockford, Illinois. Beginning in 1982, this operation, through the use of automobiles, vans and trucks with hidden storage compartments, as well as airplanes, imported large quantities of cocaine and marijuana from Mexico into the United States. Most of the narcotics were smuggled across the Mexico-Texas border and subsequently transported for distribution in the Rockford, Illinois, area. The organization employed a large number of persons to import, transport, store and sell narcotics. The conspiracy also employed individuals to transport and distribute the profits derived from illicit drug sales among the various co-conspirators, most of whom resided in Rockford. In mid-1986 confidential informants, working with Rockford law enforcement officers and the United States Drug Enforcement Administration ("DEA"), infiltrated the drug ring and provided the law enforcement officials with the identities of the key figures in the drug network, as well as their respective drug-related activities. Additionally, the informants purchased drugs from and tape recorded a number of conversations with various members in the drug conspiracy. Based largely on this evidence and other information, a grand jury indicted twenty-one individuals, including the three defendants involved in this appeal, and charged them with a number of violations of the federal narcotics laws. At this point, the cases of the defendants diverge, necessitating for the sake of clarity that we consider separately the relevant facts and issues as they relate to each of the individual defendants.

II. JUAN MONTOYA

A.

Defendant Montoya was arrested in his home in Rockford on July 19, 1987, and was charged with one count of conspiracy to possess with intent to distribute and to distribute cocaine and 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846 (Count One). Montoya was also charged with one count of distributing approximately 12.36 grams of cocaine (Count Nine), one count of possession with intent to distribute approximately 893.65 grams of marijuana (Count Thirteen), and one count of possession with intent to distribute approximately 615.11 grams of cocaine (Count Fourteen), all in violation of 21 U.S.C. § 841(a)(1). On June 22, 1987, Montoya, appearing with counsel, entered a plea of not guilty. Pursuant to a plea agreement, Montoya subsequently withdrew his original not guilty plea and entered a plea of guilty to Counts One and Nine of the indictment on December 23, 1987; the government, in turn, agreed to and did dismiss the charges against Montoya contained in Counts Thirteen and Fourteen. After a hearing, the court determined that Montoya's decision to plead guilty was made freely, voluntarily and with full knowledge of the rights he was relinquishing and accepted Montoya's plea of guilty. Thereafter, the court ordered the preparation of a presentence report and set sentencing for February 25, 1988.

The presentence report contained both the defendant's and the government's statements detailing Montoya's involvement in the conspiracy. According to Montoya, he had been selling marijuana since 1985 and cocaine since 1987. At the time of his arrest, Montoya admitted to selling approximately twenty pounds of marijuana a month, profiting between $50 and $100 per pound. Montoya also admitted to selling approximately one ounce of cocaine a month and earning between $600 and $800 per ounce. Montoya stated that he had never possessed more than 200 pounds of marijuana, nor more than one kilogram of cocaine at any one time.

The government, in its version of Montoya's drug-related activities, stated that Montoya was "heavily involved in the distribution of marijuana and cocaine." The government based its conclusion largely on Montoya's conversations with a government informant. Specifically, on August 29, 1986, the government informant met with Montoya in his home and Montoya presented her with a one-pound package of marijuana, stating that it was part of a 2,000-pound load from Mexico which he had sold for between $750 and $900 per pound. Montoya also stated that he was selling both marijuana and cocaine and that he was working with Tomas Perez ¹ and an individual named Tony. ²

In a recorded conversation on January 20, 1987, Montoya and his wife, Donna, ³ told the informant that they were willing to sell her cocaine, stating that they would teach her how to cut and package the cocaine so she could resell it at a profit. The following day, January 21, in another recorded conversation, Montoya told the informant that he purchased approximately one kilogram of cocaine a month, stating that he sold each kilogram at a profit of $24,000 and that he could "see" $110,000 in one night. ⁴ Montoya again encouraged the informant to start her own cocaine business and explained how to cut the drug for resale. Montoya also stated that he had 2,000 pounds of marijuana available and that, at one time, he received a profit in the amount of $18,000 on the sale of twenty pounds. Later in the conversation, Montoya admitted that at one time, one of his marijuana shipments had been confiscated by the authorities. On January 22, 1987, Montoya sold the informant approximately 12.36 grams of cocaine for $900.

Finally, in a recorded conversation on June 16, 1987, Montoya told the informant that he was still in the "business" and that he would sell her an ounce of cocaine at a reduced price ($1,500 as opposed to $1,900) in order that she might make a profit on the resale. When he was arrested on June 19, 1987, Montoya was in possession of 615 grams of cocaine, 894 grams of marijuana, a .22 caliber weapon, $869 worth of food stamps, and a public aid card. The government posited that Montoya was selling narcotics in exchange for the food stamps and using the public aid card to receive welfare benefits to which he was not entitled because of his income from illicit drug sales.

Referring to the government's version of the facts, the probation officer who prepared the presentence report stated that, in his opinion, Montoya was one of the more culpable participants in this conspiracy. The officer also stated:

"It is uncertain as to whether or not the defendant was working for [Tomas Perez, Antonio Franco, and Raul Ramirez ⁵, but it is possible that he obtained drugs from them. The defendant was extensively involved in the sale of marijuana and cocaine, and allowed his wife to also become involved in a peripheral role. In further aggravation, is the fact that this defendant also attempted to recruit at least one individual to also become a seller of narcotics."

The probation officer also concluded that Montoya had not shown a great deal of remorse for his involvement in the conspiracy; rather, he attempted to justify his illicit drug activities based on his inability to secure legitimate employment.

At the sentencing hearing held on February 25, 1988, Montoya challenged numerous facts described by the government in the presentence report. Specifically, he alleged that: (1) he never had a conversation with the informant on August 29, 1986; (2) during the January 21, 1987, conversation he stated that he could "owe" $110,000 in one night, as opposed to the government's statement that he could "see" that amount; ⁶ (3) regarding the 20-pound marijuana sale, also discussed in the January 21 conversation, he told the informant he made $2,000 on the sale rather than $18,000; (4) he told the informant that others had had marijuana shipments confiscated, but that this had never happened to him; (5) his statement during the June 16, 1987, conversation that he was still in the "business" was a reference to the grocery store he owned and had nothing to do with his drug-related activities; (6) he was in possession of 588, as opposed to 615 grams of cocaine at the time of his arrest; (7) he was justified in his possession of both the food stamps and the public aid card, explaining that the food stamps were from his grocery store and that the public aid card was for his infant son's medical expenses; (8) he had never recruited the informant to sell narcotics; and (9) he had never purchased narcotics from Perez, Franco or Raul Ramirez. Montoya also objected to the probation officer's conclusion that he was one of the more culpable participants in the conspiracy, arguing that this conclusion was apparently based on disputed information in the government's version of the...