U.S. v. Grajales-Montoya, GRAJALES-MONTOY

• Citation: 117 F.3d 356
• Decision Date: 26 June 1997
• Docket Number: Nos. 96-1788,96-2016 and 96-2018,A,GRAJALES-MONTOY,s. 96-1788
• Parties: 47 Fed. R. Evid. Serv. 438 UNITED STATES of America, Appellee, v. Gustavoppellant. UNITED STATES of America, Appellee, v. Elisa DELUCA, Also Known as Elisa Maldonado, Also Known as Elisa Kaukereit, Appellant. UNITED STATES of America, Appellee, v. George A. DELUCA, Also Known as Poppy, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 356

117 F.3d 356

47 Fed. R. Evid. Serv. 438

UNITED STATES of America, Appellee, v. Gustavo GRAJALES-MONTOYA, Appellant.

UNITED STATES of America, Appellee, v. Elisa DELUCA, Also Known as Elisa Maldonado, Also Known as

Elisa Kaukereit, Appellant.

UNITED STATES of America, Appellee, v. George A. DELUCA, Also Known as Poppy, Appellant.

Nos. 96-1788, 96-2016 and 96-2018.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1997.

Decided June 26, 1997.

Jerilyn Lipe, argued, St. Louis, MO (Jane C. Hogan, on the brief), for Gustavo Grajales-Montoya.

John A. Klosterman, St. Louis, MO, for Elisa Deluca.

Nathan Z. Dershowitz, New York City (Bradford Kessler and Alan S. Cohen, St. Louis, MO, on the brief) for George Deluca.

Stephen Holtshouser, argued, Asst. U.S. Atty., St. Louis, MO, for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

All three defendants in a narcotics conspiracy trial appeal their convictions; two of them appeal their sentences. We affirm in all respects.

I.

After a five-and-a-half-week trial, a jury convicted Elisa Deluca, George Deluca, and Gustavo Grajales-Montoya on various charges relating to the operation of a multi-state cocaine and heroin ring. The jury found all three defendants guilty of conspiring to distribute, and to possess with intent to distribute, five or more kilograms of cocaine and one or more kilograms of heroin. It also found both of the Delucas guilty of conspiring to commit various money-laundering offenses, and Mr. Deluca guilty of traveling in interstate commerce to promote the distribution of drugs. The trial court ¹ sentenced the Delucas to life imprisonment and Mr. Montoya to imprisonment for 135 months. Each defendant raises several points on appeal, the most prominent among them being alleged evidentiary errors, alleged instructional errors, the alleged insufficiency of the government's evidence, and alleged Jencks Act and Brady violations. We affirm.

II.

Elisa Deluca first contends that the trial court abused its discretion by admitting into evidence, and sending to the jury room, a document prepared by the government containing a chronology of what it believed to be relevant events. The chronology lists occurrences such as wire transfers, bank deposits, large cash purchases, airplane travel, and meetings among the co-conspirators, and was derived from documents such as bank and Western Union records, receipts, and surveillance records, all of which were themselves admitted into evidence. The trial court admitted the chronology pursuant to Fed.R.Evid. 1006, which states that "[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation."

The rule appears to contemplate, however, that a summary will be admitted instead of, not in addition to, the documents that it summarizes, see United States v. Possick, 849 F.2d 332, 339 (8th Cir.1988), and United States v. Robinson, 774 F.2d 261, 275-76 (8th Cir.1985), and that it will have been prepared by a witness available for cross-examination, not by the lawyers trying the case. See Possick, 849 F.2d at 339, and United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir.1986), cert. denied, 482 U.S. 927, 107 S.Ct. 3210, 96 L.Ed.2d 697 (1987). We therefore believe that Fed.R.Evid. 1006 does not allow for the admission of a summary such as the one contested by Mrs. Deluca, that is, one that was prepared by a lawyer trying the case and that restates and distills other properly admitted exhibits. In fact, we believe that such a summary is a written argument. In light of the extensive evidence presented at trial against Mrs. Deluca, however, and because all of the information contained in the summary was available to the jury from other exhibits, the trial court's error in admitting the summary was harmless.

Mrs. Deluca next asserts that the trial court erred in overruling her objection to an instruction that dealt with attempts by a defendant to conceal evidence or influence witnesses. According to Mrs. Deluca, that instruction could have been justified only by questions during the government's cross-examination of her that insinuated that she had urged witnesses in the Dominican Republic not to testify; she further urges that, for reasons that we shall discuss, there was insufficient evidence to support the instruction. Because there was, however, testimony that George Deluca instructed the son of a woman working at Mrs. Deluca's beauty parlor (through which the Delucas occasionally laundered money) not to give federal agents any papers or information, we believe that the instruction was appropriate. See Closs v. Leapley, 18 F.3d 574, 579-80 (8th Cir.1994). The notes on use for the Eighth Circuit model jury instructions (after which the trial court patterned the instruction in question), moreover, indicate that the instruction need not be limited to certain defendants when all of the defendants are part of a conspiracy. See Eighth Circuit Manual of Model Jury Instructions § 4.09 (West 1996). We believe that this instruction correctly states the law. See United States v. Dittrich, 100 F.3d 84, 86-87 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1454, 137 L.Ed.2d 558 (1997).

Mrs. Deluca also argues that the trial court abused its discretion in denying her motion for a mistrial after the prosecution cross-examined her about whether she had encouraged potential witnesses from the Dominican Republic not to testify during calls arranged by her trial counsel. Mrs. Deluca maintains that the questions were improper because they implied a fact that the prosecution knew the evidence would not support, and because they implied that her counsel participated in the obstruction of justice. While it is true that prosecutors must have a good-faith basis for questions asked during the cross-examination of a defendant, see United States v. Miller, 974 F.2d 953, 960 (8th Cir.1992), Mrs. Deluca abandoned this claim during trial by basing her motion for a mistrial solely on the alleged damage to her counsel's credibility.

With respect to the latter claim, we first note that, in the circumstances presented here, the inference that her counsel participated in the obstruction of justice, if one could reasonably be drawn at all, was an extremely weak one. Although such an inference might colorably raise concerns that a defendant's Fifth Amendment right to due process or Sixth Amendment right to counsel had been undermined, Mrs. Deluca has not specified a legal right that she claims was violated by any inferences resulting from the contested line of questioning. We therefore hold that the trial court did not abuse its broad discretion in determining whether a mistrial is required by refusing to grant Mrs. Deluca's motion. See United States v. Clair, 934 F.2d 943, 945 (8th Cir.1991).

Mrs. Deluca last contends that the trial court erred by refusing to instruct the jury on the distinction between the proof required for a single conspiracy and that required for multiple conspiracies with respect to the money-laundering count. Although Mrs. Deluca argues on appeal that the evidence presented at trial supports the existence of two different conspiracies (namely, a conspiracy to transfer money to the New York suppliers and another conspiracy to enable the Delucas to improve their life-style), at trial Mrs. Deluca argued that the instruction was warranted because there were separate conspiracies for each wire transfer and because the evidence demonstrated that there were separate conspiracies of which she was not a member. This shift in the factual grounds for Mrs. Deluca's argument renders her prior objection insufficient for the purposes of Fed.R.Crim.P. 30, which requires parties who challenge jury instructions to have "stat[ed] distinctly the matter to which that party objects and the grounds of the objection" before the jury retires. See United States v. Young, 875 F.2d 1357, 1360 (8th Cir.1989) (change in factual grounds for objection to failure to give lesser-included offense instruction).

Because Mrs. Deluca has waived her objection to the trial court's refusal to give her proposed instruction, we may review that decision only for plain error. See United States v. Caldwell, 97 F.3d 1063, 1068 (8th Cir.1996). After a careful look at the record, we believe that the trial court's decision not to use Mrs. Deluca's proffered instruction was not plain error, that is, we conclude that the omitted instruction did not " 'affect the defendant's substantial rights resulting in a miscarriage of justice.' " United States v. Pena, 67 F.3d 153, 156 (8th Cir.1995), quoting United States v. Gantos, 817 F.2d 41, 43 (8th Cir.1987), cert. denied, 484 U.S. 860, 108 S.Ct. 175, 98 L.Ed.2d 128 (1987). The trial court is required to instruct the jury on multiple conspiracies only if evidence exists to support such a finding, see id., and Mrs. Deluca points to no evidence tending to prove the existence of a money-laundering conspiracy of which she was not a member or that did not involve the proceeds of the cocaine and heroin ring. Indeed, the evidence overwhelmingly supports the existence of a single money-laundering conspiracy masterminded by the Delucas in an attempt to hide the ill-gotten gains of their criminal enterprise.

III.

George Deluca first asserts that the trial court erred when it relied on prosecution assertions that it possessed no Jencks Act or Brady materials, see 18 U.S.C. § 3500(b) and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), from interviews conducted with two key prosecution witnesses, the Delucas' St. Louis distributor and one of their New York suppliers. Prior to trial, the Assistant United States Attorney ("AUSA") prosecuting the case conducted two...