U.S. v. Maliszewski

• Citation: 161 F.3d 992
• Decision Date: 08 December 1998
• Docket Number: Nos. 95-1817,96-1935,96-1659,96-1029,96-1800,96-1663,96-1936 and 96-2123,s. 95-1817
• Parties: 50 Fed. R. Evid. Serv. 1037 UNITED STATES of America, Plaintiff-Appellee, v. Joseph MALISZEWSKI (95-1817); Dean Allen LaBeff (96-1029); Yolanda Villareal (96-1659); Scott Maliszewski (96-1663); Pepe Villareal a/k/a Jose Villareal (96-1800); John Briguglio (96-1935); Nicholas Amador, Jr. (96-1936); and Edward Maliszewski (96-2123), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 992

161 F.3d 992

50 Fed. R. Evid. Serv. 1037

UNITED STATES of America, Plaintiff-Appellee, v. Joseph MALISZEWSKI (95-1817); Dean Allen LaBeff (96-1029);

Yolanda Villareal (96-1659); Scott Maliszewski (96-1663);

Pepe Villareal a/k/a Jose Villareal (96-1800); John

Briguglio (96-1935); Nicholas Amador, Jr. (96-1936); and

Edward Maliszewski (96-2123), Defendants-Appellants.

Nos. 95-1817, 96-1029, 96-1659, 96-1663, 96-1800, 96-1935,

96-1936 and 96-2123.

United States Court of Appeals, Sixth Circuit.

Argued July 28, 1998.

Decided Dec. 8, 1998.

Janet L. Parker, Assistant U.S. Attorney (argued and briefed), Bay City, Michigan, for Plaintiff-Appellee.

Thomas J. Plachta, (argued and briefed), Brady & Plachta, Bay City, Michigan, for Defendant-Appellant Joseph Maliszewski.

Dean Allen LaBeff, Morgantown, West Virginia, pro se, Arthur M. Fitzgerald (argued and briefed), Bay City, Michigan, for Defendant-Appellant LaBeff.

David G. Myers (argued and briefed), Caro, Michigan, for Defendant-Appellant Yolanda Villareal.

Robert A. Betts (argued and briefed), Caro, Michigan, for Defendant-Appellant Scott Maliszewski.

Gary J. Crews (argued and briefed), Caro, Michigan, Pepe Villareal, Elkton, Ohio, pro se, for Defendant-Appellant Pepe Villareal.

Stevens J. Jacobs (argued and briefed), Bay City, Michigan, for Defendant-Appellant Briguglio.

James F. Gust (argued and briefed), Jan Armon (briefed), Saginaw, Michigan, for Defendant-Appellant Amador.

Russell L. Perry, Jr. (argued and briefed), Saginaw, Michigan, for Defendant-Appellant Edward Maliszewski.

Before: JONES, RYAN, and MOORE, Circuit Judges.

OPINION

RYAN, Circuit Judge.

This case concerns a wide-ranging marijuana-distribution conspiracy spanning three states and involving two families as well as various hangers-on. Of the defendants whose appeals are before us today, two--Joseph Maliszewski and Dean LaBeff--pleaded guilty, and challenge various factual findings made by the district court with respect to their sentences. The remainder--Yolanda Villareal and her husband Pepe Villareal; Scott and Edward Maliszewski, Joseph Maliszewsi's brother and father, respectively; John Briguglio; and Nicholas Amador Jr.--were convicted following a jury trial, and raise numerous challenges both to the conduct of trial and to their sentences.

Because the Maliszewski defendants and the Villareal defendants share last names, we shall, in an effort to minimize confusion, refer to those defendants by their first names. The other defendants, however, we shall denominate by their last names.

For the reasons that follow, we affirm the judgments of conviction of all the defendants, and affirm the sentences of all, with one exception. We vacate Amador's sentence because the district court clearly erred in assessing the quantity of drugs for which Amador was accountable.

I.

The details of the charged conspiracy will, in large measure, be discussed in connection with the defendants' specific assignments of error. We provide here simply a brief overview to orient the reader.

The conspiracy began, at the latest, by Thanksgiving 1992. Humberto "Beto" Sanchez began bringing 30- to 50-pound loads of marijuana from Texas to Michigan, usually traveling via Chicago. At trial, his wife and coconspirator, Annie Mireles, testified that she made her first trip in connection with the conspiracy in December 1992. Mireles and Sanchez traveled to Chicago, obtained 50 pounds of marijuana there, and met defendant Scott Maliszewski. These three then traveled together by train to Saginaw, Michigan, where Scott lived with his father, brother, and sister, defendants Edward, Joseph, and Jamie Maliszewski, respectively. When they arrived in Michigan, they were met at the train station by defendant Nicholas Amador Jr., who joined them in taking the marijuana to the Maliszewski household. There, the marijuana was broken down and repackaged into pound quantities. Some of the repackaged marijuana was taken by Amador, while the Maliszewskis retained the rest.

There is no evidence that Edward Maliszewksi was ever involved hands-on with repackaging or distributing the marijuana. There was evidence, however, that on the many trips taken by the coconspirators between Texas and Michigan, Edward acted as financier, renting cars and paying for hotel rooms for various players.

Sanchez and Mireles soon met other Michiganians beyond Amador and the Maliszewskis. In February or March 1993, they met defendants Yolanda and Pepe Villareal at a party at Amador's house. Thereafter, Yolanda and Pepe began distributing marijuana for Sanchez and Mireles. In addition, John Briguglio became involved in the conspiracy through Amador, occasionally storing cash at his house and later dealing directly with Sanchez to obtain and distribute marijuana on his own. Amador, however, withdrew from the conspiracy in the summer of 1993, due to, according to the government, a poor record of paying for the marijuana supplied by Sanchez.

Another member of the conspiracy was Mireles's mother, Anita Delacruz, who lived in Texas. Delacruz met some Michigan members of the conspiracy in Texas, and at times traveled to Michigan herself. She participated in delivering marijuana to Michigan and in collecting the proceeds.

During the summer of 1993, another of Mireles's family members, her brother Guillermo "Willie" Galvan, became involved in the conspiracy. He began operating as a courier for another brother, Jesse Nino, delivering marijuana from Texas to Chicago, where Nino would recover it and take it to Michigan. Later, however, early in 1994, Galvan began making trips to Michigan on his own.

One particular incident during the course of conspiracy that takes on significance for various of the defendants' appeals occurred in late 1993. In June, Jesse Nino arrived in Michigan with 30 pounds of marijuana, intending to deliver it to Joseph Maliszewski. Joseph, however, was not in Michigan at the time, and Scott consented to take the marijuana and try to distribute it. Scott, however--who was portrayed by the government as something of a buffoon--sold some of the marijuana, but could not collect the money for it, and smoked or lost the remainder. As a result, Scott was unable to pay Nino for the marijuana Nino had fronted to him. Predictably, Nino was unhappy about this situation, and in November 1993, Scott was informed that armed individuals had arrived in Saginaw in order to settle this debt. Scott therefore holed up in the television dealership store owned by his father, Edward, and Edward's brother-in-law, Herb Akin. With Scott were his friend, defendant Dean LaBeff, and his brother Joseph, and some firearms. This incident ended more or less peacefully, thanks to the intervention of the local SWAT team.

In May 1994, a wrench was thrown into the smooth operation of the conspiracy when Sanchez was shot and killed by yet another of his wife's brothers, Oscar Galvan. The leadership void was filled, however, by Willie Galvan, who appears to have taken over as the head of the Texas end of the conspiracy. Deliveries of marijuana from Texas to Michigan quickly resumed.

The conspiracy eventually unraveled in July 1994. Mireles sent a shipment of marijuana to Michigan disguised as a package of computer parts; she used Airborne Express as the shipper. It was Mireles's intention to pick up the package herself, but she was unable to do so when her flight was delayed in Chicago. She therefore called Joseph, who said he would arrange to have someone pick up the shipment. There was great reluctance, however, to pick up the package, because the Michigan members of the conspiracy felt this new method of shipping marijuana involved greater risk. A further complication resulted when Airborne Express mistakenly delivered the package to a Computerland store, rather than holding it for pick-up at the Airborne Express office as Mireles had requested. A Computerland employee opened the box, discovered the marijuana, and called law enforcement officials, who promptly set in motion a plan to nab whoever came to pick up the package.

That person was Edward. The people at Computerland, however, told him that the package had been returned to Airborne Express. Joseph, rather than Edward, then went to Airborne Express but was told that the package would not be available until after 3:00 p.m. He therefore later returned, this time with Mireles. The two were armed with paperwork that Edward had prepared in the hope of lending credence to a claim, if discovered, that Joseph and Mireles believed the package contained computer parts. They retrieved the package without encountering any resistance, however, and returned with it to the Maliszewski house.

Their success was short-lived, though, and Joseph and Mireles were soon arrested. Seized from Joseph's home was a .25 caliber pistol containing four live rounds of ammunition and a .22 caliber pistol containing three live rounds. One of the firearms was in a cubbyhole above the stairwell to the basement; the other was found in the dining room on top of a china cabinet, and next to it was a small set of scales. Inside the basement were marijuana, scales, materials for repackaging, eight one-pound packages of marijuana, and various other items associated with marijuana trafficking.

The original indictment was issued in late August 1994, but this was superseded three times. The final superseding indictment charged all the defendants whose appeals are at issue here with one count of conspiring, between January 1993 and October 1994, to manufacture and possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846. Edward was also charged with one count of traveling in interstate commerce with the intent of promoting a business enterprise involving marijuana, in violation of 18 U.S.C. § 1952, but this count was dismissed at trial on the government's motion. Joseph and LaBeff were both charged with one count of...