U.S. v. Montalvo
| Decision Date | 13 March 1992 |
| Docket Number | Nos. 90-10078,90-10080,s. 90-10078 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Michael L. MONTALVO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael L. MONTALVO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jennifer MATSUZAKI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jennifer MATSUZAKI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Allen BUENO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael CINCOLA, Defendant-Appellant. to 90-10082, 90-10585 and 90-10586. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeals from the United States District Court for the Eastern District of California, No. CR S 89-062-RAR, Raul A. Ramirez, District Judge, Presiding.
Before REINHARDT, NOONAN and THOMPSON, Circuit Judges
From 1983 until his arrest on May 19, 1987, Michael Montalvo was at the helm of the "70 Company," a large and extremely well-organized cocaine distribution business based in California. Montalvo ran his drug company much like a legitimate enterprise. He required his employees to dress in business attire, to work 8:00 a.m. until 5:00 p.m. five days a week, and to carry pagers so that they could be easily contacted. Employees of the 70 Company were forbidden to carry guns or use drugs themselves. Montalvo's business methods met with tremendous financial success; in 1985, for example, he grossed 68 million dollars in cocaine sales.
Jennifer Matsuzaki procured significant amounts of cocaine for the Company. For example, Matsuzaki received weekly deliveries of between two and three hundred thousand dollars in Los Angeles, and in turn regularly drove 50 kilogram shipments of cocaine back north to Montalvo's headquarters in Los Gatos. Michael Cincola and David Bueno were also deeply involved in Montalvo's corporation. Bueno supervised the construction and equipment of a laboratory to reprocess poor quality cocaine. Once the laboratory was built, he oversaw the reprocessing procedures it housed. Cincola did most of the actual construction of the laboratory and later aided in reprocessing the cocaine.
This single drug conspiracy generated two separate criminal trials, the first involving Montalvo and Matsuzaki, the second involving Bueno and Cincola. A two-count superseding indictment was returned on March 3, 1989 against Montalvo, Matsuzaki, Cincola and three other persons not involved in this appeal. Count I charged all six defendants with conspiracy to distribute cocaine and to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count II charged Montalvo with operating a continuing criminal enterprise in violation of 21 U.S.C. § 848.
The first trial began on September 19, 1989 and the jury returned its verdict on October 19, 1989. Since Cincola was still a fugitive, he was not tried at this time. Montalvo was found guilty of operating a continuing criminal enterprise and Matsuzaki was found guilty of conspiracy. Matsuzaki and Montalvo were sentenced on January 10, 1990, with their sentences falling under the pre-Sentencing Guidelines regime. Exercising his discretion, the sentencing judge committed Montalvo to life in prison without the possibility of parole. Matsuzaki received a twenty-year sentence.
Cincola and co-defendant Bueno were arrested on November 28, 1989. On December 15, 1989, a second superseding indictment was returned against Cincola, Bueno, and one other person on the conspiracy charged in the first superseding indictment. Like Matsuzaki, they were charged with conspiracy to possess with intent to distribute and to distribute cocaine. The trial of Bueno and Cincola began on July 16, 1990. On July 20, 1990, the jury found both men guilty. On November 2, 1990, Bueno was sentenced to eighteen years imprisonment, while Cincola received a fifteen-year term. All appeals were timely filed.
Montalvo raises a panoply of trial-related issues in his appeal. Only one, however, merits remand to the district court. One of Montalvo's discovery motions asked the court to order disclosure of the personnel files of government witnesses. That motion was denied. Montalvo contends he was thereby prevented from effectively impeaching ATF Agent Doug Grey and DEA Agent Jeffrey Stamm, who testified against him.
The prosecution has a duty to examine personnel files upon a defendant's request and to turn over material information that is favorable to the defense. United States v. Cadet, 727 F.2d 1453 (9th Cir.1984). The government concedes that the required examination was not performed in the case of Agents Grey and Stamm. Following the procedures set forth in United States v. Henthorn, 931 F.2d 29 (9th Cir.1991), we remand to the district court to conduct an in camera examination of the personnel files of Agents Grey and Stamm to determine whether the earlier failure to examine the records was harmless error or not. Since we have allowed Matsuzaki to join Montalvo's brief, the result of this examination will affect the disposition of her case as well.
Montalvo also argues that the government failed to fulfill its obligations under the Jencks Act by giving him only four and half pages of the transcript of Agent Stamm's testimony before the grand jury. The Jencks Act, 18 U.S.C. § 3500, provides that no prior statement of any government witness can be subject to "subpoena, discovery or inspection" until after that witness has testified on direct examination. However, even after such a witness has testified, production is not automatic. It is triggered only by motion of the defendant. 18 U.S.C. § 3500(b), United States v. Goldberg, 425 U.S. 94, 110-11, & n. 18 (1976), United States v. Goldberg, (on remand) 582 F.2d 483, 487 (9th Cir.1978), United States v. Wallace, 848 F.2d 1464, 1471 (9th Cir.1988).
In this case, Montalvo never made a properly timed Jencks Act motion. Although not required to do so, the government had agreed to produce material falling under the purview of the Jencks Act immediately before trial, so as to avoid the necessity for a continuance later on. In his cross-examination of Agent Stamm, Montalvo's attorney asked no questions about his testimony before the grand jury. Nor did Montalvo's attorney express any hint of dissatisfaction regarding the excerpt of that testimony provided to him earlier by the prosecution. Consequently, no proper Jencks Act objection was ever made. "The defendant must 'fairly' direct the attention of the district court to the Jencks Act production issue at an appropriate time and with a demand sufficiently precise to identify the statements requested." United States v. Wallace, 848 F.2d 1464, 1471 (9th Cir.1988). Hence he did not preserve his Jencks Act claims for appellate review.
Montalvo also raises a panoply of claims regarding the conduct of the prosecutor during trial. In the most serious of his charges, Montalvo contends that the prosecutor improperly vouched for three government witnesses by eliciting testimony from them that they had entered into plea bargains with the government. Because Montalvo did not object at trial, we review for plain error. United States v. Molina, 934 F.2d 1440, (9th Cir.1991).
United States v. Dadanian, 818 F.2d 1443 (9th Cir.1987), makes it clear that no such error occurred. In Dadanian, we considered the case of a government witnesses who testified that his plea agreement called for him to "truthfully and honestly cooperate with the government." We held that such testimony did not constitute improper vouching, provided that his plea agreement was "relevant to material facts at issue and the party to the agreement was subject to cross examination as to his motives." Id. at 1445.
A review of the trial transcript in the instant case reveals that the Dadanian criteria were met. The credibility of the witnesses was a key issue in the case, since they were former members in Montalvo's corporation. The plea agreements of the witnesses directly reflected on their credibility. In addition, Montalvo's attorney had ample opportunity for cross-examination.
Montalvo also charges that the prosecution inflamed the jury by leaving cocaine bricks seized from the scene of a local double murder in full view, badgered him during cross-examination, and went beyond the scope of the evidence in both cross-examination and closing arguments. Our review of the transcript indicates these charges are unfounded.
For a variety of reasons, Montalvo charges that the district court had no jurisdiction over his case. He is mistaken. Under 18 U.S.C. § 3231, federal district courts have exclusive original jurisdiction over "all offenses against the laws of the United States." United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986). 21 U.S.C. § 903 rebuts Montalvo's claim that federal drug law is preempted by California law. Finally, Montalvo is incorrect in his assertion that proof of interstate nexus is necessary to establish federal jurisdiction over drug cases. United States v. Visman, 919 F.2d 1390 (9th Cir.1990), cert. denied, 112 S.Ct. 442 (1991).
Montalvo next argues that his motion for acquittal should have been granted because the government failed to establish venue. He is mistaken. Even passing through a district while delivering drugs suffices to establish venue. United States v. Durades...
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