U.S. v. Montanye
| Decision Date | 06 May 1992 |
| Docket Number | 91-2238 and 91-2242,91-2028,Nos. 91-1703,s. 91-1703 |
| Citation | 962 F.2d 1332 |
| Parties | UNITED STATES of America, Appellee, v. Herbert R. MONTANYE, a/k/a Muscles, Appellant. UNITED STATES of America, Appellee, v. George A. BRUTON, also known as Homer, Appellant. UNITED STATES of America, Appellee, v. John J. CALIA, Jr., Appellant. UNITED STATES of America, Appellee, v. John S. GLORIOSO, also known as Harry, also known as Harry Johns, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Daryl Douglas, Kansas City, Mo., argued for appellant Montanye.
Patrick Reidy, Kansas City, Mo., argued, for appellant Bruton.
F.A. White, Kansas City, Mo., for appellant Calia.
G.H. Terando, Poplar Bluff, Mo., for appellant Glorioso.
Charles E. Ambrose, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOODS, * District Judge.
George Bruton, John Calia, Herbert Montanye and John Glorioso appeal their convictions of conspiracy to distribute methamphetamine, marijuana, cocaine, and related offenses, and the sentences imposed on them. As concerns Bruton's convictions on Counts I and II for conspiracy and continuing criminal enterprise, he alleges that, taken together, these convictions amount to double jeopardy. On review, we remand Bruton's case, No. 91-2028, for the district court to vacate one of those two convictions. We also reverse Montanye's (No. 91-1703) conviction for attempted manufacturing of methamphetamine. Finally, we vacate Montanye's sentence and remand his case for resentencing.
Appellants make numerous arguments, many of which we reject without discussion as meritless. We have chosen to address the following arguments. Collectively, appellants argue: (1) the district court erroneously admitted some hearsay statements made by a co-conspirator; (2) the district court erred in entering judgment against appellants for conspiracy because a fatal variance existed between the indictment and the facts that the Government alleged at trial; (3) the district court erred in entering judgment against them on their convictions because the Government presented insufficient evidence.
Bruton argues the district court: (1) violated his rights under the Double Jeopardy clause by convicting him of both conspiracy and conducting a continuing criminal enterprise (CCE) for engaging in the same conduct (2) erred in instructing the jury on the law of CCE; (3) erred in admitting evidence of a phone conversation to the jury because its prejudicial nature outweighed its probative value; (4) erred in enhancing his offense level for possessing a firearm.
Calia argues the district court: (1) erred in entering judgment against him on his convictions because the Government presented insufficient evidence; (2) erred in enhancing his offense level for playing a managerial role in the conspiracy.
Montanye argues the district court: (1) erred by failing to sever his trial from the other defendants; (2) erred by failing to submit his requested defense instruction to the jury; (3) erred by placing undue emphasis in the jury instructions on his role in the conspiracy; (4) erred by instructing the jury that the Government did not have to prove that appellants agreed to distribute a particular type of controlled substance.
Glorioso argues that the district court: (1) erred in permitting the Government to present rebuttal evidence against him when he did not present a defense; (2) erred in entering judgment against him because the Government presented insufficient evidence.
The Government's indictment alleged the following:
I. From February 1, 1988 until April 6, 1990, Bruton, Calia, Glorioso, Montanye, Ramon Leal, Charles Leal, Carl Hathcock, Kenneth Dufrenne, and Cecil Evans conspired to manufacture, possess, and distribute controlled substances in violation of 21 U.S.C.A. § 841(a) (West Supp.1991).
II. From February 1, 1988 to April 6, 1990, Bruton operated as a leader of a continuing criminal enterprise in violation of 21 U.S.C.A. § 848.
III. On August 8, 1989, Bruton and Calia did knowingly possess with intent to distribute approximately seventy pounds of marijuana in violation of 21 U.S.C.A. § 841(a).
IV. On February 18, 1990, Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Ramon Leal, in violation of 21 U.S.C.A. § 843(b).
V. On February 19, 1990, Bruton and Thomas Cullen did attempt to knowingly and intentionally manufacture methamphetamine by directing Montanye to purchase laboratory glassware for use in the production of methamphetamine.
VI. On February 19, 1990, Bruton, Calia, Glorioso, Thomas Cullen and Ramon Leal did possess with intent to distribute 198 pounds of marijuana in violation of 21 U.S.C.A. § 841(a).
VII. On March 1, 1990, Bruton, Thomas Cullen, Montanye and Dennis Sessions did attempt to manufacture methamphetamine by possessing laboratory glassware intended for the production of methamphetamine, in violation of 21 U.S.C.A. §§ 841(a)(1), 843.
VIII. On March 8, 1990, Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Ramon Leal, in violation of 21 U.S.C.A. § 843(b).
IX. On March 10, 1990, Bruton, Carl Hathcock, Ramon Leal and Charles Leal did possess with intent to distribute approximately 207 pounds of marijuana, in violation of 21 U.S.C.A. § 841(a).
X. On March 13, 1990, Bruton did knowingly facilitate the conspiracy to distribute drugs by leaving a telephone message with Thomas Cullen regarding the conspiracy, in violation of 21 U.S.C.A. § 843(b).
XI. On March 28, 1990, Bruton and Thomas Cullen did knowingly manufacture methamphetamine, in violation of 21 U.S.C.A. § 841(a).
XII. On April 5, 1990, at approximately 7:40 a.m., Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Ramon Leal, in violation of 21 U.S.C.A. § 843(b).
XIII. On April 5, 1990, at approximately 11:32 a.m., Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Carl Hathcock, in violation of 21 U.S.C.A. § 843(b).
XIV. On April 6, 1990, Bruton and Thomas Cullen did knowingly possess with intent to distribute fifty-five grams of methamphetamine, in violation of 21 U.S.C.A. § 841(a).
According to the Government, Bruton simultaneously supervised a marijuana smuggling operation, and a methamphetamine laboratory. Thomas Cullen worked as the lab's chemist, manufacturing methamphetamine with equipment and materials provided by Bruton. 1 Montanye aided Bruton by delivering glassware for the lab. Ramon Leal served as Bruton's supplier of marijuana from Texas. 2 John Calia worked primarily as Bruton's partner in the marijuana operation until Bruton cut him out in March 1990, and substituted Carl Hathcock as his partner. 3 Glorioso aided Bruton and Calia in distributing the marijuana.
Based on a number of tips that Bruton and Calia were stealing jewelry, the FBI began surveillance of them in July 1989. However, the FBI grew suspicious that Bruton and Calia also dealt drugs. The FBI heightened its surveillance when the DEA arrested Jack Mikulenka in September of 1989 for attempting to purchase 100 pounds of marijuana from one of its agents. Mikulenka cooperated, telling the FBI that he had worked as a courier delivering marijuana in large quantities from Cecil Evans, an infamous criminal in Texas, 4 to George Bruton in Kansas City. Mikulenka admitted delivering seventy pounds of marijuana to Bruton in August of 1989. (Count III) After gathering evidence for several months, the FBI obtained a court order to tap Bruton's and Calia's cellular phone conversations in February of 1990.
In mid-February, Bruton called Ramon Leal in Texas. Leal told Bruton "the count is 198.5." (Count IV) Bruton then called Calia and told him "the number is 199, actually 198.5." Calia called Glorioso, who asked Calia "how we coming down on that?" Calia responded, "well, it'll cost me about one hundred and ninety nine dollars for that last material."
The next day, Leal arrived in Kansas City. That night, Calia and Bruton met at Glorioso's house, and Bruton then left in Calia's car for Leal's hotel. Bruton went inside the hotel, returned several minutes later and drove to Glorioso's house using Leal's car. Bruton stayed at Glorioso's for half an hour, and then returned to the hotel parking lot. Bruton went inside the hotel, and then drove Calia's car back to Glorioso's house. (Count VI)
In March, Leal told Bruton over the phone "it's two-o-seven, or two-o-nine...." Bruton relayed this number on the phone to Carl Hathcock. Three days later, Bruton met Leal at the hotel again, repeating the ritual of the February meeting, except that Bruton worked with Hathcock instead of Calia and Glorioso.
On April 5, 1990, Bruton called Leal in Texas, and Leal told him that the count is "two point four one and a half." (Count XII) The following day, Leal and his son, Charles, left their home in Texas and began driving north on I-35 towards Kansas City. FBI agents pulled the Leals over on the highway. A search of their car revealed 243 pounds of marijuana packaged in plastic-wrapped bricks, and three kilos of cocaine. Hours later, FBI agents arrested Bruton and Hathcock as they left a Kansas City Motel 6 in Hathcock's car. The FBI found $5,894 in cash on Bruton and $223,340 in cash in the trunk of Hathcock's car. (Count XIV)
In February 1990, the FBI observed Bruton driving his black pick-up filled with garbage bags from 2401 NW...
To continue reading
Request your trial
-
U.S. v. Cuervo, 02-2898.
...57 F.3d 655, 658-59 (8th Cir.1995) and United States v. Rockelman, 49 F.3d 418, 421 (8th Cir. 1995))); see also United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir.1992), cited with approval in reh'g en banc, United States v. Montanye, 996 F.2d 190, 194 (8th Cir.1993). He nonetheless ur......
-
Com. v. Conefrey
...there is variance between the indictment and the proof at trial, or there is a tangible risk of jury confusion); United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir.), cert. denied sub nom. Bruton v. United States, 506 U.S. 957, 113 S.Ct. 418, 121 L.Ed.2d 341, and cert. denied sub nom. ......
-
U.S.A v. Anderson
...weapons after a defendant's arrest in a storage facility rented in the name of someone other than the defendant. United States v. Montanye, 962 F.2d 1332, 1347-48 (8th Cir.1992). Once a district court has found that a gun was possessed during commission of the offense, the court must impose......
-
State v. Bridges
...Russell, 963 F.2d 1320, 1322 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); United States v. Montanye, 962 F.2d 1332, 1345 (8th Cir.1992); United States v. Jordan, 927 F.2d 53, 56 (2d Cir.1991), cert. denied, --- U.S. ----, 111 S.Ct. 2811, 115 L.Ed.2d 9......
-
Changing the tide of double jeopardy in the context of the continuing criminal enterprise.
...1462; Smith, 703 F.2d at 627; Butler, 885 F.2d at 195; Michel, 588 F.2d at 986. (93) 470 U.S. 856 (1985). (94) United States v. Montanye, 962 F.2d 1332, 1346-47 (8th Cir. 1992); United States v. David, 940 F.2d 722, 738-39 (1st Cir. 1991); United States v. Schuster, 769 F.2d 337, 343-45 (6t......