U.S. v. Montemayor, s. 81-2349
Decision Date | 22 January 1982 |
Docket Number | 81-2350,Nos. 81-2349,s. 81-2349 |
Citation | 666 F.2d 235 |
Parties | 9 Fed. R. Evid. Serv. 1141 UNITED STATES of America, Plaintiff-Appellee, v. Matias MONTEMAYOR, Defendant-Appellant. Summary Calendar. |
Court | U.S. Court of Appeals — Fifth Circuit |
Dale Robertson, Brownsville, Tex., for defendant-appellant.
John M. Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before RUBIN, SAM D. JOHNSON, and GARWOOD, Circuit Judges.
A grand jury sitting in the Southern District of Texas, Brownsville Division, returned two indictments against Matias Montemayor, stating thirteen counts of violation of federal firearm laws. The United States magistrate set bail at $2,000,000 in the first action and $1,000,000 in the second action. Montemayor applied to the magistrate for review of his order pursuant to 18 U.S.C. § 3146(d). After a bail review hearing, the magistrate ordered the bail in the first action reduced to $1,000,000 and in the second action reduced to $350,000. Montemayor then sought further reduction of bail by filing in the district court motions to amend the orders imposing conditions of release, pursuant to 18 U.S.C. § 3147. The district court conducted a hearing on the motions, found the magistrate's orders to be supported by the evidence and declined to amend the orders. Montemayor appeals, contending that the district court erred by considering evidence inadmissible under the Federal Rules of Evidence, and that, when the contested evidence is excluded, the bail is excessive.
The evidence presented in the hearings before the magistrate and the district court indicates that Montemayor is a man whose considerable financial resources are matched only by his problems with the law. Montemayor is a Mexican citizen who has been living in the United States as a resident alien since 1954. In 1972 he was convicted in the United States District Court for the Northern District of Illinois on charges of conspiring to dispense and distribute narcotics, i.e., cocaine. That conviction spurred the Immigration and Naturalization Service (INS) to initiate deportation proceedings against Montemayor in 1977. The proceedings were suspended when Montemayor failed to appear for his scheduled hearing. The INS investigator testifying at the bail hearing indicated that after Montemayor was taken into custody on the presently pending criminal charges, Montemayor was notified that the deportation proceedings would be recommenced; they will remain in abeyance, however, until the matters implicated in the presently pending criminal charges and criminal investigations are resolved.
Other evidence introduced at the hearing indicated that Montemayor had retained close ties with Mexico. A Drug Enforcement Administration (DEA) Special Agent testified that his investigation of Montemayor disclosed that Montemayor owned a home in Monterrey, Mexico, and two ranches near Cerralvo, Mexico. Montemayor's wife is a Mexican citizen twice apprehended by the INS for living illegally in the United States; the legality of his children's residence in the United States is uncertain, as they claim both Mexican and United States citizenships by birth.
The criminal charges currently pending against Montemayor carry a maximum combined penalty of sixty-four years, and an $80,000 fine.
In addition to the above-reviewed evidence, the district court also considered information about Montemayor, his activities, and his property holdings in the United States which had come to its attention in the course of four civil proceedings pending before it. Montemayor was a claimant in these proceedings, seeking the return of property which the United States government had seized as forfeit, pursuant to 21 U.S.C. § 881(a)(6), as representing the proceeds of illicit trafficking in controlled substances. It appears that the seizures were made as the result of investigations by both the DEA and the Internal Revenue Service into Montemayor's alleged involvement in narcotics dealing. Among the items of real and personal property which Montemayor sought to reclaim were ten horses, one Piper Navajo PA-31 airplane, and one 1981 Lincoln Continental Mark VI. All told, over $2,000,000 in holdings were at stake in the...
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