U.S.A. v. Montenegro & Perez, s. 99-3382 and 99-3391

• Decision Date: 25 October 2000
• Docket Number: Nos. 99-3382 and 99-3391,s. 99-3382 and 99-3391
• Citation: 231 F.3d 389
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MISAEL MONTENEGRO and JUAN PEREZ, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 389

231 F.3d 389 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MISAEL MONTENEGRO and JUAN PEREZ, Defendants-Appellants.

Nos. 99-3382 and 99-3391

In the United States Court of Appeals For the Seventh Circuit

Argued September 20, 2000

Decided October 25, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 399--Milton I. Shadur, Judge. [Copyrighted Material Omitted] Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

On July 7, 1998, a grand jury in the Northern District of Illinois returned a three-count indictment against Misael Montenegro, Juan Perez, and Jose Perez (Juan's brother)¹ charging the three men with two counts of violating the Hostage Taking Act, 18 U.S.C. sec. 1203,² and one count of conspiracy to commit those crimes, in violation of 18 U.S.C. sec. 371. After a jury found both defendants guilty of all three counts set forth in the indictment, the trial judge sentenced Montenegro to five years' imprisonment on the conspiracy count and 160 months' imprisonment on the Hostage Taking Act counts, all sentences to run concurrent with each other. The judge sentenced Juan Perez to five years' imprisonment on the conspiracy count and 200 months' imprisonment on the Hostage Taking counts, all sentences to run concurrently with each other. Each defendant also received three years' supervised release on the conspiracy count and five years' supervised release on the Hostage Taking counts, all to run concurrently with each other. Finally, both defendants received a $150 special assessment, and Montenegro was fined $4,000. On appeal, both defendants challenge their convictions, and Juan Perez argues that he was entitled to a reduction in his offense level, pursuant to U.S.S.G. sec. 3B1.2, for his "minor" role in the kidnapings. We affirm.

I. BACKGROUND

Between 1989 and 1993, Montenegro fronted Jose Moreno one and a half kilos of cocaine with a value of $30,000. In 1994, Montenegro fronted Margarito Soto two kilos of cocaine with a value of $50,000. When Moreno and Soto failed to pay their debts in a timely fashion, Montenegro enlisted the assistance of Juan and Jose Perez to assist him in strong-arming the debtors into turning over the drug money owed to him.

The three men began their ill-advised, enforcer- like scheme on May, 11, 1995, when they drove to Moreno's residence and abducted Moreno from an alley behind his house where he was working on his car. According to Moreno's testimony at trial as well as statements made to investigators, when the three men arrived at Moreno's house, Jose Perez jumped out of the van, grabbed Moreno by his collar, and forced him into the van. Once Moreno was in the van, a fourth, unidentified occupant covered Moreno's eyes with a rag. After riding in the van for approximately twenty minutes, the van entered a garage where Moreno was blindfolded and beaten by his abductors. The beating left Moreno with cuts, bruises, and scrapes to his face and chest as well as a broken nose. Moreno was then led to another room and handcuffed to a cinder block wall. At this point, an object Moreno believed to be the barrel of a gun was jabbed into his chest and he was told by Jose Perez (Moreno recognized his voice) that he had to raise the money he owed Montenegro. Moreno responded by providing phone numbers to Jose Perez who, in turn, dialed the numbers on a cellular phone and allowed Moreno to attempt to raise the ransom money.³

That same night at approximately 9:30 p.m., Montenegro, Juan Perez, and Jose Perez drove to Soto's residence. When Soto answered the door, Montenegro asked him to step outside. After Soto exited the house, Montenegro placed his foot in front of the screen door to prevent Soto from reentering the house while Jose Perez approached Soto and threatened to kill him if he moved. When Soto claimed that he did not have the money to satisfy his outstanding debt, Montenegro and Jose Perez dragged him into the van, duct-taped his legs together, and taped his arms behind his back. According to Soto, he was then blindfolded and driven approximately twenty minutes to a big garage or warehouse. Soto was pulled out of the van and beaten with a hard object. Jose Perez then placed an object Soto believed to be a gun barrel on his forehead and asked "Do you want me to throw you into the river or just kill you now?" Soto was then dragged into another room where the duct tape was removed and he was handcuffed to a ring on the wall. When the kidnappers left the room, Soto was able to remove his blindfold and saw that he and Moreno were in the same room with at least five other Hispanic men, all handcuffed to the wall.⁴ For three days Soto and Moreno attempted to raise money by contacting friends and family.

On May 13, 1995, at the direction of the FBI, Moreno's girlfriend informed the kidnappers that Moreno's ransom had been raised and a drop-off was arranged at a local Taco Bell restaurant with Moreno's uncle, Isauro Delgado, acting as the delivery man. The day the ransom money was to be delivered, Moreno was placed in a van with Juan and Jose Perez. The three men drove to the designated Taco Bell, but when Jose Perez noticed a significant amount of traffic in the area, he directed Moreno to contact his girlfriend and change the location of the ransom delivery. Moreno contacted Ayala, but was told that his uncle was already on his way to Taco Bell. After agreeing to continue with the original plan, Juan Perez parked the van at the Taco Bell and the three men waited inside the van until Moreno saw his cousin's car.⁵ Juan Perez then went into the restaurant, and after Jose Perez told Moreno, "[w]e're watching, so don't try anything stupid," Moreno got out of the van and walked to his cousin's car. FBI agents then surrounded the van where Jose Perez was waiting and arrested him and Juan Perez. After the police searched Juan and Jose Perez and the van they arrived in, they discovered handcuff keys on both of them as well as a replica of a handgun in the van.⁶

The next day, one of the kidnappers removed Soto's handcuffs and drove Soto to an alley where he was told to keep his blindfold on for five minutes after the kidnapper left or else Soto would be shot. After waiting several minutes, Soto removed his blindfold and contacted his wife who informed the FBI of his release.

II. ISSUES

Both defendants now appeal their convictions, arguing that the trial judge committed plain error when he failed to question prospective jurors about any potential bias against aliens. The defendants also argue that the Hostage Taking Act is unconstitutional because it violates the Fifth Amendment in that it, according to the defendants, impermissibly discriminates against aliens. Finally, Perez raises a separate challenge and argues that the sentencing judge committed plain error when he failed to sentence Perez as a "minor" participant under U.S.S.G. sec. 3B1.2.

III. DISCUSSION

A. Voir Dire

On appeal, both defendants argue that the trial judge should have inquired during voir dire as to the potential prejudice jurors might have as to a person's foreign citizenship despite the fact that trial counsel never requested that the judge raise this potential bias issue with the venire. Because the defendants failed to raise this claim during trial, we review it for plain error. United States v. Reynolds, 64 F.3d 292, 296 n.3 (7th Cir. 1995) (citing United States v. South, 28 F.3d 619, 625 (7th Cir. 1994)). As we stated in United States v. Baker, 227 F.3d 955 (7th Cir. Sept. 20, 2000),

[u]nder this standard, there must be: 1) an error; 2) that is clear or obvious; and 3) that affects substantial rights. United States v. Olano, 507 U.S. 725, 732-35, 113 S. Ct. 1770, 123 L. Ed.2d 508 (1993); Cusimano, 148 F.3d at 828. "In an effort to clarify when an error affects substantial rights, the [Supreme] Court said 'in most cases it means that the error must have been prejudicial: It must have affected the outcome of the District Court proceedings.'" Remsza, 77 F.3d at 1044 (quoting Olano, 507 U.S. at 734). In this circuit it is clear that "the constructive amendment 'must constitute a mistake so serious that but for it the defendant probably would have been acquitted in order for us to reverse.'" Hughes, 213 F.3d at 329 (quoting Cusimano, 148 F.3d at 828); see also Remsza, 77 F.3d at 1044. Even then, "we have the power to correct the error but are not required to do so." Cusimano, 148 F.3d at 828 (citing Olano, 507 U.S. at 735). "We will not reverse unless we find the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.; see also, Remsza, 77 F.3d at 1044.

On appeal, the defendants argue that the trial judge's failure to inquire into the jurors' potential bias toward non-citizens of this country violated their constitutional right to be tried by an impartial jury because some of the jurors may have had biases against resident aliens.⁷ However, "[t]he conduct of voir dire is left to the trial court's sound discretion," and "litigants do not have a right to have a particular question asked." Gardner v. Barnett, 199 F.3d 915, 920-21 (7th Cir. 1999) (en banc) (citing Ham v. South Carolina, 409 U.S. 524, 527 (1973)). Despite this broad discretion, there are circumstances where trial courts are constitutionally required, if the criminal defendant so requests, to voir dire potential jurors concerning racial or ethnic bias. Indeed, "some cases may present circumstances in which an impermissible threat to the fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically about racial prejudice during voir dire." Ristaino v. Ross, 424 U.S. 589, 595 (1976). Thus, when "special circumstances" reflect that racial issues are "inextricably bound up with the conduct of the trial," an accused's constitutional...