U.S. v. Montes-Cardenas

• Decision Date: 15 November 1984
• Docket Number: MONTES-CARDENAS,No. 83-5491,83-5491
• Citation: 746 F.2d 771
• Parties: 17 Fed. R. Evid. Serv. 155 UNITED STATES of America, Plaintiff-Appellee, v. Alberto, a/k/a Tony Campos, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 771

746 F.2d 771

17 Fed. R. Evid. Serv. 155

UNITED STATES of America, Plaintiff-Appellee, v. Alberto MONTES-CARDENAS, a/k/a Tony Campos, Defendant-Appellant.

No. 83-5491.

United States Court of Appeals Eleventh Circuit.

Nov. 15, 1984.

Raymond J. Takiff, Coconut Grove, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Robert Dunlap, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK ^*, District Judge.

KRAVITCH, Circuit Judge:

Alberto Montes-Cardenas was convicted of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846, possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), and possession of unregistered silencers, 26 U.S.C. Sec. 5861(d). ¹ On appeal, he challenges the sufficiency of the evidence to support the convictions, the failure of the court to sever the counts for separate trials, and several other rulings made during the trial. Concluding that the jury had sufficient evidence to convict Montes-Cardenas on all three counts and that the district court's rulings were correct, we affirm.

I. BACKGROUND

The incidents culminating in the convictions began in March, 1982, when Montes-Cardenas purchased a car from Carlos Munoz, a South Florida car salesman. Subsequently, Montes-Cardenas introduced Munoz to Diego Urrego, who also purchased a car. Over the next several months, Munoz sold twelve automobiles to individuals introduced to him by Urrego and Montes-Cardenas. In June, 1982, Montes-Cardenas told Munoz that he and Urrego imported cocaine, that they had a large amount for sale, and that Munoz could have as much cocaine as he wanted if he could find buyers. Munoz, however, never purchased any cocaine. Subsequently, Montes-Cardenas asked Munoz to help him locate tow-motors, which were to be sent to Venezuela to Salvador Churon-Gomez, ² and used to smuggle cocaine into the United States.

Montes-Cardenas then travelled to Venezuela, from where he telephoned Munoz and told him Churon-Gomez was in the United States and needed assistance to get settled. In July, 1982, Munoz helped Churon-Gomez rent a house in Miami, and located furniture for him. Munoz also drove Churon-Gomez to a shop to purchase a scale. When the shop owner refused to accept an out-of-town check, Churon-Gomez telephoned Frank Montes, appellant's brother, and asked him to write a check as payment. The shop owner delivered the scale to Munoz's place of employment, where Frank Montes paid for it. After Churon-Gomez departed with the scale, Frank Montes remained and produced a bag filled with cocaine that he said belonged to Montes-Cardenas and Urrego. Munoz became very angry at this display, and he refused Frank Montes' offer to sell cocaine. Munoz contacted Churon-Gomez about the incident; Churon-Gomez told him that "Alberto would take care of Frank," and also offered to supply Munoz with cocaine.

When Montes-Cardenas returned from Venezuela in August, 1982, he met with Munoz twice to discuss whether Munoz could find cocaine buyers. Diego Urrego attended one of these meetings. At the other meeting, Montes-Cardenas and Munoz discussed Frank's conduct, and Montes-Cardenas corroborated that he had "taken care of Frank." Although Munoz said he would think about the offer to purchase cocaine, he subsequently left his place of employment, and apparently was never contacted about the offer again.

On October 19, 1982, police searched the house rented by Churon-Gomez. In the nearly empty building, police found a handgun to which a silencer was attached, two briefcases, the scale purchased by Churon-Gomez, and sixty-eight pounds of cocaine. ³ One of the briefcases was locked, but police used a knife to cut it open and found three silencers and another gun, several documents in the names of Montes-Cardenas and Tony Campos, an alias used by Montes-Cardenas, and photographs of Montes-Cardenas and Churon-Gomez. ⁴ Inside the other briefcase were documents in the names of Tony Campos and Churon-Gomez, and pictures of Montes-Cardenas and his family. ⁵

On March 13, 1983, federal agents arrested Montes-Cardenas for possession of unregistered silencers. Montes-Cardenas admitted that the locked briefcase found at Churon-Gomez's home was his, and explained that he used the name Tony Campos because of some personal problems in Venezuela.

Montes-Cardenas was indicted for cocaine violations as well as possession of the silencers. Prior to trial, he moved to sever the drug counts from the firearms count for separate trials. The district court denied this motion. Montes-Cardenas also sought a continuance when, on the date of trial, he first learned that Carlos Munoz would testify for the government. The district court denied the motion, but half-way through the trial and before Munoz testified, the court granted a three-day recess.

On appeal Montes-Cardenas raises five issues: (1) the trial court's refusal to sever the drug charges from the firearms violation; (2) the sufficiency of the evidence on all three counts; (3) the admission of certain hearsay statements; (4) the trial court's refusal to grant a continuance upon appellant's original motion; and (5) the admission of evidence of other crimes attributable to appellant.

II. DEFENDANT'S MOTION TO SEVER COUNTS FOR TRIAL

Montes-Cardenas contends that the district judge improperly denied his motion to sever for separate trials Counts One and Two (drug counts) from Count Three (firearms violation). We undertake a two-step inquiry to determine whether the charges were properly tried at the same time. First, the government must demonstrate that the initial joinder of the offenses was proper under Rule 8 of the Federal Rules of Criminal Procedure. ⁶ Second, we must determine whether the trial court abused its discretion by refusing to order a severance under Rule 14. ⁷ United States v. Forrest, 623 F.2d 1107, 1114 (5th Cir.1980), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980). ⁸

Improper joinder under Rule 8 presents a question of law subject to plenary review by this court. United States v. Park, 531 F.2d 754, 760 (5th Cir.1976). In addressing this issue, however, we must construe Rule 8 broadly in favor of the initial joinder. United States v. Scott, 659 F.2d 585, 589 (5th Cir.1981) (Unit B), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 105 (1982); ⁹ Tillman v. United States, 406 F.2d 930, 934 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969).

Offenses may be joined if they are based on "two or more acts or transactions connected together or constituting part of a common scheme or plan." Fed.R.Crim.P. 8(a). Two crimes are "connected" together if the proof of one crime constitutes a substantial portion of the proof of the other. See, e.g., United States v. Sweig, 441 F.2d 114, 118-19 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971); United States v. Weber, 437 F.2d 327, 331 (3d Cir.1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971); see also United States v. Halper, 590 F.2d 422, 429 (2d Cir.1978) (joinder improper when commission of one crime did not lead to the commission of the other and proof of one did not constitute proof of the other). Joint trials in these circumstances obviate the need for the government to make duplicate offers of proof, and allow the accused to avoid the inconvenience of two separate trials. United States v. Halper, 590 F.2d 422, 430; United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978). Here, police discovered the silencers during the same search that produced the drugs, and the presence of defendant's briefcase, which contained three of the silencers, was a significant link in the government's proof for the drug charges and the weapons charge.

An additional factor present here, however, that leads us to conclude that the offenses charged in this case were connected together is the nexus between weapons and drugs, which courts have acknowledged in the context of permitting the government to introduce weapons into evidence at drug trials. In United States v Lippner, 676 F.2d 456 (11th Cir.1982), this court held that weapons found on a defendant's person or property were admissible into evidence in a trial for a drug conspiracy. Id. at 463. The court reasoned that a gun and brass knuckles were "tools for the execution of the crime" of drug trafficking, and were probative of the defendant's intent and his knowledge that he was engaged in an illicit transaction. Id. Similarly, in United States v. Perez, 648 F.2d 219 (5th Cir.), cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981), the court upheld the introduction into evidence of loaded guns discovered in a house into which the defendants were unloading marijuana at the time of their arrest. 648 F.2d at 224. The Perez court endorsed the following observation:

Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment, and other narcotic equipment.

648 F.2d at 224 (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.1976). Several other courts also have recognized that weapons have become "tools of the trade" for those involved in the distribution or manufacture of illicit drugs, in holding that weapons were properly admitted into evidence at drug trials. See United States v. Romero, 692 F.2d 699, 705 (10th Cir.1982); United States v. Marino, 658 F.2d 1120, 1123 (6th Cir.1981); United States v. Picklesimer, 585 F.2d 1199, 1204 (3d Cir.1978); United States v. Pentado, 463 F.2d 355, 361 (5th Cir.1972), cert. denied, 410 U.S. 909, 93 S.Ct....