U.S. v. Montes
| Decision Date | 14 October 1992 |
| Docket Number | No. 91-8370,91-8370 |
| Citation | 976 F.2d 235 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rolando MONTES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Reynolds (court appointed), Reynolds & Pittard, Austin, Tex., for defendant-appellant.
Ronald F. Ederer, U.S. Atty., Richard L. Durbin, Jr., Asst. U.S. Atty., San Antonio, Tex., Robert Pitman, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, GARWOOD, and DEMOSS, Circuit Judges.
Defendant-appellant Rolando Montes (Montes) appeals his conviction and sentence of conspiracy to possess marihuana with intent to distribute it and of attempt to possess marihuana with intent to distribute it. His primary challenges on appeal are to the district court's findings concerning the relevant conduct for sentencing purposes on grounds of collateral estoppel and sufficiency of the evidence. We affirm.
On October 5, 1990, a confidential informant in Harlingen introduced Officer Morales (Morales), an undercover narcotics officer with the Cameron County Drug Task Force, to Ed Potts (Potts), charged as a co-defendant below. Morales posed as a supplier of marihuana, because Potts had made it known that he and a "partner" were interested in purchasing two hundred pounds of marihuana. Morales gave him a small amount (less than a handful) of the marihuana to take back to Austin as a sample.
Other law enforcement agencies became involved in the undercover operation, including the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, and Firearms (ATF), and the Cameron County District Attorney's Office. Austin DEA Special Agent Delfino Sanchez (Sanchez) helped with the initial gathering of information about Potts and his contacts in Austin.
Morales talked with Potts a few days later over the telephone to arrange the two hundred pound deal. 1 They agreed that Morales would transport the marihuana to Austin, where the sale would occur at Potts's house. During this conversation, Potts told Morales that Montes would be present at the sale because Montes had the connections with the intended ultimate purchasers of the marihuana.
On October 9, Morales went to Austin and met with Sanchez and other agents to devise a plan for the transaction. Manny Duarte (Duarte), an undercover agent with the organized crime unit task force, served as a driver for Morales and the confidential informant. Sanchez and other agents provided surveillance in the neighborhood surrounding Potts's house.
Morales then met Potts and Montes at Potts's house. There was some confusion about the structure of the transaction, and it failed to go through. Montes had only $5,000 with him, which he offered to Morales for a one pound sample of the marihuana because his purchasers were unwilling to deliver their money without a sample. Morales was unable to release any of the marihuana. Montes called several of the buyers but was unable to get any more money. Morales left, after Montes and Potts indicated that they wanted to do more deals in the future. Morales called Montes an hour later because Montes had requested more time to contact other potential buyers. After determining that no more money was available, Morales returned to the Valley.
A recording of the October 9 meeting reveals that Montes was claiming that he could sell fifty or one hundred pounds but not two hundred, and that he was not capable of handling a two hundred pound deal on that date.
On October 15, Potts returned to Harlingen, and Morales met him in his motel room. Potts expressed regrets about the failed deal and mentioned that Montes's contacts still had the money and were still interested in the two hundred pound deal. Potts called Montes from the hotel room, and Morales talked with him briefly. Morales testified that he and Montes talked about the two hundred pound deal and that Montes had reassured him that the incident on October 9 had been the result of a misunderstanding and that his people still wanted the marihuana. 2
On October 18, Potts called Morales's pager. When Morales returned the call later that morning, Potts told him that he and Montes wanted to buy one hundred twenty pounds of marihuana, one hundred pounds for their buyers and twenty pounds for Potts and Montes. 3 Morales recorded this conversation, as well as one occurring later that afternoon. During the later conversation, Potts stated that Montes was then "sitting here with me" and that they had just been discussing the deals; Potts said to Morales that they would do the one hundred twenty pound deal on October 19 and the "two deal" 4 with different buyers the next time. Potts also expressed a desire to set up transactions with Morales on a regular basis. Morales then spoke with Montes during this same telephone call; their conversation was in Spanish and concerned what had gone wrong before and the plans for the next day's deal.
Morales called Potts from the Valley on the morning of October 19 to finalize the deal for that day. Morales did not go to Austin for the transaction; instead, Sanchez, Duarte, and an ATF agent named Jose Viegra were the undercover agents participating in the transaction; other agents provided surveillance. When they arrived at Potts's house, Agent Viegra remained in the vehicle, and Sanchez and Duarte went into the house. Potts, Montes, and co-defendant Thomas Sanders (Sanders) were present. When Sanchez asked to see the money, Sanders put a clear plastic bag on a table; Montes then handed it to Sanchez. Sanchez picked up a second bag that Sanders had placed on the table. Montes told him that the bags contained $100,000 as payment for the 120 pounds. Sanchez, who was wearing a transmitter, then gave a signal to the agents outside. The agents arrested Montes, Potts, and Sanders and confiscated the money and a van belonging to Sanders.
In November 1990 Montes and co-defendants Potts and Sanders were indicted by a grand jury on charges of conspiring from on or before October 9, 1990, to October 19, 1990, to possess with intent to distribute over one hundred kilograms of marihuana contrary to 21 U.S.C. § 841(a)(1) and of attempting, on or about October 19, 1990, to possess with intent to distribute over fifty kilograms of marihuana contrary to 21 U.S.C. § 841(a)(1), both in violation of 21 U.S.C. § 846. 5
In February 1991, Montes and his co-defendants pleaded guilty to a superseding information, which charged them with one count of conspiracy to possess with intent to distribute marihuana. Although the information did not specify any amount of marihuana, Montes claims that he understood that the one hundred twenty pounds of marihuana from the October 19 transaction, described in the factual basis for the plea agreement, would constitute the relevant conduct for sentencing purposes. The factual basis contained no reference to the earlier negotiations for the two hundred pound deal except to note that, other than the October 19 deal, no definite agreement had been reached between defendants and law enforcement agents. In April, Montes moved to withdraw his plea after the presentence report was filed that discussed three hundred pounds of marihuana, instead of the expected one hundred twenty pounds. At a May 20, 1991 hearing set on Montes's motion and on his and Potts's sentencing, the district court permitted Montes to withdraw his guilty plea. 6 Following Montes's withdrawal, the court then sentenced Potts on the basis of two hundred pounds and Sanders on the basis of one hundred twenty pounds. 7
Montes subsequently proceeded to trial under the original indictment. A jury found him guilty on both counts, and the district court found that the relevant conduct encompassed three hundred twenty pounds, on the basis of both the attempted October 9 transaction and the completed October 19 transaction. The court sentenced Montes to seventy months' imprisonment, followed by five years of supervised release; a special assessment of one hundred dollars was also ordered. Montes brings this appeal.
Montes contends that the issue of the relevant amount of marihuana was determined in a prior judicial proceeding, namely the sentencing of co-defendant Potts. He claims that he is in privity with Potts, and that therefore the doctrine of collateral estoppel prevented the government from relitigating, and the district court from redetermining, the same fact issue at his own sentencing. 8
The doctrine of collateral estoppel provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Thus, collateral estoppel "bars only the reintroduction or relitigation of facts already established against the government." United States v. Mock, 604 F.2d 341, 343 (5th Cir.1979) (original emphasis omitted).
Collateral estoppel does not apply to bar the relitigation of the relevant amount of marihuana in Montes's case.
The district court had not previously determined the amount issue in a proceeding between Montes and the government. At the sentencing hearing following the entry of his guilty plea, the court allowed Montes to withdraw his plea before it proceeded to sentence his co-defendants. Montes's proceedings were thus severed from those of Potts and Sanders at the moment his plea was withdrawn. The district court therefore never determined the amount issue as between Montes and the government at the May 20, 1991 hearing. Further, collateral estoppel is inapplicable here because the bar cannot arise from a non-final judgment. The doctrine applies in situations where one final finding...
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