U.S. v. Moreno

• Citation: 899 F.2d 465
• Decision Date: 27 March 1990
• Docket Number: Nos. 89-1150,s. 89-1150
• Parties: 29 Fed. R. Evid. Serv. 1435 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Bayron MORENO (89-1150/1208), Scott Krugielka (89-1171/1209), Defendants-Appellants, Cross-Appellees. / 89-1171, 89-1208/89-1209.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 465

899 F.2d 465

29 Fed. R. Evid. Serv. 1435

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Bayron MORENO (89-1150/1208), Scott Krugielka (89-1171/1209), Defendants-Appellants, Cross-Appellees.

Nos. 89-1150/ 89-1171, 89-1208/89-1209.

United States Court of Appeals Sixth Circuit.

Argued Jan. 17, 1990.

Decided March 27, 1990.

Kathleen Moro Nesi, Asst. U.S. Atty. (argued), Office of the U.S. Attorney, Detroit, Mich., and Janet L. Parker, Asst. U.S. Atty., Office of the U.S. Attorney, Bay City, Mich., for the U.S.

Robert J. Dunn, and C. Michael Gorte (argued), Bay City, Mich., for defendants-appellants.

Before KENNEDY and GUY, Circuit Judges; and LIVELY, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

Defendants, Scott Krugielka and Bayron Moreno, appeal their convictions and sentences in this drug conspiracy case. ¹ The United States cross-appeals the sentences that were imposed by the district court. In their appeal, the defendants raise the following allegations of error:

(1) they were denied a fair trial because of prosecutorial misconduct; (2) the district court abused its discretion by adding two points to each defendant's base offense level for possession of a firearm during the conspiracy; (3) the district court abused its discretion by finding that Krugielka did not play a minor role in the conspiracy; and (4) the testimony of government witness Jack Ventimiglia should not have been given any weight as a matter of law. The government in its cross-appeal challenges the sentences that the district court imposed, asserting that the district court should have taken a larger quantity of cocaine into consideration in calculating the base offense level, despite the fact that the jury returned a verdict finding the defendants guilty of conspiring to distribute a lesser amount. Finding the defendants' contentions on appeal to be without merit, we affirm the convictions. We remand for resentencing, finding that the district court erred in its calculation of the quantity of cocaine to be considered for sentencing purposes.

I. STATEMENT OF FACTS

The defendants, along with seventeen others, were named in a sixty-three count indictment alleging a drug distribution conspiracy. Moreno, Krugielka, and co-defendants Brad Krugielka, Quinn Hickey, and Donald Ball were tried before a jury, and after a month-long trial, the jury returned a verdict convicting Scott Krugielka of one count of conspiracy to distribute or to possess with intent to distribute 500 or more grams of cocaine. 21 U.S.C. Sec. 846. Moreno was convicted of one count of conspiracy to distribute or to possess with intent to distribute 500 or more grams of cocaine, 21 U.S.C. Sec. 846, and of three counts of use of a federal communication facility to commit a felony. 21 U.S.C. Sec. 843(b).

The district court sentenced Krugielka to 135 months imprisonment and Moreno to 235 months. Both defendants filed timely notices of appeal. The United States filed a cross-appeal.

We will address the issues presented seriatim, beginning with those allegations of error raised by the defendants.

II. THE DEFENDANTS' APPEAL

A. Allegations of Prosecutorial Misconduct

The defendants allege that the prosecutor made prejudicial and biased remarks in her closing argument and rebuttal that rose to the level of prosecutorial misconduct and that mandate a reversal. In order for such comments to warrant reversal, the comments must have " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The comments about which the defendants complain were neither improper nor unfair.

Specifically, the defendants in this case assert that certain comments that the prosecutor made in closing about beepers were an expression of personal opinion and therefore improper:

Now, I submit to you, what legitimate business purpose did the other people in this case have for a beeper number? You may have h[e]ard some testimony that Scott Krugielka had a job, but no testimony that he used it for his job, that he needed it for his job.

(Tr. Vol. IX at 19). At the end of the closing argument, defendant Krugielka moved for a mistrial based upon this comment. The district judge very properly denied the motion, ruling that the prosecutor had not shifted the burden or commented on defendant's failure to testify, but had merely "talked about what the evidence was." (Tr. Vol. IX at 38). The prosecutor was not stating her personal belief; she was simply arguing the evidence to the jury. Viewing these comments about beepers in the context of the prosecutor's entire closing argument supports the district judge's ruling that the prosecutor was merely discussing the evidence.

Krugielka also points to comments made by the prosecutor in rebuttal:

Another thing Mr. Scorsone made reference to a red herring. I think he even said the beeper was a red herring.

The red herring is not the beeper. The red herring is the argument that there are legitimate uses for beepers. There's no doubt about that.

The red herring is that there are legitimate uses for plastic bags, for baking soda and for scales. Yes, that's true, ladies and gentlemen, and nobody is denying that.

The red herring is saying when you put all these things together, along with the cocaine, it means anything but that those are innocuous.

You put these things together, and they're consistent with cocaine trafficking. Those are the tools of the trade of cocaine trafficking.

Sure, sometimes they can be used in other ways, but what does your reason and common sense tell you about how Mr. Hickey used those things?

(Tr. Vol. X at 113-14). No objection was made to this comment at trial. In addition, these remarks were addressed to defendant Hickey, not to Moreno or to Krugielka. Even assuming that the remarks were made in reference to the defendants who bring this appeal, we conclude that they were not improper. Viewed in their proper context, the prosecutor was not, as Krugielka suggests, attempting to argue that there were no legitimate uses for beepers. Indeed, she acknowledged such legitimate uses, but argued that all of the evidence and common sense pointed to the conclusion that the beepers were part of the tools of the trade of cocaine trafficking. She was not attempting to interject her personal opinion; she was merely discussing the evidence.

Defendant Moreno also claims error as a result of the prosecutor's characterization of witness Jack Ventimiglia. Defense counsel attacked Ventimiglia in closing argument and referred to him as the government's "star witness." In her rebuttal, the prosecutor said:

He's not the government's star witness. He's a criminal. But he's a criminal whose crime is committed in association with other people. Remember that.

He said he wished he had never met the people at the prosecution table, and he never met these people till after April 12th. And what he testified about was the events before April 12th. That's when these gentlemen were his associates.

And in a very real sense, ladies and gentlemen, Jack Ventimiglia is not our witness, the government's witness, he's their witness. He's their associate.

He saw and was involved in what they did....

(Tr. Vol. X at 144-45). At this point, counsel for codefendant Ball made an objection, and the following colloquy occurred:

MR. BURNS: Your Honor, I don't like to stand up, but I have to object to her categorizing Jack Ventimiglia as our witness. He was called by the government.

THE COURT: Did you refer to him as their witness?

MR. GORTE: She did, your Honor.

MS. PARKER: I said in a sense he's their witness.

THE COURT: No. In no sense is he their witness. They didn't call him. He was called by the government and cross examined, and that's a terribly inappropriate remark to call him their witness.

(Tr. Vol. X at 145).

In our view, we see no impropriety requiring reversal in the prosecutor's remarks. She was not telling the jury that Ventimiglia was technically a defense witness but, rather, that Ventimiglia was a long-time associate of the defendant and knows whereof he speaks. Although the judge admonished the prosecutor after a defense objection, it is clear from the transcript that the judge did not hear the remark made and only accepted an out-of-context explanation. The prosecutor wisely just returned to her argument rather than belaboring the point.

B. The Testimony of Jack Ventimiglia

Defendant Moreno also asserts in this appeal that the testimony of government witness Jack Ventimiglia should have been withheld from the jury as a matter of law. The defendant bases his claim on the fact that Ventimiglia was an admitted cocaine addict during the time of the conspiracy. According to the defendant, Ventimiglia's testimony is therefore unreliable and should not have been admitted. The defendant points out several inconsistencies in Ventimiglia's testimony, and he also relies on the fact that Ventimiglia admitted to suffering the symptoms of cocaine withdrawal after he agreed to testify for the government.

The defendant appears to be confusing two distinct issues. The weaknesses that Moreno points out in Ventimiglia's testimony go to its credibility, not to its admissibility. Credibility of testimony is a question for the jury, not for the court. Moreno appears to argue that Ventimiglia was not competent to testify at the trial because of his cocaine addiction. We recently addressed this issue in United States v. Ramirez, 871 F.2d 582 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 127, 107 L.Ed.2d 88 (1989). In Ramirez, the defendant argued that the principal government witness was "incompetent" to testify because she used cocaine during the period about which she testified. The court explained that the...