United States v. Montez
Decision Date | 05 June 2017 |
Docket Number | No. 16-1188,16-1188 |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Daniel MONTEZ, Defendant–Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Debra Riggs Bonamici, Attorney, Helene B. Greenwald, Attorney, John F. Kness, Attorney , Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.
Sarah O'Rourke Schrup, Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Chicago, IL, for Defendant–Appellant.
Before Posner, Manion, and Hamilton, Circuit Judges.
Daniel Montez appeals his conviction and sentence for possession with intent to distribute cocaine. He principally argues that the district court erred in admitting a wiretapped conversation he had with an alleged supplier. He also asserts that the district court improperly applied the Sentencing Guidelines' career offender enhancement. Finding his arguments unpersuasive, we affirm the judgment of the district court.
This case arose from an investigation of a drug trafficking ring led by Jose de Jesus Ramirez–Padilla (known as "Gallo"). Beginning in 2011, federal agents placed court-authorized wiretaps on the phones of Gallo and others connected with his organization. These wiretaps intercepted a call between Montez and Gallo, and another one between Montez and Gallo's brother, Helein Ramirez–Padilla ("Helein").
Based upon the evidence obtained through the wiretaps, the government initially charged 40 individuals, including Gallo, Helein, and Montez, with narcotics conspiracy in violation of 21 U.S.C. § 846. The grand jury eventually returned indictments charging 23 individuals with narcotics-trafficking crimes. While Gallo, Helein, and four others were eventually indicted on conspiracy charges, Montez was indicted on three counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The three counts related to three distinct alleged transactions: on October 27, 2011; December 12, 2011; and June 17, 2012.
Before trial, Montez raised concerns that the recordings of the wiretapped calls (or at least the words of Gallo and Helein in those recordings) were inadmissible hearsay. Montez pressed only general objections to calls from October 27, December 12, and December 14, 2011. The district court rejected what it termed Montez's "blanket objection to every statement in the recordings," and then went on to provide some specific examples of statements that were not hearsay. The court held that Helein's words were necessary as context for Montez's admissions and allowed the recordings to be played to the jury.
At trial, in addition to the phone calls, the government elicited Gallo's live testimony that Montez had been a customer of his organization. Two FBI agents also testified to the effect that Montez had admitted to purchasing cocaine at the time of his arrest. Montez's strategy was to cast himself as a user of the drugs, rather than a distributor. To that end, he called one additional agent who testified that he didn't find any typical drug-dealing paraphernalia in Montez's home at the time of the arrest. In the end, Montez was convicted of the December count, but acquitted of both the October and June counts.
At sentencing, the district court found that Montez was a career offender under Section 4B1.1 of the Sentencing Guidelines based on his 1985 Illinois murder conviction and 2007 Illinois conviction for aggravated battery of an officer. After the enhancement, Montez's offense level was 32 and his criminal history category was VI, accounting for a Guidelines range of 210 to 262 months, capped by a 20–year statutory maximum. The district court sentenced Montez to 210 months' imprisonment. Montez appealed his conviction and the application of the career-offender enhancement.
Montez raises four issues with the proceedings below. He says: (1) the district court should have excluded at least portions of his December phone calls with Helein because Helein's statements were inadmissible hearsay; (2) the district court erred in its treatment of a witness's answer that he worked on the "gang task force" after the parties had agreed to omit any mention of gang activity in the trial; (3) his conviction was tainted by incorrect transcripts of wiretapped calls introduced before the grand jury; and (4) his conviction for aggravated battery was insufficient to justify the application of the Guidelines' career-offender enhancement. We consider and reject each argument in turn.
Montez's most significant complaint about the district court's judgment is the court's decision to admit conversations between himself and Helein from December 12 and December 14, 2011.1 Montez made only a blanket hearsay objection to the entire conversation, refusing the district court's invitation to identify particular statements by Helein that constituted inadmissible hearsay. He has now identified particular portions of the transcripts that he says contain hearsay statements by Helein.
Normally, we would review the district court's evidentiary rulings for abuse of discretion. United States v. Davis , 845 F.3d 282, 286 (7th Cir. 2016). The government argues that we should apply the plain error standard of review because of Montez's failure to make objections to particular statements. See United States v. Walker , 237 F.3d 845, 851 (7th Cir. 2001). Abuse of discretion is a "highly deferential" standard of review, but plain error is "even more highly deferential." United States v. Cheek , 740 F.3d 440, 451 (7th Cir. 2014). However, we do not need to decide this question because even under the abuse of discretion standard, we would uphold the district court's evidentiary ruling.
The three particular exchanges that Montez highlights in his brief are as follows:
The district court, in overruling Montez's general objections, found that Helein's statements were not hearsay because they were necessary to provide context for Montez's admissions. However, as we explained last year, when an argument is made that out-of-court statements should be admitted as context, the relevant legal question is still whether those statements are offered for their truth. United States v. Smith , 816 F.3d 479, 481 (7th Cir. 2016). In other words, the fact that the declarant's words help place the defendant's admissions into context is not an independent basis upon which to say the declarant's statements are not hearsay.
In Smith , we explained the difference between a statement offered for its truth and one offered to make sense of another party's admission. Suppose the declarant (Helein in this case) says to the defendant, To this, the defendant simply responds "yes." Under the reasoning in Smith , the declarant's words are admissible because they are not offered for their truth, but rather "to show the meaning of [the defendant's] ‘yes,’ which does not depend on whether [the declarant] was speaking truthfully." Id. On the other hand, suppose the declarant had said, If the defendant responded "yes," the declarant's statement would be hearsay "because it would be relevant only if [the declarant] spoke the truth—that he had paid $7,000 in exchange for a letter." Id. at 482.
Similarly, in United States v. Amaya , 828 F.3d 518, 528 (7th Cir. 2016), an officer testified that an out-of-court declarant had said "[t]hat was a big-ass pistol" and the officer had responded "[h]ell yea." We reasoned that the declarant's statement was hearsay because his exclamation regarding the pistol only puts the officer's response "in context and is only relevant if the [declarant] was speaking the truth." Id. These cases teach that the ultimate question is whether the declarant's statement is relevant only if it is true. If a statement is relevant irrespective of its veracity, then it is not hearsay.
In our case, the truth or falsity of Helein's statements is irrelevant. For example, in the first exchange above, Helein's statements "[i]t's real nice, dude" and "[m]ore or less" weren't offered to prove that the cocaine the two men were discussing was in fact of high quality. Rather, they were offered to explain the meaning of Montez's answers. Without Helein's statements, Montez's "[o]kay" would be unintelligible, as we would have no idea to what he was responding. Like the first statement discussed in Smith , Helein's words are admissible because they were offered irrespective of their truth to explain Montez's response. Montez's words, particularly his admission that "these fucking dudes are picky," do all the work to incriminate him as a distributor of cocaine.
Likewise in the second exchange, Helein's statements were not offered for their truth (such as that he would take 20 minutes to measure the cocaine or that he had...
To continue reading
Request your trial-
United States v. Chester
...renders an error in the grand jury proceedings harmless. United States v. Mechanik, 475 U.S. 66, 73 (1986); United States v. Montez, 858 F.3d 1085, 1091 (7th Cir. 2017); United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004). The verdict here wiped out any error in the charging process ......
-
Rivas v. United States
...offenses in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016). See United States v. Montez, 858 F.3d 1085, 1092 n.3 (7th Cir. 2017) ("Although Mathis was an Armed Career Criminal Act case, courts have observed that the approaches used to apply the caree......
-
Tomkins v. United States
...an element the use, attempted use, or threatened use of physical force against the person or property of another. United States v. Montez, 858 F.3d 1085, 1092 (7th Cir. 2017). Section 876(b) requires proof that the communication contained "any threat to kidnap any person or any threat to in......
-
United States v. Shaffers
...of force" and thus is a crime of violence, while a conviction under the second clause does not. Id. ; see also United States v. Montez , 858 F.3d 1085, 1092 (7th Cir. 2017). The district court here turned to the Shepard documents to determine which prong of the battery statute formed the ba......
-
Review Proceedings
...(prosecutor’s allegedly misleading instructions to grand jury harmless because petit jury’s subsequent guilty verdict); U.S. v. Montez, 858 F.3d 1085, 1091 (7th Cir. 2017) (improper evidence introduced to grand jury harmless because petit jury’s guilty verdict); U.S. v. Louper-Morris, 672 F......