United States v. Grajales-Montoya

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-1788
___________
United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the Eastern
* District of Missouri.
Gustavo Grajales-Montoya, *
*
Appellant. *
___________
No. 96-2016
___________
United States of America, *
*
Appellee, *
*
v. *
*
Elisa Deluca, Also Known as Elisa *
Maldonado, Also Known as Elisa *
Kaukereit, *
*
Appellant. *
___________
No. 96-2018
___________
United States of America, *
*
Appellee, *
*
v. *
*
George A. Deluca, Also Known as *
Poppy, *
*
Appellant. *
___________
Submitted: March 11, 1997
Filed: June 26, 1997
___________
Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS
SHEPPARD ARNOLD, Circuit Judge.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
All three defendants in a narcotics conspiracy trial appeal their convictions; two
of them appeal their sentences. We affirm in all respects.
I.
After a five-and-a-half-week trial, a jury convicted Elisa Deluca, George Deluca,
and Gustavo Grajales-Montoya on various charges relating to the operation of a multi-
state cocaine and heroin ring. The jury found all three defendants guilty of conspiring
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to distribute, and to possess with intent to distribute, five or more kilograms of cocaine
and one or more kilograms of heroin. It also found both of the Delucas guilty of
conspiring to commit various money-laundering offenses, and Mr. Deluca guilty of
traveling in interstate commerce to promote the distribution of drugs. The trial court1
sentenced the Delucas to life imprisonment and Mr. Montoya to imprisonment for 135
months. Each defendant raises several points on appeal, the most prominent among
them being alleged evidentiary errors, alleged instructional errors, the alleged
insufficiency of the government's evidence, and alleged Jencks Act and Brady
violations. We affirm.
II.
Elisa Deluca first contends that the trial court abused its discretion by admitting
into evidence, and sending to the jury room, a document prepared by the government
containing a chronology of what it believed to be relevant events. The chronology lists
occurrences such as wire transfers, bank deposits, large cash purchases, airplane travel,
and meetings among the co-conspirators, and was derived from documents such as
bank and Western Union records, receipts, and surveillance records, all of which were
themselves admitted into evidence. The trial court admitted the chronology pursuant
to Fed. R. Evid. 1006, which states that "[t]he contents of voluminous writings,
recordings, or photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation."
The rule appears to contemplate, however, that a summary will be admitted
instead of, not in addition to, the documents that it summarizes, see United States v.
Possick, 849 F.2d 332, 339 (8th Cir. 1988), and United States v. Robinson, 774 F.2d
261, 275-76 (8th Cir. 1985), and that it will have been prepared by a witness available
for cross-examination, not by the lawyers trying the case. See Possick, 849 F.2d at
1
The Honorable Stephen Nathaniel Limbaugh, United States District Judge for
the Eastern District of Missouri.
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339, and United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir. 1986), cert. denied,
482 U.S. 927 (1987). We therefore believe that Fed. R. Evid. 1006 does not allow for
the admission of a summary such as the one contested by Mrs. Deluca, that is, one that
was prepared by a lawyer trying the case and that restates and distills other properly
admitted exhibits. In fact, we believe that such a summary is a written argument. In
light of the extensive evidence presented at trial against Mrs. Deluca, however, and
because all of the information contained in the summary was available to the jury from
other exhibits, the trial court's error in admitting the summary was harmless.
Mrs. Deluca next asserts that the trial court erred in overruling her objection to
an instruction that dealt with attempts by a defendant to conceal evidence or influence
witnesses. According to Mrs. Deluca, that instruction could have been justified only
by questions during the government's cross-examination of her that insinuated that she
had urged witnesses in the Dominican Republic not to testify; she further urges that, for
reasons that we shall discuss, there was insufficient evidence to support the instruction.
Because there was, however, testimony that George Deluca instructed the son of a
woman working at Mrs. Deluca's beauty parlor (through which the Delucas
occasionally laundered money) not to give federal agents any papers or information, we
believe that the instruction was appropriate. See Closs v. Leapley, 18 F.3d 574, 579-80
(8th Cir. 1994). The notes on use for the Eighth Circuit model jury instructions (after
which the trial court patterned the instruction in question), moreover, indicate that the
instruction need not be limited to certain defendants when all of the defendants are part
of a conspiracy. See Eighth Circuit Manual of Model Jury Instructions § 4.09 (West
1996). We believe that this instruction correctly states the law. See United States v.
Dittrich, 100 F.3d 84, 86-87 (8th Cir. 1996), cert. denied, 117 S. Ct. 1454 (1997).
Mrs. Deluca also argues that the trial court abused its discretion in denying her
motion for a mistrial after the prosecution cross-examined her about whether she had
encouraged potential witnesses from the Dominican Republic not to testify during calls
arranged by her trial counsel. Mrs. Deluca maintains that the questions were improper
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because they implied a fact that the prosecution knew the evidence would not support,
and because they implied that her counsel participated in the obstruction of justice.
While it is true that prosecutors must have a good-faith basis for questions asked during
the cross-examination of a defendant, see United States v. Miller, 974 F.2d 953, 960
(8th Cir. 1992), Mrs. Deluca abandoned this claim during trial by basing her motion for
a mistrial solely on the alleged damage to her counsel's credibility.
With respect to the latter claim, we first note that, in the circumstances presented
here, the inference that her counsel participated in the obstruction of justice, if one
could reasonably be drawn at all, was an extremely weak one. Although such an
inference might colorably raise concerns that a defendant's Fifth Amendment right to
due process or Sixth Amendment right to counsel had been undermined, Mrs. Deluca
has not specified a legal right that she claims was violated by any inferences resulting
from the contested line of questioning. We therefore hold that the trial court did not
abuse its broad discretion in determining whether a mistrial is required by refusing to
grant Mrs. Deluca's motion. See United States v. Clair, 934 F.2d 943, 945 (8th Cir.
1991).
Mrs. Deluca last contends that the trial court erred by refusing to instruct the jury
on the distinction between the proof required for a single conspiracy and that required
for multiple conspiracies with respect to the money-laundering count. Although
Mrs. Deluca argues on appeal that the evidence presented at trial supports the existence
of two different conspiracies (namely, a conspiracy to transfer money to the New York
suppliers and another conspiracy to enable the Delucas to improve their life-style), at
trial Mrs. Deluca argued that the instruction was warranted because there were separate
conspiracies for each wire transfer and because the evidence demonstrated that there
were separate conspiracies of which she was not a member. This shift in the factual
grounds for Mrs. Deluca's argument renders her prior objection insufficient for the
purposes of Fed. R. Crim. P. 30, which requires parties who challenge jury instructions
to have "stat[ed] distinctly the matter to which that party objects and the grounds of the
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objection" before the jury retires. See United States v. Young, 875 F.2d 1357, 1360
(8th Cir. 1989) (change in factual grounds for objection to failure to give lesser-included
offense instruction).
Because Mrs. Deluca has waived her objection to the trial court's refusal to give
her proposed instruction, we may review that decision only for plain error. See United
States v. Caldwell, 97 F.3d 1063, 1068 (8th Cir. 1996). After a careful look at the
record, we believe that the trial court's decision not to use Mrs. Deluca's proffered
instruction was not plain error, that is, we conclude that the omitted instruction did not
" 'affect the defendant's substantial rights resulting in a miscarriage of justice.' " United
States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995), quoting United States v. Gantos,
817 F.2d 41, 43 (8th Cir. 1987), cert. denied, 484 U.S. 860 (1987). The trial court is
required to instruct the jury on multiple conspiracies only if evidence exists to support
such a finding, see id., and Mrs. Deluca points to no evidence tending to prove the
existence of a money-laundering conspiracy of which she was not a member or that did
not involve the proceeds of the cocaine and heroin ring. Indeed, the evidence
overwhelmingly supports the existence of a single money-laundering conspiracy
masterminded by the Delucas in an attempt to hide the ill-gotten gains of their criminal
enterprise.
III.
George Deluca first asserts that the trial court erred when it relied on prosecution
assertions that it possessed no Jencks Act or Brady materials, see 18 U.S.C. § 3500(b)
and Brady v. Maryland, 373 U.S. 83, 87 (1963), from interviews conducted with two
key prosecution witnesses, the Delucas' St. Louis distributor and one of their New York
suppliers. Prior to trial, the Assistant United States Attorney ("AUSA") prosecuting the
case conducted two interviews with the New York supplier in conjunction with several
other law enforcement agencies. The supplier speaks no English, and a translator was
used throughout the interviews.
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Mr. Deluca argues that the notes taken by the AUSA and other federal agents
constitute Jencks Act material because the source somehow "adopted or approved" the
notes, see 18 U.S.C. § 3500(e)(1), when the translator repeated the agents' English
questions in Spanish for the supplier and the supplier's Spanish answers in English for
the agents. We do not follow the logic of this argument, and we note, moreover, that
Mr. Deluca offers no evidence tending to show that the supplier ever reviewed the
agents' notes herself (which would have been quite difficult, considering the language
barrier), or that the interpreter translated the contents of the notes to the supplier.
Mr. Deluca has thus offered no evidence tending to prove that the supplier "adopted or
approved" the agents' notes, see 18 U.S.C. § 3500(e)(1) and United States v. Willis, 997
F.2d 407, 413-14 (8th Cir. 1993), cert. denied, 510 U.S. 1050 (1994), nor has he
produced any evidence tending to show that the notes contained substantially verbatim
quotations of the source's translated testimony, see 18 U.S.C. § 3500(e)(2) and Willis,
997 F.2d at 414. We therefore hold that Mr. Deluca has failed to make a colorable claim
that the notes he desires are Jencks Act materials, and, absent such a showing, the trial
court did not err by refusing to conduct an in camera inspection of the notes. See Willis,
997 F.2d at 414.
Similarly, Mr. Deluca has proffered no evidence tending to show that the materials
that he desires relevant to the St. Louis distributor, namely, interview notes taken by an
IRS agent and by the AUSA, were adopted or approved by the witness or contained
substantially verbatim quotations. Mr. Deluca instead argues that the trial court should
have reviewed the relevant documents because allowing the AUSA to determine what
constitutes Jencks Act material gives the AUSA too much discretion. We therefore find
that he has again failed to make a colorable claim that undisclosed Jencks Act material
existed with respect to the distributor. See id. We accordingly find no error in the trial
court's decision not to conduct an in camera review of the notes, and we also deny
Mr. Deluca's motion asking this court to conduct such a review.
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On appeal, Mr. Deluca intimates, for the first time, that the IRS agent's notes are
statements of the agent (who testified at trial) and that they therefore constitute Jencks
Act material with respect to the agent. Because Mr. Deluca did not advance this
argument at trial, it is waived and we need not address it here. See United States v.
Hoelscher, 914 F.2d 1527, 1535 (8th Cir. 1990), cert. denied, 498 U.S. 1090, 500 U.S.
943 (1991).
Mr. Deluca's cursory allegations that the notes taken during the interviews of the
St. Louis distributor and the New York supplier also constitute Brady material fare no
better. Mr. Deluca does no more than assert that the trial court's actions violated Brady
as well as the Jencks Act and state that Brady requires that exculpatory evidence be
turned over to the defense. As Mr. Deluca does not even specifically assert that the
contested notes either were exculpatory or contained impeachment material, we believe
that he has not complied with Fed. R. App. 28(a)(6) with respect to his Brady claim; we
thus deem that claim abandoned and need not consider it. See United States v.
Gonzales, 90 F.3d 1363, 1369-70 (8th Cir. 1996).
Mr. Deluca also contends that the trial court committed plain error by allowing a
witness to testify that the Delucas had kidnapped, interrogated, and arranged a contract
for the murder of their maid. According to the witness, the Delucas believed that the
maid knew the whereabouts of a former courier for the Delucas who they believed was
cooperating with the government and informing against them. Although Mr. Deluca did
not object to this testimony at trial, he now argues that it is evidence of other crimes as
governed by Fed. R. Evid. 404(b), and that the trial court erred by admitting it without
conforming to the rule's notice requirements. A careful review of the record, however,
suggests that this testimony was offered not as evidence of other crimes, but as evidence
of the Delucas' attempts to protect themselves and to prolong the life of the conspiracy.
Because direct evidence of participation in a conspiracy is probative of the crime
charged, Fed. R. Evid. 404(b) is inapplicable, and the trial court
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did not err, much less err plainly, in admitting the testimony. See United States v.
Kinshaw, 71 F.3d 268, 270 (8th Cir. 1995).
Mr. Deluca further argues that the trial court abused its discretion by preventing
him from cross-examining government witnesses about statements made to them by
Mrs. Deluca to the effect that he had no knowledge of, or involvement in, the
conspiracy. The trial court, relying on Fed. R. Evid. 801(d)(2), precluded such testimony
on the grounds that it was hearsay and that it did not fall within the exception to hearsay
for admissions by a party-opponent. Mr. Deluca contends that he should be considered
a party-opponent with respect to Mrs. Deluca, thus allowing him to introduce her
"admission." We reject this contention.
Even if Mr. Deluca could be considered a party-opponent with respect to
Mrs. Deluca, he did not seek to offer the statements against her, as required by Fed. R.
Evid. 801(d)(2). Mr. Deluca sought to introduce the statements to exonerate himself,
and there is no reason to think that his exoneration could in any way depend on
Mrs. Deluca's incrimination. We therefore believe that Mr. Deluca sought to introduce
the statements against the government's case, rendering them inadmissible unless they
could somehow be considered an admission by the government as defined in
Fed. R. Evid. 801(d)(2). Because Mrs. Deluca's statements plainly do not constitute
statements by the government, see Fed. R. Evid. 801(d)(2), the trial court did not err in
excluding them.
Mr. Deluca maintains alternatively that the statements are admissible as
statements against penal interest under Fed. R. Evid. 804(b)(3), because any statement
by Mrs. Deluca regarding his lack of involvement is, he contends, inculpatory for her.
We reject this contention as illogical, because Mrs. Deluca's statements regarding
Mr. Deluca's role would not have subjected her to increased criminal liability, see United
States v. Ramsey, 999 F.2d 348, 351 (8th Cir. 1993), and, in light of the rest of
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the evidence, merely demonstrate one of the methods that the conspirators used to
insulate themselves from liability.
IV.
Mr. Deluca challenges his sentence on several grounds, first by asserting that the
trial court failed to comply with Fed. R. Crim. P. 32(c)(1), which requires the sentencing
court either to make specific findings with respect to any factual determinations
contained in a presentence report ("PSR") that have been challenged by a defendant, or
to state that the material at issue will not be considered in imposing the sentence. See
Fed. R. Crim. P. 32(c)(1) and United States v. Flores, 73 F.3d 826, 834-35 (8th Cir.
1996), cert. denied, 116 S. Ct. 2568 (1996). Mr. Deluca contends that the trial court
failed to make the requisite findings with respect to the quantity of drugs attributable to
him, his role in the offense, and his obstruction of justice. The trial court acknowledged
Mr. Deluca's objections to the PSR, expressly rejected them, and stated that it did so
pursuant to hearing all of the evidence presented and reviewing its notes. Although we
emphasize the value of specific references to individual pieces of trial testimony, we
believe that the trial court's finding in this case satisfied the minimum requirements of
Fed. R. Crim. P. 32(c)(1). See Flores, 73 F.3d at 835 (rule satisfied where court
rejected defendant's objection "based upon the record and the court's notes of the various
witnesses' trial testimony").
Mr. Deluca similarly contests the form and the substance of the trial court's
determination that 165 to 170 kilograms of cocaine and 1,660 grams of heroin should be
attributed to him, resulting in a base offense level of 38. At the sentencing hearing, the
trial court explicitly applied the "relevant conduct" guideline, which holds a conspirator
responsible not only for his own acts but also for all of the reasonably foreseeable acts
of others taken in furtherance of the conspiracy, see U.S.S.G. § 1B1.3(a)(1)(B) and
United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir. 1996), cert. denied, 117
S. Ct. 1258 (1997), and it therefore held Mr. Deluca responsible for all of the drugs
distributed by the conspiracy.
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Mr. Deluca asserts that the trial court's application of the relevant conduct
guideline constitutes an error of law because, he maintains, it attributed to him drugs that
were from other, separate conspiracies, namely, other conspiracies in which the Delucas'
St. Louis distributor was involved. According to Mr. Deluca, because the PSR did not
explicitly mention the relevant conduct guideline and because, he asserts, the trial court
did not conduct the required relevant conduct analysis, the trial court must have been
so confused by his trial counsel's objection to the PSR (which distinguished among the
distributor's separate conspiracies) that it incorrectly applied the relevant conduct
guideline by attributing the drugs from the distributor's conspiracies to Mr. Deluca. We
detect no confusion in the trial court's application of the relevant conduct guideline. On
the contrary, it is apparent that the trial court relied on its recollection of over five weeks
of trial testimony and numerous exhibits in applying the guidelines.
Because Mr. Deluca was convicted as a co-conspirator, the trial court did not err
as a matter of law in applying the relevant conduct guideline, and it could hold
Mr. Deluca responsible for all of the drug transactions that fell within the scope of the
conspiracy headed by him and Mrs. Deluca. See Flores, 73 F.3d at 833. We
accordingly review the trial court's determination of the amounts attributable to
Mr. Deluca for clear error, mindful of the fact that we must defer heavily to its findings
with respect to witness credibility that enter into such determinations. See United States
v. Betz, 82 F.3d 205, 208 (8th Cir. 1996). After a careful perusal of the record, we
agree with the trial court that its estimate of the drugs attributable to Mr. Deluca was a
conservative one, and we hold that the trial court did not clearly err in calculating the
drug quantity attributable to Mr. Deluca at 165 to 170 kilograms of cocaine and 1,660
grams of heroin, and in setting the base offense level at 38.
Mr. Deluca further argues that the trial court's application of the relevant conduct
guideline was faulty because the trial court failed to conduct the required relevant
conduct analysis, see U.S.S.G. § 1B1.3, application note 2, and that its factual findings
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are therefore insufficiently specific. See United States v. Rice, 49 F.3d 378, 383 (8th
Cir. 1995), cert. denied, 115 S. Ct. 2630 (1995). The trial court, however, read
Mr. Deluca's objections, heard arguments on both sides, stated that it was convinced that
both Mr. and Mrs. Deluca were leaders of the "entire matter," and noted that its
determinations were based on its notes and its recollection of the testimony. We believe
that the trial court very clearly complied with the formal requirements of the guideline.
See id.
Mr. Deluca similarly challenges the sufficiency of the trial court's findings with
respect to the enhancements for obstruction of justice (two levels) and role in the offense
(four levels). After a careful review of the sentencing transcript, we reject both
challenges. With respect to the enhancement for obstruction of justice, the trial court
noted that it was not basing the enhancement on Mr. Deluca's guilt and emphatically
stated that it was "absolutely convinced that George Deluca perjured himself over and
over and over and over again," although it did not explicitly list particular statements by
Mr. Deluca that it believed to be false. Although we have indicated a preference that a
sentencing court state the specific instances of perjury on which it seeks to base
enhancements, see United States v. Kime, 99 F.3d 870, 886 (8th Cir. 1996), cert. denied,
117 S. Ct. 1015, 65 U.S.L.W. 3754 (1997), it is enough that it make an independent and
specific finding that the defendant committed perjury. See United States v. Dunnigan,
507 U.S. 87, 95 (1993), and United States v. Turk, 21 F.3d 309, 313 (8th Cir. 1994).
We must give due regard, moreover, to a trial court's finding that a defendant lied to the
jury. See United States v. Garin, 103 F.3d 687, 689 (8th Cir. 1996), cert. denied, 117
S. Ct. 1323 (1997). In these circumstances, we hold that the trial court's findings
regarding Mr. Deluca's perjury are sufficiently specific.
With respect to the enhancement for Mr. Deluca's role in the offense, the trial
court stated that based on all the evidence before it, and reasonable inferences derived
therefrom, it was "firmly convinced" that the Delucas were "managers and organizers
and leaders of this entire matter.... They put it together, they manipulated it, they
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implemented it, and they organized numerous other people to participate in the scheme."
We therefore believe that the trial court made findings sufficient to support the
enhancement based on Mr. Deluca's role in the offense. See Rice, 49 F.3d at 383.
V.
Gustavo Grajales-Montoya first contends that his incarceration and trial violated
the Speedy Trial Act, see 18 U.S.C. §§ 3161-3174, which requires that an indictment
be brought within thirty days of an arrest on a federal criminal charge. See 18 U.S.C.
§ 3161(b), § 3162(a)(1). On September 23, 1994, federal agents executing the arrest
warrant of Elisa Deluca found Mr. Montoya in her company. The agents questioned
Mr. Montoya at the scene of Mrs. Deluca's arrest, and, after he admitted that he had
entered the United States illegally, they arrested him and turned him over to the
Immigration and Naturalization Service ("INS") for deportation proceedings. While
Mr. Montoya was in INS custody awaiting deportation, federal agents, believing that he
had been, at the very least, a witness to some of the drug trafficking under investigation,
obtained a material-witness warrant against him. Mr. Montoya testified before a grand
jury in October and November about the Delucas' activities, during which time he was
in federal custody but not in INS custody.
Mr. Montoya was returned to INS custody on November 14, after he appeared
before the grand jury, and was taken before an immigration judge later that month. At
that hearing, the AUSA who had questioned Mr. Montoya during his grand jury
appearance suggested several questions to the judge conducting the immigration hearing.
After a second immigration hearing in December, 1994, the INS issued a new
deportation warrant, and Mr. Montoya remained in INS custody until he was indicted
in January, 1995, for perjury before the grand jury. In March, 1995, the perjury
indictment was dismissed and the original indictment in this proceeding was filed.
Mr. Montoya contends that the lapse between either of the INS detentions and the
indictments violated the Speedy Trial Act.
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While Mr. Montoya concedes that the Speedy Trial Act does not apply to INS
deportation proceedings, see United States v. Cepeda-Luna, 989 F.2d 353, 357 (9th Cir.
1993), he asserts that his initial arrest was really for drug trafficking and that the INS
detentions were merely a ruse to detain him for prosecution on those charges at a later
time, thus triggering the Speedy Trial Act on either September 23 or November 14 . See
id. We disagree with both contentions.
As the magistrate judge2 found, there is ample evidence that Mr. Montoya's initial
arrest was for reasons other than prosecution for drug trafficking. He admitted that he
was an illegal alien, and detention by the INS to initiate deportation proceedings was
therefore quite appropriate. At the conclusion of the grand jury proceedings,
Mr. Montoya remained an illegal alien, thus supplying a basis for the second INS
detention.
Nor is there any evidence that these detentions were a ruse to evade the Speedy
Trial Act. Even if we were to hold that the act applies to civil deportation proceedings
when federal officials, solely to evade the act, have colluded with civil authorities to
have those authorities detain a defendant pending federal criminal charges, see id.,
Mr. Montoya's case does not present such circumstances. We are persuaded that the
fact that federal officials are aware of, and perhaps slightly involved in, the deportation
proceedings (as was the AUSA who attended Mr. Montoya's first immigration hearings)
would not establish, as a matter of law, the requisite collusion. See id. at 356. The trial
court therefore did not err in refusing to dismiss Mr. Montoya's case under the Speedy
Trial Act.
2
The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri.
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VI.
Mr. Montoya next contends that his rights to due process, confrontation, and a fair
trial were violated when the prosecution called one of the courtroom interpreters to
testify briefly about his translation of a short note, written in Spanish, from one co-
conspirator to Mrs. Deluca. The interpreter, who translated testimony from English into
Spanish and vice versa throughout the trial, was called by the prosecution solely to lay
a foundation for the translation's introduction into evidence, and the note's author was
later examined and cross-examined about the note's (or, rather, the translation's) contents
and significance. Mr. Montoya argues on appeal that the interpreter's appearance as a
witness violated Fed. R. Crim. P. 16(a)(1)(E), which requires the government to disclose
a summary of an expert witness's credentials, opinions, and the bases and reasons for
those opinions at a defendant's request. Mr. Montoya appears to contend that that
alleged violation, coupled with the fact that the interpreter had been "intimately
involved" with the defense throughout the trial by translating for it, prevented him from
effectively cross-examining the interpreter and thus violated his own constitutional
rights.
We note not only that Mr. Montoya waived this claim by not asserting it at trial,
but also that it is meritless. The interpreter's credentials with respect to his ability to
translate the note were not at issue, for he had been translating throughout the entire trial,
and, although the defense had had the note in its possession for several months prior to
trial, it neither called its own interpreter, offered its own translation, nor challenged the
translation offered by the prosecution.
Mr. Montoya argues in addition that the trial court improperly lent credibility to
the prosecution's case by commenting favorably upon the interpreter's proficiency and
reputation in the jury's presence. We reject that contention as well. Although the
interpreter was, at that moment, technically appearing as a witness called by the
prosecution, in essence he was still acting as a court-appointed courtroom interpreter,
as allowed by Fed. R. Crim. P. 28. We simply fail to see the difference between
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translating a brief note, the contents of which were not at issue, and translating oral
testimony in Spanish into English for the jury, as the same interpreter did for two
prosecution witnesses. In the unlikely event that the trial court did err by allowing the
interpreter to testify, the note contained nothing that implicated Mr. Montoya and
therefore did not prejudice him.
Mr. Montoya also argues that the trial court abused its discretion by admitting into
evidence only the transcripts of translations of certain tape-recorded conversations in
Spanish. At trial, Mr. Montoya requested that the trial court admit the tapes as well as
the transcripts so that his counsel could play them before the jury to show the tone of the
conversations' actual participants, rather than that of the government's actors who read
the tapes' translations in court . Relying on United States v. Valencia, 957 F.2d 1189
(5th Cir. 1992), cert. denied, 506 U.S. 889 (1992), the trial court denied the request,
citing the unlikelihood that a listener who was not proficient in Spanish (such as a jury
member) would be able to discern relevant inflections and idiosyncrasies (the trial court's
word) without knowing the language being spoken. Mr. Montoya has suggested no
reliable means of enabling people who do not speak Spanish to interpret inflections and
tone, and we cannot think of any, either. In such circumstances, we decline to hold that
the trial court abused its discretion in not admitting the tapes of the conversations.
Mr. Montoya makes a variety of arguments based on the sufficiency of the
evidence. He maintains that the evidence presented at trial was insufficient to prove a
single conspiracy (as alleged in the indictment) because the government's evidence
established as a matter of law separate conspiracies for cocaine and for heroin, and that
this variance between the government's pleadings and the proof prejudiced his right to
a fair trial. The fact that several conspirators do not take part in all of a conspiracy's
transactions, however, so long as the jury could have found the existence of one overall
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agreement between the conspirators, does not preclude a finding that a single conspiracy
existed. See United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir. 1994).
After a careful review of the record in the light most favorable to the jury's verdict,
see id., we believe that sufficient evidence existed to prove a single conspiracy to
smuggle narcotics from New York to St. Louis and that the addition of heroin was
merely an expansion of the conspiracy's activities. The conspiracy's membership among
its top ranks remained the same after the addition, as did the motivation for the
conspiracy's actions and decisions, namely, retiring the huge debt that Mrs. Deluca had
incurred during the conspiracy's cocaine dealing. We therefore find no variance between
the indictment and the evidence.
Mr. Montoya similarly asserts that the evidence entitled him to a jury instruction
that would have allowed the jury to find him guilty of one of multiple conspiracies
instead of a single overall conspiracy. Mr. Montoya did not make such a request at
trial, and we believe that the trial court's decision not to give such an instruction was not
plain error. A trial court is required to instruct the jury on multiple conspiracies only if
evidence exists to support such a finding, see United States v. Pena, 67 F.3d at 156, and
the evidence to which Mr. Montoya points is insufficient to suggest anything other than
the existence of one overall conspiracy to establish a pipeline for the transportation of
illegal drugs between New York and St. Louis.
Mr. Montoya further argues that insufficient evidence existed to prove that he
knowingly became a member of the single conspiracy described above. We reject that
contention as well. The record contains sufficient testimony, wire transfer records, and
intercepted phone conversations to prove that he knowingly became a member of the
narcotics conspiracy masterminded by the Delucas by helping them expand their product
line.
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Mr. Montoya additionally asserts that the trial court erred as a factual matter by
not granting him a two-level decrease in offense level for being a "minor participant."
We review the trial court's factual determinations regarding a conspirator's role in the
offense for clear error, see Flores, 73 F.3d at 835, and after a careful review of the
record, we conclude that the trial court did not clearly err in determining that
Mr. Montoya was not a minor participant.
Lastly, Mr. Montoya joins in Mr. Deluca's assertions of error with respect to the
alleged Jencks Act violations. We reject his contention for the reasons already given.
VII.
We therefore affirm the district court in all respects.
HEANEY, Senior Circuit Judge, concurs in the result.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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