Petition — Montemayor de la Paz v. United States

- Supreme Court, U.S.

FILED

83-937 DEC 5 1983

In THE

Supreme Court of the United States

Ocroser TERM, 1983

MATIAS MONTEMAYOR DE LA PAZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MICHAEL J. GUINAN *

39 South LaSalle Street

Suite 1100

Chicago, Illinois 60603

(312) 236-2803

Attorney for Petitioner

GEORGE E. BECKER

39 South LaSalle Street

Suite 1100

Chicago, Illinois 60603

(312) 236-2804

Of Counsel * Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

TEV AS,

i

QUESTIONS PRESENTED

Whether the Petitioner’s convictions are contrary to fun-

damental fairness and due process of law because the per-

vasive prejudice of the trial judge created a courtroom

atmosphere where the rules of evidence did not apply,

insufficient evidence was used as the basis to support the

convictions and a mandate was placed in the minds of the

jury requiring them to convict Petitioner?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

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REASONS FOR GRANTING THE WRIT:

ui

IN LIGHT OF THE INSUFFICIENCY OF THE

EVIDENCE PRESENTED TO PROVE THE

ALLEGATIONS IN THE VARIOUS COUNTS

OF THE INDICTMENT THE PERVASIVE

PREJUDICE OF THE TRIAL JUDGE VIO-

LATED PETITIONER’S RIGHT TO FUNDA-

MENTAL FAIRNESS AND DUE PROCESS OF

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A. The Trial Court’s Questioning Of Key

Prosecution Witnesses Highly Prejudiced

The Petitioner And Was A Clear Mis-

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B. The Trial Judge’s Charge To The Jury

Was A Mandate To Convict Petitioner .

C. The Trial Court Erred When It Failed To

Instruct The Jury On Lesser Included Of-

fenses Under The Continuing Criminal

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11

16

D. The Trial Court Erred When It In-

structed The Jury That The Violations

Requisite To A Continuing Criminal

Enterprise Conviction Could Be Predi-

cated Solely On The ‘‘Pinkerton’’

Vicarious Liability Theory ...........

Il.

THE EVIDENCE WAS INSUFFICIENT TO

SUPPORT THE PETITIONER’S CONVICTION

AND THE JUDGMENT WAS CONTRARY

TO FUNDAMENTAL FAIRNESS AND DUE

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APPENDIX

1—Opinion of the United States Court of Appeals

er Te ee EE Ske ceeeddendiisvaueces

2—Order of the United States Court of Appeals for

the Fifth Circuit Denying Rehearing En Banc .

3—Government’s Answer to Defendant’s Motion for

Bill of Particulars as to Count 2 .m»........

4—Court’s Questioning of Jurors Regarding Ex-

DE eciec een sue eae Wasenss cobekeEse ees aéus

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16a

iv

LIST OF AUTHORITIES

Cases

; Page

Beiger v. United States, 295 U.S. 78, 55 S.Ct. 629

CE So.wiak bad vu coe diee hers sce ee ebaanes 24

Blumberg v. United States, 222 F.2d 496, 501 (5th

ae SUE 4 win Sach wee amie Saleen ss Geb Kek +s 10

Brocks v. United States, 240 F.2d 905 (5th Cir.

PTs cause waka ab cans hasnt kanes 19

Bursten v. United States, 395 F.2d 976 (5th Cir.

SD <emredk evGan baci oe Rkdauaiee cu Rubies vous 11, 19

Curl v. International Business Machines Corp., 517

F.2d 212 (5th Cir. 1975) cert. denied, 425 U.S.

DD PE en oe euia tna aeh a 16

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457,

ee ee SE <p .ck ec nicadtucksasdauewe oe 26

Gomila v. United States, 146 F.2d 372 (5th Cir.

De Re rte GRU OCaGORN Ghee kh eee Oke ha hikadaee 11

Herman v. United States, 289 F.2d 362 (5th Cir.

BED SAR kOe ike es Deke anew dant bedanéaG es 10

Herron v. Southern Pacific Co., 283 U.S. 91, 51

S.Ct. 383, 75 L.Ed. 857 (1981) ............ 10

Hunter v. United States, 62 F.2d 217 (5th Cir.

RE RE bia cckad Rene aeons ike vckuderns 10

Jeffers v. United States, 432 U.S. 137, 97 S.Ct.

SE SENED Sodvavcakcalee Cin kiveuake ee Fe

Keeble v. United States, 412 U.S. 205 (1973) .. 21

Mims v. United States, 375 F.2d 135 (5th Cir.

MND Svan acdaccveswisdees vuubiwevensas pee 11, 12

Montford v. United States, 271 F.2d 52 (5th Cir.

PEED, SES SCNA peu dawbunhnsecccacontatetnses 11

Moore v. United States, 598 F.2d 489 (5th Cir.

BOND es si wes cencveshvbenghasbiustctesbeban 11

Vv

North Carolina v. Pierce, 395 U.S. 711, 89 S.Ct.

Th (thbtcuddéhwiencdssasecpane wns

Pinkerton v. United States, 328 U.S. 640, 66 S.Ct.

EL 200. Sc act denheqekhiuddidhsauos oe

Roe v. United States, 287 F.2d 435 (5th Cir. 1961)

Sansone v. United States, 380 U.S. 343 (1965) .

Starr v. United States, 153 U.S. 614, 14 S.Ct. 919,

ee a0. oh bananeestecanwabias

United States v. Allied Paving Co., 451 F. Supp.

EE EE aii s o's weed enebanecns

United States v. Chagra, 669 F.2d 241 (5th Cir.

AR a ea ec

United States v. Diaz, 585 F.2d 116 (5th Cir. 1978)

United States v. Daniels, 572 F.2d 535 (5th Cir.

Dias huaVenwcheh ene veshwrsetncene

United States v. Grinnell Corp., 384 U.S. 563, 86

S.Ct. 1698, 16 L.Ed.2d 778 (1966) .........

United States v. Haskins, 345 F.2d 111 (6th Cir.

TI: Wain iet-otethnacdde <buwawakemads ome

United States v. Hill, 332 F.2d 105 (7th Cir. 1964)

United States v. Jacquillion, 496 F.2d 380 (5th Cir.

th) Son's) seadweee hanwuewkueemae nee

United States v. Jimenez, 613 F.2d 1373 (5th Cir.

ciedcuh as Seep ies taaeke we daiieewn mame

United States v. Lanham, 416 F.2d 1140 (5th Cir.

PN GK wd pecadenpedcoweseueesanse

United States v. Leonelli, 428 F. Supp. 880 (S.D.

EE iin ca uds 66 65kn Se RAWE CARER RRO

United States v. Lurz, 666 F.2d 69 (4th Cir. 1981) .

United States v. Michel, 588 F.2d 968 (5th Cir.

DiaciDakhadhaneseusNceeenwatatwihowues

United States v. Musgrave, 444 F.2d 755 (5th Cir.

EE, cddae Kidhe chines oneld Kiudh gheadkeet

United States v. Posten, 436 F.2d 706 (6th Cir.

tte te ene che haben Caanih «emake

vi

United States v. Ragsdale, 438 F.2d 21 (5th Cir.

ee ey ede be pense es ll

United States v. Sheldon, 544 F.2d 213 (5th Cir.

Se da eaeh kcbaeabee 15

United States v. Sperling, 506 F.2d 1323 (2nd Cir.

Ee ee Cake dnsenewewns 46 22

United States v. Welliver, 601 F.2d 203 (5th Cir.

ee Ve bp ape cdae ee 12

United States v. Valenzuela, 596 F.2d 1361 (9th

ee ad aoe kee eniee © 20

United States v. Womack, 454 F.2d 1337 (5th Cir.

TT nn a ee stew wae si 17

Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979) 16

Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064

i ot eis oueedbesueses 22

Constitutional Provisions And Statutes

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es kas eccecs ssccceceeese 2, 5, 21

ere 3, 5, 20, 21, 23

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28 U.S.C.A. Sec. 455(aXbX1) ...... cece cece eee 16

CE 21

By Me GE MEWEE, GEE oo cece ccccscccescccsees 10

In Tus

Supreme Court of the United States

Ocroser Tzrm, 1983

MATIAS MONTEMAYOR DE LA PAZ,

Petitioner,

va.

UNITED STATES OF AMERIOA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIROUIT

Matias Montemayor De La Paz hereby petitions that a

Writ of Certiorari be issued to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered on August 5, 1983 and the subse-

quent denial of the Petition for Rehearing En Banc

entered on October 6, 1983.

OPINION BELOW

The judgment and opinion of the United States Court

of Appeals for the Fifth Circuit was entered on August

5, 1983 (No. 82-2249). The opinion is contained in the Ap-

pendix at Page la. A petition for rehearing en banc made

on behalf of the Petitioner was denied on October 6, 1983.

(Appendix 2).

line

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on October 6, 1983 (No.

82-2249) affirming the Petitioner’s conviction and sentence

entered by the United Siates District Court for the South-

ern District of Texas, Brownsville Division on May 14,

1982. The jurisdiction of this court is invoked under and

pursuant to Title 28 United States Code, Section 1254(1).

STATUTES INVOLVED

Section 841 of Title 21 United States Code provides:

“(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute,

or dispense a controlled substance;

(2) to create, distribute, or dispense, or

possess with intent to distribute or dispense, a

counterfeit substance.”

Section 846 of Title 21 United States Code provides:

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by ————— or fine or both which may not ex-

ceed maximum punishment prescribed for the of-

fense, the commission of which was the object of the

attempt or conspiracy.”

a

Section 848 of Title 21 United States Code provides:

“(aX1) Any person who engages in a continuing

criminal enterprise shall be sentenced to a term of

imprisonment which may not be less than 10 years

and which may be up to life imprisonment, to a fine

of not more than $100,000, and to the forfeiture

prescribed in —_ (2); except that if any per-

son engages in such activity after one or more prior

convictions of him under this section have become

final, he shall be sentenced to a term of imprison-

ment which may not be less than 20 years and which

may be up to life imprisonment, to a fine of not more

than $200,000, and to the forfeiture prescribed in

paragraph (2).

(2) Any person who is convicted under paragraph

(1) of engaging in a continuing criminal enterprise

shall forfeit to the United States—

(A) the profits obtained by him in such enter-

prise; and

(B) any of his interest in, claim against, or

property or contractual rights of any kind afford-

ing a source of influence over, such enterprise.

Continuing Criminal Enterprise Defined

(b) For purposes of subsection (a) of this section,

a person is engaged in a continuing criminal enter-

prise if—

(1) he violates any provision of this subchapter

or subchapter II of this chapter the punishment

for which is a felony, and

(2) such violation is a part of a continuing

series of violations of this subchapter or sub-

chapter II of this chapter—

(A) which are undertaken by such person

in concert with five or more other persons

with respect to whom such person occupies

a

a position of organizer, a supervisory posi-

tion, or any other position of management,

and

(B) from which such person obtains sub-

stantial income or resources.”

Section 959 of Title 21 United States Code provides:

“Tt shall be unlawful for any person to manufac-

ture or distribute a controlled substance in schedule

I or Il

(1) intending that such substance will be

unlawfully imported into the United States; or

(2) knowing that such substance will be unlaw-

fully imported into the United States.

This section is intended to reach acts of manufac-

ture or distribution committed outside the territorial

jurisdiction of the United States. Any person who

violates this section shall be tried in the United

States District Court at the point of entry where

such person enters the United States, or in the

United States District Court for the District of

Columbia.”

Section 963 of Title 21 United States Code provides:

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not ex-

ceed the maximum punishment prescribed for the of-

fense, the commission of which was the object of the

attempt or conspiracy.”

==

STATEMENT OF THE CASE

Matias Montemayor De La Paz, hereinafter referred to

as Petitioner was one of eight Defendants, five of whom

were brothers, named in a 16-count indictment presented

in the Southern District of Texas on November 17, 1981.

Count 2 of the indictment charged the Petitioner with

having engaged in a continuing criminal enterprise in

violation of 21 U.S.C. Sec. 848(b).

Counts 3 and 5 charged that Petitioner and other co-

defendants had conspired to unlawfully distribute cocaine

and marijuana respectively in violation of 21 U.S.C. Sees.

846 and 841(aX1).

Counts 4 and 9 likewise charged that the Petitioner had

conspired to violate federal drug laws, but 4 alleged the

unlawful manufacture and distribution of heroin in viola-

tion of Secs. 846 and 841(aX1) as the object offense, while

9 made similar accusations with the additional element

that the Petitioner knew of importation into the United

States in violation of 21 U.S.C. Secs. 963 and 959.

Counts 6, 7 and 8 alleged the substantive offense of

unlawful distribution of cocaine in violation of Sec. 841(aX1)

and 18 U.S.C. Sec. 2. Counts 6 and 7 were dismissed after

motion judgment of acquittal.

Count 10 alleged the unlawful distribution of “approx-

imately 45 packages of Schedule I or II narcotics,”” know-

ing that the same would be imported into the United

States in violation of 21 U.S.C. Sec. 959 and 18 U.S.C.

Sec. 2.

- ss

Lastly, Count 12 alleged the distribution of “a multi-

kilogram quantity of cocaine,” knowing that the same

would be imported into the United States in violation of

21 U.S.C. Sec. 959 and 18 U.S.C. Sec. 2.

A verdict of guilty was returned on each of the counts,

including Count 2 (continuing criminal enterprise). The

trial court bifurcated the proceedings under Count 2, and

following the verdict of guilty thereon, the jury returned

a supplemental verdict calling for a forfeiture of certain

real and personal property. (Transcript Vol. 1, p. 1229).

The jury having convicted the Petitioner as aforemen-

tioned, the trial judge sentenced hirn as follows:

1. Count 2 (continuing criminal enterprise)—fifty-five

(55) years without parole and a fine of $100,000, as well

as the forfeiture of property in accordance with the sup-

plemental verdict.

2. Count 3 (conspiracy to distribute cocaine)—fifteen (15)

years and a $25,000 fine, to run concurrent with Count 2.

3. Count 4 (conspiracy to manufacture and distribute

heroin)—fifteen (15) years and a $25,000 fine, to run con-

current with Count 2.

4. Count 9 (conspiracy to manufacture and distribute

heroin with knowledge of import)—fifteen (15) years and

a $25,000 fine, to run concurrent with Count 2.

5. Count 8 (distribution of cocaine)—fifteen (15) years

and a $25,000 fine; special parole term of three years; to

run consecutive to Counts 3, 4 and 9, but concurrent with

Count 2.

6. Count 5 (conspiracy to distribute marijuana)—five (5)

years and a $15,000 fine, to run concurrent with Count 2.

itn

7. Count 10 (distribution of Schedule I or II nar-

cotics)—five (5) years; special parole term of two years,

to run consecutive with Counts 3, 4, 5, 9 and 8, but con-

current with Count 2.

8. Count 12 (distribution of cocaine)—fifteen (15) years

and a $25,000 fine; special parole term three years, to run

concurrent with Count 2. (Sentencing, Vol. 4, pp. 15-18).

On August 5, 1983, the United States Court of Appeals

for the Fifth Circuit affirmed the Petitioner’s convictions.

(Appendix 1). A subsequent motion for rehearing en banc

was denied by the Fifth Circuit on October 6, 1983.

STATEMENT OF FACTS

The government's entire case rested upon the testi-

mony of one witness, Ricky Lee Bowman, a stepson of co-

defendant, Benito Montemayor. Bowman’s testimony was

sheer fantasy, and the government used his unfounded

and unsupported conclusions and statements as the basis

for conviction and an appalling 55 year, no parole, sentence.

The Petitioner, who has received a sentence tantamount

to death, merely prays that the record be reviewed with

the fundamental principles of fair trial and due process

of law at mind.

Regrettably and with great reluctance, the Petitioner

alleges that the Fifth Circuit Court of Appeals went on

a fishing trip to snare facts to support conviction, and in

so doing, totally abandoned the reasonable man and per-

missible inference theories of law. The Court overstated

=f

and misstated the facts, misconstrued the evidence so as

to bridge gapping holes in the government’s proof, and

held the Petitioner accountable for acts of others under

the Pinkerton theory (infra) when there was a total failure

by the government to show Petitioner’s entry into a con-

spiracy. Limitation of pages prohibits the Petitioner from

stating the facts presented at trial to support convictions

on all counts. A review of the Fifth Circuit Court of Ap-

peals’ opinion, pages 3a-8a, amplifies the claim that the

reasonable man and permissible inference theories were

foresaken.

Addressing the continuing enterprise conviction, the

Court found the following stated testimony of government

witness Bowman sufficient to support conviction on Count

8, one of three predicate offenses necessary for convic-

tion. (See Argument II). Bowman testified: “They had the

clothes basket sitting on the tailgate there.” (Tr. 246).

Bowman further testified that he saw “‘packages’’ in the

laundry basket (Tr. 248) and that “(e)verybody was there.”

(Tr. 246). From this testimony the Court concluded that

the jury had a right to infer that the packages contained

cocaine, that the tailgate would not have been dismantled

unless contraband was to be secreted therein, and more

astoundingly, that from the term “everyone” the jury

could infer that the Petitioner was present. And concern-

ing the second predicate offense (Count 10), the Court

found the following testimony sufficient to support con-

viction. Bowman testified that on one occasion while at

the home of Benito Montemayor in Cerralvo, Mexico in

October 1977, Benito brought in 40-45 packages of heroin

and declared that they needed to be repackaged. Bowman

testified that Petitioner was present at the repackaging.

The Court stated the jury could reasonably infer that Peti-

tioner was more than an innocent bystander, that the

ations

substance being packaged was heroin or any other con-

trolled substance, and without any further evidence being

offered, that the alleged contraband was to be brought

from Mexico into the United States for distribution.

The evidence to support the third predicate offense

(Count 10) necessary for conviction on Count 2 was equally

insufficient, and the Court realizing so stated on page 9

of its opinion that Petitioner’s culpability on Counts 8,

9, 10 could be premised on the Pinkerton theory. (Ar-

gument 1D). This vicarious liability theory is totally con-

trary to the government’s burden to prove Petitioner’s

managerial role.

The Petitioner realizes that appeals based upon insuffi-

ciency of the evidence are given little consideration by

Courts of review, and does not quarrel with that prevail-

ing view.

However, in the instant case where the abysmal insuffi-

ciency of the evidence was coupled with the pervasive preju-

dice of the trial court so as to deny the Petitioner a fair

trial and due process of law, then everything our system

of jurisprudence stands for mandates careful considera-

tion and review—especially in light of the imposition of

a virtual death sentence.

iin

REASONS FOR GRANTING THE WRIT

IN LIGHT OF THE INSUFFICIENCY OF THE EVI-

DENCE PRESENTED TO PROVE THE ALLEGATIONS IN

THE VARIOUS COUNTS OF THE INDICTMENT, THE

PERVASIVE PREJUDICE OF THE TRIAL JUDGE VIO-

LATED PETITIONER’S RIGHT TO FUNDAMENTAL

FAIRNESS AND DUE PROCESS OF LAW.

It is axiomatic, as stated in Herman v. United States,

289 F.2d 362, 365 (5th Cir. 1961), cert. denied, 368 U.S.

897, 82 S.Ct. 174, 7 L.Ed.2d 93, that; ‘(t)he trial judge

has a duty to conduct the trial carefully, patiently, and

impartially. He must be above even the appearance of

being partial to the prosecution.’’ See also: Blumberg v.

United States, 222 F.2d 496, 501 (5th Cir. 1955); Hunter

v. United States, 62 F.2d 217, 220 (5th Cir. 1932). On the

other hand, a federal judge is not a mere moderator of

proceedings. See Herron v. Southern Pacific Co., 283 U.S.

91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857 (1931). He is a

common law judge having that authority historically exer-

cised by judges in the common law process. Rule 614(b)

of the Federal Rules of Evidence allows the trial judge

to interrogate a witness. This authority is abused when

the judge abandons his proper role and assumes that of

advocate. Federal Rule of Evidence—Rule 614 Subdivi-

sion (b). When the judge’s conduct strays from neutral-

ity the defendant thereby is denied a constitutionally fair

trial. United States v. Jacquillon, 496 F.2d 380, 387 (5th

Cir. 1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35

L.Ed.2d 604 (1973).

No fact, not even an undisputed fact, may be deter-

mined by the trial judge. A plea of not guilty puts all

niin

in issue, even the most patent truths. In our federal

system, the trial court may never instruct a verdict either

in whole or in part. Roe v. United States, 287 F.2d 435

(5th Cir. 1961). No matter how conclusive the evidence

any such instruction amounts to plain error. United States

v. Ragsdale, 438 F.2d 21 (5th Cir. 1971); Mims v. United

States, 375 F.2d 135, 148 (5th Cir. 1967); Montford v.

United States, 271 F.2d 52 (5th Cir. 1959).

The trial judge must strive for total neutrality and com-

plete circumspection in the eyes and minds of the jury.

Starr v. United States, 153 U.S. 614, 626-628, 14 S.Ct.

919, 38 L.Ed. 841 (1894); Moore v. United States, 598 F.2d

439 (5th Cir. 1979). The reason that a trial judge must

remain neutral is because it is well known, as a matter

of judicial notice, that juries are highly sensitive to every

utterance by the trial judge and that some comments may

be so highly prejudicial that even a strong admonition by

the judge to the jury, that they are not bound by the

judge’s view, will not cure the error. Bursten v. United

States, 395 F.2d 976 (5th Cir. 1968).

A. The Trial Court’s Questioning Of Key Prosecution

Witnesses Highly Prejudiced The Petitioner And Was A

Clear Miscarriage Of Justice.

When a judge questions a witness he must be careful

to preserve an attitude of impartiality and guard against

giving the jury any impression that the court is of the

opinion that the defendant is guilty. Gomila v. United

States, 146 F.2d 372, 374 (5th Cir. 1944).

When a judge interjects himself into a trial by question-

ing witnesses, the judge places the opposing counsel! in

a disadvantageous position. The attorney may hesitate to

object to the judge’s examination for fear of creating a

conflict, or appearing to create a conflict, between the

—12—

judge and himself. Therefore, when the attorneys are com-

petently conducting their cases it is improper for the trial

judge to ask questions. United States v. Daniels, 572 F.2d

535 (5th Cir. 1978); United States v. Welliver, 601 F.2d

203 (5th Cir. 1979). Questioning by the trial judge can

reach such a prejudicial level that the “plain error’’ doc-

trine is invoked. The “plain error’’ rule is invoked where

judicial error affects substantial rights of a defendant and

an appellate court is required to remedy a clear mis-

carriage of justice. Mims v. United States, 375 F.2d 135,

147 (5th Cir. 1967).

In the instant case during the cross-examination of

Carlos Gutierrez, the trial judge pre-empted the question-

ing of the prosecution’s witness. The transcript of the pro-

ceedings reads as follows (Tr. 66-69):

THE CourT: But over what times would Mr.

Montemayor make the deliveries to you? Was it once

a month or once every two months, or how were

those deliveries s aod!

THE WITNESS: Reyes Montemayor would go to

Mexico—

Mr. SZEKELY: Your Honor, I object. That’s not

responsive to the question asked. i was trying to

establish a time frame.

THE Court: I will overrule your objection. This

is the way he is doing it, I suppose.

THE WITNESS: Reyes Montemayor would go to

Mexico once a week or once every two weeks to ac-

count to Matias Montemayor, and that is why Reyes

Montemayor would tell me, “Brother, wait a while”’—

THE Court: Cousin.

THE WITNESS: “Cousin, wait a while for me to go

talk to Matias at the prison, but Matias was about

to leave or had already left” —

THE Court: No, about to be released.

>

Just a minute. Let’s have a little recess. I will tell

you what. Let’s break for lunch. Let’s take a lunch

recess. Let’s be back at—jurors, let’s be back at 1:30.

I will give you an hour and a half to eat. You go

with the Marshall. All please rise.

(Jury Not Present.)

THE CourT: Madam Interpreter, I think what

your problem is that you are letting this witness say

too much and speak too long before you interpret

what he says, and you lose track of what he is say-

ing. You are making some errors, and I am having

to correct you, and I don’t want to do that.

Now, if the witness is saying too much, more than

you can remember, you tell him to stop a minute.

He doesn’t know. Then you can go ahead and

translate what he is saying, and then he can continue

with his answer.

THE INTERPRETER: Yes, Judge.

THE Court: I think you are getting everybody

confused instead of enlightening everyone.

Mr. Szekely, I interrupted you. What were you go-

ing to say?

R. SZEKELY: I think the witness testified in the

presence of the jury that the defendant Matias

Montemayor was in prison—

THE Court: That’s the way I understood it.

Mr. SZEKELY: —during this particular time, in-

dicating that he was subject to some conviction and

some penal process.

I would submit that it’s prejudicial at this point to

the defendant. It reflects a conviction on his part

there was no way in the world the government could

introduce.

I submit there is nothing at this point to do but

declare a mistrial.

THE Court: I will instruct the jury on that, and

let’s see what happens. You are going into these mat-

ters, counsel, and this witness’ memory is not the

best in the world. You were just taking chances when

you asked these questions.’’' (Tr. 67-68).

It is well established that trial judges should carefully

limit the use of “‘other crimes” evidence whenever the

possibility of prejudice exists. United States v. Jimenez,

613 F.2d 1373, 1377 (5th Cir. 1980). The Fifth Circuit

previously held that the imperativeness of distinguishing

“credibility evidence and affirmative evidence’’ for the

jury, imposed a duty on the court, as well as both counsel,

to see that the other crimes evidence would not be taken

by the jury as an inference of guilt. United States v. Diaz,

585 F.2d 116 (5th Cir. 1978).

The Sixth Circuit followed similar reasoning in vacating

a guilty verdict against a defendant in United States v.

Posten, 436 F.2d 706 (6th Cir. 1970). The court held that

the failure of the trial judge to give a cautionary instruc-

tion was plain error in light of the inherent prejudice of

a reference by a co-conspirator that defendant had twice

before been sentenced to prison.

The trial judge’s questioning of witness Gutierrez was

the first in a parade of prejudicial questions and comments

by the court which became a mandate for the jury to re-

turn a guilty verdict against the Petitioner.

When the government introduced two tape recorded

telephone conversations between drug agent, Frank Tucci,

and an alleged co-conspirator, the court refused to allow

Petitioner’s counsel to question the witness about voice

print identification. (Tr. 112-113). Moments later the judge

1 The Court failed to give a cautionary instruction to the jury

regarding the prison testimony.

==

allowed the government attorney to question the witness

regarding voice print identification. (Tr. 114). The court

had sustained a defense objection to the line of question-

ing, but then allowed the witness to respond to the ques-

tions about the voice print identification. (Tr. 115).

During the testimony of government witness Ricky

Bowman, the trial judge permitted the government’s at-

torney to explain to the jury what certain exhibits de-

picted prior to their introduction into evidence. The court

went on to make the prejudicial statement (Tr. 187):

“Well I assume they are eventually going to be in

evidence.”

The court then refused to allow Petitioner’s attorney to

conduct a voir dire examination regarding several exhibits

that Bowman could not identify. The judge indicated that

Petitioner’s counsel would be allowed to question Bowman

about the exhibits during cross-examination. However,

before Petitioner could conduct cross-examination, the trial

judge allowed the jurors to see all of the contested ex-

hibits. (Tr. 197-198).

At the close of both his direct and cross-examination,

Bowman failed to identify Petitioner in open court. The

trial judge then undertook independent examination and

elicited the identification of Petitioner. Identification of

a defendant is a critical issue in any criminal case and

therefore the judge became an advocate for the prosecu-

tion. United States v. Sheldon, 544 F.2d 213 (5th Cir.

1976); United States v. Lanham, 416 F.2d 1140 (5th Cir.

1969).

The court also questioned government witness, Robert

Shirley, regarding the purchase of an airplane. Shirley

testified that he did not recall who was listed as purchaser

of his airplane (Tr. 461), but during the court’s question-

aie

ing stated Petitioner had purchased the plane. (Tr. 464).

The questioning was critical because the Petitioner was

charged with conducting a continuing criminal enter-

prise and the government must prove a defendant

amassed wealth in order to obtain a conviction under the

statute. The Petitioner was later required to introduce

evidence that the airplane was purchased by a corporation.

The trial judge in his charge to the jury viewed the corpo-

ration testimony with skeptism. (Tr. 893).

The trial judge made numerous other errors including

allowing hearsay business records into evidence (Tr. 301,

337-338), identifying a co-defendant of the Petitioner for

a witness (Tr. 303) and allowing testimony from, and the

introduction into evidence, of a hearsay Drug Enforcement

Administration report. (Tr. 575).

B. The Trial Judge’s Charge To The Jury Was A Mandate

To Convict The Petitioner.

A general rdle of law exists that bias to disqualify a

judge must come from extrajudicial sources. United States

v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d

778 (1966). However, an exception exists where “such per-

vasive bias and prejudice is shown by otherwise judicial

conduct as would constitute bias against a party.” Curl

v. International Business Machines, Corp., 517 F.2d 212

(5th Cir. 1975), cert. denied, 425 U.S. 943 (1976); 28 U.S.C.A.

Sec. 455(aXbX1). Thus the single fact that a judge’s com-

ments are made in a judicial context will not prevent a

finding of bias on the judge’s part. Whitehurst v. Wright,

592 F.2d 834 (5th Cir. 1979).

Petitioner concedes that he never presented a motion

to disqualify the trial judge in the case at bar. How-

ever, he urges that the prejudicial comments by the judge

pallies

in his charge to the jury not only show pervasive bias

against him, they violate fundamental fairness and due

process of law. While it is well settled that a federal judge

is not relegated to complete silence during a criminal trial,

he must be careful that his interventions are proper and

timely made, to clear unanswered issues which are not

prejudicial to the defendant. Many federal decisions

recognize the power of a judge, within reasonable limits,

to comment on the evidence and express fair opinions.

United States v. Womack, 454 F.2d 1337 (5th Cir. 1972);

United States v. Musgrave, 444 F.2d 755 (5th Cir. 1971).

In this case the trial judge first lectured the jury on

the advantages of having paid informants work for the

government.? The court stated (Tr. 879):

“There were some comments, for example, in the

arguments, some criticism about the fact that the

government — informants or pays expenses or

buys drugs. There is nothing illegal about that. As

a matter of fact, the Congress has appropriated funds

for that purpose, as a means of taking drugs off the

market, feast them from the hands of addicts and

of apprehending those that would violate our laws

pertaining to narcotics and drugs. And there is

nothing wrong with that.

The alternatives to that are something far more ex-

pensive to the taxpayers, in the form of addiction and

the crimes an addict may commit.”

The court went on to state (Tr. 891-893):

“But the government proved up testimony of vio-

lations. I believe the witness Bowman testified he

2 Ricky Bowman was a paid informant and the star witness in

the government’s case in chief. The only testimony that the

government presented to allegedly prove the petitioner was in-

volved in any drug scheme was adduced through Bowman.

=i

was a member of this group, that he packaged mari-

juana over a period of time, counted money over a

long period—over a period of time; that Salvador

Flores, another member of the group, made numer-

ips in this vehicle that had been rigged to carry

nd—I believe he said it was marijuana. It

could be anything, any controlled substance—and

distributed it, for the purpose of distributing mari-

juana.

The witness Gutierrez testified that he himself had

made, I think, nine or eleven purchases of one-pound

kets of heroin. The amount of heroin is irrelevant.

ether it was a pound or an ounce doesn’t make

any difference, so long as there was some heroin.

Each of those transactions, if you believe the

curred, would be a transaction, would be an o bios

of the law. Each time that Flores brought any type

of controlled substance in that truck, that would be

a violation of the law, you see, and each one would

be a separate offense.

The government produced evidence that Mr. Mon-

temayor spent substantial sums of money, cash ex-

penditures, that he is the man who wound up with

the cash that supposedly was the gain from this

enterprise, in addition to testimony from the witness

that he was in some position of authority. So that’s

the testimony that the government presented.”

The trial judge took each element of the continuing

criminal enterprise statute and told the jury that suffi-

cient evidence existed to convict the Petitioner. The cowt

first referred to the fact that the government proved

violations occurred. The trial judge then told the jury that

a group existed regarding the importation of illegal nar-

cotics. The judge went on to state that numerous illegal

narcotics transactions had occurred all of which were

separate offenses. The judge stated that the Petitioner

had spent substantial sums of money which he gained

—19—

from the enterprise and that the Petitioner was in a posi-

tion of authority within the enterprise.

The court’s comment on the income of the Petitioner

became even more prejudicial when the judge stated (Tr.

893):

“Mr. Montemayor was a part-owner of this corpo-

ration in Mexico, and that in 1980 it made all of these

monies and from that, J asswme, asks you to conclude

as a circumstance that the corporation made money

in other years, although there was no evidence of any

kind as the earnings of the corporation in 1979 and

1978 and earlier years.”

The court in essence placed a burden of proof upon the

Petitioner to prove his income was not derived from the

sale of illegal narcotics which is totally contrary to our

justice system.

Later the trial court singled out the head nodding inci-

dent at the El] Trumpo Bar in Chicago:

“If you believe that he was there present and

nodded and knowing what was going on and to give

his assent to what was being said, that would be evi-

dence, obviously, he was involved in the transaction.”

(Tr. Vol. 5, p. 899).

Whether any of the alleged acts occurred and whether

any of the collateral events happened were fact issues for

the jury to decide. The trial judge’s comments directed

a verdict on these fact issues. Brocks v. United States,

240 F.2d 905 (5th Cir. 1957). The trial judge expressed

the opinion that the Petitioner was guilty and his com-

ments were so highly prejudicial that even the strongest

admonition to the jury that they were the sole triers of fact

would not suffice to grant defendant a fair trial. Bursten

v. United States, 395 F.2d 976, 983 (5th Cir. 1968). The

comments destroyed the cloak of impartiality which the

—20—

trial judge should wear. United States v. Hill, 332 F.2d

105, 106 (7th Cir. 1964).

The court also discovered that two laboratory reports

of a chemist were mistakenly sent to the jury.* The court

admonished the jury to disregard the exhibits and later

promised to question the jury regarding the exhibits

following their verdict. (Tr. 936). The inquiry revealed

several jurors had seen the exhibits. (App. p. 18a).

C. The Trial Court Erred When It Failed To Instruct The

Jury On Lesser Included Offenses Under The Continu-

ing Criminal Enterprise Statute.

Five elements make up the offense of continuing

criminal enterprise under Title 21 U.S.C. Sec. 848:

1. A violation of federal narcotic laws;

2. which is part of a continuing series of violations

(three or more; United States v. Valenzuela, 596

F.2d 1361 (9th Cir. 1979));

3. in concert with five or more persons;

4. for whom the defendant is an organizer or super-

visor;

5. from which he derives substantial income or re-

— United States v. Lurz, 666 F.2d 69 (4th Cir.

1981).

The United States Supreme Court has noted the sever-

ity of the statute and found that Congress was interested

in punishing the professional criminal. Jeffers v. United

States, 432 U.S. 137, 97 S.Ct. 2207 (1977). The severity

of the charge requires that the trial court operate with

3 The chemist reports showed traces of cocaine were found on

a pool table and in a Chevrolet Blazer. This was the only direct

evidence of narcotics in this case.

aliens

the fullest sense of fundamental fairness and due process

of law.

A jury must first consider whether a defendant com-

mitted three specific underlying acts before it can con-

sider the remaining elements of a continuing criminal

enterprise, much less find the defendant guilty of the

charge.

Federal Rule of Criminal Procedure 31(c) states that a

defendant may be found guilty of an offense necessarily

included in the offense charged, or of an attempt to com-

mit either the offense charged or an offense necessarily

included therein, if the attempt is an offense.

The lesser included offense doctrine was developed at

common law to assist the prosecution in cases where the

evidence failed to establish some element of the offense

originally charged. It is now beyond dispute that the

defendant is entitled to an instruction on a lesser included

offense if the evidence would permit a jury rationally to

find him guilty of the lesser offense and acquit him of

the greater. Keeble v. United States, 412 U.S. 205 (1978).

The United States Supreme Court has held that a con-

spiracy charge brought under Title 21 U.S.C. Sec. 846 is

a lesser included offense of Sec. 848. Jeffers v. United

States, supra. The Jeffers court also held that if a con-

spiracy charge and a continuing criminal enterprise charge

were tried in one proceeding, a lesser included offense

instruction should be given to the jury, citing Keeble,

supra; Sansone v. United States, 380 U.S. 343, 349-50

(1965).4

Seeman

4 The Fifth Circuit noted that a lesser included offense instruc-

tion was given in United States v. Chagra, 669 F.2d 241 (5th Cir.

1982) a case involving narcotics conspiracies and a continuing

criminal enterprise charge.

—~22—

Not only did the trial court fail to instruct the jury of

the lesser included offense, it also failed to instruct the

jury that it must first consider if Petitioner committed

three specific underlying substantive violations before con-

sidering the remaining elements of a continuing criminal

enterprise. United States v. Sperling, 506 F.2d 1323 (2nd

Cir. 1974); Devitt and Blackmar, Federal Jury Practice

and Instructions, 3rd Ed., Sec. 5821.5

The failure of the trial judge to instruct the jury as re-

quested leaves open to interpretation which three predi-

cating violations were found by the jury for the continu-

ing criminal enterprise conviction. Because the trial court

failed to give the requested instruction there exists the

possibility that the jury verdict was based on a charge

legally incapable of supporting the conviction. Yates v.

United States, 354 U.S. 298, 371, 77 S.Ct. 1064, 1073

(1957).

Additionally, because no basis exists to determine what

three drug felonies the jury used as the underlying basis

for the continuing criminal enterprise conviction it is im-

possible to determine if the sentence imposed upon the

Petitioner violates the double jeopardy clause of the

United States Constitution. The double jeopardy clause

in part prevents a defendant from being punished more

than once for the same crime. North Carolina v. Pearce,

395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The

Supreme Court has held that Congress did not intend to

punish a defendant for both a continuing criminal enter-

prise conviction and the underlying offenses used to prove

that violation. Jeffers v. United States, 482 U.S. 137, 97

S.Ct. 2207, 58 L.Ed.2d 168 (1977).

5 The defendant requested that the instruction be given to the

jury.

—~23—

Even the trial court was confused regarding the con-

spiracy counts and the continuing criminal enterprise con-

viction. The judge stated:

“So on Counts 3, 4, 5 and 9, I am going to—find

that I am going to consolidate those counts one with

the other and all of them with Count 2 because I

believe they consolidate, as a matter of law, lesser

offenses of Count 2, but I don’t know—I don’t know.

Number one, I could be mistaken. . .”’

Following this statement the court imposed a sentence

of 15 years and a fine of $25,000 on each count as well

as a sentence of 55 years without parole and a $100,000

fine for the Sec. 848 conviction. (Tr. Sentencing of Peti-

tioner, p. 16).

The prejudice created by the failure to properly instruct

the jury is heightened in light of the Bill of Particulars

supplied by the government regarding Count 2 of the in-

dictment (App. pp. 16a-17a). The Bill of Particulars listed

the substantive offense committed by the Petitioner as

occurring during September or October, 1977, at Benito

Montemayor’s home on 32 A Street, Colonia Las Crum-

bres, Monterrey N. L. Mexico.

Numerous courts have held that once a Bill of Par-

ticulars has been furnished the government’s proof is

strictly limited to the scope thereof. United States v.

Haskins, 345 F.2d 111 (6th Cir. 1965); United States v.

Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977); United States

v. Allied Paving Co., 451 F. Supp. 804 (N.D. Ill. 1978).

Despite Petitioner’s reliance on the Bill of Particulars

supplied by the government, the trial court instructed the

jury that the predicate violations requisite to a continu-

ing criminal enterprise conviction could be any as shown

by the evidence including specifically any violations com-

mitted by Salvador Flores and Carlos Gutierrez. (Tr. 892).

alii.

The open-ended government proof presented at trial

coupled with the trial court’s jury instructions violated

fundamental notions of due process. Beiger v. United

States, 295 U.S. 78, 55 S.Ct. 629 (1935).

D. The Trial Court Erred When It Instructed The Jury That

The Violations Requisite To A Continuing Criminal

Enterprise Conviction Could Be Predicated Solely On

The ‘‘Pinkerton’’ Vicarious Liability Theory.

The court has held that once a person joins in an

unlawful scheme of a continuous duration, and that per-

son does nothing to withdraw from the scheme, disavow

acts, or defeat the purpose of the scheme, he or she is

responsible for acts committed by other parties to the

scheme. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct.

1180 (1946). The vicarious liability rationale is based upon

an agreement or common purpose shared by co-conspira-

tors; they are partners in crime and the act of one in fur-

therance of an unlawful plan is an act of all. United States

v. Michel, 588 F.2d 968 (5th Cir. 1979).

The Fifth Circuit has approved the Pinkerton theory

application in continuing criminal enterprises cases.

Michel, supra. However, the Pinkerton theory is totally

opposite the rationale required for a continuing criminal

enterprise conviction. Both by statute and case law, a

defendant must be a supervisor or organizer in order to

be convicted of operating a continuing criminal enterprise.

Michel, supra; Chagra, supra; Jeffers, supra. It is difficult

if not impossible to comprehend how an individual can

supervise or control a group of persons (five or more) yet

not know of the acts by those members of the group in

furtherance of the conspiracy.

A classic example of the inherent danger and prejudice

to a defendant is presented by the court’s charge to the

—25—

jury in this case. The judge instructed the jury that the

Petitioner would be vicariously liable for the acts of all

members of the enterprise including marijuana trips of

Salvador Flores, when there was absolutely no evidence

that Petitioner was a member of any conspiracy during

the time Flores supposedly was engaged in his criminal

activity. The trial judge further prejudiced Petitioner

when he omitted the language of the Pinkerton, caveat;

that one is not responsible for the unforeseeable acts of

co-conspirators. (Tr. Vol. 5, pp. 890-892). In effect the

Court’s all encompassing charge subjected Petitioner to

unlimited criminal responsibility.

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT

THE PETITIONER’S CONVICTIONS AND THE JUDG-

MENT WAS CONTRARY TO FUNDAMENTAL FAIRNESS

AND DUE PROCESS.

The primary issue for this court is whether it will allow

convictions obtained without fundamental fairness and due

process of law to stand. The Constitution of the United

States, Amendment V, provides in pertinent part: No per-

son shall . . . be deprived of life, liberty or property,

without due process of law . . . Petitioner urges that he

has been totally deprived of due process of law—his right

to fundamental fairness totally forsaken. It is becoming

painfully clear that a defendant charged with extensive

drug violations falls into a separate class of citizen who

is not entitled to the Constitutional guarantees of funda-

mental fairness and due process of law, and all that need

to be shown for his conviction is an indictment. Upon ap-

peal, review courts are reluctant to give serious con-

siderations to an argument based on sufficiency of the

evidence, for the reviewing court is asked to reverse find-

ings of fact made by a jury or trial court.

&>

—26—

Petitioner does not urge this court to consider any con-

troverted evidence, but to take only the evidence pre-

sented by the government during its case in chief and

view it in a light most favorable to the government.

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86

L.Ed. 680 (1942). Using the ‘‘reasonable man standard’”’

and permissible inference theory, a review of the evi-

dence would show a total failure to prove each and every

count of the indictment, a modern day tragedy in light

of the 55 year, no parole, sentence imposed upon the

defendant.

The government relied almost exclusively on events al-

legedly occurring in Mexico to support violations of United

States narcotic laws. To support the allegations regard-

ing cocaine, government witness, Ricky Bowman testified

he saw a Chevrolet Blazer loaded and unloaded and that

he snorted a substance off a pool table cover. Yet, when

cross-examined, Bowman stated he did not see the Blazer

loaded, did not see what substance was loaded in the

Blazer (Tr. 249) and never saw anyone place cocaine on

the pool table cover. (Tr. 250-251). Bowman further tes-

tified that while in Mexico he spilled some cocaine on a

driveway while loading another Blazer and saw 200 pack-

ages of cocaine on Huero Macias’ dining room table. Bow-

man’s testimony as to the contents of the packages was

conclusionary and he did not meet any qualifications to

determine that the substance was in fact cocaine.

To support ti.e heroin allegations Bowman testified he

saw a laboratory in Mexico and saw heroin packaged on

one occasion. A typical example of Bowman’s conclu-

sionary statements throughout the trial is revealed by

his testimony about the heroin packaging. (Tr. 158). The

transcripts reads as follows:

~ =

“Question: How do you know that heroin was in

the packages?

Answer: I know how Bennies operates .. .

’

Bowman went on to testify about smuggling heroin from

the United States into Mexico. (Tr. 164). Once again Bow-

man did not see the substance but stated that Benito

Montemayor told him there was heroin in the trailer at-

tached to their car.

The trial court allowed the introduction into evidence

of general statements and conclusions to support Peti-

tioner’s supervisory status for the continuing criminal

enterprise conviction. Bowman was asked on numerous

occasions who the leader of the group was? Even though

Petitioner was rarely alleged to be near any narcotic

substance and never shown to have committed any illegal

act, Bowman always replied, Matias Montemayor was in

charge.

Throughout the entire case the government failed to in-

troduce any narcotic substance into evidence.* The govern-

ment presented no evidence or testimony aside from con-

clusionary statements and guesses as to the contents of

packages and the actions of parties. The proverbial rea-

sonable man should not be allowed to consider fragmented

bits of evidence which only create a suspicion of inculpa-

tion and use such as a basis for conviction. The harsh

reality of this case is that Petitioner received 55 years

in prison with no chance of parole for narcotics viola-

tions without any proof that he committed illegal acts.

® Chemist, Edwin Albers, testified that he vacuumed a Chevrolet

Blazer 9 months after it was in _ agpeemaag cen custody and control

and that he vacuumed a pool table cover two years after cocaine

was allegedly placed on it. ft. Each time Albers claimed to find an

unmeasurable trace of cocaine.

—28—

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Court should grant the Petition for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted,

MICHAEL J. GUINAN *

39 South LaSalle Street

Suite 1100

Chicago, Illinois 60603

(312) 236-2803

Attorney for Petitioner

GEORGE E. BECKER

39 South LaSalle Street

Suite 1100

Chicago, Illinois 60603

(312) 236-2804

Of Counsel * Counsel of Record

—jla—

APPENDIX 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-2249

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MATIAS MONTEMAYOR-DE La Paz,

Defendant-A ppellant.

Appeal from the United States District Court for the

Souther. District of Texas

(August 5, 1983)

Before RUBIN and TATE, Circuit Judges, and DAvis*,

District Judge.

Davis, District Judge. Appellant, Matias Montemayor

De La Paz, was one of eight defendants named in a

16-count indictment charging violations of numerous

federal drug laws. After a six-day jury trial in the

Southern District of Texas, Montemayor was found guilty

* District Judge of the Western District of Louisiana, sitting by

designation.

lin

of engaging in a continuing criminal enterprise, in viola-

tion of 21 U.S.C. § 848 (Count II); conspiring to commit

violations of 21 U.S.C. §§ 841(aX1) and 959 (Counts III,

IV, V and IX); distributing a quantity of cocaine in viola-

tion of 21 U.S.C. § 841(aX1) (Gount VIII); distributing a

quantity of cocaine in violation of 21 U.S.C. § 959 (Count

XII); and distributing unspecified controlled substances in

violation of 21 U.S.C. § 959 (Count X).

This appeal is directed primarily at the continuing

criminal enterprise conviction.

For reasons that follow, we affirm.

FACTUAL BACKGROUND

Appellant and his four brothers, Benito, Reyes, Maynard

and Manuel, were members of an international drug traf-

ficking ring that operated over a six-year period, from

1975-1981. Also involved was Ricky Lee Bowman, the

stepson of Benito Montemayor and the government’s chief

witness at trial. Their operations involved the distribu-

tion of marijuana, heroin and cocaine and centered around

three main locations: 1) Chicago, Illinois; 2) Monterrey and

Cerralvo, Nuevo Leon, Mexico; and 3) McAllen, Texas.

From 1975 through the early part of 1977, their ac-

tivities were concentrated in the Chicago, Illinois, area.

The trailer home of Bowman’s parents served as the base

of operations for the packaging of marijuana for resale

and the counting of drug money. However, the group’s

operations in this area were not limited to merely pack-

aging marijuana. They also sold heroin and transported

marijuana and cocaine from Laredo, Texas.

In September of 1977, the focus of operations shifted

to Mexico, where both appellant and his brother, Benito,

owned homes. In Monterrey, Mexico, meetings were held

with prospective drug purchasers and large quantities of

— were collected for importation into the United

tates.

ain

Operations were also conducted in the vicinity of Cer-

ralvo, Nuevo Leon, where the Montemayor brothers had

extensive land holdings. It was in Cerralvo, Nuevo Leon,

that appellant maintained a laboratory for the manufacture

and distribution of heroin.

By the fall of 1979, drug trafficking operations were

being conducted in McAllen, Texas, where both appellant

and his brother, Benito, owned homes. Benito often held

parties in McAllen to celebrate successfully completed

drug transactions. On occasion, cocaine and other con-

trolled substances were dispensed from Benito’s home.

The drug trafficking operations came to an end in

November of 1981 when a federal grand jury returned

the 16-count indictment which forms the basis of this

proceeding.

DISCUSSION

As defined by 21 U.S.C. § 848, a person is engaged in

a continuing criminal enterprise if 1) he engages in a con-

tinuing series of Drug Control Act violations, 2) under-

taken in concert with five or more other persons with

respect to whom he occupies a position of organizer,

supervisor, or other position of management, and 3) from

which he obtains substantial income or resources. Noting

that the term “continuing series’ has been construed as

requiring proof of at least three predicate offenses,’ ap-

pellant argues that the evidence adduced at trial was in-

sufficient to establish his guilt on the three substantive

counts of the indictment. Central to this argument is the

related contention that guilt on the conspiracy counts can-

not be used to satisfy the three predicate offenses.

We first address the argument that the evidence was

insufficient to sustain a conviction on the three substan-

tive counts of the indictment. In doing so, we are mindful

that the evidence must be viewed in light most favorable

to the government. Glasser v. United States, 315 U.S. 60,

62 S. Ct. 457, 86 L.Ed. 680 (1942).

—4a—

Count VIII of the indictment charged that in October

of 1979, appellant, his four brothers and Alfonse Arren-

dondo, Jr., distributed cocaine in violation of 21 U.S.C.

§ 841(aX1). The incident underlying this count occurred

in October of 1979, at the home of Benito Montemayor

in McAllen, Texas. Ricky Lee Bowman, an active partici-

pant in many of the Montemayor brothers’ drug traffick-

ing operations, was staying at Benito’s house. He was

present at several parties Benito held after successful

drug transactions. Bowman testified that, after one such

aed Lp pr pnt him to assist in secreting a laun

ket full of controlled substances into a vehicle. Accord-

ing to Bowman, Benito handed him a screwdriver so that

he could remove the rear taillights of the vehicle where

the drugs would be secreted. Bowman noted that one tail-

light had already been removed. Bowman testified that

he refused to participate because at the time he was mar-

ried and no longer wished to participate in drug traffick-

ing. When asked on cross-examination whether he actuall

witnessed the loading of the vehicle, Bowman replied af-

firmatively, stating: ‘“They had the clothes basket sitting

on the tailgate there.” (Tr. 246). Bowman further testified

that he saw “packages” in the laundry basket (Tr. 248)

and that “{elverybody was there.” (Tr. 246).

Appellant argues that the evidence was insufficient to

show that the packages contained cocaine, that he par-

ticipated in the transaction or that anything was actually

loaded into the vehicle. We disagree.

It was reasonable for the jury to infer that the packages

observed by Bowman in the clothes basket contained co-

caine. Bowman testified about a number of prior incidents

involving the identical pattern of conduct, whereby pack-

ages of cocaine were transferred from a clothes basket

to the rear of a vehicle which had been partially dis-

mantled. (Tr. 148-150). Under these circumstances, the

jury was entitled to conclude that the pattern was con-

tinuing in October of 1979, and that after an all night

celebration Benito and the others would hardly make the

effort to dismantle the tail portion of a vehicle unless they

—§9—

intended to secrete contraband therein, as they had done

so many times before. Moreover, Bowman’s testimony

that the party was one of many that celebrated a suc-

cessful effort at drug trafficking, and that appellant was

in attendance at the parties (Tr. 183-184), coupled with

Bowman’s testimony that on this particular occasion

“everyone” was present at the party, permitted the jury

to conclude that appellant participated in this transaction.

Count X of the indictment charged appellant and four

of his brothers with distributing a quantity of unspecified

controlled substances with knowledge that it would be

unlawfully imported into the United States, in violation

of 21 U.S.C. § 959. The incident underlying this count oc-

curred in Cerralvo, Nuevo Leon, Mexico, in September

or October of 1977. At that time, Benito Montemayor was

living in a motor home located on a ranch he owned. Bow-

man testified that on one occasion when he was at the

motor home Benito brought in 40 to 45 packages of heroin

and declared that they needed to be repackaged. Bowman

testified that appellant was one of several people present

at the repackaging. While Bowman did not specify which

individuals physically participated in the repackaging, the

jury could reasonably infer that appellant was more than

an innocent bystander.

Appellant argues that the proof was insufficient to

establish that the material being repackaged was heroin

or any other controlled substance. The proof adduced at

trial indicated Bowman was familiar with heroin. He was

also well acquainted with Benito Montemayor’s operations.

Thus, when Benito displayed 40 to 45 small bags and criti-

cized their improper packaging, Bowman could reasonably

deduce the nature of the contents within those packages.

Such circumstantial evidence was sufficient to permit the

jury to conclude that the packages contained heroin.

United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir. 1977);

United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.

1975). Accordingly, we conclude the evidence was suffi-

cient to sustain a conviction on Count X.

—6a—

Count XII of the indictment charged that appellant and

his brother Benito distributed a quantity of cocaine know-

ing that it would be unlawfully imported into the United

States, in violation of 21 U.S.C. § 959. The incident

underlying this count took place in Monterrey, Mexico,

in September or October of 1977. Bowman testified that

on that occasion he was helping secrete bags of cocaine

into the rear framework of a van when one of the bags

tore open causing cocaine to spill onto the ground. Benito

Montemayor observed this happen and began to berate

Bowman. Appellant, who was apparently supervising the

loading of the cocaine, told Benito to keep quiet and

directed Bowman to hose down the area after the van

was loaded. Such actions on the part of appellant are more

than sufficient to support a finding that he was

engaged in the distribution of cocaine.

my tape culpability on Counts VIII, X and XII can

also be premised upon the Pinkerton theory of vicarious

liability. Pinkerton v. United States, 328 U.S. 640, 66 S.

Ct. 1180, 90 L.Ed. 1489 (1946). He was shown to have

been a member of an international drug trafficking enter-

prise. As such, he was vicariously liable for any substan-

tive offenses committed by his cohorts in furtherance of

that enterprise. The jury, having been — instructed

on the Pinkerton theory of vicarious liability, could have

based its conviction of appellant on the substantive counts

on that theory. See United States v. Diaz, 655 F.2d 580,

584-585 (5th Cir. 1981); United States v. Michel, 588 F.2d

986, 999 (5th Cir. 1979).

Since we conclude that the evidence was sufficient to

sustain appellant’s conviction on the three substantive

counts, it is unnecessary to decide whether his guilt on

the conspiracy counts could have been considered as predi-

cate offenses.

In a related attack on the continuing criminal enterprise

conviction, appellant contends the evidence was insuffi-

cient to establish that he organized, supervised or man-

aged the group’s drug trafficking operations. After review-

—

ing the record, we have no trouble rejecting this

argument.

Ricky Bowman testified on numerous occasions during

tne trial that appellant was the leader and in charge of

the group’s activities. His testimony was supported by

that of Carlos Gutierrez. Gutierrez testified that between

April of 1977 and January of 1978, he purchased approx-

imately 10 one-pound packages of heroin from appellant’s

brother, Reyes Montemayor. Gutierrez stated that after

each of these transactions Reyes would travel to Mexico

to account to appellant, who at that time was incarcerated

in a Mexican po Gutierrez testified that in January

or February of 1978, he owed Reyes $5,000 from a previ-

ous purchase. Despite the fact that he could not pay this

debt, he met Reyes at a Chicago tavern and requested

that he be given another pound of heroin on consignment.

Reyes, who had been accompanied to the tavern by ap-

pellant and Benito Montemayor, asked Benito whether

Gutierrez should be given another chance. Benito turned

to appellant, who nodded his head, thereby giving his ap-

proval. The next day a pound of heroin was delivered to

Gutierrez.

The jury was entitled to consider this evidence as cor-

roborative of Bowman’s testimony that appellant was in

charge of the drug trafficking operations. We conclude

that the evidence was sufficient to support a j findin

that appellant was the supervisor of the group of ben trae

ficking operations.

Appellant has also challenged the sufficiency of the

evidence relating to his acquisition of substantial assets

with funds derived from the drug acgpnece operations.

At trial, the government proved that appellant had ac-

uired a large number of expensive assets during the years

that the drug trafficking operations were underway. Ap-

llant contends this evidence is inadequate to support

is conviction because the government did not trace the

funds used to purchase those assets directly to the crimi-

nal enterprise. An identical contention was made in

we

United States v. Chagra, 669 F.2d 241 (5th Cir. 1982). Re-

jecting the argument, we stated:

. . . Where a defendant is on trial for a crime in

which pecuniary gain is the usual motive for or

natural result of its perpetration and there is other

evidence of his guilt, evidence of the sudden acquisi-

tion or expenditure of large sums of money by the

defendant, at or after the time of the commission of

the alleged offense, is admissible to demonstrate the

defendant’s illegal obtention of those funds. Evidence

of this type is admissible even though the govern-

ment does not specifically trace the source of those

funds to the illegal acts charged against the defen-

dant because ‘a dishonest acquisition . . . [is] a natural

and prominent hypothesis,’ 1 J. Wigmore, Evidence

§ 154, at 601 (1940 & Supp. 1981), explaining the

defendant’s affluence.

Id. at 256.

With regard to appellant’s claim that his property was

purchased by Constructora Monte, S.A., a Mexican cor-

poration owned by the Montemayor family, the record

reflects: 1) that the corporation did not have adequate

earnings in dollars to make the luxurious purchases in

question; 2) that the purchases had little, if any rela-

tionship to the business of the corporation; 3) that the

purchases were made in cash; 4) that appellant failed to

introduce even a single check drawn on a corporate account

to support his argument that the corporation provided the

funds; and 5) that Benito Montemayor had acknowledged

that the corporation was nothing more than a front for

illegal operations.

In light of the above, we conclude that the evidence was

sufficient to support a jury finding that appellant acquired

substantial assets with funds derived from the drug traf-

ficking operations.

—9g—

OTHER ARGUMENTS

Appellant makes a number of additional arguments

which he contends require reversal.

First, he contends that his conviction should be reversed

because at trial a witness made reference to his prior im-

prisonment in Mexico. The incident occurred when ap-

llant’s counsel was cross-examining Carlos Gutierrez, a

panish-speaking witness. Gutierrez was asked to explain

the time periods elapsing between deliveries of heroin by

Reyes Montemayor. Evidently believing Gutierrez was

confused by the question, the court intervened:

THE Court: But what he is trying to ask you is

this. I believe you said that sometimes it would

take you one week and sometimes two weeks and

one time three days to sell heroin. That’s the way

I understood your testimony. Is that correct?

The Witness: That’s right.

THE Court: But over what times would Mr. Monte-

mayor make the deliveries to you? Was it once a

month or once every two months, or how were

those deliveries spaced?

The Witness: Reyes Montemayor would go to Mex-

ico—

Mr. Szekely: Your Honor, I object. That’s not respon-

sive to the question asked. I was trying to estab-

lish a time frame.

THE Court: I will overrule your objections. This is

the way he is doing it, I suppose.

The Witness: Reyes Montemayor would go to Mex-

ico once a week or once every two weeks to ac-

count to Matias Montemayor, and that is why

~~ Montemayor would tell me, ‘Brother, wait

a while’—

THE CourRT: Cousin.

—10a—

The Witness: Cousin. Wait a while for me to go talk

to Matias at the prison. But Matias was about to

leave or had already left—

THE CourRT: No, about to be released. (Tr. Vol. 5,

pp. 66, 67).

Appellant contends that the admission of this testimony

violated the well-established rule that evidence of prior

crimes cannot be introduced to show a defendant’s crimi-

nal character or his propensity to commit crimes. See

Federal Rules of Evidence 404(b). We disagree.

Evidence of prior criminal conduct is admissible if rele-

— for a purpose other than showing criminal character.

nited States v. Payne, 467 F.2d 828 (5th Cir.

oP. * Binited States v. Davis, 464 F.2d 558 (5th Cir. 1972).

In this case, an essential element of appellant’s continuing

criminal enterprise conviction was his status as the “king

wl overseeing the group’s drug trafficking operations.

he testimony of Gutierrez was relevant to that issue.

It tended to show the dominating influence that appellant

had over Reyes Montemayor, even at a time when appel-

lant was incarcerated in another country. In this context,

the evidence was properly admitted. United States

v. Sutherland, 463 F.2d 641 (5th Cir. 1972); United States

v. Abshire, 471 F.2d 116, 118 (5th Cir. 1972). [The inclu-

sion of references to ‘jail’ or ‘prison’ does not disqualify

essential, otherwise relevant, testimony].

As an alternative argument, appellant urges that the

trial court erred in failing to give a cautionary instruction

limiting the purposes for which the tf could consider

the evidence of prior imprisonment. While the giving of

such an instruction would have been appropriate, no re-

quest for such an instruction was made. In view of the

overwhelming evidence of appellant’s guilt and the fact

that no further reference was made to the prison remark,

we cannot say the failure to give such an instruction was

plain error. If error at all, it was harmless.

—lla—

Appellant’s next assignment of error is directed at the

court’s charge to the jury. He points to several comments

contained in the charge which he contends effectively in-

structed the jury to return a verdict of guilty.2 Because

the record reflects that appellant’s counsel objected to

only one of the comments, we restrict our review accord-

ingly. See Federal Rules of Criminal Procedure 30.

The particular comment objected to occurred when the

trial court instructed the jury on the credibility of wit-

nesses. During closing arguments, appellant’s counsel had

insinuated that there was something illegal about govern-

ment agents paying informants and purchasing drugs. In

—— that such conduct was not illegal, the court

stated:

Now, you weigh each witness. When a witness takes

the stand, and before that witness utters a word, he

comes to you with a clean slate, whether it’s a defen-

dant or whether it’s an officer or whether it’s any

other person, and then you hear that person out.

There were some comments, for example, in the

arguments, some criticism about the fact that the

government pays informants or pays expenses or

buys drugs. There is nothing illegal about that. As

a matter of fact, the Congress has appropriated funds

for that tee 90 as a means of taking pen off the

market, keeping them from the hands of addicts and

of apprehending those that would violate our laws

pertaining to narcotics and drugs. And there is

nothing wrong with that.

The alternatives to that are something far more ex-

pensive to the taxpayers, in the form of addiction and

the crimes that an addict may commit. (Tr. 878-879).

When viewed in the context of the closing arguments

of appellant’s counsel, this comment was not improper.

The trial court was careful not to imply that the prac-

tice lent credence to any witness or that the court itself

believed or disbelieved anyone. Moreover, the court went

on to charge the jury:

Th

appe

~_ an

But, on the other hand, the testimony of a person

such as an accomplice or an informant who provides

evidence in a case for pay or for immunity from pun-

ishment or for personal advantage of any kind must

always be examined and weighed by the jury with

greater care and caution than that of an ordinary

witness. You must decide, as jurors, whether the

witness’ testimony is affected by any of these cir-

cumstances or his interest in the outcome of the case

or any prejudice or resentment he may bear a de-

fendant.

So if you determine that the testimony of such

a witness is affected by those circumstances, any one

or more of those factors, then you should keep in

mind that testimony should always be received with

caution and weighed with great care, and you should

never convict a defendant on the unsupported testi-

mony of such a witness unless you believe that testi-

mony beyond a reasonable doubt. (Tr. 879-880).

e trial court’s comment was not prejudicial to

llant.

We have carefully examined the remainder of the

court’s charge and can find no plain error. When read as

a whole, the charge presents a complete and impartial

recitation of the law applicable to this case. No more is

required under the law.

The remaining contentions asserted by appellant include

the following:

A.

That the indictment should have been dismissed

because of government misconduct before the

grand jury;

2. That the trial court impermissibly restricted his

cross-examination of a government witness;

3. That the trial court erred in receiving into evi-

dence a Drug Enforcement Agency evidence sub-

mission form; and

=_

4. That the trial court should have declared a mistrial

after an unadmitted Drug Enforcement Agency lab

report was inadvertently sent to the jury during

deliberations.

We have carefully reviewed the record and conclude

that none of these claims constitute reversible error.

CONCLUSION

For the reasons given, appellant’s conviction is affirmed

on all counts.

AFFIRMED.

[Footnotes appended]

FOOTNOTES

1 United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979);

United States v. Chagra, 653 F.2d 26 (1st Cir. 1981).

2 A judge in a federal criminal trial has the right to summarize

and comment upon the evidence and the inferences to be drawn

therefrom, to insure that the facts are yg brought out.

United States v. Lee, 422 F.2d 1049 (5th Cir. 1970). However, in

doing so he must make clear to the jury that they are the sole

ju of the facts and are not bound by his comments. Moody

v. United States, 377 F.2d 175 (5th Cir. 1967). The district judge

was careful to so instruct the jury in this case.

—l4a—

APPENDIX 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-2249

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MATIAS MONTEMAYOR-DE LA Paz,

Defendant-A ppellant.

Appeal from the United States District Court for the

Southern District of Texas

(October 6, 1983)

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 8/5/88, 5 Cir. 1983, ..... F.2d ....)

Before RUBIN and TATE, Circuit Judges, and Davis*,

District Judge.

* District Judge of the Western District of Louisiana, sitting by

designation.

—l5a—

PER CURIAM:

Appellant complains in his application for rehearing that

we failed to consider his second assignment of error. In

issue 2, appellant asserted that the trial court erred in

failing to confine the pe ponds proof to the indictment

as amplified by the bill of particulars.

The appellant focuses on a response made by the

government to defendant’s request for bill of particulars

as to count 2. In that response, the government informed

the defendant that it would be relying on predicate acts

committed during September or October 1977.

From other discovery and from the language in the in-

dictment itself, defendant was apprised that the govern-

ment would offer proof of violations which occurred at

times other than September-October, 1977. The defendant

showed no surprise or prejudice. Under these cir-

cumstances, it was within the trial court’s discretion to

permit the government to establish and rely on acts com-

mitted at times other than September-October, 1977. See

United States v. Diecidue, 603 F.2d 535, 563 (5th Cir.

1979), cert. denied, 445 U.S. 946 (1980) and United States

v. Johnson, 575 F.2d 1347, 1356-57 (5th Cir. 1978), cert.

denied, 440 U.S. 907 (1978).

The other assignments of error were either covered ex-

pressly or implicitly.

For these reasons, the petition for rehearing is DENIED

and no member of this panel nor Judge in regular active

service on the Court having reque that the Court be

lled on rehearing en banc, (Federal Rules of Appellate

ania and Local Rule 35) the Suggestion for Rehear-

ing En Banc is DENIED.

—16a—

APPENDIX 3

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

UNITED STATES OF AMERICA, °

vs * CRIMINAL NO. B-81-811

MATIAS MONTEMAYOR-DE LA Paz,*

ANSWER TO DEFENDANT’S MOTION FOR

BILL OF PARTICULARS AS TO COUNT 2

To THE HONORABLE JUDGE OF SaIp Court:

Comes Now the United States Attorney for the

Southern District of Texas by and through John Patrick

Smith, Assistant United States Attorney, and states that:

1. Persons supervised by MATIAS MONTEMAYOR-DE La

Paz in a continuing criminal enterprise are, but not

limited to, the below listed:

Benito Montemayor-De La Paz

Reyes Montemayor-De La Paz

Manuel Montemayor-De La Paz

Meynardo Montemayor-De La Paz

Eva Montemayor-De La Paz

Rich Bowman

Nellie Olinger

Salvador ‘Flores

“ . lo”

“Blueboy”’

—17a—

2. The above listed persons were supervised in, but not

limited to, the Chicago, Illinois, area; McAllen, Texas;

Monterrey, Mexico; and Cerralvo, N.L., Mexico.

3. The above persons were placed in positions of, but

not limited to, overseers, loaders, drivers, money counters,

chemists, body guards and guards, and safekeepers of con-

traband at stash locations.

4. (a) The date of the criminal act was during the

months of September or October of 1977.

(b) The location of the offense was Benito Monte-

mayor’s home on 32A Street, Colonia Las Crumbres,

Monterrey, N.L., Mexico.

—18a—

APPENDIX 4

x~ * *

collectively. My question is this: Did any of you examine

those two exhibits, Defendants’ Exhibits 1 and 2, which

were—I will tell you what they were. They would have

been the report of the chemist, Mr. Albers, who testified

in this case. Did any one of you see those exhibits or ex-

amine those exhibits when they were in the jury room?

You did see them?

A Juror: I read them both, Your Honor.

THE Court: You did see them both?

A Juror: Yes, sir.

THE Court: Did you look at them?

A Juror: I looked at them to verify the date of the

vacuuming of both the vehicle and the pool table.

THE Court: You may be seated. Several of the others

also examined those exhibits?

A Juror: I did. I saw them and—

THE CourT: Don’t tell me what you did. You did look

at the exhibits?

A Juror: Yes.

THE Court: Then some of the jurors did look at the

exhibits, and I want the record to so reflect.

All right, jurors, this will conclude your service in this

case. I do not know what other instructions you have

received from the Clerk pertaining to any service in the

future, but this concludes this

*_ * *