Appendix — DeLuca v. United States

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 96-1788

United States of

America,

Appellee,

Appeals from the

United States

District Court

for the Eastern

Vv.

Gustavo Grajales-

Montoya,

District of Missouri.

+e eee e ete + + +

Appellant.

No. 96-2016

United States of

America,

Appellee,

Vv.

Elisa Deluca,

Also Known as

Elisa Maldonado,

Also known as

Elisa Kaukereit,

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App.1

Appellant.

No. 96-2018

United States of

America

Appellee,

Vv.

George A. Deluca,

Also Known as

POppy

‘eee e+e + + + + F

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

App. 2

————————————

Lk or

conspiring 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 yuilty of traveling in

interstate commerce to promote the

distribution of drugs. The trial court’

sentenced the Delucas to life imprisonment

and Mr. Montoya to imprisonment for 135

months. E.ch 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.

Il.

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 "[(tjhe

contents or voluminous writings,

recordings, or photographs which cannot

, The Honorable Stephen Nathaniel

Limbaugh, United States District Judge for

the Eastern District of Missouri.

App. 3

_——h——e isa. iii iia,

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 jn addition to, the

documents that it summarizes, see

, 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 43

witness available for cross-examination,

not by the lawyers trying the case. See

Possick, 849 F.2d at 339, and

i, 808 F.2d 1283, 1289 (8th car

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 vy 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

App. 4

——

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

Circu:t 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 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

App.5

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 OF 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 Vv.

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

App.6

ian as ec

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 objection" before the

jury retires. See i Vv .

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 ited 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.

App.7

IIil.

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 @

translator was used throughout the

interviews.

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

App.8

———S sr rsti‘ tS |

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 h-s 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.

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).

App.9

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

App.10

charged, Fed. R. Evid. 404(b) is

inapplicable, and the trial court 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 knowlecge 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.

App.11

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 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 hin, 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

App.12

OO —

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 upcen 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.

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

App.13

distributor's separate conspiracies) that

jt 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.8.8.¢G. §

1B1.3, application note 2, and that its

App.14

factual findings 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

tentire matter," and noted that its

determinations were based on its notes and

its recollection of the testimony. We

believe that the trial court very cleav-ly

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). Aftera

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

App.15

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 ali 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 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

App.16

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 cbout the

Delucas' activities, during which time he

was in federal custody but not in INS

custody.

Mr. Montoya was’ returneec 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.

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.

App.17

As the magistrate judge’ 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.

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

2 The Honorable David D. Noce, United

States Magistrate Judge for the Eastern

District of Missouri.

App.18

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) conten‘:s 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

App.19

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 4a

witness caJled 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 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 hin.

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

App. 20

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 indictmen*.) 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

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 eo 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.

App.21

CRE nae

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.

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.

App.22

iy a a

A OED inn eh agon SS %>

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.

App. 23

ai |

UNITED STATES COURT OF APPEALS

FOR THE EIGHT CIRCUIT

No. 96-1788EMSL

United States of America

Appeal from

the United

States

District

Court for

the Eastern

District of

Missouri

Appellee,

Vs.

Gustavo Grajales-Montoya,

* ee + + + He He

Appellant.

The petition for rehearing filed by

the appellant has been considered by the

court and is denied.

July 29, 1997

Order Entered at the Direction of the

Court:

/s/ Michael E. Gens /s/

Clerk, U.S. Court of Appeals, Eighth

Circuit

App.24