# Appendix — DeLuca v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 983

## Text

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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*
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1638%3A2. Public record. Not legal advice.