United States v. Montanye

962 F.2d 1332, 1992 WL 90039
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 6, 1992
DocketNos. 91-1703, 91-2028, 91-2238 and 91-2242
StatusPublished
Cited by35 cases

This text of 962 F.2d 1332 (United States v. Montanye) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Montanye, 962 F.2d 1332, 1992 WL 90039 (8th Cir. 1992).

Opinions

BRIGHT, Senior Circuit Judge.

George Bruton, John Calia, Herbert Mon-tanye and John Glorioso appeal their convictions of conspiracy to distribute methamphetamine, marijuana, cocaine, and related offenses, and the sentences imposed on them. As concerns Bruton’s convictions on Counts I and II for conspiracy and continuing criminal enterprise, he alleges that, taken together, these convictions amount to double jeopardy. On review, we remand Bruton’s case, No. 91-2028, for the district court to vacate one of those two convictions. We also reverse Montanye’s (No. 91-1703) conviction for attempted manufacturing of methamphetamine. Finally, we vacate Montanye’s sentence and remand his case for resentencing.

Appellants make numerous arguments, many of which we reject without discussion as meritless. We have chosen to address the following arguments. Collectively, appellants argue: (1) the district court erroneously admitted some hearsay statements made by a co-conspirator; (2) the district court erred in entering judgment against appellants for conspiracy because a fatal variance existed between the indictment and the facts that the Government alleged at trial; (3) the district court erred in entering judgment against them on their convictions because the Government presented insufficient evidence.

Bruton argues the district court: (1) violated his rights under the Double Jeopardy clause by convicting him of both conspiracy and conducting a continuing criminal enterprise (CCE) for engaging in the same con-[1337]*1337duet; (2) erred in instructing the jury on the law of CCE; (3) erred in admitting evidence of a phone conversation to the jury because its prejudicial nature outweighed its probative value; (4) erred in enhancing his offense level for possessing a firearm.

’ Calia argues the district court: (1) erred in entering judgment against him on his convictions because the Government presented insufficient evidence; (2) erred in enhancing his offense level for playing a managerial role in the conspiracy.

Montanye argues the district court: (1) erred by failing to sever his trial from the other defendants; (2) erred by failing to submit his requested defense instruction to the jury; (3) erred by placing undue emphasis in the jury instructions on his role in the conspiracy; (4) erred by instructing the jury that the Government did not have to prove that appellants agreed to distribute a particular type of controlled substance.

Glorioso argues that the district court: (1) erred in permitting the Government to present rebuttal evidence against him when he did not present a defense; (2) erred in entering judgment against him because the Government presented insufficient evidence.

I.BACKGROUND

The Government’s indictment alleged the following:

I. From February 1, 1988 until April 6, 1990, Bruton, Calia, Glorioso, Montanye, Ramon Leal, Charles Leal, Carl Hathcock, Kenneth Dufrenne, and Cecil Evans conspired to manufacture, possess, and distribute controlled substances in violation of 21 U.S.C.A. § 841(a) (West Supp.1991).

II. From February 1, 1988 to April .6, 1990, Bruton operated as a leader of a continuing criminal enterprise in violation of 21 U.S.C.A. § 848.

III. On August 8, 1989, Bruton and Ca-lia did knowingly possess with intent to distribute approximately seventy pounds of marijuana in violation of 21 U.S.C.A. § 841(a).

IV. On February 18, 1990, Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Ramon Leal, in violation of 21 U.S.C.A. § 843(b).

V. On February 19, 1990, Bruton and Thomas Cullen did attempt to knowingly and intentionally manufacture methamphetamine by directing Montanye to purchase laboratory glassware for use in the production of methamphetamine.

VI. On February 19, 1990, Bruton, Ca-lia, Glorioso, Thomas Cullen and Ramon Leal did possess with intent to distribute 198 pounds of marijuana in violation of 21 U.S.C.A. § 841(a).

VII. On March 1, 1990, Bruton, Thomas Cullen, Montanye and Dennis Sessions did attempt to manufacture methamphetamine by possessing laboratory glassware intended for the production of methamphetamine, in violation of 21 U.S.C.A. §§ 841(a)(1), 843.

VIII. On March 8, 1990, Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Ramon Leal, in violation of 21 U.S.C.A. § 843(b).

IX. On March 10,. 1990, Bruton, Carl Hathcock, Ramon Leal and Charles Leal did possess with intent to distribute approximately 207 pounds of marijuana, in violation of 21 U.S.C.A. § 841(a).

X. On March 13,1990, Bruton did knowingly facilitate the conspiracy to distribute drugs by leaving a telephone message with Thomas Cullen regarding the conspiracy, in violation of 21 U.S.C.A. § 843(b).

XI. On March 28, 1990, Bruton and Thomas Cullen did knowingly manufacture methamphetamine, in violation, of 21 U.S.C.A. § 841(a).

XII. On April 5, 1990, at approximately 7:40 a.m., Bruton did knowingly use a telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Ramon Leal, in violation of 21 U.S.C.A. § 843(b).

XIII. On April 5,1990, at approximately 11:32 a.m., Bruton did knowingly use a [1338]*1338telephone to facilitate the conspiracy to distribute drugs by discussing the conspiracy on the phone with Carl Hathcock, in violation of 21 U.S.C.A. § 843(b).

XIV. On April 6, 1990, Bruton and Thomas Cullen did knowingly possess with intent to distribute fifty-five grams of methamphetamine, in violation of 21 U.S.C.A. § 841(a).

According to the Government, Bruton simultaneously supervised a marijuana smuggling operation, and a methamphetamine laboratory. Thomas Cullen worked as the lab’s chemist, manufacturing methamphetamine with equipment and materials provided by Bruton.1 Montanye aided Bru-ton by delivering glassware for the lab. Ramon Leal served as Bruton’s supplier of marijuana from Texas.2 John Calia worked primarily as Bruton’s partner in the marijuana operation until Bruton cut him out in March 1990, and substituted Carl Hathcock as his partner.3 Glorioso aided Bruton and Calia in distributing the marijuana.

Based on a number of tips that Bruton and Calia were stealing jewelry, the FBI began surveillance of them in July 1989. However, the FBI grew suspicious that Bruton and Calia also dealt drugs. The FBI heightened its surveillance when the DEA arrested Jack Mikulenka in September of 1989 for attempting to purchase 100 pounds of marijuana from one of its agents. Mikulenka cooperated, telling the FBI that he had worked as a courier delivering marijuana in large quantities from Cecil Evans, an infamous criminal in Texas,4 to George Bruton in Kansas City. Mi-kulenka admitted delivering seventy pounds of marijuana to Bruton in August of 1989. (Count III) After gathering evidence for several months, the FBI obtained a court order to tap Bruton’s and Calia’s cellular phone conversations in February of 1990.

A. Marijuana

In mid-February, Bruton called Ramon Leal in Texas.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Moore v. United States
E.D. Missouri, 2020
United States v. Ruiz-Zarate
678 F.3d 683 (Eighth Circuit, 2012)
United States v. Anderson
618 F.3d 873 (Eighth Circuit, 2010)
United States v. Pelayo Jose Cuervo
354 F.3d 969 (Eighth Circuit, 2004)
United States v. Cory Kamerud
Eighth Circuit, 2003
United States v. Thomas Scott Crossland
301 F.3d 907 (Eighth Circuit, 2002)
United States v. Fernando Davis
154 F.3d 772 (Eighth Circuit, 1998)
Herbert Ross Montanye v. United States
77 F.3d 226 (Eighth Circuit, 1996)
United States v. Steven Eugene Jelinek
57 F.3d 655 (Eighth Circuit, 1995)
Commonwealth v. Conefrey
650 N.E.2d 1268 (Massachusetts Supreme Judicial Court, 1995)
United States v. Gary Ross Rockelman
49 F.3d 418 (Eighth Circuit, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
962 F.2d 1332, 1992 WL 90039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-montanye-ca8-1992.