Filed: Nov. 09, 2007
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 06-1680 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Fabio Montano, also known as * Fernando Nieves, * * Appellant. * _ Submitted: September 24, 2007 Filed: November 9, 2007 _ Before WOLLMAN, HANSEN, and RILEY, Circuit Judges. _ RILEY, Circuit Judge. After a jury convicted Fabio Montano (Montano) of conspiracy to distribute more than five kilogram
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 06-1680 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Fabio Montano, also known as * Fernando Nieves, * * Appellant. * _ Submitted: September 24, 2007 Filed: November 9, 2007 _ Before WOLLMAN, HANSEN, and RILEY, Circuit Judges. _ RILEY, Circuit Judge. After a jury convicted Fabio Montano (Montano) of conspiracy to distribute more than five kilograms..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1680
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Fabio Montano, also known as *
Fernando Nieves, *
*
Appellant. *
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Submitted: September 24, 2007
Filed: November 9, 2007
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Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
After a jury convicted Fabio Montano (Montano) of conspiracy to distribute
more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846, the district court1 sentenced Montano to 405 months’
imprisonment. On appeal, Montano contends (1) the district court erred in admitting
evidence concerning a murder committed in furtherance of the conspiracy, and (2)
insufficient evidence supports the conviction. We affirm.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
I. BACKGROUND
A. The Drug Conspiracy
Edwin Hinestroza (Hinestroza) ran a cocaine distribution ring in the Kansas
City metropolitan area from 1996 to November 1998 with the assistance of Hebarth
Andres-Borja (Andres-Borja) and Andres-Borja’s uncle, Julian Colon (Colon).
Cocaine shipments came from the “La Oficina” drug cartel in Colombia, South
America, via Mexico and Houston. The cocaine was then transported by automobile
to Kansas City, concealed in false compartments. Each shipment to Kansas City
contained between fifteen and fifty kilograms of cocaine. Hinestroza sold cocaine to
Montano and four other major customers. Montano was considered one of
Hinestroza’s largest customers.
Dominic Lusk (Lusk) was Montano’s right-hand man, delivering drugs from
Houston to Kansas City for Montano. In a typical delivery, Montano would deliver
at least five kilograms of cocaine to Lusk in Houston. Lusk would hide the cocaine
in a rental car that he would drive to Kansas City. Lusk was paid with a portion of the
cocaine he transported. Lusk also made trips back to Houston, transporting the cash
drug proceeds on Montano’s behalf. On one trip, law enforcement stopped Lusk, who
was carrying $115,000 to $120,000 to Montano’s cocaine suppliers in Houston.
Lusk not only transported cocaine to Kansas City for Montano, he also assisted
Montano with drug deals in Kansas City. For example, one such drug deal took place
in the Bannister Mall parking lot in Kansas City, Missouri. Lusk was driving
Montano’s car when Montano tossed money to Colon and Andres-Borja, who were
in another car, in exchange for a bookbag containing three to five kilograms of
cocaine.
Lusk met co-conspirators Andres-Borja, Colon, Hinestroza, and Arboleda Ortiz
(Ortiz) through Montano. Later, Lusk began buying cocaine through Andres-Borja,
Colon, and Hinestroza. Andres-Borja personally delivered cocaine to Montano on
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behalf of the conspiracy and received money from Montano. Andres-Borja’s brother,
Edward Ortiz (Edward), confirmed a specific delivery of five kilograms of cocaine to
Montano’s apartment where the cocaine was secreted in Edward’s school backpack.
Montano had several drug customers in Kansas City. Marvin Collins (Collins)
bought cocaine from Montano for several years, buying between nine ounces and two
kilograms at a time. Sometimes the cocaine was delivered by Ortiz and sometimes
Montano delivered the drugs to Collins. A friend of Collins, Gregory Watson, was
present when Montano and Ortiz delivered three kilograms of cocaine to Collins in
exchange for a large amount of cash.
Loren Harris (Harris) bought two to three kilograms of cocaine from Montano
every week or two in 1997 and 1998. Sometimes Harris would pick up the cocaine
at Montano’s Overland Park apartment and other times Montano delivered the
cocaine.
Drug ledgers, kept by Andres-Borja and Colon, confirmed cocaine deliveries
were made to Montano as well as money owed by Montano for cocaine. For example,
one entry read “Fernando owes 3, at $15,000. Paid 2.” Andres-Borja explained this
entry as Montano had paid $30,000 for two kilograms of cocaine and still owed the
conspiracy for three additional kilos at $15,000 each. Other entries denoted
transactions where Montano received between one and three kilos of cocaine each
transaction, totaling eleven kilos of cocaine.
B. Colon’s Murder
Hinestroza lived in a Kansas City area apartment with Monica Osma (Osma),
Colon’s sister and Andres-Borja’s aunt. On November 19, 1998, the apartment was
reportedly robbed by two unknown males, who tied and beat Osma, and demanded to
know where she kept the money. After being beaten, Osma told the intruders that the
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third stair on the staircase contained a hidden compartment with money. The
apartment was ransacked and approximately $240,000 was stolen. Hinestroza was
concerned law enforcement might become involved, so Hinestroza sent Osma to
Houston for medical treatment.
On November 26, 1998, Hinestroza, Jaime Hurtado (Hurtado), Ortiz, and
Pluterco Tello (Tello) visited Osma in Houston. Upon receiving unsatisfactory
answers to questions about the robbery, Ortiz and Tello threatened that a dead body
must appear in order to satisfy La Oficina. As everyone left the apartment, Osma’s
nephew, Edward, saw German Sinisterra (Sinisterra) on the street outside the
apartment. Edward knew Sinisterra was a killer, testifying later that “if you need
someone to get smoked,” Sinisterra would do it.
On November 28, 1998, back in Kansas City, Hinestroza asked Andres-Borja
and Colon to accompany him to the Drury Inn in Overland Park, Kansas, to meet with
Sinisterra, Ortiz, and Tello. Andres-Borja knew Sinisterra and Ortiz as “[g]un[s] for
hire” associated with Hinestroza and Montano. Andres-Borja knew Sinisterra was
Jaime Hurtado’s right hand man and Montano allowed Ortiz to pick up and receive
drugs and collect money on Montano’s behalf.
Hinestroza told Andres-Borja that Sinisterra, Ortiz, and Tello would accompany
them to meet Percy Smith (Smith) to sell Smith over one kilogram of fake cocaine
because Hinestroza thought Smith stole the $240,000. Andres-Borja believed
Sinesterra, Ortiz, and Tello were along to restrain and maybe kill Smith. After
meeting with Smith, Smith led the group into a second house. Hinestroza, Sinesterra,
Ortiz, and Tello entered the house, put guns to the heads of Andres-Borja and Colon,
physically assaulted them, bound them with duct tape, and continued to beat them.
The attackers demanded to know where the money was, referring to the stolen
$240,000. The beatings continued, accompanied with demands, taunts and threats of
death.
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Andres-Borja was dragged to the basement, and heard Hinestroza order Ortiz
and Tello to “shoot [him] in the head,” and then, “[s]hoot the other one, too.” Colon
was shot and killed. Andres-Borja heard footsteps coming down the basement stairs
followed by the sound of another gunshot and ringing in his ears. Initially, Andres-
Borja thought he was dead. When Andres-Borja realized he was still alive, he
pretended to be dead. The attackers carried Andres-Borja out of the house and put
him in the trunk of a vehicle alongside Colon’s body. The vehicle was driven to
Swope Park in Kansas City and abandoned with the bodies still inside. Andres-Borja
managed to escape from the trunk. That night, Andres-Borja informed law
enforcement about the shooting and the Hinestroza drug conspiracy.
Sinesterra, Ortiz, and later Tello were arrested at the Drury Inn without incident.
Telephone records showed Hinestroza fled to Texas immediately following Colon’s
murder. Montano was detained outside of Room 433 at the Drury Inn in the early
morning hours of November 29, 1998. Tello had rented Room 433 the night before
and had been arrested stepping out of this room. Montano admitted he was at the
room to meet with Ortiz.
Telephone records corroborated the cooperating witnesses’ testimony as to
Montano’s relationships with his co-defendants. There were 43 calls between Ortiz’s
cell phone and Montano’s home phone in Katy, Texas, from September 3, 1998 to
November 5, 1998. In addition, records showed 31 calls between Hinestroza’s pager
number and Montano’s cell phone, including nine calls on the day of Colon’s murder.
Finally, on November 28, 1998, three calls were made from Sinesterra’s hotel room
to Montano’s cell phone.
Police searched Montano’s Lexus. The search discovered a slip of paper with
the name “German Sinisterra,” a piece of paper with the name “Artis,” a knife, and
receipts for cash and wire transfers. A search of Montano’s apartment revealed a
loaded handgun, ammunition for a second handgun, cash receipts, and a Sunbeam
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scale. A search of another apartment, recently abandoned by Montano, resulted in the
recovery of a scrap of paper with Tello’s name and date of birth.
II. DISCUSSION
Montano argues (1) the district court abused its discretion in allowing the
government to present evidence of the murder of Colon, and (2) insufficient evidence
supports the jury verdict.
A. Admission of Murder Evidence
We review for abuse of discretion the district court’s evidentiary rulings.
United States v. Dierling, 131 F.3d 722, 730 (8th Cir. 1997). In a conspiracy trial, the
district court’s discretion in evidentiary rulings is particularly broad.
Id.
In Dierling, we held evidence of a murder in a drug conspiracy case was
relevant and not overly prejudicial when the slaying was an act to control subordinates
and the evidence showed the lengths the conspirators would go to protect the
conspiracy.
Id. at 731. Similarly, Colon’s murder was an act to control subordinates.
La Oficina did not believe Osma’s story regarding the robbery and intended to hold
someone responsible for the missing $240,000. Colon’s murder was committed by
members of the conspiracy to further the conspiracy by demonstrating the lengths to
which the conspirators would go to protect their drug dealing interests. The murder
also was an attempt by the conspiracy to collect the conspiracy’s stolen money. We
further note the overt act of one conspirator in a conspiracy is attributable to all
conspirators. See Pinkerton v. United States,
328 U.S. 640, 646-47 (1946). As
Montano claims, the murder evidence probably is highly prejudicial, but the evidence
is not unfairly prejudicial. See Fed. R. Evid. 403. The district court did not abuse its
discretion by admitting this evidence.
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B. Sufficiency of the Evidence
Montano asserts the government never proved Montano intentionally joined the
conspiracy. To convict Montano of a conspiracy to distribute crack cocaine, the
government had to prove (1) the existence of a conspiracy, that is, the agreement to
distribute drugs; (2) Montano knew of the conspiracy; and (3) Montano intentionally
joined the conspiracy. United States v. Rolon-Ramos, __ F.3d __, 2007 WL 2820288,
at *3, No. 07-1066 (8th Cir. Oct. 1, 2007). We review de novo the sufficiency of the
evidence to sustain a conviction, examining the evidence in the light most favorable
to the jury verdict and giving the verdict the benefit of all reasonable inferences.
United States v. Wintermute,
443 F.3d 993, 1003 (8th Cir. 2006). We will reverse the
jury verdict only if no reasonable jury could have found Montano guilty. United
States v. Sanders,
341 F.3d 809, 815 (8th Cir. 2003).
Montano concedes the government proved the existence of the Hinestroza
cocaine conspiracy. Thus, the only issues are Montano’s knowledge of the conspiracy
and whether Montano knowingly joined the conspiracy.
Montano acknowledges he bought and sold drugs with members of the
conspiracy, and Montano concedes “the Government’s evidence established . . .
Montano’s presence and knowledge of the actions of . . . Hinestroza’s organization.”
Montano undeniably knew of the conspiracy. Montano’s real contention is the
evidence is deficient to show he joined the conspiracy.
“[A] defendant may be convicted for even a minor role in a conspiracy, so long
as the government proves beyond a reasonable doubt that he or she was a member of
the conspiracy.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en
banc). Joint delivery and resale of narcotics by purchasers is sufficient to sustain a
conspiracy conviction. See United States v. Espino,
317 F.3d 788, 793-94 (8th Cir.
2003). Here, numerous cooperating witnesses testified to Montano’s involvement.
Andres-Borja and Lusk both testified to a drug transaction between Montano and
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Colon in a Kansas City, Missouri, shopping center parking lot involving three to five
kilograms of cocaine. Andres-Borja also testified Montano was one of the Hinestroza
cartel’s two largest cocaine buyers in Kansas City. Drug ledgers recovered by the FBI
corroborated Andres-Borja’s testimony with one entry documenting the sale of five
kilograms of cocaine to Montano, and another entry documenting the sale of eleven
kilograms of cocaine to Montano. Andres-Borja delivered cocaine to Montano, and
Lusk transported drugs for Montano on twenty separate occasions. Collins and Harris
both bought kilogram quantities of cocaine from Montano, while Watson took
delivery of three kilograms of cocaine from Montano and Ortiz. The government’s
evidence was certainly sufficient to sustain a conspiracy conviction.
Montano also attacks the credibility of the government’s witnesses. “It is
axiomatic that we do not review questions involving the credibility of witnesses, but
leave credibility questions to the jury.” United States v. Dabney, 367 F.3d 1040, 1043
(8th Cir. 2004). “The jury is free to believe the testimony of any witness in its
entirety, or to reject that testimony as untrustworthy.” United States v. One Star,
979
F.2d 1319, 1321 (8th Cir. 1992). In Montano’s case, the testimony of the cooperating
witnesses was corroborated by other consistent testimony and by the drug ledgers and
other exhibits.
We conclude Montano’s conviction for conspiracy to distribute more than five
kilograms of cocaine is supported by more than sufficient credible evidence.
III. CONCLUSION
For the foregoing reasons, we affirm Montano’s conviction.
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