Appeal from the United States District Court for the Western District of Wisconsin. No. 87-CR-118-C -- Barbara B. Crabb, Judge.
Cummings and Flaum, Circuit Judges, and Fairchild, Senior Circuit Judge.
Defendant Leonardo Monzon was charged in a three-count indictment with: (1) conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; (2) possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1); and (3) intentional distribution of cocaine in violation of 21 U.S.C. § 841(a) (1). The Defendant was found guilty by a jury on all three counts and was sentenced to 78 months in prison on each of the counts, the sentences to run concurrently, to be followed by 5 years of supervised release. In this appeal, the Defendant claims that multiple evidentiary errors prejudiced his trial, that the trial judge failed to properly instruct the jury on his theory of defense, and that, at the very least, his sentence must be vacated on the grounds of multiplicity of counts, reliance by the judge on improper information, and disparity with the sentences of co-conspirators. We find no merit in any of the Defendant's contentions and, therefore, affirm both the conviction and the sentence.
The drug transaction which forms the basis of the Defendant's conviction had its genesis when Peter Ithier, a Milwaukee resident, was charged with the sale of a controlled substance by federal agents. Ithier, in an attempt to reduce his sentence, agreed to cooperate with federal agents by leading them to other drug traffickers. One of those traffickers was Scott Steinfest, also a Milwaukee resident and an acquaintance of Ithier's. Ithier told Steinfest that Ithier had a customer, Raymond Melick (actually an agent with the Drug Enforcement Agency), who was interested in purchasing approximately $20,000 worth of cocaine. Steinfest agreed to see if he could arrange the sale and called Todd George, a Madison resident who had previously supplied Steinfest with controlled substances.
On November 20, 1987, Ithier, Melick, and Steinfest drove to Madison to consummate the deal. The three arranged to meet in the parking lot of a local K-Mart. From there they proceeded to East Main street where Todd George resided. Earlier that afternoon, George had received the cocaine, weighing in at 492 grams, from Andres, the person who regularly supplied George with marijuana and cocaine. On this particular occasion, Andres was accompanied by Leonardo Monzon, the Defendant. According to George, Andres told him that Monzon was to be in charge of this transaction. Thus, when a question arose as to the price that was to be charged for the cocaine, it was Monzon who made the final decision. Before the arrival of the Milwaukee contingent, George had taken 62 grams of cocaine out of the main package and replaced it with an equal amount of vitamin C. George testified that the 62 grams were compensation for his role in the transaction and were taken with the acquiescence of Monzon. It was this distribution that formed the basis for Count 3 of the indictment.
At approximately 4:30 p.m., Ithier, Steinfest, and Melick arrived at George's residence. Steinfest went into the building to retrieve the cocaine while Ithier and Melick waited in the car. Steinfest walked up to the second floor and entered George's apartment. After Monzon was introduced-it is not clear whether he introduced himself or was introduced by George-Steinfest went to the living room table, where the cocaine had been placed, and broke off two chunks to keep for himself as part of his compensation. He then picked up the remainder of the cocaine and, after explaining to Monzon where he was going, went downstairs to exchange it for the $20,000 from Melick. Steinfest showed the cocaine to Agent Melick who then gave a prearranged signal to other officers to proceed to arrest Steinfest. Meanwhile, Todd George, who had followed Steinfest down the stairs, sensed that something had gone awry and headed for the basement, where officers eventually found him hiding. Other officers proceeded up the stairs to George's apartment where they apprehended Monzon. Monzon volunteered that he did not know George and stated that he was simply in the apartment watching T.V.
Steinfest, George, and Monzon were each charged with conspiracy to distribute cocaine, possession of cocaine with intent to distribute and distribution of cocaine. Steinfest and George pled guilty, agreed to testify against Monzon, and were sentenced to three years in prison. Monzon pled not guilty and, following his conviction on all three counts, was sentenced to 78 months in prison on each count, the sentences to run concurrently.
Monzon claims that multiple evidentiary errors were made by the trial court. First, he claims that his fifth amendment privilege against compelled self-incrimination was violated when the trial court allowed a police officer to testify to a statement made by Monzon shortly after his arrest. Second, Monzon alleges that the trial court erred in allowing another officer to testify as to a statement made to her by Steinfest just after his arrest. Third, Monzon believes that he suffered undue prejudice when the trial court admitted extrinsic evidence of his physical characteristics and prior bad acts. Monzon also claims that the trial court, by refusing to give two of his proffered jury instructions, failed to instruct the jury on his theory of defense. Finally, Monzon claims that his sentence must be vacated because: (1) the trial court relied upon improper inferences in sentencing him; (2) there was no justification for the disparity between his sentence and the sentences of George and Steinfest; and (3) Counts 2 and 3 of the indictment were multiplicitous since they charged the Defendant with separate crimes for what was, in reality, a single transaction.
Monzon claims that evidence was admitted at his trial in violation of his fifth amendment privilege against compelled self-incrimination. Immediately following his arrest, Monzon was taken to a squad car and, after being advised of his rights, was questioned by Agent Jeanne Tasch of the Drug Enforcement Agency. According to the report filed by Agent Tasch, the Defendant answered several of her questions and then asked to see an attorney, whereupon the questioning ceased. At some point while the Defendant was seated in the squad car, Officer Dan Roman asked the Defendant whether a green car parked in the driveway of the George residence belonged to him. Monzon responded that the car did belong to him, but has subsequently denied ownership. A search of the car turned up a parking ticket from Chicago's O'Hare Airport dated November 17, 1987, a scale suitable for weighing narcotics, and several marijuana cigarette butts, each of which was introduced by the government at Monzon's trial.
Monzon claims that all of this evidence should have been suppressed because at the time Officer Roman asked him the question regarding ownership of the car, he had not yet been read his Miranda rights. Alternatively, the Defendant believes that if the conversation took place after Agent Tasch read him his rights, the evidence still should have been suppressed since questioning should have ceased once the Defendant asked to consult with an attorney. The trial court found that the question was asked after Monzon had been advised of his rights and refused to suppress the Defendant's statement.
The Government counters Monzon's claim with two arguments. First, the Government claims that the question asked by Officer Roman falls outside the ambit of Miranda protection because it was asked simply as part of an attempt to secure the area immediately surrounding the crime scene. The government would apparently have us analogize this question to the kind of routine booking questions such as name and address that have been held to fall outside of Miranda's protections. See Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (words and actions "normally attendant to arrest and custody" excluded from the definition of interrogation). The analogy fails. Routine booking questions are allowed because, to an objective observer, the questions are not "designed to elicit an incriminating response." Id. at 1232. Where the police should know that a question is likely to elicit an incriminating response, that question cannot be asked absent Miranda warnings.
Officer Roman's question in this case clearly had incriminating potential. Officer Roman could not know at the time he questioned Monzon what the car might contain nor whether the car could be linked to Monzon absent the admission. Under those circumstances, we believe that Monzon should not have been questioned after he asked to speak with a lawyer. See United States v. Downing, 665 F.2d 404, 406 (1st Cir. 1981) (defendant's fifth amendment rights were violated when police asked him what his keys belonged to and where his plane was located after the defendant asked to speak to his attorney).
Still, the trial judge properly admitted the evidence because the Defendant failed to advise the court that he had requested an attorney and did not bring to the court's attention the report of Agent Tasch. So far as the trial court knew, the Defendant was asked the question by Officer Roman after being advised of his rights and without any intervening barrier to further questioning. Where a defendant fails to make the trial court aware of circumstances surrounding evidence that the defendant wants suppressed, the defendant waives his right to rely on those circumstances in arguing for suppression on appeal. United States v. Welsh, 721 F.2d 1142, 1145 (7th Cir. 1983). Thus, the trial ...