United States v. Corky Nunez
877 F.2d 1470
10th Cir.
1989
Check Treatment

*1 examinations; many granted attended bank the motion and admonished tion to schools; “disregard jury and instructed at the last statement examination Voigt schools. was the or four such volunteered the witness.” Ms. three She charge point headed the team of who has failed to out to us what error examiner court, that uncovered the evi- examiners committed the trial can bank we forming the bases criminal dence find none.

charges in this case. Voigt’s We have reviewed Ms. assertions witness, expert Voigt “the Ms. asserts error, carefully reviewing and in Weed, repeatedly testified that check Mrs. testimony, Voigt’s find no error. we Ms. ”; activity ‘illegal’ that the kites were claims lack merit and do not warrant fur- kite”; constituted a “check defendants ther discussion. For the reasons stated in kite,” legal of “check “in- gave definitions Bonnett, and for the further reasons stat- limit”; sider,” “legal lending testified herein, jury the verdict of the and the blatant, out- defendant’s conduct was actions of the trial court are AFFIRMED. obvious, and unsound bank- right, unsafe used the terms “violation ing practice; and law,” 0,” Reg “vio-

of federal “violation 103,” and “it’s the law.”

lations of 31 CFR

Appellant’s at 32. We note that Ms. brief assertions, making cites this

Voigt, in pages approximately 400 of tran-

court to particular instance.

script identifies no has cited us to also note that counsel

We concerning rulings the trial court no America, UNITED STATES errors. It is not the task of these claimed Plaintiff-Appellee, the record for error. this court to search Nevertheless, carefully reviewed we requested by counsel and transcript NUNEZ, Defendant-Appellant. Again, argument has no find no error. merit. No. 87-1976. Voigt further asserts: Ms. Appeals, United States Court give Mrs. was also allowed Weed Tenth Circuit. opinion

her as to the truthfulness of own Ber- appellant Voigt and co-defendant June nard_ Mrs. was allowed to Weed opinion Voigt Ms. state and that Mr. Bernard knew

“evasive” kiting going on in Mr. the check wrong.

Bonnett’s account was

Appellant’s brief at 33. examiner testified re-

At the bank Ms.

garding a conversation she had with Voigt

Voigt. asked Ms. about her She holding Mr.

practice of return items of days

Bonnett in her drawer several funds were processing

then the items when upon The examiner stated that

available. items, Ms.

being questioned about these

Voigt “basically just referred me to Mr. very and she was evasive....”

Bernard objected Bonnett

Counsel for co-defendant response. The moved to strike the *2 Brown, Smylie Asst.

Frances Federal Katz, (Michael Public Defender G. Federal Defender, brief), Public with Denver, Colo., defendant-appellant. for Kathryn Meyer,

William D. Welch and (Michael Norton, Attys. Asst. U.S. J. Act- Colo., ing Attorney, D. with brief), Drug them on the Mountain States Colo., Force, Denver, plaintiff-ap- Task pellee. McWILLIAMS,

Before McKAY and BROWN, Judges, District Circuit Judge.*

McWILLIAMS, Judge. in- thirty-three superseding

In count dictment, Corky nineteen drug charged defendants were with various Specifically, all defendants were offenses. among charged conspiring Count with June, themselves, others, from and with 11, 1986, heroin to distribute to June intent to possess heroin with an and to distribute, U.S.C. violation 841(a)(1). In Nunez and Count § brother, Nunez, charged Charles were 26, 1985, telephone May using the and distribution possession facilitate 843(b) heroin, in of 21 U.S.C. violation § In Count and 18 U.S.C. § brother, “Pic” Antonio another Nunez and using the Nunez, charged with tele- facilitate the phone on June heroin, in possession and distribution * Brown, designation. Wesley States Dis- Honorable E. Kansas, sitting by trict District 843(b) 21of U.S.C. and 18 wiretap

violation A authorization § order is C. 2. presumed proper, § and defendants have the overcoming burden of presumption. by jury Nunez was convicted acquitted 1 and but Counts Count 7. (10th Cir.1984). Probable cause is years impris- He was sentenced to twelve totality established from the of the circum- conspiracy charge, onment on the the sen- *3 Gates, 213, stances. Illinois v. 462 completed tence to commence when he had U.S. 2317, (1983). he 103 serving. a state sentence was then He S.Ct. 76 L.Ed.2d 527 The years to four imprison- “necessity” also sentenced requirement was of 18 U.S.C. 26, to be served ment on Count concurrent- 2518 should be read a common sense § twelve-year ly imposed sentence fashion, Kirk, United States v. 534 F.2d Corky appeals under 1. Count 1262, (8th Cir.1976), 1274 and it is not nec- imposed convictions and the sentences essary every possible other means of thereon. investigation be exhausted. United States 723, Page, (10th Cir.1987); 808 F.2d 729 trial, Nunez, Prior to as well as 1395, United States v. defendants, 733 F.2d suppress other filed motions to (10th Cir.1984). 1399 resulting wiretap the evidence from the phone. Antonio “Pic” Nunez’ After a hear- standards, on Based ing, the district court denied Nunez’ wiretap proper. authorization was Our suppress, (1987), F.Supp. motion to 658 828 reading lengthy of the affidavit and, submitted appeal, argues on counsel that such judge to the district convinces us that there denial constitutes reversible error. We do probable was agree. tapping not cause for the phone. “Pic” Nunez’ home The recitals 104-page jointly In a affidavit made a indicated, so, the affidavit strongly and police City County officer for the that “Pic” Nunez was the head large- of a agent Drug an Denver and for the Enforce- ring scale heroin distribution in Colorado.1 Administration, request ment a was made Further, established, the affidavits also authorizing wiretap for order an a prima facie, that there was a need for the telephone home of Antonio “Pic” Nunez in wiretap. Specifically, investigative Westminster, Colorado. The affidavit set techniques already had been utilized and forth necessity the reasons and the there was still a need for more request. such information The district court entered an regarding scope granting request conspiracy. order home The suggestion tapped judge of “Pic” Nunez was from that the district who en 20,1985, 18,1985, May resulting to June authorizing tered the order wiretap had 3,736 intercepts. not read the entering affidavit before just suggestion. order is that —a sug The indicated, prior As the district gestion is based on the fact notation evidentiary hearing held an on was made the order that it was issued “Corky” suppress Nunez’ motion to 20, 1985, May a.m., at 8:25 and that a denied the reject- same. The district court notation the affidavit indicates that it suggestion “prob- ed the that there was no was sworn to the affiants on that same tap phone able cause” to “Pic” Nunez’ record, however, date at 8:30 a.m. The tapping “unnecessary.” such was Also, government indicates that the rejected the district court the further advised the suggestion judge district judge sup that the district is- who heard motion to who that, press wiretap length sued the order had not read the because of the of the affidavit, affidavit when he issued the copy given order. judge was who (1985); Diltz, government e.g., 1. It should be noted that the had no see United States v. 622 F.2d 476, duty probable Cir.1980); to establish cause as to each inter- 482-83 United States v. 1051, ceptee. Russo, probable (10th Cir.1975), It is sufficient that there was 527 F.2d 1056 cert. denied, 906, 2226, tap phone. Figuero, cause to United States v. 426 U.S. 96 S.Ct. 48 L.Ed.2d 466, (2d Cir.1985), denied, denied, 913, 470-71 cert. 831 reh. 427 U.S. 96 S.Ct. 840, 122, 3201, (1976). 474 U.S. 106 S.Ct. 100 88 L.Ed.2d 49 L.Ed.2d 1204

1473 days May dant-appellant, not in prior the order several not issued does judge accepted the The district prison “spoke” insuate explanation might government’s what See companion opinion, anomaly.2 The appear be an otherwise States, Martinez v. United 877 F.2d 1480. alone, notations, standing time are insuffi- present quite facts are similar to those presumption regu- to overcome cient Dickey, such cases as that defen- larity. It seems clear us denied, cert. Cir.1984), F.2d to meet dants have failed their burden 1188, 105 469 U.S. S.Ct. 83 L.Ed.2d 964 wiretap authorization proof, and that Watson, (1985); United States v. proper. denied, (10th Cir.), cert. U.S. Nunez, well as Blackie (1979); 62 L.Ed.2d 100 S.Ct. Martinez, Anna assert Nunez and Irene Heath, 580 F.2d 1011 charged single conspiracy, that Count 1 denied, Babb (10th Cir.1978), cert. v. Unit conspira but that the evidence showed two States, 99 S.Ct. *4 cies, involving of her one the distribution in each L.Ed.2d where instance penitentiary, Corky oin at the state where rejected argument the we that there were inmates, and an and Blackie Nunez were multiple conspiracies single than rather a conspiracy to heroin in the other distribute Watson we example, For in conspiracy. Thus, Corky Metropolitan Denver area. spoke follows: argues that he Nunez should been in de- We have discussed the evidence and, further, granted separate a since It note that tail earlier. suffices to here charge the there was a between variance supplied it demonstrated that Anderson proof, and his conviction under Count drugs Thompson, from California to permitted not be to stand. should wholesaler, Tulsa who distributed them government’s position is dealers, including these to various street charged only single conspir- a indictment appellants. three From evidence of single conspiracy is acy, that indeed a operations, an volume and nature their Although its evidence established. what may awareness inference be drawn of actors, many great conspiracy involved scope appellants of the of the narcotics a emanating from com- quantities heroin conspiracy. source, distributions, all mon and numerous large are quantities of narcotics Where goal: name- participants shared a common distributed, may being major buyer each ly, possess and distribute heroin to presumed part to he is of a know that be profit. venture, wide-ranging the success government’s We are accord with performance by others depends on which “Pic” Nunez was the of its evidence. view identity may not even know. whose he operation. figure or this central “hub” Heath, v. 580 F.2d United States California, acquired He the heroin (10th Cir.1978). We are satisfied nearby brought it his residence or to here shows common that the evidence Colorado, Westminster, place of business design acquire and heroin to distribute it, it it, packaged and then distributed cut cocaine, at and that it was id. “dealers,” to who in turn sold it to his appellants to link the permissible of his mere fact two others. The Thompson and Anderson. Whether “dealers,” Blackie, Corky and sufficient to establish evidence was inmates, from the them does not insulate charge single question conspiracy Similarly, the general overall omitted.) (Footnote Martinez, jury. for the another defen- fact mere notations on adequately then noted that "the time Judge each of He Kane discussed (8:25 a.m.) (8:30 a.m.) pending on the affidavit order his order on motions. issues in themselves" overcome burden of are inconclusive defendant has the He noted that the presumption, particularly Fine- validity since overcoming presumed of the wire- this authorization, specifically probable ex- cause silver found that tap relying on States v. Cir.1984). agree. (10th isted. We indistinguish- wife, in these are Corky’s co-defendant, The facts cases dence that Thus, the facts in case. able from our we delivered heroin obtained from “Pic” Nu holding single affirm that there was a nez to at the penitentiary, state conspiracies conspiracy, separate not two that “Pic” Nunez had himself on occasion as the defendants contend. prison. delivered heroin to at the concerning The evidence call opinion in indicated in our As 9, 1985, Corky was that on June called appeal, v. Blackie Nunez “Pic” penitentiary state and was Nunez, 877 F.2d Juan “Blackie” daughter advised that Blackie’s was com eventually banished from the Blackie was ing penitentiary bringing to the heroin disruptive because of his courtroom con for them distribute penitentiary. at the duct. Counsel twice specifically, Corky More called “Pic” and moved for a mistrial based Blackie’s “Cha-Cha,” daugh was told that Blackie’s misconduct. Both motions were denied. ter, Lee, coming Charlettie to the Corky’s appellate counsel asserts that such state error, arguing penitentiary bring denial is reversible see Blackie and was brother, ing “boo-boos,” which, he according since Blackie was his was more two severely prejudiced than the other testimony, defen meant two of her balloons persuaded. are dants. We not The district elaboration, is, oin. further Without there situation, discretion in has this Unit view, in our support sufficient evidence to Pinto, ed States 838 F.2d government’s theory of the case that Esch, Cir.1988); United Corky Nunez on more than one occasion Cir.1987), and we find no received heroin obtained from “Pic” and *5 The abuse of that discretion. district court brought by making prison to him relatives jury did the the instruct that absence of visitations, and that made a call the should Blackie from courtroom not af telephone the “Pic’s” in fect the trial the other defendants and and, guarded in language, Westminster in jury acquitted appealing the the defendants quired payments. deliveries about The completely on several counts and exonerat regarding instructions the unlawful use of ed tends other defendants. This to indicate (Count 9,1985 26) the on June Corky’s rights adequately pro adequate they in are advised Evans, 542 tected. United States v. F.2d jury statutory of the elements for and 805, (10th Cir.1976). If Blackie’s 815 mis definitions of unlawful use of a commu required banishment conduct and a mis facility drug nications facilitate off defendants, trial of Blackie would Burns, ense.3 See United States v. 624 in obtained ultimate courtroom (10th 95, Cir.1980). F.2d 105 disruption. Such a could result make a Judgment affirmed. mockery every conspiracy trial. Counsel also contends that there is McKAY, Judge, dissenting in support Corky’s insufficient evidence to part: conspiracy conviction either the count or I portion must dissent from that of the charging an unlawful use of the count opinion depends court’s its conclu- telephone. study Our the record leads sion that was sufficient evidence to there contrary conclusion. evidence In prove addition to light single most must be examined favor government, together my set out dissents Unit- reasons able to the with all Heath, (1978); 1011 drawn there States v. F.2d reasonable inferences to be Watson, Hooks, United from. United States v. Cir.1986). (1979); Dickey, There was evi- objections jury preserves appeal “stating matter for dis- 3. Certain to the instructions urged in tinctly made in this court were not the trial trial the matter to which court] [in provides appel- court. Fed.R.Crim.P. 30 that an party objects grounds objec- and the of the objections jury will late court not hear in- tion.” appeal objecting party structions unless add (1984), my I must observation F.2d 571 showing it comes to evidence

that when (Kottea spokes rim that connects States, 328 66 S.Ct.

kos v. United (1946); and L.Ed. 1557 Butler, 494 F.2d 1246 Cir.

States v.

1974)), faithfully my we are not view v. Lib

applying the mandate Anderson 242, 254, 106 S.Ct.

erty Lobby, 477 U.S. L.Ed.2d 202 to view “through prism

the evidence evidentiary burden.”

substantive America,

UNITED STATES

Plaintiff-Appellee, NUNEZ, Defendant-Appellant.

Juan

No. 87-1950. Appeals, Court

Tenth Circuit.

June *6 Lakewood, Colo., Fahmey, B.

Dan defendant-appellant. Kathryn Meyer, Welch D.

William (Michael Denver, Attys., Colo. J. Asst. Colo., Norton, Attorney, D. Acting U.S. brief), Mountain them Colo., plain- Force, Denver, Drug Task tiff-appellee. McWILLIAMS, McKAY and

Before BROWN, District Judges, and Judge.*

* Brown, designation, Wesley Dis- E. United States Kansas, Honorable sitting trict for the District of