United States v. Rosario Montoya, United States of America v. Filiberto E. Montoya

Opinion by Judge T.G. NELSON; Dissent by Senior Circuit Judge BRIGHT.

OPINION

I.

OVERVIEW

This case involves the prosecution of a formerly immunized witness and his wife. Filiberto Montoya is a real estate salesperson who was accused of laundering money for alien drug lords by making investments in local real estate. Montoya appeals his conviction following his conditional guilty plea to conspiracy to engage in monetary transactions in property derived from specified unlawful activity and to commit bank fraud, in violation of 18 U.S.C. §§ 371 , 1957(a), and 1344. Rosario Montoya appeals her conviction following her conditional guilty plea to making a false statement on a loan application and aiding and abetting, in violation of 18 U.S.C. § 1014 , 18 U.S.C. § 2 . The Montoyas’ conditional guilty pleas preserved the right to appeal the district court’s denial of the motion to dismiss the indictment on the ground that this prosecution is allegedly tainted by Filiberto’s status as an immunized witness in a drug investigation focusing on the Contreras-Subias drug organization. We conclude that the district court properly denied the motion to dismiss the indictment on the ground…

dissenting.

I respectfully dissent from the majority’s opinion which affirms the convictions of Fili-berto E. and Rosario Montoya. The majority mistakenly rejects the Montoyas’ arguments that this prosecution is tainted because of improper use of Filiberto Montoya’s immunized testimony and that the indictment was based on vindictive prosecution.

*1301 Non-evidentiary Use of Immunized Testimony

In this ease, the crucial issue is whether the Government has demonstrated that it did not use the immunized testimony, directly or indirectly, in prosecution of the Montoyas, as required by Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972), and the precise wording of the applicable statute. 2 Here, the Government has failed to meet its burden of proof under Kastigar and this court’s precedent. To the contrary, the evidence indicates that AUSA Reese, the original prosecutor, used Filiberto Montoya’s immunized testimony before the grand jury in January 1989 to compare it to prior information contained in the investigation report and also to Montoya’s testimony at the Oklahoma trial in May 1989.

As a result of the comparison, AUSA Reese concluded that…

45 F.3d 1286 UNITED STATES of America, Plaintiff-Appellee, v. Rosario MONTOYA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Filiberto E. MONTOYA, Defendant-Appellant. Nos. 93-50411, 93-50440. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1994. Decided Jan. 12, 1995. Juanita R. Brooks, McKenna & Cuneo, San Diego, CA, Paul E. Potter, Potter, Cohen & Samulon, Pasadena, CA, for defendants-appellants. Edward J. Weiner, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Appeals from the United States District Court for the Southern District of California. Before: BRIGHT, * WIGGINS, and T.G. NELSON, Circuit Judges. Opinion by Judge T.G. NELSON; Dissent by Senior Circuit Judge BRIGHT. OPINION T.G. NELSON, Circuit Judge: I. OVERVIEW 1 This case involves the prosecution of a formerly immunized witness and his wife. Filiberto Montoya is a real estate salesperson who was accused of laundering money for alien drug lords by making investments in local real estate. Montoya appeals his conviction following his conditional guilty plea to conspiracy to engage in monetary transactions in property derived from specified unlawful…