United States v. Montenegro, Misael

In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3382 and 99-3391

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MISAEL MONTENEGRO and JUAN PEREZ,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 399--Milton I. Shadur, Judge.

Argued September 20, 2000--Decided October 25, 2000

Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.

COFFEY, Circuit Judge. On July 7, 1998, a grand
jury in the Northern District of Illinois
returned a three-count indictment against Misael
Montenegro, Juan Perez, and Jose Perez (Juan’s
brother)/1 charging the three men with two
counts of violating the Hostage Taking Act, 18
U.S.C. sec. 1203,/2 and one count of conspiracy
to commit those crimes, in violation of 18 U.S.C.
sec. 371. After a jury found both defendants
guilty of all three counts set forth in the
indictment, the trial judge sentenced Montenegro
to five years’ imprisonment on the conspiracy
count and 160 months’ imprisonment on the Hostage
Taking Act counts, all sentences to run
concurrent with each other. The judge sentenced
Juan Perez to five years’ imprisonment on the
conspiracy count and 200 months’ imprisonment on
the Hostage Taking counts, all sentences to run
concurrently with each other. Each defendant also
received three years’ supervised release on the
conspiracy count and five years’ supervised
release on the Hostage Taking counts, all to run
concurrently with each other. Finally, both
defendants received a $150 special assessment,
and Montenegro was fined $4,000. On appeal, both
defendants challenge their convictions, and Juan
Perez argues that he was entitled to a reduction
in his offense level, pursuant to U.S.S.G. sec.
3B1.2, for his "minor" role in the kidnapings. We
affirm.
I. BACKGROUND

Between 1989 and 1993, Montenegro fronted Jose
Moreno one and a half kilos of cocaine with a
value of $30,000. In 1994, Montenegro fronted
Margarito Soto two kilos of cocaine with a value
of $50,000. When Moreno and Soto failed to pay
their debts in a timely fashion, Montenegro
enlisted the assistance of Juan and Jose Perez to
assist him in strong-arming the debtors into
turning over the drug money owed to him.

The three men began their ill-advised, enforcer-
like scheme on May, 11, 1995, when they drove to
Moreno’s residence and abducted Moreno from an
alley behind his house where he was working on
his car. According to Moreno’s testimony at trial
as well as statements made to investigators, when
the three men arrived at Moreno’s house, Jose
Perez jumped out of the van, grabbed Moreno by
his collar, and forced him into the van. Once
Moreno was in the van, a fourth, unidentified
occupant covered Moreno’s eyes with a rag. After
riding in the van for approximately twenty
minutes, the van entered a garage where Moreno
was blindfolded and beaten by his abductors. The
beating left Moreno with cuts, bruises, and
scrapes to his face and chest as well as a broken
nose. Moreno was then led to another room and
handcuffed to a cinder block wall. At this point,
an object Moreno believed to be the barrel of a
gun was jabbed into his chest and he was told by
Jose Perez (Moreno recognized his voice) that he
had to raise the money he owed Montenegro. Moreno
responded by providing phone numbers to Jose
Perez who, in turn, dialed the numbers on a
cellular phone and allowed Moreno to attempt to
raise the ransom money./3

That same night at approximately 9:30 p.m.,
Montenegro, Juan Perez, and Jose Perez drove to
Soto’s residence. When Soto answered the door,
Montenegro asked him to step outside. After Soto
exited the house, Montenegro placed his foot in
front of the screen door to prevent Soto from
reentering the house while Jose Perez approached
Soto and threatened to kill him if he moved. When
Soto claimed that he did not have the money to
satisfy his outstanding debt, Montenegro and Jose
Perez dragged him into the van, duct-taped his
legs together, and taped his arms behind his
back. According to Soto, he was then blindfolded
and driven approximately twenty minutes to a big
garage or warehouse. Soto was pulled out of the
van and beaten with a hard object. Jose Perez
then placed an object Soto believed to be a gun
barrel on his forehead and asked "Do you want me
to throw you into the river or just kill you
now?" Soto was then dragged into another room
where the duct tape was removed and he was
handcuffed to a ring on the wall. When the
kidnappers left the room, Soto was able to remove
his blindfold and saw that he and Moreno were in
the same room with at least five other Hispanic
men, all handcuffed to the wall./4 For three
days Soto and Moreno attempted to raise money by
contacting friends and family.

On May 13, 1995, at the direction of the FBI,
Moreno’s girlfriend informed the kidnappers that
Moreno’s ransom had been raised and a drop-off
was arranged at a local Taco Bell restaurant with
Moreno’s uncle, Isauro Delgado, acting as the
delivery man. The day the ransom money was to be
delivered, Moreno was placed in a van with Juan
and Jose Perez. The three men drove to the
designated Taco Bell, but when Jose Perez noticed
a significant amount of traffic in the area, he
directed Moreno to contact his girlfriend and
change the location of the ransom delivery.
Moreno contacted Ayala, but was told that his
uncle was already on his way to Taco Bell. After
agreeing to continue with the original plan, Juan
Perez parked the van at the Taco Bell and the
three men waited inside the van until Moreno saw
his cousin’s car./5 Juan Perez then went into
the restaurant, and after Jose Perez told Moreno,
"[w]e’re watching, so don’t try anything stupid,"
Moreno got out of the van and walked to his
cousin’s car. FBI agents then surrounded the van
where Jose Perez was waiting and arrested him and
Juan Perez. After the police searched Juan and
Jose Perez and the van they arrived in, they
discovered handcuff keys on both of them as well
as a replica of a handgun in the van./6

The next day, one of the kidnappers removed
Soto’s handcuffs and drove Soto to an alley where
he was told to keep his blindfold on for five
minutes after the kidnapper left or else Soto
would be shot. After waiting several minutes,
Soto removed his blindfold and contacted his wife
who informed the FBI of his release.

II. ISSUES

Both defendants now appeal their convictions,
arguing that the trial judge committed plain
error when he failed to question prospective
jurors about any potential bias against aliens.
The defendants also argue that the Hostage Taking
Act is unconstitutional because it violates the
Fifth Amendment in that it, according to the
defendants, impermissibly discriminates against
aliens. Finally, Perez raises a separate
challenge and argues that the sentencing judge
committed plain error when he failed to sentence
Perez as a "minor" participant under U.S.S.G.
sec. 3B1.2.
III. DISCUSSION
A. Voir Dire

On appeal, both defendants argue that the trial
judge should have inquired during voir dire as to
the potential prejudice jurors might have as to
a person’s foreign citizenship despite the fact
that trial counsel never requested that the judge
raise this potential bias issue with the venire.
Because the defendants failed to raise this claim
during trial, we review it for plain error.
United States v. Reynolds, 64 F.3d 292, 296 n.3
(7th Cir. 1995) (citing United States v. South,
28 F.3d 619, 625 (7th Cir. 1994)). As we stated
in United States v. Baker, No. 99-3840, 2000 WL
1347846 at *6 (7th Cir. Sept. 20, 2000),

[u]nder this standard, there must be: 1) an
error; 2) that is clear or obvious; and 3) that
affects substantial rights. United States v.
Olano, 507 U.S. 725, 732-35, 113 S. Ct. 1770, 123
L. Ed.2d 508 (1993); Cusimano, 148 F.3d at 828.
"In an effort to clarify when an error affects
substantial rights, the [Supreme] Court said ’in
most cases it means that the error must have been
prejudicial: It must have affected the outcome of
the District Court proceedings.’" Remsza, 77 F.3d
at 1044 (quoting Olano, 507 U.S. at 734). In this
circuit it is clear that "the constructive
amendment ’must constitute a mistake so serious
that but for it the defendant probably would have
been acquitted in order for us to reverse.’"
Hughes, 213 F.3d at 329 (quoting Cusimano, 148
F.3d at 828); see also Remsza, 77 F.3d at 1044.
Even then, "we have the power to correct the
error but are not required to do so." Cusimano,
148 F.3d at 828 (citing Olano, 507 U.S. at 735).
"We will not reverse unless we find the error
seriously affects the fairness, integrity, or
public reputation of judicial proceedings." Id.;
see also, Remsza, 77 F.3d at 1044.

On appeal, the defendants argue that the trial
judge’s failure to inquire into the jurors’
potential bias toward non-citizens of this
country violated their constitutional right to be
tried by an impartial jury because some of the
jurors may have had biases against resident
aliens./7 However, "[t]he conduct of voir dire
is left to the trial court’s sound discretion,"
and "litigants do not have a right to have a
particular question asked." Gardner v. Barnett,
199 F.3d 915, 920-21 (7th Cir. 1999) (en banc)
(citing Ham v. South Carolina, 409 U.S. 524, 527
(1973)). Despite this broad discretion, there are
circumstances where trial courts are
constitutionally required, if the criminal
defendant so requests, to voir dire potential
jurors concerning racial or ethnic bias. Indeed,
"some cases may present circumstances in which an
impermissible threat to the fair trial guaranteed
by due process is posed by a trial court’s
refusal to question prospective jurors
specifically about racial prejudice during voir
dire." Ristaino v. Ross, 424 U.S. 589, 595
(1976). Thus, when "special circumstances"
reflect that racial issues are "inextricably
bound up with the conduct of the trial," an
accused’s constitutional right to a trial by an
impartial jury prohibits a trial court from
refusing a request for voir dire directed to
racial prejudice. Id. at 597.

The defendants essentially argue that if the
trial judge is required to ask about race or
ethnicity, then the judge should be required to
inquire about citizenship. However, Ristaino only
requires trial courts to engage in a voir dire
concerning race or ethnicity if requested to do
so by the defendant’s trial counsel, and then
only when race is, or might be, a central aspect
of the case. Neither of the defendants-appellants
has advised us of, nor have we found, any cases
holding that a trial judge must question jurors
sua sponte concerning racial or ethnic prejudice;
presumably because there may be sound trial
strategies for not wanting to focus the jurors’
attention on the race or other aspect of the
defendant. Furthermore, this court has recently
held en banc that

[t]he conduct of voir dire is left to the trial
court’s sound discretion. Morgan v. Illinois, 504
U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed.2d 492
(1992). The litigants do not have a right to have
a particular question asked. Ham v. South
Carolina, 409 U.S. 524, 527, 93 S. Ct. 848, 35 L.
Ed.2d 46 (1973). Although the Constitution does
require inquiries into certain biases (such as
race), Ham, 409 U.S. at 527, 93 S. Ct. 848, bias
against street gangs is not among them. Thus,
Gardner had no entitlement to the questions he
proposed.

Gardner, 199 F.3d at 920-21./8

Initially, defense counsel did not request that
the judge direct any question to the jurors to
determine if there existed any potential bias
toward non-citizens of this country. Furthermore,
judges, as the experienced trial judge did in
this case, are well-advised not to raise such
issues without a request from defense counsel
lest the judge introduce questions (information)
that defendants would rather not have the jurors’
attention focused upon. We are convinced that the
district judge did not commit error and that the
voir dire was more than adequate.

B. Constitutionality of the Hostage Taking Act
 On appeal, the defendants also argue that the
Hostage Taking Act violates the Fifth Amendment
because "it discriminates against aliens by
criminalizing actions by them (and their
associates) which would not be illegal if
everyone involved were American citizens."
Specifically, the defendants claim that the
Hostage Taking Act is unconstitutional because
the Act "discriminates against aliens by using
alienage as a proxy for terrorism."

"We apply the deferential rational basis test
to federal statutes that classify based on
alienage and will uphold the statute if it is
rationally related to a legitimate government
interest." United States v. Santos-Riviera, 183
F.3d 367, 373 (5th Cir. 1999) (citing Mathews v.
Diaz, 426 U.S. 67, 79-87 (1976); United States v.
Lue, 134 F.3d 79, 87 (2d Cir. 1998); United
States v. Lopez-Flores, 63 F.3d 1468, 1475 (9th
Cir. 1995)). Furthermore, the defendants do not
attempt to distinguish the three cases from our
sister circuits which hold that the Hostage
Taking Act is constitutional. Santos-Riviera, 183
F.3d at 373-74; Lue, 134 F.3d at 81-87; Lopez-
Flores, 63 F.3d at 1471-75.

In Lue, 134 F.3d at 87, the second circuit
explained:

The classification drawn by the Hostage Taking
Act covers all aliens involved in hostage-taking
incidents. The asserted purpose of the statute,
along with the antecedent Convention, is to
address a matter of grave concern to the
international community: hostage taking as a
manifestation of international terrorism. See
Hostage Taking Convention, preamble, T.I.A.S. No.
11,081. We recognize that in the Hostage Taking
Act Congress employs the classification of
alienage to proscribe conduct which may not
always bear a direct relationship to the Act’s
principal object of stemming acts of terrorism,
and that at some point a classification of this
sort may have a "relationship to [the] asserted
goal [which] is so attenuated as to render the
distinction arbitrary or irrational." City of
Cleburne, 473 U.S. at 446, 105 S. Ct. at 3258;
see also United States v. Song, No. 95 Cr. 129,
1995 WL 736872, at *5 (S.D.N.Y. Dec. 13, 1995).
However, in this instance, Congress rationally
concluded that a hostage taking within our
jurisdiction involving a noncitizen is
sufficiently likely to involve matters
implicating foreign policy or immigration
concerns as to warrant a federal criminal
proscription. The connection between the act and
its purpose is not so attenuated as to fail to
meet the rational-basis standard. See
Lopez-Flores, 63 F.3d at 1475; Song, 1995 WL
736872 at * 5; United States v. Pacheco, 902 F.
Supp. 469, 472 (S.D.N.Y. 1995).

Like the Fifth Circuit, we adopt the reasoning
and holding of Lue. Consequently, the defendants’
attempt to put a new spin on an old argument has
fallen upon deaf ears, and we uphold the
convictions of both defendants as constitutional.

C. Minor Role

On appeal, Juan Perez also argues that the
sentencing judge erred when he failed to reduce
his sentence under U.S.S.G. sec. 3B1.2 because,
according to Juan Perez, he played only a minor
role in the scheme to kidnap Moreno and Soto.
Initially, we note that Juan Perez failed to
raise this claim at sentencing. Thus, we review
his claim under the plain error standard. United
States v. Soto, 48 F.3d 1415, 1421 (7th Cir.
1995). A plain error is one that is "particularly
egregious," United States v. Frady, 456 U.S. 152,
163 (1982), and "seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings." United States v. Olano,
507 U.S. 725, 736 (1993) (internal citation and
quotation omitted). Furthermore, we have stated
that the application of section 3B1.2 is heavily
"dependent upon the particular facts of each
case." United States v. Davis, 938 F.2d 744, 747
(7th Cir. 1991). "The controlling standard for an
offense level reduction under [sec. 3B1.2] is
whether the defendant was substantially less
culpable than the conspiracy’s other
participants." United States v. DePriest, 6 F.3d
1201, 1214 (7th Cir. 1993).

In United States v. Kerr, 13 F.3d 203, 206 (7th
Cir. 1993), we explained this standard and
stated:

Whether one is a minor or minimal participant or
a plain vanilla criminal is answered by the facts
of the case and there is no formulaic solution.
If everyone has an equal role, no one’s offense
level can be diminished, but the fact that one
plays a much lesser role than another does not
mean that one is a minor participant. The boss’s
trusted secretary through the years is crucial to
the enterprise, even where the boss decides
everything and gives all the orders. If the
enterprise is criminal the secretary is a lesser
participant but not a minor one.

When the facts of this case are considered, it is
obvious that Juan Perez is not entitled to a
reduction for being a minor participant.

Juan Perez admitted that, on May 11, 1997, he,
his brother, and Montenegro went to Moreno’s home
with the intent to use strong-arm tactics to
collect the drug money owed to Montenegro and, if
Moreno failed to come up with the money, to
kidnap him and hold him for ransom. His claim
that he was asleep while Moreno was dragged into
the van and blindfolded is not only highly
dubious (it is unlikely that one could or would
sleep through a kidnaping), but also does nothing
to mitigate his additional involvement in the
kidnapings. According to Soto’s testimony, during
his abduction Jose Perez informed him that Juan
Perez was in the van and wanted to talk to him.
However, because Soto was blindfolded before he
got into the van, he could not positively
identify Juan Perez as one of his abductors.
Despite Juan Perez’s attempts on appeal to
minimize his role in the kidnapings, a review of
the record reveals additional steps Juan took to
complete the kidnap-for-drug money scheme.

Not only did Juan Perez participate in the
abduction of Moreno and Soto, but after the
ransom drop had been arranged, Juan and Jose
Perez drove Moreno to the Taco Bell for the
exchange. Once they arrived, Juan turned to
Moreno and said, "No hard feeling. It’s business.
This is the way we collect money." (Emphasis
added). Finally, when Juan Perez was arrested in
the Taco Bell, police recovered two sets of
handcuff keys from him.

Given this information in the record, we are of
the opinion that Juan Perez was not entitled to
a reduction under section 3B1.2.

The defendants’ convictions and sentences are
AFFIRMED.

/1 Jose Perez is a fugitive and has yet to be tried
for his involvement with these crimes.

/2 The Hostage Taking Act, 18 U.S.C. sec. 1203,
provides:

(a) Except as provided in subsection (b) of
this section, whoever, whether inside or outside
the United States, seizes or detains and
threatens to kill, to injure, or to continue to
detain another person in order to compel a third
person or a governmental organization to do or
abstain from doing any act as an explicit or
implicit condition for the release of the person
detained, or attempts or conspires to do so,
shall be punished by imprisonment for any term of
years or for life and, if the death of any person
results, shall be punished by death or life
imprisonment.

(b)(1) It is not an offense under this section
if the conduct required for the offense occurred
outside the United States unless--

(A) the offender or the person seized or
detained is a national of the United States;

(B) the offender is found in the United States;
or

(C) the governmental organization sought to be
compelled is the Government of the United States.

(2) It is not an offense under this section
if the conduct required for the offense occurred
inside the United States, each alleged offender
and each person seized or detained are nationals
of the United States, and each alleged offender
is found in the United States, unless the
governmental organization sought to be compelled
is the Government of the United States.

(c) As used in this section, the term "national
of the United States" has the meaning given such
term in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)).

/3 One of the individuals Moreno contacted was his
girlfriend, Brenda Ayala. When Ayala received the
ransom demand, she immediately contacted the
police, who in turn brought in the FBI.

/4 According to Moreno’s statements to
investigators, there were as many as ten other
kidnaping victims, all of whom owed money to a
drug supplier from an organization located in El
Rodeo, Durango, Mexico.

/5 At this time, Juan Perez turned to Moreno and
said, "[n]o hard feelings. It’s business. This is
the way we collect money."

/6 Jose Perez agreed to a search of the apartment
that he and his brother, Juan, shared. The search
resulted in the recovery of a .38 caliber
handgun.

/7 The trial judge did inquire as to the jurors’
potential bias based on: 1) Spanish speaking
individuals (Montenegro needed a translator); 2)
national origin; and 3) race--specifically
Hispanic. Furthermore, the judge asked: "Are
there any questions that I should have asked that
bear on the ability of any of you to be a fair
juror?"

/8 At oral argument, defense counsel, upon being
questioned from the bench, was unable to give any
meaningful reason as to why courts should treat
alienage differently than race or gang
affiliation.