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The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1680

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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.
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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, AndresBorja 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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