403 F.2d 605 (8th Cir. 1968), 19124, Montgomery v. United States

Docket Nº:19124.
Citation:403 F.2d 605
Party Name:Eric L. MONTGOMERY, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 26, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 605

403 F.2d 605 (8th Cir. 1968)

Eric L. MONTGOMERY, Appellant,


UNITED STATES of America, Appellee.

No. 19124.

United States Court of Appeals, Eighth Circuit.

November 26, 1968

Rehearing Denied Dec. 23, 1968.

Page 606

M. Randall Vanet, Kansas City, Mo., for appellant and filed brief.

William A. Kitchen, Asst. U.S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U.S. Atty., was on the brief with William A. Kitchen, Kansas City, Mo.

Before MATTHES, GIBSON and BRIGHT, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Eric L. Montgomery was convicted after trial by jury in the United States District Court for the Western District of Missouri for possession of stolen postal money orders of a value in excess

Page 607

of $100 in violation of 18 U.S.C. § 641. He received a sentence of five years.

On appeal Montgomery questions the trial court's failure to sustain his motion to suppress evidence and the sufficiency of the evidence to sustain the verdict. In addition he asserts he was denied an impartial jury in violation of the Sixth Amendment since he could not take the witness stand, because the government would then be in a position to and intended to disclose his criminal record.

Before specifically considering the defendant's related contentions of lack of probable cause for his arrest, unreasonable search and seizure, and insufficiency of the evidence, a factual resume is necessary.

On June 27, 1967, Detective Rowe, an Independence, Missouri Police Officer, was informed by one, Dale M. Ressler, who worked at a Vickers filling station, in Independence, Missouri, that he had information regarding some stolen postal money orders. Ressler, a parolee, had five times previously supplied reliable information to Rowe. Later that morning Rowe notified the postal inspectors in the area, and he, together with Postal Inspectors Polnack and Gianos, met with Ressler at the filling station. Ressler told them he had been contacted the day before by an unknown man driving a Ford truck who had offered to sell him a number of stolen postal money orders. The money order shown to him bore the stamp of the Eagle, Nebraska Post Office, was filled out as to amount but not as to payee; and had been pulled from a Bible that bore the imprinted name Kelly G. Smith. Ressler also had obtained the license number of the truck operated by the person offering to sell the stolen postal money orders.

The driver of the truck offered to sell the money orders for $500, whereupon Ressler asked him to furnish the quantity in dollar amounts, which was done. Then Ressler asked the man to call him at 11:30 a.m. the next day.

The postal inspectors knew that the Eagle, Nebraska Post Office had been burglarized on March 29, 1967. They checked out the license number supplied to them by Ressler and found it to be registered to a Kelly G. Smith. A further check failed to reveal any criminal record on Smith. The postal inspectors also checked with Ressler's parole officer, who informed them that Ressler was unlikely to lie in a matter of this kind. Arrangements were made with Ressler to go through with the purchase of the stolen money orders.

Ressler received a call at 11:30 a.m. while he was in the process of discussing this matter with the postal inspectors. This call was monitored by Inspector Polnack with Ressler's consent. Ressler and the calling party agreed to meet at the filling station between 6:30 and 7:00 p.m. of that same day. Upon instruction of the postal inspectors, Ressler was to leave the filling station with the other party and to make the purchase at Ressler's home only if Ressler had first ascertained that the postal money orders were in the possession of the other party. The postal inspectors suspected that the proffered money orders were those stolen from the Eagle, Nebraska Post Office on March 29, 1967.

At about 6:55 p.m. a blue pickup truck pulled into the Vickers filling station. Two individuals left the vehicle and conversed with Ressler. After a check under the hood of the truck was made at the filling station, the hood was closed and the two individuals re-entered the pickup truck and followed Ressler, who had entered his own car and driven down the street. This maneuver was observed by Inspector Polnack who radioed Inspector Gianos and the Independence police that the men were enroute.

After traveling a few blocks and just before the truck reached Ressler's house the police car, in which Inspector Gianos rode, sounded its siren causing the truck to stop. Two occupants, later...

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