421 F.2d 215 (5th Cir. 1970), 27516, United States v. Montos

Docket Nº:27516.
Citation:421 F.2d 215
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth George MONTOS, Defendant-Appellant.
Case Date:January 22, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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421 F.2d 215 (5th Cir. 1970)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth George MONTOS, Defendant-Appellant.

No. 27516.

United States Court of Appeals, Fifth Circuit.

January 22, 1970

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Raymond E. LaPorte, Ragano & LaPorte, Tampa, Fla., for defendant-appellant.

Edward F. Boardman, U.S. Atty., Thomas G. Wilson, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Kenneth George Montos was convicted on a two-count indictment charging him with theft of mail matter by a postal employee in violation of 18 U.S.C. § 1709 (1964). On this appeal his principal contentions are as follows: (1) he was never given a full, fair hearing upon his motion to suppress certain oral statements made by him and items seized from his car; (2) oral statements he made to a postal inspector before he was formally arrested should have been excluded because the Miranda warnings had not yet been given; (3) statements he made after he was arrested and given the Miranda warnings should have been excluded because there was no showing that he had waived his federal constitutional rights and because his arrest was unlawful; (4) items seized from his car should have been excluded because the search of his car was unlawful; and (5) cumulative errors committed in the court below denied him a fair trial.

Defendant's conviction grew out of the following facts. In January 1968 he was working as a postal employee at a Postal Sectional Center in Tampa, Florida. Several days before defendant was arrested, J.R. Stokes, a postal inspector stationed in Atlanta, Georgia, was informed that Montos had been spending coins of numismatic value at the Tampa Sectional Center. The inspector's job was to investigate all losses of numismatic

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coins in Florida, Georgia, and the Carolinas. After learning that defendant's duties included the repair of damaged parcels at a rewrap table, Stokes devised a plan to test defendant's honesty. He prepared two damaged parcels containing coins and, with the help of defendant's supervisor, had the parcels placed on the rewrap table at 11:45 p.m. on January 24, 1968. At 6:00 the next morning, Stokes was advised by defendant's supervisor that defendant had gone to his locker with his apron rolled up about 45 minutes after he had arrived at the Center. While Montos was absent from the rewrap table, the supervisor had searched for the two test parcels, but had not found them. The two parcels did not reach the shop designated as the addressee on them. On January 25 another test parcel was similarly prepared. At about 6:00 on the morning of January 26, Stokes learned that defendant's supervisor could not find this parcel either. Stokes then obtained a description of defendant's car and its location in the Sectional Center parking lot. With two other inspectors he proceeded to the lot at about 7:30 a.m. Montos was scheduled to leave work an hour later. Without warrants for arrest or search, the inspectors located what appeared to be defendant's car and stationed themselves so that they could observe anyone approaching it. When a man came up to this car, they moved their car to block its exit. After determining that the man was Montos, the inspectors left their car and identified themselves. Stokes asked to talk to Montos. Montos responded to this request by unlocking his car, sitting on the front seat, and otherwise implicitly indicating that they should talk in the car.

Stokes sat down on the back seat of the car, while the other two inspectors stood nearby. Stokes asked if Montos had handled the three test parcels. Montos replied that he had handled the third parcel, but not the first two. While sitting in the back seat, Stokes noticed a box on the car floor and several coin containers on the seat. Having obtained defendant's disavowal that he had handled the first two parcels, Stokes read the Miranda warnings to him, gave him the warning and waiver form from which he had read, asked Montos if he understood the warnings, and placed him under arrest. The inspectors then searched the car and found the remains of the two test parcels. Questioning of defendant continued briefly. After about 40 minutes, the group went into the Sectional Center. There Montos, having admitted his guilt, asked to call a lawyer.

Before his trial Montos filed a motion to suppress the statements he had made and the items that had been seized from his car on the morning he was arrested. A hearing was conducted on this motion. At this hearing Stokes was the only witness. Thereafter the District Judge denied the motion. At trial Montos renewed his motion to suppress. The Trial Judge, who was not the same District Judge who presided at the pretrial hearing, heard testimony from Stokes and Montos out of the presence of the jury. The Trial Judge then refused to grant defendant's motion. 1 The

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evidence complained of was introduced by the Government, and the jury returned a verdict of guilty on both counts.

I.

We must decide initially whether Montos received fair, adequate consideration of his motions to suppress in the type of District Court proceeding contemplated by Rule 41(e) of the Federal Rules of Criminal Procedure. Montos claims that his motions were not fairly and adequately considered. We conclude that they were.

Rule 41(e) provides that any person 'aggrieved' by an unlawful search and seizure may move a federal judge in the district where the seizure was made to suppress for use as evidence against him anything unlawfully so obtained. The judge to whom the motion is made must receive evidence 'on any issue of fact necessary to the decision of the motion.' Fed.R.Crim.P. 41(e). To minimize the delay that would be caused by attacks made during trial on the admissibility of illegally seized evidence and to eliminate from the trial disputes that are not immediately relevant to the question of the defendant's guilt, see Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960), Rule 41(e) further provides that 'The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.' 2

Ordinarily, when a motion to suppress is denied before trial, the legal basis of this denial becomes the law of the case for purposes of the trial, subject to appellate review, and the defendant may not relitigate the suppression issue at trial. 3 See generally 3 Wright, Federal Practice and Procedure § 676 (1969). Occasions will arise, however, when a pretrial denial of a motion to suppress is not binding upon the trial judge. See, e.g., United States v. Koenig, 5 Cir., 1961, 290 F.2d 166, 172-174, aff'd sub nom. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). If new facts come to light at trial, the trial judge in the exercise of his discretion may consider anew the suppression issue. See United States v. Koenig, supra. See also Rouse v. United States, 1966, 123 U.S.App.D.C. 348, 359 F.2d 1014, 1016.

A review of the record in this case convinces us that neither of the District Judges to whom Montos made his motions to suppress failed to comply with the requirements of Rule 41(e) in denying these motions. Defendant's allegations of defects in the pretrial hearing on the motion to suppress are based upon the District Judge's denial of defendant's request to examine the written report made by Stokes concerning his arrest. Montos there relied upon the Jencks Act, 18 U.S.C. § 3500 (1964), and the principle of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to obtain production of this report. According to the express terms of the Jencks Act, however, Montos was not

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entitled to examine the report until Stokes had testified 'on direct examination in the trial of the case,' 18 U.S.C. § 3500(a) (1964), 4 and due process does not require premature production at pre-trial hearings on motions to suppress of statements ultimately subject to discovery under the...

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