U.S. v. Montelongo, 74-1685
| Decision Date | 29 January 1975 |
| Docket Number | No. 74-1685,74-1685 |
| Citation | 507 F.2d 639 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raul MONTELONGO and Ignacio Montelongo, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John J. Pichinson, Corpus Christi, Tex., for R. Montelongo.
Charles W. Cromwell, Corpus Christi, Tex., Thomas G. Sharpe, Jr., Eduardo R. Rodriguez, Brownsville, Tex., for I. Montelongo.
Anthony J. P. Farris, U.S. Atty., Ellis C. McCullough, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before RIVES, WISDOM and COLEMAN, Circuit Judges.
Ignacio Montelongo appeals from a judgment of conviction based on a jury verdict finding him guilty as charged in Counts 1 and 2 of a three-count indictment (No. 72-C-138 in the district court). Count 1 charged Ignacio, his brother Raul, and one Danny Lynn Staley with conspiracy to distribute 'a quantity of marihuana.' Count 2 charged Ignacio and Staley with possession with intent to distribute 422 grams of marihuana. Count 3 did not mention Ignacio, but charged Staley and Raul with distributing 422 grams of marihuana. Ignacio was sentenced to the custody of the Attorney General for two four-year terms to run consecutively.
Raul Montelongo appeals from a judgment of conviction on Counts 1 and 3 of the indictment just discussed. Raul was sentenced on that conviction to two fouryear terms to run consecutively. Raul appeals also from judgments of conviction based on two additional indictments, neither of which mentioned Ignacio. One of those indictments (No. 72-C-137 in the district court) charged Raul and Staley with possession with intent to distribute 48.20 grams of heroin and, in a separate count, with distributing 48.20 grams of heroin.
The remaining indictment (No. 72-C-139 in the district court), on which Raul was convicted, joined Raul, Staley and still another codefendant, David Tijerina. One count charged that those three conspired to distribute 'a quantity of heroin.' A second count charged that they distributed 235.55 grams of heroin. The crimes charged in this third indictment against Raul were allegedly committed 'on or about the 26th day of October, 1972,' while the crimes charged in the two indictments described earlier were allegedly committed 'on or about October 17, 1972.' On each of the two last-mentioned judgments of conviction of Raul, he was sentenced to two ten-year terms to run consecutively, making the total of Raul's consecutive sentences under all three indictments forty-eight years.
The jury found David Tijerina not guilty. On the two indictments last mentioned, Staley was tried separately some six months prior to the trial of Tijerina and the Montelongos. Staley was convicted and sentenced to six years imprisonment on those two indictments. His conviction has been affirmed by this Court without a published opinion. United States v. Staley, 5 Cir. 1974, 492 F.2d 1241.
The sufficiency of the evidence to support convictions was challenged by motion of each defendant for judgment of acquittal filed at the conclusion of the government's case and renewed at the close of the evidence. The district court denied the motions, and also denied a motion for new trial filed by Ignacio
Upon appeal Ignacio Montelongo makes two contentions: (1) that there was insufficient evidence to sustain his conviction; and (2) that the district court erred in not granting his motion for severance.
Raul Montelongo contends on appeal: (1) that the district court erred in permitting the government to carve out more than one offense from a single transaction and in imposing consecutive sentences for each such offense; (2) that, upon sentence, the district court erred in considering information not in the record without giving him an opportunity to refute such information; and (3) that the district court erred in denying his motion to quash the jury panel and in refusing his counsel permission to develop the nature and extent of prior jury service of the members of the jury panel.
The issues as to the sufficiency of the evidence and the selection of the jury, under the circumstances of this case, may be matters affecting the fundamental fairness of the trial and convictions of the defendants. We therefore consider those issues first.
Raul Montelongo on appeal makes no contention that the evidence was insufficient to sustain the jury's verdict under any count on which he was convicted. Ignacio Montelongo seriously contends that there was not sufficient evidence to sustain the jury's verdict finding him guilty under Counts 1 and 2 of the indictment in case No. 72-C-138. It is enough to say that, while a close question is...
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Kirkland v. State
...a venireman's prior service as a juror in similar cases. See United State v. Ochoa, 543 F.2d 564 (5th Cir.1976); United States v. Montelongo, 507 F.2d 639 (5th Cir.1975). Interim jury service occurs when jurors, after selection in a particular case but before the commencement of trial, serv......
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