U.S. v. Montgomery
| Citation | 620 F.2d 753 |
| Decision Date | 27 June 1980 |
| Docket Number | No. 78-1952,78-1952 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Parker MONTGOMERY III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Margo J. McCormick, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., and David N. Williams, Asst. U. S. Atty., Albuquerque, N. M., with her, on brief), for plaintiff-appellee.
Daniel C. Hale, Boulder, Colo., for defendant-appellant.
Before McWILLIAMS, DOYLE and McKAY, Circuit Judges.
The defendant-appellant Montgomery, together with others who are not present before this court, was charged with possession with intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and importation of marijuana in violation of 21 U.S.C. § 952(a) and § 960(a) (1). The case was tried to the court, the Honorable H. Vearle Payne, Judge, presiding. All of the defendants were found guilty as to both counts and were sentenced to consecutive terms of imprisonment of three years on each count followed by a special parole term of three years. The appeals of defendants Robert Allen Barbeau, William John Mallow and Charles Edward McCord were heard together. In that separate appeal the judgment of the district court was affirmed as to each defendant. The opinion of this court by Chief Judge Seth in deciding the Barbeau, Mallow and McCord case dealt with some of the problems which are presented here. Therefore, this court's decision in the companion case referred to above is dispositive of some of the issues presented in this case.
The three defendants mentioned above operated a truck which had a rendezvous with an airplane in southern New Mexico. Later, a roadblock was set up, arrests were made and the large quantity of marijuana was discovered and was seized.
John Parker Montgomery III, the defendant-appellant in this case, piloted an airplane which appeared on a radar screen monitored by U. S. Customs official Haran in Albuquerque, New Mexico. This was a so-called "pop-up target." The term "pop-up target" is used to describe an aircraft which appears suddenly on a radar screen and which has not been previously identified by the radar's computer as having filed a flight plan and having transmitted a transponder. When Haran first noticed the aircraft it was approximately 40 miles north of the border between Mexico and the United States. The particular air corridor which was being monitored was known as one which was used for international smuggling. Haran sent out a request that a Customs aircraft attempt to make contact with the target. 1 Thereafter, two planes, designated Lima 213 and Lima 214, were sent out from Albuquerque, New Mexico and El Paso, Texas. Before either of these made visual contact with the target, Haran lost radar contact for a period of ten to twelve minutes, after which time he regained contact with an aircraft which he presumed to be the target plane. The Customs aircraft then made visual contact with the target aircraft and radioed its identification number, which was read in the darkness with infrared goggles. The plane did not have its lights turned on. It was followed to a location near Las Vegas, New Mexico, where Customs officers observed the lights of a vehicle on the ground turn on. The target aircraft then maneuvered to a position behind the ground vehicle and landed on the road in front of the vehicle, still without its lights on. The aircraft remained on the ground for approximately three minutes and took off again. Lima 213 stayed in visual contact with the target aircraft while Lima 214 attempted to maintain visual contact with the ground vehicle.
The target aircraft took off without its lights and flew in an erratic manner. It made evasive maneuvers, climbing and diving and turning, until it reached a point near Cimarron, New Mexico, where it turned on its lights and assumed a normal course and altitude until it reached its destination at Pueblo Municipal Airport in Pueblo, Colorado. Upon landing there, appellant was found to be the pilot and was arrested. When the arresting officers entered the plane, they observed a small amount of a substance thought to be marijuana debris and noticed the odor of a substance thought to be marijuana. Samples of the debris were later collected. No search warrant was obtained prior to searching the plane.
Meanwhile, a roadblock had been set up by the New Mexico State Police on State Road 104. Approximately an hour and a half after the plane and the vehicle were observed on the ground together, a 1976 white Ford pickup truck was stopped at the roadblock. A state officer requested identification from the driver of the vehicle. He looked through a partially opened curtain and saw dark-colored plastic bags inside. He also smelled the odor of marijuana. The three occupants of the truck were then arrested, and the vehicle was taken to a state police office where it was searched without a warrant. There were 19 plastic bags of marijuana which weighed 692 pounds in the vehicle and these were seized.
As a result, the appellant, together with the three occupants of the truck, were all indicted.
The defendant-appellant filed a motion to suppress not only the real evidence (the marijuana), but also the statements which he said violated his Fourth Amendment rights. Following a hearing on the motion which occurred April 5, 1978, Judge Payne denied the motion without making any findings. A stipulation between the appellant, the other defendants and the government allowed submission of the case to the court on the evidence presented at the suppression hearing, together with the contents of the stipulation which conceded jurisdiction, the fact that the substance seized was marijuana, and that the chain of custody had been proper at all times. A jury trial was waived on the understanding that the evidence submitted would furnish the basis for the court to determine guilt or innocence. This was confirmed by Judge Payne on July 17, 1978, when he wrote:
. . . Counsel for the defendants informed the Court that the matter would be submitted for disposition upon stipulated facts, briefs, and the evidence elicited during the course of the Motion to Suppress. . . . Therefore, I am providing the parties twenty days from today's date in which to file briefs in support of their positions . . .
After this letter, Montgomery filed a memorandum in support of his argument, stating that he had not been properly identified and since evidence as to this essential element was lacking, there was insufficient evidence to convict him. Judge Payne held an attorney's conference on August 9, 1978, with the local counsel for the defendants and lawyers for the United States present. The court reopened the trial and set a hearing on the merits for September 11, 1978. At that hearing the issue of identification of the appellant was the subject of the testimony. The witnesses said that the man on trial was the same person who had been arrested in Pueblo. When the hearing was concluded, the judge entered findings of guilty on all counts against all defendants.
Three questions are submitted to us on this appeal.
First, did the trial court err in reopening the trial on the merits in light of the stipulation between the parties?
Second, was the evidence sufficient to support a finding of guilty?
Third, was there error in denying the appellant's motion to suppress?
THE VALIDITY OF THE STIPULATION AND THE ALLEGED ERROR IN
Appellant's argument is that the stipulation limited the evidence to be considered to determine guilt or innocence to the contents of the stipulation together with the testimony at the suppression hearing. He asserted that his waiver of a jury trial was premised on that interpretation of the agreement. Therefore, to allow additional evidence went beyond the waiver of jury trial and violated his constitutional rights to a jury trial. It is further contended that without the reopening of the case by the trial court and the taking of evidence, he would be entitled to acquittal.
The waiver of the right to a jury trial was clear and unequivocal. 2 Appellant argues that the waiver was a conditional one and the prime condition was a limitation of evidence that was to be used to determine his guilt or innocence. No doubt the appellant believed that the waiver of the jury trial was premised on the limitation of the evidence to be used to determine his guilt or innocence. It is appellant's position that it was unjust to allow the reopening for further evidence. The government contends that it stipulated in the belief that there was no issue concerning identification of the defendant as the one who had been arrested in the airplane. The government also argues that the purpose of the stipulation was to simplify the trial and at the same time allow the defendant to appeal the suppression ruling. The government argues that it did not know that the testimony elicited at the suppression hearing was to be used as a substitute for a trial and that the failure to present formal evidence as to the identity of the appellant was justified and ought not to preclude presentation of such evidence at the later date.
Certainly the trial court has discretion to determine whether to reopen a case, and ordinarily a decision to reopen will not be reversed on review without a clear showing of abuse of discretion. United States v. Skolek, 474 F.2d 582 (10th Cir. 1973); United States v. Moehring, 446 F.2d 516 (10th Cir. 1971); United States v. Keine, 424 F.2d 39 (10th Cir.), cert. denied, 400 U.S. 840 (1970); Massey v. United States, 358 F.2d 782 (10th Cir.), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966); Ayash v. United States, 352 F.2d 1009 (10th Cir. 1965).
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