U.S. v. Montgomery

• Decision Date: 09 July 1998
• Docket Number: Nos. 97-30142,97-30163,s. 97-30142
• Parties: 98 Cal. Daily Op. Serv. 5379, 98 Daily Journal D.A.R. 7551 UNITED STATES of America, Plaintiff-Appellee, v. Bernard Vincent MONTGOMERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Raymond BUXTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 983

150 F.3d 983

98 Cal. Daily Op. Serv. 5379, 98 Daily Journal

D.A.R. 7551

UNITED STATES of America, Plaintiff-Appellee, v. Bernard Vincent MONTGOMERY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Raymond BUXTON, Defendant-Appellant.

Nos. 97-30142, 97-30163.

United States Court of Appeals, Ninth Circuit.

Argued March 3, 1998.

Decided May 13, 1998.

As Amended on Denial of Rehearing and Rehearing En Banc July

9, 1998. ^*

Sheryl Gordon McCloud, Seattle, Washington, for defendant-appellant Bernard Vincent Montgomery.

Brenda Grantland, Mill Valley, for defendant-appellant Lloyd Ray Buxton.

Gregory M. Shogren, Assistant United States Attorney, Yakima, Washington, for the plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Washington (Yakima) Alan A. McDonald, District Judge, Presiding. D.C. No. CR-96-02042-1-AAM, 96-02055-AAM.

Before: ALARCON and HAWKINS, Circuit Judges, and BREWSTER, ^** District Judge.

ALARCON, Circuit Judge:

Bernard Vincent Montgomery ("Montgomery") was found guilty of conspiracy to manufacture methamphetamine, conspiracy to distribute methamphetamine, conspiracy to import methamphetamine, distribution of methamphetamine, and possession of ephedrine with intent to manufacture methamphetamine. Lloyd Ray Buxton ("Buxton") was found guilty of conspiracy to distribute methamphetamine.

Montgomery seeks reversal of the judgment of conviction on the following grounds:

One. The separate counts of conspiracy to manufacture methamphetamine and conspiracy to distribute methamphetamine, both charged under 21 U.S.C. § 846, violated the Double Jeopardy Clause of the United States Constitution.

Two. The in-court identification of Montgomery by a prosecution witness was impermissibly tainted by improper identification procedures.

Three. The district court failed to instruct the jury that a defendant may not be convicted for conspiring solely with a government agent.

Four. The district court failed to instruct the jury that "reasonable foreseeability" is a necessary element of Pinkerton liability.

Five. The district court's instructions to the jury misstated the elements of a conspiracy under 21 U.S.C. § 963 by failing to include the requirement that the Government prove an overt act in furtherance of the conspiracy.

Six. The district court's instructions to the jury misstated the knowledge requirement of the crime of conspiracy.

Seven. The district court erroneously provided the jury with transcripts of the trial testimony of material witnesses.

Eight. The district court committed prejudicial error by informing the jury that certain charges against Buxton were dismissed for lack of evidence.

Buxton joins Montgomery in his fourth, sixth, and seventh contentions. He also seeks reversal of the judgment of conviction on the following grounds:

One. The district court erred in admitting evidence of defendant's prior conviction for conspiracy to manufacture methamphetamine.

Two. There was insufficient evidence to support the conviction for conspiracy to distribute methamphetamine.

Three. The district court's general instruction on conspiracy inadequately explained to the jury that a mere buyer-seller relationship is insufficient to support a conviction for conspiracy to distribute.

For the reasons stated below, we affirm the judgments of conviction on all counts.

I

Montgomery and Buxton were indicted following an investigation by the Yakima City/County Narcotics Unit ("CCNU"), the Drug Enforcement Agency ("DEA"), and the Royal Canadian Mounted Police ("RCMP"), which began with the arrest of Joanne Blair ("Blair") on June 26, 1996. Blair was arrested by detectives of the CCNU for the sale of five ounces of methamphetamine to an undercover CCNU agent. She was offered immunity in exchange for her cooperation in the identification and apprehension of her supplier. Blair identified Montgomery as her methamphetamine source, and also implicated her boyfriend, Edwin Dale McClain ("McClain"), as a participant in an international methamphetamine manufacturing and distribution network.

Blair's information led the investigators to Montgomery's home in Chilcoot, California. A CCNU detective, acting in cooperation with the Susanville, California police department, found sixteen pounds of methamphetamine and $47,000 in cash in the trunk of a car registered to Montgomery. Montgomery's companion, Helen Farley ("Farley"), was present at the Chilcoot residence during the search. She volunteered to cooperate with the investigation. Her account corroborated Blair's statements regarding: the manufacturing operations in Oregon and Canada; the details of the cross-border transfer of methamphetamine, ephedrine, and cash; and the distribution channels in Eastern Washington and in California. Farley identified Buxton as Montgomery's distributor in Sacramento.

Blair's and Farley's statements also led investigators to a methamphetamine factory in Burns, Oregon and to two suspected manufacturing sites in Alberta, Canada. Evidence of recent methamphetamine production was found at all three locations. Further investigation turned up witnesses and evidence (motel receipts, telephone records, telephone messages) that corroborated Blair's and Farley's descriptions of the methamphetamine network.

Blair assisted the DEA and CCNU in implementing a reverse sting operation which resulted in the arrests of McClain and Montgomery on July 2, 1996. Buxton was apprehended in Sacramento on October 8, 1996, after a warrant was issued for his arrest. He was joined as a codefendant with Montgomery and McClain in the second superseding indictment filed September 17, 1996. Count Seven of the indictment (conspiracy to manufacture methamphetamine in a place outside of the United States with intent to import into the United States) was dismissed before trial as multiplicitous in conjunction with Count Three (conspiracy to import methamphetamine). At the close of trial, the district court dismissed Count Three against Buxton for lack of evidence. The defendants were convicted on all remaining counts.

II

Montgomery contends that the separate counts of conspiracy to manufacture methamphetamine and conspiracy to distribute methamphetamine, both charged under 21 U.S.C. § 846, violate the Double Jeopardy Clause. The Double Jeopardy Clause "prohibits subdivision of a single criminal conspiracy into multiple violations of one conspiracy statute." United States v. Bendis, 681 F.2d 561, 563 (9th Cir.1982) (citing Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 87 L.Ed. 23 (1942)). As the Court in Braverman explained: "Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies...." Braverman, 317 U.S. at 53, 63 S.Ct. 99.

Montgomery relies on our decision in United States v. Alerta, 96 F.3d 1230 (9th Cir.1996), to support his contention that the Double Jeopardy Clause is violated whenever the Government charges two or more counts of conspiracy as being under a single statute. Contrary to Montgomery's assertions, Alerta did not establish a rule barring the government from charging multiple conspiracy violations under a single conspiracy statute.

In Alerta, the defendant was charged with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and conspiracy to use firearms during and in relation to drug trafficking in violation of 18 U.S.C. § 371. See Alerta, 96 F.3d at 1232. The defendant contended that because there was only one underlying conspiracy, Braverman prohibited the Government from charging violations of both sections 846 and 371. See id. at 1237. In Alerta, we found that "as a matter of charges and of evidence" only a single conspiracy existed. Id. at 1237. We then applied the test developed by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether Congress, where it had created two separate offenses applying to the same multi-object conspiracy, intended separate punishments. Alerta, 96 F.3d at 1238-39. The Blockburger test requires us to examine the statutory elements of the underlying offenses. Under Blockburger, "Congress is deemed to have intended multiple punishments if each offense require[s] proof of a fact that the other does not." Alerta, 96 F.3d at 1238. We held in Alerta that section 846 and section 371 were "not distinct under the Blockburger test," and concluded that the charges against Alerta were multiplicitous. Id. at 1239.

Montgomery suggests that two conspiracy charges under the same statute must be multiplicitous because a statute cannot be distinct from itself. Montgomery's reliance on Alerta for this argument is misguided. Montgomery fails to appreciate the necessity of first determining whether the defendant is being charged with single or multiple conspiracies. ¹ We have declined to apply the Blockburger double jeopardy analysis in cases where multiple conspiracies were charged, either consecutively or simultaneously, under the same conspiracy statute. See, e.g., Bendis, 681 F.2d at 564. In Bendis, we acknowledged that the "primary constitutional test used to determine whether two counts in the same or subsequent indictments charge the same offense is the 'same evidence' or 'Blockburger' test." Id. We noted, however, that "[p]roviding the double jeopardy protection recognized in 'Braverman' presents a peculiar problem and requires application of a different test." Id. (emphasis added).

Our concern in Bendis was that the Blockburger test, which focuses solely on the required elements of proof of the charged offenses, does not provide sufficient protection against "artful crafting of conspiracy charges which could permit the government to...