U.S. v. Montgomery

• Decision Date: 24 June 1977
• Docket Number: No. 76-3219,76-3219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul L. MONTGOMERY, a/k/a Kenneth Selvester Watson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 754

554 F.2d 754

UNITED STATES of America, Plaintiff-Appellee, v. Paul L. MONTGOMERY, a/k/a Kenneth Selvester Watson,

Defendant-Appellant.

No. 76-3219.

United States Court of Appeals, Fifth Circuit.

June 24, 1977.

Rehearing Denied Aug. 29, 1977.

See 558 F.2d 311.

Harry Lee Hudspeth, El Paso, Tex., for defendant-appellant.

John E. Clark, U. S. Atty., San Antonio, Tex., Frank B. Walker, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Paul L. Montgomery appeals his conviction both for conspiracy and the substantive offense of possession of five and one-quarter pounds of heroin with the intent to distribute. He urges that the evidence was insufficient to establish a conspiracy and further that the heroin was discovered as a result of an illegal search. We affirm.

Drug Enforcement Administration Special Agent Ruric Staton received on April 20, 1976 information from a confidential informant concerning a black man and woman who would register at an El Paso Rodeway Inn, intending during their stay to procure a quantity of heroin. The only description of the two was that the male would have gray hair and a beard and would be wearing a hat similar to a sailor's cap turned inside out. Agent Staton placed the Rodeway Inn under surveillance and discovered that a couple meeting the given description were staying in a room registered under the name of Ken Watson. Watson was later determined to be an alias for Montgomery and his companion was learned to be Ruby Swartz. On April 21, Agent Staton was joined at the Rodeway Inn by Customs Air Detail Agent Ruben Gomez. The joinder of Gomez and Staton at this time was coincidental. The possibility of a connection between this surveillance and Gomez's earlier work was not discovered until later. No proof of the purpose or results of Agent Gomez's previous investigation was offered at trial. Later on the 21st Montgomery and Swartz were seen together with another black, Thomas McGarrity. McGarrity was registered under the alias of Tim McNary. The three were seen together near the pool area, taking pictures of one another and otherwise indicating that they were acquainted.

Agent Gomez overheard a phone call placed by Ruby Swartz in which she stated that she was staying with "Paul." Since Montgomery was known to be her roommate and was registered as Ken Watson, this indicated to the agents that he was using an alias.

Soon after midnight on April 23, Agent Staton received another tip from the same confidential informant which stated that Montgomery, Swartz, and McGarrity would be leaving soon with the heroin, probably that same morning. At approximately 9:00 a.m. McGarrity did leave the motel and was followed to a small private airport near El Paso. The agents also observed Montgomery and Swartz talking at the airport to a person they surmised to be of Mexican descent who was driving an automobile with license plates the agents thought to be from the Juarez, Mexico area. No items were seen to be transferred from the automobile to the nearby airplane. The unknown individual was allowed to drive away. As the three defendants were boarding the aircraft and about to leave, they were arrested. Montgomery's suitcase taken from the airplane was discovered to contain five and one-quarter pounds of heroin. No heroin was discovered in the luggage or on the persons of Swartz and McGarrity. However, McGarrity was found to have an address book with Montgomery's actual name and Michigan telephone number and address. He also had a notation of Montgomery's alias and his Rodeway Inn room and phone numbers.

Although no similar insufficiency is present as to the showing of conspiracy with McGarrity, Montgomery's contention that the evidence is insufficient to demonstrate a conspiracy with Ruby Swartz is well-taken. As the preceding evidentiary recitation has indicated, Swartz was not in any manner connected to the heroin itself. She was present with Montgomery and McGarrity at the Rodeway Inn and stayed in Montgomery's room. She was also a passenger in the airplane in which the heroin was secreted. Such facts prove no more than that Swartz associated with Montgomery. It does not establish she conspired with him. United States v. Mendez, 496 F.2d 128 (5th Cir. 1974); cf. United States v. Sanchez, 508 F.2d 388 (5th Cir.), cert. denied, 423 U.S. 827, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975). Swartz was not shown to have used an alias nor to have known that Montgomery presented a false name or address to the motel.

Perhaps the closest case in this circuit on its facts is United States v. Evers, 552 F.2d 1119 (5th Cir. 1977). In Evers the proof established that the defendants had both registered at the motel where a drug purchase occurred with false names and addresses; one had a falsified identification card with his picture; the contraband was purchased shortly after the arrival of the two defendants at the motel and was stored in the trunk of the car in front of the room; each was continuously in the other's presence. By the use of an alias each demonstrated guilty knowledge and an intent to deceive. Communal occupancy of a motel room, the only parallel in the present case, is not enough to establish that a conspiracy existed between Montgomery and Swartz. Since we hold that the evidence was insufficient to convict Montgomery for conspiring with Swartz, we need not consider the contention that since the indictment against Swartz was dismissed at the instance of the Government, no prosecution of Montgomery for conspiring with Swartz can be upheld.

However, even though the same count indicted Montgomery for conspiring with both Swartz and McGarrity, the conspiracy conviction can still stand if there exists an adequate evidentiary basis for a finding that a conspiracy existed with McGarrity alone. United States v. Lance, 536 F.2d 1065 (5th Cir. 1976); United States v. Cabrera, 447 F.2d 956 (5th Cir. 1971). McGarrity's use of an alias, his knowledge of both Montgomery's actual name and address and his alias, coupled with his presence with Montgomery through much of this episode constitute sufficient evidence of conspiracy. United States v. Evers, supra; see United States v. Reynolds, 511 F.2d 603 (5th Cir. 1975). The status of Swartz as a conspirator is not the focus of our decision. The evidence that Montgomery conspired with McGarrity was much stronger than the evidence that Montgomery conspired with Swartz. Although we have held that the jury could not have convicted Montgomery for conspiring with Swartz, they could have believed Montgomery conspired with McGarrity. That is enough.

The legality of the search of the aircraft is also attacked. It is contended that the tip from an unknown source provided to Agent Staton did not meet the twin tests of Aguilar v. Texas,...