U.S. v. Montgomery

• Decision Date: 26 May 1987
• Docket Number: No. 86-1809,86-1809
• Parties: UNITED STATES of America, Appellee, v. Andre MONTGOMERY, a/k/a Andre Montgomery Bey, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 847

819 F.2d 847

UNITED STATES of America, Appellee, v. Andre MONTGOMERY, a/k/a Andre Montgomery Bey, Appellant.

No. 86-1809.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1986.

Decided May 26, 1987.

R. Thomas Day, Asst. Federal Public Defender, St. Louis, Mo., for appellant.

Richard Poehling, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before JOHN R. GIBSON, FAGG, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Andre Montgomery appeals from the district court's order sentencing him to fifteen years' imprisonment with no probation under the Armed Career Criminal Act of 1984, 18 U.S.C. app. Sec. 1202(a) (Supp. III 1985), based on a jury verdict convicting him of being a felon in possession of a firearm, in violation of 18 U.S.C. app. Sec. 1202(a)(1) (1982). For reversal, he argues (A) the district court committed various sentencing errors; (B) the government used its peremptory challenges to reduce the number of black jurors, in violation of his fifth and sixth amendment rights; (C) the court erred in instructing the jury on the definition of possession; and (D) the court erred in denying his motion for mistrial based on the government's reference to his failure to testify. For the reasons discussed below, we affirm Montgomery's conviction and remand for resentencing.

I. BACKGROUND.

On December 15, 1985, St. Louis police officer Timothy Lachenicht observed a car parked in the middle of DeSoto Street, while he was patrolling the area. Lachenicht approached the car and asked the female in the driver's seat for her license. Montgomery, who was seated in the rear seat on the passenger side, said "start driving." Montgomery then removed a handgun from his waistband and placed it beneath the front seat. Lachenicht ran around the car to the passenger door and pulled Montgomery out of the car.

Lachenicht unloaded the gun, finding it contained six live rounds of .38 caliber ammunition. A subsequent search revealed four more live rounds of ammunition in Montgomery's trouser pocket.

On March 6, 1986, Montgomery was indicted for possession of a firearm by a person having three prior felony convictions, in violation of 18 U.S.C. app. Sec. 1202(a)(1). At his arraignment, the government filed a notice informing Montgomery he was subject to the enhanced sentencing provisions of the Armed Career Criminal Act because of his prior criminal history.

Following a jury trial, on May 19 and 20, 1986, Montgomery was convicted of the possession charge. The district court sentenced him to fifteen years' imprisonment with no parole, the minimum sentence under the enhanced sentencing provisions of the Armed Career Criminal Act. This appeal followed.

II. DISCUSSION

A. Sentencing.

Montgomery argues that the district court erred in sentencing him under the enhanced punishment provisions of section 1202(a)(1), because the government failed to prove the requisite three prior convictions for burglary and robbery. ¹ Montgomery contends the statute requires three separate prior adjudications for these crimes and claims that only one prior adjudication was shown at his trial. Montgomery was convicted of three counts of robbery and sentenced on October 15, 1979. Two of these counts involved a single robbery of two people.

The government has since conceded in another section 1202(a) case that multiple convictions arising out of a single criminal episode should be treated as one conviction for purposes of the Armed Career Criminal Act. See Response to Petition for Writ of Certiorari, Brief for the United States at 4-10, Samuel Petty v. United States, petition for cert. filed (U.S. Jan. 21, 1987) (No. 86-6363). Consistent with its position in Petty, the government now concedes that Montgomery was sentenced improperly. ² We therefore remand Montgomery's case for resentencing under the provisions of section 1202(a) applicable to persons not having three previous convictions. See 18 U.S.C. Sec. 1202(a). We need not consider Montgomery's remaining sentencing claims.

B. Discriminatory Use of Peremptory Challenges.

Montgomery, who is black, contends the district court erred in denying his motion, made prior to the swearing in of the jury, to dismiss the jury panel. He argues that the government used a disproportionate number of its peremptory challenges to substantially reduce the number of black jurors, in violation of his fifth and sixth amendment rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson ).

There were a total of four black persons available for selection as jurors, making up 14% of the venire. The government used two of its six strikes (33%) to eliminate two of the four black members of the venire. The defendant then used one peremptory challenge to strike one of the two potential remaining black jurors, so that the actual jury consisted of eleven whites and one black.

Although the jury accepted by the government included two blacks, Montgomery asserts that these percentages indicate that black members of the jury panel were peremptorially struck at a rate in excess of double of that which a proportionate striking of blacks would have resulted in. He requests that his case be remanded pursuant to Batson for the district court to determine whether he has a prima facie case of purposeful discrimination and whether the government had permissible reasons for the strikes.

Based on the Supreme Court's holding in Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), this court may apply Batson retroactively to cases in which the conviction had not yet become final on direct appeal by April 30, 1986, when the Court decided Batson. To make an equal protection claim under Batson, a defendant must establish a prima facie case of purposeful discrimination. To establish such a case, the defendant must show, among other things, that the government's use of its peremptory challenges and any other relevant circumstances raise an inference that the government excluded prospective jurors on the basis of their race.

The facts and circumstances in the present case do not raise such an inference of racial discrimination. The fact that the government accepted a jury which included two blacks, when it could have used its remaining peremptory challenges to strike these potential jurors, shows that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury. Cf. United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir.1986) (per curiam) (government's striking of three blacks not prima facie purposeful discrimination where government accepted two blacks on jury). Batson does not require that the government adhere to a specific mathematical formula in the exercise of its peremptory challenges. Accordingly, we hold that the district court did not err in denying Montgomery's motion to dismiss the jury panel.

C. Instruction on Possession.

Montgomery asserts that the district court improperly refused his requested theory of defense instruction No. 14 which stated:

A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

Unless you find that the evidence proves beyond a reasonable doubt that Andre Montgomery knowingly had direct physical control over the firearm in question as opposed to simply showing that he was in close physical proximity to a firearm that some other occupant of the automobile had possession of, you shall find him not guilty.

In place of this instruction, the district court charged the jury in instruction No. 10-D that:

The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

You may find that the element of possession as that term is used in these instructions is present if you find beyond reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others.

Montgomery claims there was no need to instruct the jury on constructive and joint possession, because those were not issues raised by the government's case. He also asserts that he was entitled to have the second paragraph of his requested instruction read, because it set forth his theory of defense, that Donald Houston, the owner of the vehicle in which the gun was found, was in fact guilty. Montgomery's theory was based on two allegedly false exculpatory statements by Houston. Houston testified at trial that he did not make either of the statements, however.

In reviewing the adequacy of the district court's jury instruction, this court considers three criteria. First, the purpose of giving instructions is to inform the jurors of the essential issues before them and of the various permissible ways of resolving those issues. Federal Enterprises, Inc. v. Greyhound Leasing & Financial Corp., 786 F.2d 817, 820 (8th Cir.1986); see also United States v. Richmond, 700 F.2d 1183, 1195-96 (8th Cir.1983) (defendant not entitled to a particularly worded instruction). Second, a party is entitled to an instruction reflecting the party's theory of the case if a timely request is made and the proffered instruction is supported by the evidence and correctly states the law. Id. Third, this court allows the district court judges considerable discretion in choosing the form and language of jury instructions....