U.S. v. Montgomery

• Decision Date: 29 June 1978
• Docket Number: No. 77-1107,77-1107
• Parties: 3 Fed. R. Evid. Serv. 721 UNITED STATES of America, Appellee, v. Bernard Vincent MONTGOMERY, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 514

582 F.2d 514

3 Fed. R. Evid. Serv. 721

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

No. 77-1107.

United States Court of Appeals, Tenth Circuit.

Decided June 29, 1978.

Argued and Submitted March 14, 1978.

Rehearing Denied Sept. 1, 1978.

David L. Norvell, Albuquerque, N. M., for appellant.

Charles F. Sandoval, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for appellee.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Bernard Vincent Montgomery (Montgomery) was charged in a five-count indictment with conspiracy, interstate transportation of stolen motor vehicles, and aiding and abetting, in violation of 18 U.S.C.A. § 371, § 2313, § 2312, and § 2. He was convicted by a jury on all counts and now appeals.

Montgomery and Glenn Langston (Langston), Arthur Apodaca (Apodaca), Freddie Herrera (Herrera), and Douglas Steen (Steen) were charged with selling in interstate commerce a D-3 Caterpillar tractor and 1974 Peterbilt truck, knowing that the vehicles were stolen. Prior to Montgomery's trial, Langston and Herrera had entered pleas of guilty, the charges against Steen had been dismissed and Apodaca was at large, having avoided arrest.

The Government's case against Montgomery primarily relied upon the testimony of numerous witnesses, including:

Robert Bettes, Police Officer, City of Albuquerque who testified that: the Albuquerque Police Department set up "Operation Gooseneck" in August, 1975, as an undercover operation in the form of a welding shop business staffed by Officers Wroten and Espinosa; the operation was designed to apprehend persons involved in the theft and disposal of stolen heavy equipment; the operation was funded by the Albuquerque City Council; and that from November, 1975, through August, 1976 approximately $500,000 worth of stolen property was received via the operation.

John Way, President of J&H Supply Company, who testified that: a tractor trailer laden with machinery, including a D-3 Caterpillar was stolen from his company on or about April 26, 1976; and the Caterpillar had a replacement value of $32,000 to $33,000.

G. W. Penfold, District Manager of Wilco Truck Rental, who testified that: on reporting to work on June 22, 1976, he noticed that a truck was missing; the truck a 1974 Peterbilt, was on a long term lease to E. B. Law; the replacement value of the truck was approximately $30,000; and that when the truck was returned to Wilco its paint had been altered with black spray paint which was used to cover the E. B. Law signs and other areas on the truck.

James Wroten, Detective, Albuquerque Police Department, who testified that: he participated in an undercover capacity during Operation Gooseneck as a welder; during the operation he established a relationship with Langston and Montgomery whereby he was buying stolen property from them; on April 27, 1976, he and Detective Espinosa met with Langston who related he had a D-3 Caterpillar for sale which his boys, including Montgomery, were repainting; Langston indicated he had other equipment for sale but that Montgomery had moved it to a church; Langston and Montgomery arranged for the rental of a truck to move the Caterpillar and Montgomery and Apodaca later hauled the Caterpillar to El Paso, Texas, to a prearranged site for the purpose of consummating the sale of the Caterpillar; thereafter, Montgomery discussed acquiring Peterbilt and Kenworth trucks with him; on June 22, 1976 Montgomery called him about a truck he had acquired and altered with black spray paint; Montgomery related that he had sprayed the door decals which "were E.B. Law" and other areas of the truck; he subsequently took delivery of the truck at El Paso, thereafter paid Montgomery a total of $2,000 for the truck.

Richard Espinosa, a Police Officer with the Albuquerque Police Department, who testified that: he participated in Operation Gooseneck in an undercover capacity as a welder; the operation was initiated after the Albuquerque Police Department recovered a gooseneck trailer "and through this recovery they received the information on various people involved in heavy equipment thefts, and at that time they decided to open up the store (undercover welding business)"; he accompanied Officer Wroten and Langston to Langston's property where a D-3 Caterpillar was hidden; "Langston stated that his boys, meaning Bernie Montgomery and Arthur Apodaca, had put some paint remover on the D-3 to discolor the D-3"; Langston also showed them some other equipment stolen from J&H Supply Company, located next to a church, which had the same distinctive blue coloring as the Caterpillar; Montgomery and Apodaca trucked the Caterpillar to El Paso, Texas; on June 14, 1976, he and Officer Wroten met with Montgomery who related to them that he could steal a new Kenworth or Peterbilt and sell it to Wroten for $2,000; later Montgomery told them he had a Peterbilt located in El Paso, Texas, which he had painted with black paint to discolor the decal on the truck and that Montgomery "reached up with his hands and said 'I still have black paint on me' "; Apodaca later related that he and Freddie Herrera "ripped off the truck"; he and Officer Wroten later took delivery of the truck.

The Government identified the stolen vehicles by means of testimony and photographs.

Montgomery did not testify. He did, however, call two defense witnesses:

Robert Montoya, an officer with the Bernalillo County Sheriff's Department, who testified that: he had met Montgomery once at a bar; Montgomery talked about the "low fencing operation" being operated out of Louie's Garage (the undercover business); Montgomery's conversation of the "low fencing operation" was not consistent with somebody who was engaged in criminal conduct themselves. On cross-examination Montoya indicated that he did not report Montgomery's discussion to the authorities; that he figured the discussion "might have been a crank thing"; and that "You hear so much of that stuff. I told him to notify the proper authorities."

Fred Herrera, a co-defendant who had entered a plea of guilty to aiding and abetting, testified that he and Arthur Apodaca told Montgomery that the Peterbilt had belonged to Arthur's deceased father. On cross-examination, the Government's Exhibit 12 was admitted into evidence. Exhibit 12 was a prior statement by Herrera that "I have no information or knowledge that would tend to exonerate Bernard Montgomery on the charges contained in the indictment."

Herrera's testimony was interrupted for an In camera discussion relating to Defendant's Exhibit B, a notarized letter written by Apodaca to Montgomery on or about August 9, 1976, several months after the Peterbilt was stolen, which Herrera had previously seen. Although the letter was not included in the record on appeal, its content, as gleaned from the record (R., Vol. IV, pp. 386-390) constitutes Apodaca's apology to Montgomery for lying to Montgomery about the ownership of the truck because as a result of the lie Montgomery was not aware that the truck was stolen. The trial court denied the admission of the letter in evidence both because it was hearsay (Apodaca was then still at large) and because it had been written "long after the conspiracy, if any, had expired." (R., Vol. IV, p. 389.)

At the conclusion of Herrera's testimony, Montgomery rested his case. Thereafter, as noted, Supra, Montgomery was convicted by the jury on all five counts charged.

On appeal Montgomery sets forth two issues: (1) Whether or not the trial court's ruling that Agent Espinosa could testify as to extrajudicial hearsay statements of one Arthur Apodaca, an alleged co-conspirator, which were inculpatory of Montgomery, at a time when the said Arthur Apodaca was a fugitive from justice and not subject to being confronted and cross-examined, was erroneous?; and (2) Whether or not, given the court's ruling above, the trial court erred in refusing into evidence the tender of proof made by Montgomery which constituted evidence exculpatory of Montgomery by the same co-conspirator, Arthur Apodaca?

I.

Montgomery contends that the trial court erred in allowing Agent Espinosa to testify relative to a conversation he had had with Apodaca, inculpatory of Montgomery, at a time when Apodaca was at large and unable to be confronted and cross-examined. Montgomery argues that "he was denied the opportunity and his constitutional right to confront and cross-examine Arthur Apodaca, who in effect became a witness against the appellant, by virtue of the introduction into evidence of a declaration by Arthur Apodaca through Officer Espinosa." We hold that Montgomery's contention is without merit.

Nothing contained in Montgomery's brief constitutes cogent authority or argument supportive of his contention that defendants in criminal proceedings have a constitutional right to deny the admission in evidence of statements made by a co-conspirator whenever the co-conspirator is unavailable at trial for confrontation and cross-examination. Our independent research has failed to disclose any support for this contention. The challenged testimony of Espinosa occurred during direct examination, as follows:

Q. . . . Mr. Espinosa, the last thing that I asked you was or that you were about to comment on a conversation that you had with Mr. Apodaca. Will you tell us what he said, what you heard him say.

A. Okay. We went into the restaurant and sat down, had ordered some coffee. At that time Mr. Apodaca stated that he had tried him and Freddie Herrera tried to rip or ripped off the truck Sunday night and didn't have any problems getting it down there. . . . He stated that Mr. Montgomery has paid him a hundred dollars but that he had given it to Freddie Herrera and he didn't have any money at the time.

Q. He said that Montgomery paid him.

A. Yes.

(R., Vol. IV, p. 300.)

Fed.Rules Evid.Rule 801(d)(2)(E)...