98 Cal. Daily Op. Serv. 5379, 98 Daily Journal D.A.R. 7551 United States of America v. Bernard Vincent Montgomery, United States of America v. Lloyd Raymond Buxton

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.

* 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.

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.1¹

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 subdivide one criminal conspiracy into multiple violations of a single statute" in violation of the principle established in Braverman. Bendis, 681 F.2d at 565. In response to this concern, we adopted the "factor analysis" test in Arnold v. United States, 336 F.2d 347, 350 (9th Cir.1964). See Bendis, 681 F.2d at 565. We summarized the Arnold factor analysis as follows:

[T]o determine whether two conspiracy counts charge the same offense and so place the defendant in double jeopardy, we consider five factors: (1) the differences in the periods of time covered by the alleged conspiracies; (2) the places where the conspiracies were alleged to occur; (3) the persons charged as coconspirators; (4) the overt acts alleged to have been committed; and (5) the statutes alleged to have been violated.

United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir.1997) (citation and internal quotation marks omitted).

The defendant has the burden of showing that the two conspiracies charged are actually based on a single agreement. See Bendis, 681 F.2d at 564. See also United States v. Guzman, 852 F.2d 1117, 1119-20 (9th Cir.1988) (holding that defendant must show "that the two conspiracies are indistinguishable in law and in fact").

Montgomery contends that Alerta mandates the application of the Blockburger test, and that Blockburger requires us to compare "the elements of the two charged conspiracies, not the evidence presented." (Montgomery's Reply Br. at 3.) In focusing on the question of which test applies, Montgomery fails to offer any argument in support of the pivotal issue--whether the indictment and the evidence show the existence of multiple, distinct conspiracies or a single, multi-object conspiracy. Ultimately, Montgomery fails to demonstrate that the two conspiracies charged in the indictment are indistinguishable.

In United States v. Kenny, 645 F.2d 1323 (9th Cir.1981), we explained that "sufficiency of the evidence" analysis is applicable to the determination of the question whether the evidence shows the existence of a single, multi-object conspiracy or multiple, distinct conspiracies. Id. at 1335. Accordingly, we must examine the evidence in the light most favorable to the prosecution to determine if any rational trier of fact could have found that more than one conspiracy existed. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Kenny, 645 F.2d at 1335. In light of the above standard, we apply the factors articulated in Stoddard, 111 F.3d at 1454. "[W]e do not focus on one single factor, but consider all the factors together." Id. at 1456-57. See also Bendis, 681 F.2d at 568 ("No one component of the Arnold analysis has controlling significance."). The record supports the conclusion that Montgomery was involved in two distinct conspiracies.

Time Frame: The time periods of the two conspiracies substantially overlap. The Government introduced evidence, however, that the Oregon manufacturing operation, charged in Count One, started at an earlier date than the Canadian methamphetamine distribution operation, charged in Count Two.

Geographic Location: The record demonstrates that there was little overlap in the places where the objects of the conspiracies were put into effect. The Government presented evidence showing that "low quality" methamphetamine manufactured in Oregon was distributed exclusively in Eastern Washington, and that "high quality" methamphetamine manufactured in Canada was distributed primarily in California.

Participants: Count One named Montgomery, McClain, Herbert Crawford, Robert Taylor, and others, known and unknown, as members of a conspiracy to manufacture methamphetamine in Oregon. Count Two named Montgomery, McClain, Buxton and others, known and unknown, as members of a conspiracy to distribute methamphetamine manufactured in Canada. The involvement of Montgomery and McClain in both conspiracies does not compel a finding that a single conspiracy existed. See Guzman, 852 F.2d at 1120 (focusing on the different activities of the members in each conspiracy where two conspiracies had overlapping members). We must determine whether the roles performed by the overlapping members were different in each conspiracy. See id. The Government introduced evidence through Blair and Farley that Montgomery was a methamphetamine "cook" in the Canadian distribution operation, and that McClain was the "cook" in the Oregon manufacturing operation. Montgomery provided ephedrine to McClain for the Oregon manufacturing operation, and McClain assisted Montgomery in transporting methamphetamine into the United States from Canada for distribution. Because Montgomery and McClain played different roles in each of the two conspiracies, we conclude that there was no significant overlap of participants.

Overt Acts: The conspiracies charged in Counts One and Two allege different overt acts. Count One alleges methamphetamine manufacturing in Oregon, and Count Two alleges distribution of methamphetamine produced in Canada.

Statutes Violated: When the two conspiracies charged violate the same statute, we consider "whether the goals of the two conspiracies were similar." Stoddard, 111 F.3d at 1456. Here, the goal of the conspiracy charged in Count One was the manufacture of low quality methamphetamine. The goal of the conspiracy charged in Count Two was the distribution of high quality methamphetamine. Different goals suggest the existence of two distinct conspiracies. See id. (finding that the existence of two conspiracies is indicated where one conspiracy's goal was the purchase of marijuana and the other conspiracy's goal was the growth, sale and distribution of marijuana). See also Guzman, 852 F.2d at 1121 (finding that the goal of one conspiracy to distribute cocaine differed from the goal of the other conspiracy to manufacture cocaine).

Having applied the "factor analysis" test articulated in Stoddard, we determine that the evidence in the record, examined in the light most favorable to the Government, supports the conclusion that Counts One and Two charged two distinct conspiracies. We therefore conclude that the judgment of conviction against Montgomery for the two conspiracies charged under 21 U.S.C. § 846 did not violate the Double Jeopardy Clause.

Montgomery argues that he was deprived of his right to due process because the court admitted the in-court identification testimony of Lance Blondin ("Blondin"). Blondin, an employee of a Canadian chemical supply company, identified Montgomery at trial as the purchaser of a large quantity of red phosphorous--a key ingredient in the manufacture of methamphetamine. Montgomery contends that this in-court identification was tainted by impermissibly suggestive pretrial identification procedures employed by the Government. "Suggestive pretrial identification procedures may be so impermissibly suggestive as to taint subsequent in-court identifications and thereby deny a defendant due process of law." United States v. Bagley, 772 F.2d 482, 492 (9th Cir.1985).

We review de novo the constitutionality of pretrial identification procedures. United States v. Atcheson, 94 F.3d 1237, 1246 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997). "[C]onvictions based on eyewitness identification at trial following a pretrial identification ... will be set aside ... only if the [pretrial] identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). "It is the likelihood of misidentification which violates a defendant's right to due process...." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). "Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous." Id.

A. Were the pretrial identification procedures unnecessarily suggestive?

In August 1996, officers of the DEA and RCMP showed photos of Montgomery, Marks, and McClain to Blondin. He identified Montgomery as the person who, using the name "Jim Luna," had purchased a large quantity of red phosphorous on a rush basis. Several weeks prior to trial, Blondin requested that the DEA fax him a photograph of Montgomery, to "have it right in [his] mind that [he] could identify Montgomery." He later called an agent at the DEA to inform her that the man in the photograph was Montgomery. Blondin pinned this photograph to the wall of his office and looked at it several times prior to testifying.

The day before Blondin was scheduled to testify, he entered the courtroom with a DEA agent and looked at Montgomery, who was seated at the defense table. Blondin testified that he asked the DEA agent to bring him into the courtroom so that he could "have it straight in my mind that Montgomery was the fellow that had purchased the chemicals from us...." Montgomery asserts that the combination of identification procedures--the initial photo-identification, the subsequent single photograph identification, and the one-on-one confrontation--was "unnecessarily suggestive and conducive to irreparable mistaken identification."

An identification procedure is suggestive when it "emphasize[s] the focus upon a single individual" thereby increasing the likelihood of misidentification. Bagley, 772 F.2d at 493 ("The repeated showing of the picture of an individual, for example, reinforces the image of the photograph in the mind of the viewer."); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ("The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned."). We agree with Montgomery that showing Blondin the photographs of Marks, McClain, and Montgomery, granting Blondin's request for a photograph of Montgomery, and permitting Blondin to view Montgomery in the courtroom the day before the witness was scheduled to testify, were suggestive procedures that emphasized the focus of the investigation on Montgomery as the person who purchased the red phosphorous.

The Court in Stovall explained that a suggestive pretrial identification procedure does not violate due process when use of the procedure is "imperative." See Stovall, 388 U.S. at 301-02, 87 S.Ct. 1967 (holding that a one person show-up in a hospital room of critically wounded victim did not violate due process where the record revealed that the suggestive confrontation was "imperative"). The issue before the Court in Stovall was whether the pretrial identification procedure was "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." Id. at 301, 87 S.Ct. 1967. We read Stovall to mean that an identification procedure is unnecessarily suggestive when its use is not imperative.

The record in the case before us is devoid of any indication that the Government's use of the suggestive identification procedures was imperative. The initial photo identification by Blondin took place one year after the purchase of red phosphorous by Montgomery. The Government had ample time to prepare a non-suggestive photographic array. The faxed photo identification and the in-court one-on-one confrontation were not compelled by any exigent circumstances. Accordingly, we conclude that the identification procedures employed by the Government were unnecessarily suggestive.

B. Was the in-court identification testimony sufficiently reliable under the totality of the circumstances?

"Should we find a pretrial procedure impermissibly suggestive, automatic exclusion of identification testimony is not required." Bagley, 772 F.2d at 492 (citing Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); and Biggers, 409 U.S. at 198-99, 93 S.Ct. 375). "If under the totality of the circumstances the identification is sufficiently reliable, identification testimony may properly be allowed into evidence even if the identification was made pursuant to an unnecessarily suggestive procedure." Id.

The factors we consider in deciding whether in-court identification testimony is sufficiently reliable are: (1) the witness's opportunity to view the defendant at the time of the incident; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the defendant; (4) the level of certainty demonstrated by the witness at the time of the identification procedure; and (5) the length of time between the incident and the identification. See Biggers, 409 U.S. at 199-200, 93 S.Ct. 375; United States v. Jones, 84 F.3d 1206, 1209-10 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996).

Blondin had ample opportunity to view Montgomery at the time Montgomery purchased the red phosphorous. Furthermore, because the large order for a key methamphetamine ingredient raised Blondin's suspicions, he made a point of gaining a detailed description of the purchaser. This description was later recorded by Blondin and faxed to the RCMP. The district court found that this description was "accurate." One year later, when presented with photos of Marks, McClain, and Montgomery, Blondin was able to make a positive identification of Montgomery as the purchaser.

We conclude that Blondin's in-court identification of Montgomery was sufficiently reliable as a matter of law, based on the factors set out in Biggers. See 409 U.S. at 199-200, 93 S.Ct. 375. Thus, the admission of Blondin's in-court identification testimony was not a violation of due process. The unnecessarily suggestive pretrial identification procedures did not create a "substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384, 88 S.Ct. 967.

Montgomery also contends that the fact that the DEA agent granted Blondin's request to take him to the courtroom to confirm the witness's initial photo identification of Montgomery violated his right to counsel. He argues that the right to counsel at a post-indictment lineup also applies to the eyewitness's observation of Montgomery in the courtroom the day before the witness was scheduled to testify.

Montgomery's argument can be summarized in this syllogism:

A defendant is entitled to counsel at a post-indictment lineup or show up.

The police permitted an identification witness to see Montgomery in the courtroom without notifying his attorney the day before the witness testified.

Therefore, Montgomery was deprived of his right to counsel at a critical stage of the criminal proceedings against him.

Montgomery has confused the adversarial confrontation that occurs when a defendant is compelled to participate in a police lineup or show up with the surreptitious observation of the defendant in the courtroom by an identification witness the day prior to his testimony.

In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the Supreme Court summarized the decisions interpreting the Sixth Amendment's guarantee of a right to counsel. The Court stated that "the core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." Id. at 309, 93 S.Ct. 2568. The Court instructed that the right to counsel applies to the formal trial, and to "pretrial events that might appropriately be considered to be parts of the trial itself." Id. at 310, 93 S.Ct. 2568. "The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself." Id. at 311, 93 S.Ct. 2568.

The Court has recognized arraignment as "a critical stage in a criminal proceeding" requiring the guiding hand of counsel to prevent a waiver of available defenses. Hamilton v. Alabama, 368 U.S. 52, 53, 82 S.Ct. 157. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the Court held that a preliminary hearing to determine whether there is sufficient evidence to warrant presenting the accused's case to a grand jury is a critical stage of a state's criminal process because a "lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over." Id. at 9, 90 S.Ct. 1999. Additionally, the Court reasoned that "[t]he inability of the ... accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the Alabama preliminary hearing is a 'critical stage' of the State's criminal process at which the accused is 'as much entitled to such aid [of counsel] ... as at the trial itself.' " Id. at 9-10, 90 S.Ct. 1999