United States v. Bernard Vincent Montgomery ( 1978 )

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 T 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 Apodaea, an alleged co-conspirator, which were inculpatory of Montgomery, at a time when the said Arthur Apodaea 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 Apodaea?

I.

Montgomery contends that the trial court erred in allowing Agent Espinosa to testify relative to a conversation he had had with Apodaea, inculpatory of Montgomery, at a time when Apodaea 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 Apodaea, who in effect became a witness against the appellant, by virtue of the introduction into evidence of a declaration by Arthur Apodaea 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. Apodaea. 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. Apodaea 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), 28 U.S. C.A., provides that a statement is not hearsay if made “by a co-conspirator of a party during the course and in the furtherance of the conspiracy.” The statements made by Apodaea to Espinosa were made by a co-conspirator during the course of and in furtherance of the conspiracy, i. e., when the undercover agents were in El Paso to pick up the stolen Peterbilt truck. We have repeatedly followed a similar standard. In United States v. Pennett, 496 F.2d 293 (10th Cir. 1974), we observed:

Hearsay statements of co-conspirators may be admitted against one another whenever the existence of the conspiracy is established by independent evidence. Mares v. United States, 383 F.2d 805 (10th Cir. 1967), cert. denied 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969). Under Mares, such statements must be made during the conspiracy in order to be admissible. We followed and expanded this general rule in United States v. Coppola, 479 F.2d 1153 (10th Cir. 1973), wherein we noted that statements of co-conspirators made during the “continuation” of the conspiracy are admissible. See also Green v. United States, 386 F.2d 953 (10th Cir. 1967). Such statements must, of course, be made in “furtherance” of the conspiracy. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Krulewitch v. United States, 336 U.S. 440. 69 S.Ct. 716, 93 L.Ed. 790 (1949); United States v. Coppola, supra.

496 F.2d, at p. 296.

See also : United States v. Jones, 540 F.2d 465 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977); United States v. Kramer, 521 F.2d 1073 (10th Cir. 1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1104, 47 L.Ed.2d 313 (1976). Under the circumstances presented herein the admission of Espinosa’s conversation with Apodaca was not erroneous.

II.

Montgomery contends that after the trial court had allowed Espinosa to testify relative to his conversation with Apodaca, the court should have allowed Montgomery to introduce the aforesaid exculpatory letter written by Apodaca to him dated August 7, 1976. Montgomery argues that the trial court had “an overwhelming responsibility in the interest of fundamental fairness” to allow the introduction of the letter. As noted, supra, the letter was not admitted by the trial court both because it is hearsay and because it was written long after the conspiracy had terminated, the latter ground constituting the basis of the Government’s specific objection thereto in compliance with the “specific” ground requirement of Fed.R.Evid. Rule 103(a)(1), 28 U.S.C.A. Following the in camera offer of proof made by Montgomery in relation to the admission in evidence of the Apodaca letter, counsel for Montgomery argued that the letter met the exception to the hearsay rule because “. . . it’s just like the testimony of the government, it is hearsay but it is co-conspirator’s statement.” [R., Vol. IV, p. 389.]

Although the letter proper was not included in the record on appeal, we hold that the trial court did not err in denying its admission in evidence. We deem it significant to note that Herrera testified that he and Apodaca told Montgomery that the Peterbilt belonged to Apodaca’s late father, clearly indicating that Montgomery was not aware that the truck was stolen. The letter, apparently, was an apology from Apodaca to Montgomery, in which Apodaca stated that he “felt bad about telling Bernard [Montgomery] a lie about the truck” since “[h]e might get him into trouble when he told him something that didn’t really happen.”

The Apodaca letter to Montgomery was offered in evidence without limitation. Thus, it could only have been offered to prove the truth of the matter asserted. It was clearly hearsay. Accordingly, it necessarily must have met the exceptions set forth in Fed.R.Evid.Rule 801(d)(1) or (2), 28 U.S.C.A. It did not. Montgomery’s counsel, at the time of his motion for admission of the letter, insisted on its admissibility inasmuch as “. . . it’s just like the testimony of the government [i. e., Espinosa’s testimony of statements made by Apodaca in his presence] it is hearsay but it is co-conspirator’s statement.” The motion was not well taken. The Espinosa testimony relative to remarks made by Apodaca was admissible because the remarks were made by “. . . a co-conspirator of a party during the course and in furtherance of the conspiracy.” Rule 801(d)(2)(E), supra. Beyond question, the letter from Apodaca to Montgomery was not written “. . . during the course and in furtherance of the conspiracy.” It could not have met the “four corners” of Rule 801, supra. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) the Supreme Court said:

It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. Lutwak v. United States, 344 U.S. 604, [73 S.Ct. 481, 97 L.Ed. 593]; Krulewitch v. United States, 336 U.S. 440, [69 S.Ct. 716, 93 L.Ed. 790]. The hearsay exception that Georgia applied in the present case, on the other hand, permits the introduction of evidence of such out-of-court statement even though made during the concealment phase of the conspiracy.

400 U.S., at p. 81, 91 S.Ct. at 216.

Dutton, supra, shows that the co-conspirator exception is alive and well after Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) in federal conspiracy trials. In Bruton, Evans and Bruton were convicted by a jury in a joint trial for armed postal robbery. A postal inspector testified that after Evans was arrested, he (Evans) orally confessed that he and Bruton committed the robbery. Evans did not testify at the trial. The trial court instructed the jury that it was not to consider Evans’ confession against Bruton because it was hearsay. The Supreme Court, in reversing, held that the risk that the jury may have relied upon the extrajudicial incriminating statements made by Evans was so great that, despite the trial court’s instruction to disregard them, Bruton’s right of cross-examination secured by the confrontation clause of the Sixth Amendment was violated. The statement made by Evans in Bruton which the Supreme Court held should not have gone before the jury was a past crime confession. It was not made during the actual commission of the crime. Thus, there is nothing in Bruton, supra, or Dutton, supra, indicating that the Supreme Court has retreated from or is inclined to upset the doctrine of the co-conspirator exception to the hearsay rule in federal prosecutions, i. e., that the act or declaration by one co-conspirator committed in furtherance of the conspiracy made during its pendency is admissible against each and every co-conspirator provided that a foundation for its reception is established by independent proof of the existence of conspiracy. McGregor v. United States, 422 F.2d 925 (5th Cir. 1970); United States v. Littman, 421 F.2d 981 (2d Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 448, 27 L.Ed.2d 438 (1971).

It is well settled that if an appellant fails to alert the trial court of claimed error, the issue cannot be raised for the first time on appeal unless “plain error” is held to apply. United States v. Guerrero, 517 F.2d 528 (10th Cir. 1975); United States v. Ray, 488 F.2d 15 (10th Cir. 1973); Fitts v. United States, 376 F.2d 516 (10th Cir. 1967); Fed.R.Crim.P. Rule 52(b), 18 U.S.C.A. We repeat that here Montgomery’s counsel moved for the admission of the Apodaca letter on the ground that . it’s just like the testimony of the government . it is co-conspirator’s statement.” The ground relied upon missed the mark. The trial court did not err in denying its admission. The admissibility of evidence is discretionary with the trial court and will not be disturbed on appeal unless clearly erroneous. United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied, 412 U.S. 929, 98 S.Ct. 2755, 37 L.Ed.2d 156 (1973); United States v. Acree, 466 F.2d 1114 (10th Cir. 1972), cert. denied, 410 U.S. 913, 93 S.Ct. 962, 35 L.Ed.2d 278 (1973).

Finally, it is clear that in determining whether the “plain error” rule should be invoked, the appellate court must consider the whole record. United States v. Walton, 552 F.2d 1354 (10th Cir. 1977), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977); Adams v. United States, 375 F.2d 635 (10th Cir. 1967), cert. denied, 389 U.S. 880, 88 S.Ct. 117, 19 L.Ed.2d 178 (1967). The record demonstrates, beyond dispute, that the matters contained in the Apodaca letter to Montgomery were already before the jury. These very matters were testified to by Herrera in the course of his direct examination. That being so, the contents of the letter were cumulative of evidence already presented in defense for consideration by the jury. Thus, the record discloses that the Apodaca letter to Montgomery was inadmissible. The substantial rights of Montgomery were not prejudiced. If any error occurred in this regard, it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

WE AFFIRM.