## Facts

- Bernard Vincent Montgomery was tried and convicted 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 Raymond Buxton was tried and convicted of conspiracy to distribute methamphetamine.
- A key witness, Lance Blondin (a Canadian chemical supplier employee), identified Montgomery as a buyer of large quantities of red phosphorus, a precursor used to manufacture methamphetamine.
- Before trial, Blondin identified Montgomery from photographs and later requested and reviewed an additional faxed photograph of Montgomery multiple times before testifying.
- The day before testifying, Blondin entered the courtroom with a DEA agent and looked at Montgomery to confirm his ability to identify him at trial.
- At trial, disputes included the propriety of Blondin’s in-court identification, the scope and content of conspiracy instructions (including Pinkerton liability), use of transcripts by the jury, and admission of Buxton’s prior drug-conspiracy conviction.

## Issues

1. Whether separate convictions for conspiracy to manufacture and conspiracy to distribute methamphetamine under 21 U.S.C. § 846 violated the Double Jeopardy Clause.
2. Whether pretrial identification procedures so tainted Blondin’s in-court identification that admission violated due process.
3. Whether the court committed reversible error by not instructing that a defendant cannot conspire solely with a government agent.
4. Whether the Pinkerton instruction failed to require that a co-conspirator’s substantive offense be reasonably foreseeable to the defendant.
5. Whether a conspiracy under 21 U.S.C. § 963 requires proof of an overt act, making the instruction deficient if it omitted that element.
6. Whether the conspiracy instructions misstated the knowledge requirement.
7. Whether giving the jury transcripts of material witness testimony was an abuse of discretion causing prejudice.
8. Whether informing the jury that certain charges against Buxton were dismissed for lack of evidence was reversible error.
9. Whether admitting Buxton’s prior methamphetamine conspiracy conviction under Federal Rule of Evidence 404(b) and Rule 403 was an abuse of discretion.

## Decision

- The Ninth Circuit largely affirmed the convictions and rejected most constitutional, evidentiary, and instructional challenges.
- The court held the separate § 846 conspiracy convictions did not violate double jeopardy because the evidence supported distinct agreements.
- The court upheld Blondin’s in-court identification, finding the procedures were not so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.
- The court found no reversible error in declining to give a stand-alone instruction that one cannot conspire solely with a government agent, given the instructions and evidence as a whole.
- The court upheld the Pinkerton instruction, concluding it adequately required that the substantive offense be within the scope of the conspiracy and reasonably foreseeable as a natural consequence of the unlawful agreement.
- The court held 21 U.S.C. § 963 does not require proof of an overt act; omission of an overt-act element was not error.
- The court rejected challenges to the conspiracy knowledge instructions, concluding they correctly required knowledge of the conspiracy’s unlawful objective.
- The court held providing the jury with trial transcripts was within the district court’s discretion and did not warrant reversal.
- The court found no reversible error in informing the jury that some charges against Buxton had been dismissed for lack of evidence.
- The court upheld admission of Buxton’s prior conviction under Rule 404(b), concluding it met the circuit’s admissibility test and survived Rule 403 balancing.
- The court vacated one conviction and remanded for limited corrective action, but did not order a new trial.

## Legal Principles

- Multiple conspiracy convictions under the same statute do not violate double jeopardy when the government proves separate agreements rather than a single, unitary conspiracy.
- Eyewitness identification evidence violates due process only when the identification procedure is impermissibly suggestive and creates a very substantial likelihood of irreparable misidentification; reliability factors control admissibility.
- Failure to give a particular defense instruction is not reversible error when the charge, read as a whole, adequately covers the defense theory and the omission does not prejudice the defendant.
- Under Pinkerton, a conspirator may be liable for substantive offenses by co-conspirators when the offense was committed in furtherance of the conspiracy, within its scope, and reasonably foreseeable as a natural consequence of the unlawful agreement.
- Drug conspiracies under 21 U.S.C. §§ 846 and 963 do not require proof of an overt act unless Congress expressly imposes that element.
- Admission of other-acts evidence under Rule 404(b) requires a non-propensity purpose, sufficient similarity and proof, reasonable temporal proximity, and Rule 403 balancing against unfair prejudice; appellate review focuses on abuse of discretion.
- A district court has discretion to permit jurors access to transcripts of trial testimony, subject to safeguards against undue emphasis and prejudice.

## Conclusion

The Ninth Circuit upheld the defendants’ methamphetamine conspiracy convictions against challenges to double jeopardy, identification procedures, conspiracy and Pinkerton instructions, jury access to transcripts, and Rule 404(b) evidence, vacating only a single conviction for limited corrective proceedings without ordering a new trial.


United States v. Montgomery, 150 F.3d 983 (9th Cir. 1998)