United States v. Robert Montgomery

23 F.3d 1130, 1994 U.S. App. LEXIS 9552, 1994 WL 160392
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 2, 1994
Docket93-1279
StatusPublished
Cited by13 cases

This text of 23 F.3d 1130 (United States v. Robert Montgomery) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert Montgomery, 23 F.3d 1130, 1994 U.S. App. LEXIS 9552, 1994 WL 160392 (7th Cir. 1994).

Opinion

BAUER, Circuit Judge.

This case involves the unfortunate combination of a home for convicted child molesters and homeless veterans, a night out with the boys at a local tavern, a feeble attempt at a cross-burning, and the vandalization of a car. Among other things, this mix resulted in the conviction of Robert Montgomery for conspiring to interfere with civil rights and interfering with civil rights in violation of 18 U.S.C. § 241, 42 U.S.C. § 3631(b)(1), and 18 U.S.C. § 2. The district court sentenced Montgomery to a prison term of thirty months. Montgomery appeals.

I.

In 1988, Patsy McCormick opened McCormick Place in Indianapolis, Indiana as a residential treatment center for convicted child molesters. McCormick Place was located in the heart of an all-white neighborhood known as the “Valley.” From its opening until mid-1991, all the residents of McCormick Place were white, and the neighbors apparently had no objection to their presence. In June 1991, however, the center was converted to a shelter for approximately 40 homeless, veterans, about sixty percent of whom were black. Problems began shortly after the black veterans arrived at McCormick Place. The residents of the shelter were not popular with some of the Valley’s residents.

At about 4:00 p.m. on July 28, 1991, a group of men went to a neighborhood tavern, Hoffa’s, and began drinking. The bar teemed with discussion of McCormick Place *1132 and its child molesters and blacks, who they repeatedly described .as “niggers.” Among those at Hoffa’s were Torrence Ingram, Donald (Pete) Viles, Don Wolf, Gary Trent, Kenneth Fallen, Shawn Branham, and Montgomery. Viles suggested that they build and burn a cross in order to scare the blacks who lived at the shelter. That way, he hoped, they would be scared into leaving the neighborhood. Montgomery played pool while Ingram, Viles, and Fallen plotted the details.

Hoffa’s closed at midnight and the group went to a party at the nearby home of Fallen and Trent. At the party, several individuals, including Montgomery, sat around the kitchen table and spoke about the shelter for about twenty minutes. Viles said that he was “ready to go do something about the shelter” and that he wanted to burn a cross to scare the blacks and child molesters away. Ingram agreed and he and Viles went outside and began to build a large cross out of a pair of two-by-fours. Ingram and Viles put the two boards together to make a cross. Ingram held the two-by-fours together while Viles hammered nails in them. Once they finished building the cross, Viles asked Fallen and Trent if they had anything that they could wrap around the cross to ensure that it would ignite and burn. Trent wanted no part of the cross-burning, and he left the party with Chantal Warren. Fallen, however, brought some curtain material and gave it to Viles. In the presence of Montgomery and others, Viles wrapped the cross with the curtain material.

Montgomery, Viles, Fallen, Ingram, and a few others marched the four blocks to McCormick center with the cross, which was between six and seven feet tall. Once they arrived at the shelter, Ingram picked up a brick and used it to pound the cross into the ground while Viles tried to ignite the cross. Montgomery and Fallen scurried around to the front of the shelter and attacked Patsy McCormick’s parked car. They hit it, kicked it, broke the car’s windows, and scraped the ear’s paint. Ingram yelled at Montgomery and Fallen to stop because, as he put the matter, “we weren’t there to tear up nobody’s car, the car had no part in it, and I heard glass breaking.” The cross never burned brightly as hoped, but only smoked and smoldered.

David Klemenz, the shelter’s security guard, was awakened by all the ruckus. Klemenz woke McCormick, explained the situation to her, and warned that they were in a lot of trouble. McCormick looked outside and saw the cross. “It was terror,” she told the jury. Klemenz opened a door and yelled, “Hey, what are you doing?” Some of the members of the mob had left, but those that remained panicked and ran back to Fallen’s apartment.

Later that morning, Montgomery and Fallen went to Warren’s home looking for Trent. When they arrived, they knocked on a window. When Trent came to the window, Fallen told him that they “went down there and burnt the cross.” Montgomery laughed at this. The jury did not. It convicted Montgomery.

II.

Montgomery raises two issues on appeal. First, he contends that there was insufficient evidence to convict him for the burning of the cross and the vandalization of McCormick’s car. Second, Montgomery complains that his trial counsel was ineffective.

We begin with the insufficient evidence claim. We will uphold the conviction if after we review all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Chandler, 12 F.3d 1427, 1432 (7th Cir.1994). Unless there is no evidence from which the jury could have returned a guilty verdict, the conviction will stand. United States v. Hernandez, 13 F.3d 248, 251 (7th Cir.1994).

Montgomery argues that the evidence in this case shows that he merely knew about but did not participate in the planning and execution of the cross-burning and vandalization. Our review of the record, however, indicates that Montgomery played an active role in the conspiracy. While perhaps not the ringleader, Montgomery went along with and participated in the cross-burning. Testimony in the case reveals that Montgomery *1133 sat at Fallen’s kitchen table and discussed doing “something about the shelter,” including building a cross to scare its residents out of the neighborhood. Ingram and Viles built the cross; Montgomery joined them (and others) in the trek to the shelter. He did more than just passively go along with the cross-burning. Moreover, he was not content to just stand there while Ingram and Viles readied the cross for burning. Montgomery, joined by Fallen, walked to Patsy McCormick’s car and started beating it. According to Ingram, “Robert Montgomery was on the passenger side and on the right front side hitting it with something and kicking the ear.” The jury by its verdict believed Ingram and the testimony of other witnesses, including many of Montgomery’s co-conspirators, and returned a guilty verdict. The overwhelming evidence of Montgomery’s role in the planning and participation of this crime is easily sufficient to support Montgomery’s conviction.

Montgomery’s other claim, which he raises for the first time on appeal, is that his lawyer’s performance was so ineffective that he was denied his constitutional right “to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. Ordinarily, such claims are better addressed to the district court, either by a motion for a new trial or in collateral proceedings.

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Bluebook (online)
23 F.3d 1130, 1994 U.S. App. LEXIS 9552, 1994 WL 160392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-montgomery-ca7-1994.