United States of America v. Valentino Montgomery

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3096
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
V ALENTINO M ONTGOMERY ,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Western Division.
No. 02 CR 50075—Philip G. Reinhard, Judge.
____________
A RGUED M AY 21, 2004—D ECIDED D ECEMBER 3, 2004
____________
Before B AUER , K ANNE , and W OOD , Circuit Judges.
WOOD, Circuit Judge. Each Labor Day weekend, Rockford,
Illinois, hosts its annual “On the Waterfront” event, which
organizers proudly describe as “the grand-daddy of summer
festivals.” In September 2002, the event lost its festive
character for Valentino Montgomery when a police officer
noticed a handgun protruding from his pocket. Ultimately,
he was arrested and convicted for being a felon in posses-
sion of a firearm, in violation of 18 U.S.C. § 922(g)(1). On
appeal, Montgomery challenges his conviction on three
grounds, none of which we find persuasive. We therefore
affirm.

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2 No. 03-3096
I
On September 1, 2002, Rockford Police Detective James
Randall was working security at the On the Waterfront
festival in downtown Rockford when he noticed the butt of
a handgun sticking out of Montgomery’s rear pocket.
Detective Randall approached Montgomery, displayed his
badge, and then grabbed Montgomery’s right arm.
Montgomery tried to pull away, and the two began wres-
tling and fell to the ground. As Montgomery freed himself
and ran away, Detective Randall grabbed the gun from his
pocket. Montgomery was later found hiding in a closet in a
nearby apartment and arrested.
After Montgomery was brought to the Winnebago County
Jail, he agreed to speak to Detective Randall and was es-
corted to the Detective Bureau in the Public Safety Building.
Detective Randall and ATF Special Agent Steve Smith ad-
vised Montgomery of his rights using the standard Rockford
Police Department rights advisory form, which Montgomery
signed. Detective Randall then asked Montgomery if he knew
why the police had a warrant for his arrest. Montgomery
responded, “Yeah, because I got into it with you with that
gun—about that pistol.” Montgomery then informed
Detective Randall and Agent Smith that he had attended
the On the Waterfront festival on September 1, 2002; he
had a pistol with him that night, which he had purchased
a few months earlier; and he had brought the gun to the
festival for protection because he was a Stone gang member
and there had been tension recently between the Stones and
a rival Rockford gang, the Wacos.
On October 22, 2002, Montgomery was indicted on one
count of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). At trial, Montgomery presented
quite a different story. He denied that he had carried a hand-
gun at the festival and that he had confessed to having a
gun during his interview with Detective Randall and Agent

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No. 03-3096 3
Smith. The jury was not convinced; it convicted him and he
was sentenced to 120 months’ imprisonment and three
years of supervised release. This appeal followed.
II
A
Montgomery first argues that the district court erred in
allowing the government to impeach him with his six prior
felony convictions when he took the stand at trial. These
prior convictions were for the offenses of unlawful possession
of a controlled substance, unlawful possession with intent
to deliver cannabis, obstruction of justice, aggravated crim-
inal sexual abuse, unlawful possession with intent to deliver
cocaine, and unlawful failure to register as a sex offender.
F ED . R. E VID . 609(a) provides that, “[f]or the purpose of
attacking the credibility of a witness, . . . evidence that an
accused has been convicted of such a crime [i.e. one pun-
ishable by more than a year’s imprisonment] shall be ad-
mitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to
the accused.” In United States v. Mahone, 537 F.2d 922 (7th
Cir. 1976), we articulated a five-part test to guide the dis-
trict court in the exercise of its discretion in determining
whether the probative value of a conviction outweighs its
prejudicial effect: (1) the impeachment value of the prior
crime; (2) the point in time of the conviction and the wit-
ness’s subsequent history; (3) the similarity between the
past crime and the charged crime; (4) the importance of the
defendant’s testimony; and (5) the centrality of the credibil-
ity issue. See United States v. Hernandez, 106 F.3d 737,
739-40 (7th Cir. 1997) (citing Mahone, 537 F.2d at 929);
Rodriguez v. United States, 286 F.3d 972, 983 (7th Cir.
2002). “We emphasize, however, that these factors remain
a guide to the discretion of the district court; we shall in-
tervene only when the record establishes that the district

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4 No. 03-3096
court abused its discretion in deciding to admit the evidence.”
Hernandez,106 F.3d at 740.
In allowing the government to introduce Montgomery’s
prior convictions, the district court applied the Mahone fac-
tors. The court found that the first factor—the impeachment
value of the prior crimes—favored exclusion because none
of his convictions went to his truthfulness except the con-
viction for obstruction of justice based on his lying about his
age and allowing himself to be prosecuted as a juvenile
when he was an adult. As to the second factor— the timing
of the prior convictions and the witness’s subsequent
history—the court stated that this factor “does not help the
defendant” because “[a]ll are recent in time.” Furthermore,
as the charges Montgomery was facing involved a felon-in-
possession offense in 2002, his prior convictions, the earliest
of which was in 1995, easily fell within the ten-year period
of admissibility specified in F ED . R. E VID . 609(b). The court
then observed that the third factor—the similarity between
the past crimes and the charged crime— favored admission
because his prior convictions were not similar to his current
offense and thus would not tend improperly to suggest to
the jury any tendency on his part to commit the instant
offense. Turning to the fourth factor— the importance of the
defendant’s testimony—the court observed that such
testimony is “important in every case,” and, given Montgom-
ery’s indictment for being a felon-in-possession, the jury
would “know he’s a felon, anyway.” Finally, the court
considered the fifth factor, the centrality of credibility,
which it saw as the crux of the case in light of the conflict-
ing testimony about Montgomery’s statements during his
interrogation. Taking everything into account, the court
concluded that, while six “convictions has a pretty high
connotation of prejudice, . . . the probative value of a
person’s credibility is such that the jury is entitled to weigh
[it].” To guard against such prejudice, the court instructed
the jury on the limited purpose of this evidence both at the

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No. 03-3096 5
conclusion of the government’s cross-examination of
Montgomery and when it charged the jury.
On appeal, Montgomery concedes that his “credibility was
central to the issue of whether he possessed the pistol on
the night in question,” but nonetheless objects that “the
sheer weight of the number of prior felonies prohibited him
from receiving a fair hearing from the jury.” He thus argues
that the court “abused its discretion by allowing each and
every one of the defendant’s felony convictions to be used
for impeachment.”
We cannot find that the district court abused its discretion
in allowing Montgomery’s prior convictions to be admitted
into evidence. The court weighed each of the relevant factors
identified in Mahone and, in doing so, it reached a con-
clusion consistent with the law in this area. In United States
v. Nururdin, 8 F.3d 1187 (7th Cir. 1993), for example, we
considered whether the court abused its discretion in al-
lowing the government to impeach the defendant, who was
indicted as a felon-in-possession, with his four prior felony
convictions. We affirmed, noting that “[t]he trial court ex-
plicitly relied on the fourth and fifth factors: the importance
of the defendant’s testimony, and the centrality of the credi-
bility issue” because the “defendant and the officers offered
conflicting accounts of the events leading to defendant’s
arrest.” Id. at 1192 (internal quotation marks omitted). We
further observed that “any prejudicial effect that the intro-
duction of the prior felony convictions could have had was
overcome by the court’s limiting jury instruction, which
directed that this evidence could not be used to demonstrate
a propensity to commit crime, but could only be used to im-
peach the defendant’s testimony.” Id.; see also Hernandez,
106 F.3d at 740 (finding that the court did not abuse its
discretion in admitting a prior conviction because that
conviction was “valu[able] in assessing the credibility of the
defendant” and “the court’s instruction cautioned the jury
that the conviction was to be considered solely to assess the
credibility of the defendant”).

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6 No. 03-3096
As in Nururdin, the district court here correctly recog-
nized that even if some of the Mahone factors were neutral
or favored exclusion, the central role of Montgomery’s
testimony and the importance of his credibility strongly
favored the admission of his prior convictions. We have
recognized that “ ‘evidence that a witness has used illegal
drugs may so prejudice the jury that it will excessively dis-
count the witness’ testimony,’ ” United States v. Galati, 230
F.3d 254, 262 (7th Cir. 2000) (quoting United States v. Neely,
980 F.2d 1074, 1081 (7th Cir. 1992)), but there is no rule
barring such evidence. Furthermore, here the district court
took the precaution of providing a limiting instruction re-
garding this evidence to mitigate its prejudicial impact. See
Nururdin, 8 F.3d at 1192. Given the dissimilarity of Mont-
gomery’s current offense and his prior convictions; the recent
time frame of those convictions; the centrality of his credibil-
ity to the case; and the importance of his testimony contest-
ing Detective Randall’s account of his incriminating state-
ments, we are confident that the district court did not abuse
its discretion in admitting the prior convictions.
B
Montgomery next argues that the district court erred in
allowing into evidence his incriminating statements to the
police. He does not appear to challenge directly the district
court’s decision to credit the police officers’ testimony re-
garding the interrogation and their use of the Rockford Police
Department’s standard rights advisory form. Rather,
Montgomery “requests for many of the same reasons cited
in the Miranda opinion this court take the bold step of
bringing the Constitutional protections of our forefathers
into the 21st century.” Specifically, he asks us to expand the
scope of Miranda by finding his statements inadmissible
because his interrogation was not electronically recorded.

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No. 03-3096 7
It is true that legislation in this area is evolving. In some
states, including Illinois, there are now laws mandating
that police officers record certain custodial interrogations.
See, e.g., 725 ILCS 5/103-2.1(b) (2004) (establishing that
any oral or written statement of an accused shall be pre-
sumed inadmissible as evidence in a criminal proceeding for
homicide unless “an electronic recording is made of the
custodial interrogation” and such recording “is substantially
accurate and not intentionally altered”); T EX . C RIM . P ROC .
C ODE A NN . Art. 38.22 § 3(a) (Vernon 2004) (providing that
no oral statement of an accused “made as a result of cus-
todial interrogation shall be admissible against the accused
in a criminal proceeding unless [ ] an electronic recording . . .
is made of the statement” and “the recording device was
capable of making an accurate recording, the operator was
competent, and the recording is accurate and has not been
altered”); see also State v. Scales, 518 N.W.2d 587, 592
(Minn. 1994) (“[I]n the exercise of our supervisory power to
insure the fair administration of justice, we hold that all
custodial interrogation including any information about
rights, any waiver of those rights, and all questioning shall
be electronically recorded where feasible and must be
recorded when questioning occurs at a place of detention. If
law enforcement officers fail to comply with this recording
requirement, any statements the suspect makes in response
to the interrogation may be suppressed at trial.”). But no
one has intimated that these laws were constitutionally
required, and we see no hint that the Supreme Court is
ready to take such a major step. We therefore decline
Montgomery’s invitation to enlarge Miranda so as to re-
quire the electronic recording of all interrogations. As this
is his only argument challenging the admission of his state-
ments to the police, we conclude that those statements were
also properly brought into the case.

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8 No. 03-3096
C
Montgomery’s third and final argument on appeal arises
from the government’s introduction of evidence of his mem-
bership in the Stones gang. Montgomery urges us to find
that this evidence was so prejudicial that it had to be ex-
cluded under FED. R. EVID. 403, which says that “[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” Because
Montgomery did not object to the introduction of this evi-
dence at trial, however, he may prevail only if he establishes
that its admission met the exacting plain error standard.
United States v. Harris, 271 F.3d 690, 700 (7th Cir. 2001).
To establish plain error, Montgomery must show: (1) an
error; (2) that is plain; (3) that affected his substantial
rights; and (4) that seriously affects the fairness, integrity,
or public reputation of the judicial proceedings. United States
v. Moore, 363 F.3d 631, 639 (7th Cir. 2004) (citing United
States v. Olano, 507 U.S. 725, 732 (1993)). Montgomery has
not met these criteria.
“We are fully cognizant of the powerful nature of [gang-
related] evidence; when introduced by the government against
a criminal defendant, it can taint a defendant in the eyes of
the jury and also can establish criminal intent or agreement
to conspire. For this reason, in our review we examine the
care and thoroughness with which a district judge consid-
ered the admission or exclusion of gang-involvement evi-
dence.” United States v. Westbrook, 125 F.3d 996, 1007 (7th
Cir. 1997) (internal citation omitted); see also United States
v. Richmond, 222 F.3d 414, 417 (7th Cir. 2000) (“Evidence
of gang involvement must be considered carefully to avoid
undue prejudice.”). We recognize that “[g]angs generally
arouse negative connotations and often invoke images of
criminal activity and deviant behavior. There is therefore
always the possibility that a jury will attach a propensity
for committing crimes to defendants who are affiliated with

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No. 03-3096 9
gangs or that a jury’s negative feelings toward gangs will
influence its verdict. Guilt by association is a genuine
concern whenever gang evidence is admitted.” United States
v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996).
At the same time, “[w]e have consistently held that, under
appropriate circumstances, gang evidence has probative
value warranting its admission over claims of prejudice.” Id.
at 864; see also United States v. Butler, 71 F.3d 243, 251
(7th Cir. 1995) (collecting cases from this and other circuits).
In United States v. Sargent, 98 F.3d 325 (7th Cir. 1996), for
example, we held that the district court did not abuse its
discretion in admitting gang membership evidence where
the government argued that the defendant acted on behalf
of his gang in making the gun purchases that led to his
indictment and conviction, id. at 328-29. “Under the prosecu-
tion’s theory of the case,” we explained, “evidence of gang
membership was necessary to explain the motive behind the
crime charged, i.e. that [the defendant’s] gang membership
was the reason for the crime.” Id. at 328. See also United
States v. Lloyd, 71 F.3d 1256, 1265-66 (7th Cir. 1995)
(upholding admission of evidence showing gang affiliation
where it was used, in part, to explain the defendant’s
motivation for possessing a firearm). We cautioned in
Butler, however, that “[o]ur decision today should not be
construed as a blanket rule allowing the admission of gang
membership in all strict liability gun possession cases. We
hold only that . . . where there is a strong and direct link
between the gang activity introduced and the possession of
the firearm, that the district court did not err in finding the
evidence more probative than prejudicial.” 71 F.3d at 252
n.6.
As in Sargent, Lloyd, and Butler, there was a “strong and
direct link” between Montgomery’s gang membership and
his possession of a firearm at the On the Waterfront fes-
tival. Indeed, the record shows that Montgomery himself
first drew the connection in his statements to the police

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10 No. 03-3096
after he was taken into custody. According to the govern-
ment, Montgomery stated that he had brought the gun to
the festival because he was a member of the Stones gang
and “there had been problems with the other rival gang,
which are the Wacos.” Detective Randall also testified that
Montgomery told him that “he had brought the gun down to
the waterfront for protection.” Thus, Montgomery’s gang
membership “does make it more likely that he actually did
possess [the gun] and knowingly possessed it.” Butler, 71
F.3d at 251. Montgomery acknowledges that this is why the
government wanted to use the statements to the police. Yet
rather than arguing that no meaningful connection existed
between his statements to the police and his gang member-
ship, Montgomery only denies that he ever made such
statements and reiterates his argument that Miranda
mandates that his interrogation be recorded, which we have
already rejected. Montgomery does not suggest that the
introduction of his gang membership would have been
inappropriate if he had made the alleged statements.
In our view, the district court did not err at all, let alone
plainly err, in admitting the evidence of Montgomery’s gang
membership. The probative value of this evidence in estab-
lishing why Montgomery might have carried a weapon at
the festival substantially exceeded its prejudicial impact.
Furthermore, once again the district court took the useful
precaution of giving the jury a limiting instruction. The
court instructed: “You heard testimony of gang membership
of the defendant. This is admitted only as it relates to any
purpose or motive for possessing the pistol, and, of course,
it is up to you to determine whether he did possess the
pistol. This evidence cannot be considered by you for any
other purpose.” Such an instruction can help significantly
to mitigate the potentially prejudicial effect of gang-related
evidence. See Butler, 71 F.3d at 251 (emphasizing that the
court provided “a strong and careful instruction that the
gang testimony should only be used to determine whether

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No. 03-3096 11
[the defendant] possessed the gun, and not for any other
purpose”); Lloyd, 71 F.3d at 1265-66 (noting that the court
instructed the jury that evidence of the defendant’s gang
affiliation could be used “only for the limited purpose [ ] of
understanding . . . his motive to possess a firearm”). Given
the direct link between Montgomery’s gang membership
and his statements to the police as to his motivation for
carrying the gun, the limited purpose for which this
evidence was admitted, and the court’s instruction to that
effect, we cannot find that the district court plainly erred in
admitting this evidence.
D
In his final effort to secure relief, Montgomery asserts
that the district court erred in denying his motions for
judgment of acquittal and for a new trial. The only argu-
ments that Montgomery makes in support of this claim are
those we have already reviewed. As we have already found
those arguments to be without merit, we similarly reject his
effort directly to obtain an acquittal or a new trial on those
bases.
III
We therefore A FFIRM the judgment of the district court.

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12 No. 03-3096
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-3-04

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