Petition — Gomez-Rojas v. United States

<i ases

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74 - 1348

ROBERTO GOMEZ-ROJAS,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GUS RALLIS

Attorney at Law

1011 North Mesa Street

E] Paso, Texas 79902

TABLE OF CONTENTS

Page

i a ees 1

IRAE, RENE Ree or ry ree oe ee oe 2

QUESTIONS PRESENTED ..................ce00.: 2

CONSTITUTIONAL PROVISION ................. 2

Re GE WUMEFEED 6 vc cdencccncescanescccces 3

REASONS FOR GRANTING THE WRIT .......... 8

RE EEK Oe PE Name een Bes Tomes 18

APPENDIX

Opinion of the U.S. Court of Appeals, 5th

PT Gbstuaddiecdwescenbddslivetosndiunt cuales la

Judgment and Commitment ................... 21a

Order Modifying the Sentence ................. 24a

Order Denying Petition for Rehearing ........ 26a

TABLE OF AUTHORITIES

Cases:

California v. Green, 399 U.S. 149 (1970) ............ 9

Roviaro v. United States, 353 U.S. 53, at 6

COE hnbu dhvacddsencenradesducesidoncbbenniaeens 15

Sherman v. United States, 356 U.S. 369 (1958) .... 15

Sorrells v. United States, 287 U.S. 435 (1932)...... 15

Gomez-Rojas v. United States, 507 F.2d 1213,

SE “goss cece cuit ence os 2,11,15

McLawhorn v. State of North Carolina, 484

ee E,W 5 cod ney 46644540 6b0bU 6 buedes 12

ii

TABLE OF AUTHORITIES (Continued)

Page

United States v. Bueno, 447 F.2d 903, 906 (5th

EE OO condeecnelne cued see eee lo 15,16

United States v. Bueno, 470 F.2d 154 (5th Cir.

1972), cert. denied, 411 U.S. 949 (1972) .......... 17

United States v. Mosley, 496 F.2d 1012 (5th Cir.

MT Ue Cha lecuuegude sc ncweueuces dened otek 16,17

United States v. Oquendo, 490 F.2d 161 (5th

DT Uses cesudeucari cud yicaaderear ter etrat 17

United States v. Russell, 411 U.S. 423 (1973) ..... 15

United States v. Soto, 504 F.2d 557 (5th Cir.

Ris eae hae hia wala ears ati Pie eis od 17

United States v. Waddell, 507 F.2d 1226, (5th

Cir. Siver. Gir Fee GS GRE M. Bink cccccccccccccce 17

Ysaga v. State. 444 S.W.2d 305 (Crim. App.

SE Mi Set eNekeu SAREE oteb eau eee eb ok kd 11

Miscellaneous:

24 Tex. Jur. 2d. Evidence, Sec. 745, p. 427......... 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No.

ROBERTO GOMEZ-ROJAS.

Petitioner.

versus

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals, Fifth Circuit

The Petitioner, ROBERTO GOMEZ-ROJAS.

respectfully prays a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Fifth Circuit entered in this

proceeding on November 27, 1974.

OPINION BELOW

The opinion of the Court of Appeals is reported in

907 F.2d 1213 (Sth Cir. 1974), and appears in the appen-

dix hereto. A copy of the Order denying the Petition for

a Rehearing, entered March 26, 1975, also appears in

the appendix.

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on February 10, 1975. A Petition

fora Rehearing was timely filed and an Order denying

the Petition for Rehearing was entered on March 26,

1975. This Petition for Certiorari was timely filed

within thirty (30) days of that date. This Court's

Jurisdiction is invoked under Title 28, United States

Code, Section 2154(1).

QUESTIONS PRESENTED

I

Whether Fundamental Fairness requires the

production at new trial of a known and available

government informant who instigates the criminal

activity when the case against a Defendant is cir-

Cumstantial.

II

Whether the Sixth Amendment Right to Confronta-

tion in the context of the Bueno defense of entrapment,

compels the production at new trial of an available

government informant who instigates the criminal]

activity and who Supplies the contraband which forms

the basis of conviction of a co-defendant.

CONSTITUTIONAL PROVISION

The following portion of the Sixth Amendment of

the Constitution of the United States:

3

In all criminal prosecutions, the accussed

shall enjoy the right. . . to be confronted with

the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor...

STATEMENT OF FACTS

This case involves two defendants, ROBERT

GOMEZ-ROJAS and MICHAEL RECE SUTHERLIN.

Appellants were convicted of violation of 21 U.S.C.

841(a)(1) and 21 U.S.C. 846. The Fifth Circuit. on direct

appeal reversed and remanded the conviction of

MICHAEL RECE SUTHERLIN. Only co-defendant

ROBERTO GOMEZ-ROJAS petitions this Court.

The facts involve the interplay between three

characters: Agent DeHoyos, posing as a buyer of

marijuana; the informant, George Smith. the

purveyor of the marijuana: and co-defendant

Sutherlin, who was solicited as the middle man. On

November 12, 1974, at approximately 5:30 p.m..

Michael Rece Sutherlin was introduced to Phillip

DeHoyos, an undercover agent of the Drug Enforce-

ment Agency (DEA), by an individual named George

Smith. (Tr. 25)* The purpose of the meeting was to

negotiate a marijuana transaction which was ul-

timately consumated and which became the basis for

the convictions of both MICHAEL RECE

SUTHERLIN, and Petitioner ROBERTO GOMEZ-

ROJAS. The role of the informant, George Smith. both

before and after the above described meeting was

* References are to the unprinted trial record submitted before

the Fifth Circuit and certified to this Court by the Clerk of the Fifth

Circuit.

4

crucial. The informant supplied and planted the con-

traband and was an active participant in and in-

stigator of the criminal activity. The testimony was

uncontradicted that after a telephone conversation

between Agent DeHoyos and George Smith on the

afternoon of November 12, 1974, (Tr. 24) Smith took co-

defendant Sutherlin to the Royal Inn Motel in El Paso,

Texas, and introduced co-defendant Sutherlin to

DeHoyos. (Tr. 25) Agent DeHoyos and several sur-

veilling DEA agents testified that DeHoyos, posing as

the buyer, and Sutherlin left the motel room and went

to the motel parking lot to count a sum of cash which

Agent DeHoyos had been given to purchase mari-

juana. (Tr. 25-27, 86, 107, 115) The marijuana was taken

from the trunk of George Smith's automobile.

The second of three meetings between co-defendant

Sutherlin and Agent DeHoyos occurred about one

hour later at Denny's Restaurant on Mesa Street in El

Paso, Texas. This second meeting consisted of further

conversations between the two and Sutherlin in-

structed DeHoyos to have George Smith rentacarand

bring it to Denny’s. (Tr. 32) DeHoyos did instruct the

informant, Smith, to obtain the rented car, (Tr. 32) and

pursuant thereto Smith brought to Denny’s a light

brown, beige Ford which had been rented (Tr. 32, 89-90,

136) Because of the prosecution's efforts to prevent the

production of Smith, the defense was unable to es-

tablish if the car was rented in Smith s name.

Agent DeHoyos testified that at this second meeting

with co-defendant Sutherlin, a vehicle entered the

parking lot driven by Petitioner Gomez-Rojas and

Sutherlin said, “That is my man” and then went to the

a

5

parking lot. (Tr. 30-31) Other agents testified that they

observed Sutherlin talking to Petitioner Gomez-Rojas

in Denay’s parking lot. (Tr. 118-1 19) This isthe point at

which the complicity of Petitioner Gomez-Rojas is

raised. This is the only evidence to connect Gomez-

Rojas with criminal activity. The testimony varied as

to the number of conversations between Sutherlin and

Gomez and as to the duration of the conversations. (Tr.

118-119, 88-89) Both Gomez-Rojas and Sutherlin ex-

plained in their trial testimony the purpose for and the

contents of the conversations. (Tr. 2.5, 2.9-220. 306. 309)

Sutherlin also denied his alleged extra-judicial state-

ment: “That is my man,” (Tr. 254, 275-276) which the

prosecution used to connect GOMEZ-ROJAS with the

drug transaction.

After the second meeting at Denny’s Restaurant.

Sutherlin instructed Agent DeHoyos to drive the ren-

tal vehicle and follow Sutherlin approximately 1/2

mile down Mesa Street and leave the vehicle in the

parking lot of Sambo’s Restaurant, also located on

Mesa Street in El] Paso, Texas. (Tr. 34) DeHoyos ac-

companied by George Smith. left the vehicle as in-

structed and then Sutherlin drove both DeHoyos and

Smith back to the Royal Inn Motel. (Tr. 34)

The third meeting between DeHoyos and Sutherlin

occurred later that evening at approximately 10:00

p.m. at the same Denny's Restaurant. (Tr. 35) The pur-

pose of this meeting was to consumate the de! ivery of

approximately three hundred (300) pounds of mari-

juana provided by Smith in exchange for $22,500

provided by the government. (Id.) After some discus-

sion, Sutherlin proceeded to the Desert Hills Motel on

Mesa Street, followed by Agent DeHoyos and a sur-

veilling DEA agent. (Tr. 35) Upon entering the motel

parking lot, Sutherlin indicated that the rental vehicle

was present and that the trunk was loaded with the

contraband. (Tr. 36) Sutherlin instructed Agent

DeHoyos that the keys would be in the ash tray and

that after Agent DeHoyos had inspected the contents

of the trunk he was to give the cash to Sutherlin. (Id.)

Immediately after DeHoyos inspected the marijuana,

Sutherlin was arrested. (Tr. 36) Simultaneously,

Petitioner Gomez-Rojas was arrested in a vehicle

parked in the same parking lot approximately one

hundred (100) feet from the rental vehicle which con-

tained the marijuana. (Tr. 79, 111-112. 143) George

Smith also was arrested.

There was testimony from several DEA agents who

corroborated the testimony of Agent DeHoyos as to

the above described meetings, (Tr. 93, 112. 113, 154) but

none were able to testify as to the conversations. There

was also testimony that after the rental vehicle was

dropped off at Sambo’s Restaurant. by the informant, a

person dressed like Petitioner Gomez-Ro jas was seen

transferring the vehicle across the street to a shop-

ping center parking lot. (Tr. 123) However. neither of

the two agents who witnessed the transfer was able to

positively identify the driver as Gomez-Rojas. (Tr.

140, 152) One surveilling agent, John Nattinger,

testified that he saw Gomez-Rojas get into the rental

vehicle, (Tr. 151) but he described the vehicle as agold

colored Chevrolet Impala and not a beige Ford. (Tr.

160) It was not established at what point the contra-

band was loaded into the rental vehicle, nor whether

Gomez-Rojas or the informant, Smith. loaded the

7

vehicle. The location where Gomez-Rojas was

allegedly seen in the gold Chevrolet Impala was next

door to Rudolph Chevrolet (Tr. 310) where Gomez-

Rojas was employed as a salesman of new Chevrolet

automobiles. (Tr. 302)

At trial Sutherlin testified in his own behalf to facts

substantially as those testified to by government

agents. (Tr. 204-276) In addition, he was able to

elaborate substantially upon the role of the informant.

George Smith, in the marijuana transaction. (Tr. 190-

276) Sutherlin testified that he was approached by

George Smith to be a middle man in a marijuana sale

(Tr. 192-204) and that Smith would introduce Sutherlin

to a buyer, Agent DeHoyos, and would supply the

marijuana. (Tr. 197) The involvement of George

Smith, as testified to by government agents. (Tr. 24, 25.

26, 27, 32, 35, 47, 50, 52, 54, 64-65, 89, 99, 100, 113, 150, 362)

and his role, as testified to by Sutherlin, (Tr. 192-276)

amounted to entrapment as a matter of law: therefore.

the government should have been obligated to call

George Smith as a witness to rebut these allegations.

Both defendant's subpoenaed George Smith (Tr. 40)

and attempted to call him as a witness, (Tr. 352) the

Trial Court released the said George Smith from the

subpoena and repeatedly ordered both defense counsel

to refrain from advising the jury of the subpoena and

to refrain from any questioning concerning George

Smith's role in the transaction. (Tr. 14, 15, 16)

Appellant Sutherlin further testified that Gomez-

Rojas had no knowledge nor complicity in the mari-

Juana transaction. (Tr. 190-276) Sutherlin testified that

he had spoken briefly with Gomez-Rojas at Denny's

Restaurant, asked to meet him later that evening at the

Desert Hills Motel, for the purpose of giving Sutherlin

a ride home. (Tr. 219-220) Sutherlin testified that the

idea to commit the crime was initiated by George

Smith (Tr. 228) and that Smith supplied the marijuana.

(Tr. 202) Neither defense counsel was permitted to

develop the role of George Smith as an informer or

agent of the DEA nor his relationship with DEA

agents in this case. (Tr. 14-18, 45, 46, 47, 48, 49, 50.51, 54,

61, 62, 65, 66, 67, 81, 176, 179, 184, 195, 363, 391, 401, 402)

Gomez-Rojas testified that he was not involved in

the marijuana transaction (Tr. 326), was present at

Denny's Restaurant by mere coincidence, (Tr. 307),

and was present at the Desert Hills Motel at the re-

quest of his friend Sutherlin. (Tr. 312)

Throughout the trial, the presiding Judge denied

counsel for each defendant the opportunity to es-

tablish the defense of entrapment and the related Sixth

Amendment issue of the confrontation of George

Smith. (Tr. 8. 9, 10, 11, 14, 15, 16, 18, 31, 42, 44, 45, 46, 47,

48, 49. 50, 51, 54, 55, 56, 57, 58, 61, 62, 65, 66, 67, 68, 74, 75.

81, 83, 125, 156. 175, 176, 178-179, 181, 184, 186, 195, 229,

262, 278, 328, 320, 350-351, 352, 354-355, 358, 363, 365, 366.

391, 401, 402, 431, 432, 439-440, 444).

REASONS FOR GRANTING THE WRIT

The following is precisely the first point of law

which Defendant's Roberto Gomez-Rojas and Michael

Rece Sutherlin presented on appeal (Brief of

Appellants. 6):

9

POINT ONE

The Trial Court Erred In Overruling

Appellants’ Repeated Requests For The Dis-

closure Of The Informant In This Case In

Violation Of Appellants’ Right To A Fair Trial

And Confrontation Of Witnesses Against

Them, Such Non-Disclosure Effectively

Precluding Appellants’ Defense On The

Grounds Of Entrapment.

George Smith was the police informant and an ac-

tive participant and the supplier of the marijuana.

“Both [defendant's] herein subpoenaed George Smith

(R. 40) and attempted to call him as a witness (Tr. 353),

the Trial Court released the said George Smith from

the subpoena and ordered both defense counsel to

refrain from advising the jury of the subpoena «nd to

refrain from any questioning concerning George

Smith's role in the transaction. (Tr. 14, 15, 16). (Brief

of Appellants, 5)

The Fifth Circuit in its opinion, 507 F.2d 1213, did not

address the Sixth Amendment right to the confronta-

tion of George Smith, the agent-provacateur in this

“sordid spectacle of the Government selling mari-

juana to itself.” The most important point of error

argued by both defendants was the denial of the oppor-

tunity to confront George Smith,' a unique and

1 Appellants insist on the fundamental! right to confront for a

threefold purpose: (1) to insure reliability by means of the oath; (2)

to expose the participant-informant to the probate of cross-

examination; and (3) to permit the trier of fact to weigh the

demeanor of the witness in determining his credibility. Cf. Califor-

nia v. Green, 399 U.S. (1970).

10

material witness, and indeed the only unindicted

witness who could present the jury with direct

testimony as to the guilt or innocence of Petitioner,

Gomez-Rojas. In addition to the denial of general

Sixth Amendment protections, there are two specific

ramifications of denying a criminal co-defendant the

right to confront an informant when he is an active

participant in the alleged criminal activity and

provides the contraband: first, denial of fundamental

fairness when the prosecution has an informant readi-

ly available, has an obviously weak circumstantial

case, yet for unknown reasons refuses to produce ex-

culpatory testimony, and second substantial pre-

judice to the co-defendant’s exculpatory testimony.

I

Denial of Due Process

The right to confront an informant such as Smith

(which can only be defeated by Smith's Fifth Amend-

ment privilege) is militated by the circumstantial case

presented. The Fifth Circuit noted:

Much of the evidence against Gomez-Rojas

tends only toestablish his guilt by association

with Sutherlin... 507 F.2d at 1222

... the evidence against the defendant... is

completely circumstantial. 507 F.2d at 1223

Although circumstantial evidence against

him is far from over whelming., it is sufficient

to sustain the jury verdict. 507 F.2d at 1224

11

The informer's privilege stands in pale contrast to the

Defendant's right of confrontation and right to a fair

trial, especially where there is only circumstantial

evidence presented and the participant-informant is

readily available. Where the circumstantial evidence

relied on by the prosecution is obviously weak. and

where the record on appeal affirmatively shows not

only that other testimony which would have cast ad-

ditional light on the facts was available to the prosecu-

tion, but also that the prosecution failed to introduce

such other evidence or satisfactorily account for its

failure to do so, the appellate court should treat the

case 1s one showing reasonable doubt of the sufficien-

cy of the evidence to support the conviction.? Even if

the federal courts are not to give this particular con-

struction to the facts presented by Gomez-Rojas. it

cannot be doubted that the failure to produce the infor-

mant strongly suggests that his testimony would be

favorable to the Defendant.

If Smith is not compelled to testify then this would

allow the government effectively to cover up its

nefarious activities by having its instigator-

informers take the Fifth with or without valid basis for

invoking the privilege. This is not a practice that this

Court can lightly sanction. It is submitted that the

government had no intention of prosecuting its agent-

provacateur, even though he was arrested along with

defendant's Gomez-Rojas and Sutherlin and was a

member of the alleged conspiracy: therefore, Smith

could not validly claim the Fifth. Perhaps Smith has

2 This is the Texas evidence standard in such cases. 24 Tex.

Jur. 2d, Evidence, Sec. 745, p. 427; Ysaga v. State, 444S.W. 2d 305

(Crim. App. 1969). Although this is certainly notcontrolling in this

case, it does provide an interesting insight.

~

12

been given immunity, which would explain why he

was not prosecuted.

These questions remain unanswered because of an

apparent cover-up by the government. There can be no

merit in the allegation that the government is trying to

protect its informant because his identity is well

known. The Fifth Circuit remanded for a determina-

tion of the parameters of Smith’s privilege against

self-incrimination, whether real or imagined, in the

context of co-defendant Sutherlin’s entrapment

defense. Gomez-Rojas also insisted on his right to

confront George Smith, and that the parameters of

Smith's privilege should, a fortiori, be determined in

the context of Gomez-Rojas’ claim that he was denied

a fair trial. Petitioner asks that this Court remand fora

new trial to determine the propriety of Smith's

privilege against self-incrimination vis-a-vis Gomez-

Rojas.

In sum, the production of Smith ata new trial is com-

pelled by the rationale of McLawhorn v. State of North

Carolina, 484 F.2d 1 (4th Cir. 1973):

|W jJhere the informant is an actual participant,

and thus a witness to material and relevant

events, fundamental fairness [Fifth Amend-

ment Due Process] dictates that the accused

have access to him as a potential witness.

(emphasis added) 484 F.2d at 5.

George Smith was no “mere tipster.’ George Smith

should have been produced before the jury, he should

have been questioned under oath, and the defense

——— A

13

should have been allowed not only cross-examination

but comment on Smith's leading role in the alleged

criminal activity. Not to put the instigator-informant

on the stand is to deny the jury demeanor evidence

reliable under oath. The Defendants are also entitled to

a jury charge on Smith's complicity. It is impossible

to second guess the jury s findings in such aclose cir-

cumstantial case without the undoubtedly meaningful

testimony of the informant.

II

Prejudice of Inability to Present Entrapment Defense

The most important point urged by Petitioner is that

the Bueno defense of entrapment inures to his benefit.

It was not the disclosure of the informant (his identity

was known to both defendants who subpoenaed him),

nor the confrontation clause, which resulted in partial

reversible error in this case. Rather, the issue was

narrowed by the Fifth Circuit to whether Smith's

claim for privilege was well founded since “the dis-

trict court excused Smith without the slightest in-

quiry into the legitimacy or scope of his [Smith's]

refusal to testify.” As the Fifth Circuit stated:

If the [trial] court finds that Smith cannot

properly invoke the Fifth Amendment with

respect to any relevant and material questions

which Sutherlin proposes to ask him, then

Smith must testify at the new trial. If on the

other hand, the Court finds that Smith may

legitimately refuse to answer .. . then the dis-

trict court must decide in its informed discre-

en

14

tion whether in light of Sutherlin’s entrape-

ment defense, Sutherlin should be allowed to

elicit Smith's refusal to testify before the jury

or to comment on that refusal. 507 F.2d 1213,

1220 (5th Cir. 1975) (emphasis added).

The Fifth Circuit also stated:

Sutherlin’s complaint involves a complex in-

terplay between the law of entrapment the in-

former's privilege and Smith's Fifth Amend-

ment right against self-incrimination. 507

F.2d 1213, 1217 (5th Cir. 1975) (emphasis add-

ed).

In the evaluation of an informer's privilege and his

right against self-incrimination the Court overlooked

that the balancing interest is not just the defense or en-

trapment but also the Defendants’ right to prepare

their defense throughout the compulsory process and

confrontation clauses of the Sixth Amendment.

With respect to Sutherlin, it is essential that there be

effective cross-examination of the police informer

since it is well established that such confrontation is

the most fruitful means of adducing entrapment

testimony. As for Gomez-Rojas. his defense was inex-

tricably interwound with Sutherlin’'s defense because

both were before the same jury. Although it may be

argued that Gomez-Rojas might not be able to assert

entrapment which was framed by Sutherlin in the first

point of error. whatever evidence was presented to the

jury in support of the entrapment defense quite clear-

ly would reflect upon Sutherlin’s credibility. This

15

would not only enhance Sutherlin’s exculpatory

testimony about co-defendant Gomez-Rojas. but

reflect on Gomez-Rojas himself as well. The

testimony of Smith was “significant” for both defen-

dants. Cf. Roviaro v. United States, 353 U.S. 53, at 62

(1957).

The Fifth Circuit has enunciated a rule of entrap-

ment which is substantially different from that enun-

ciated by this Court inthe Sherman and Sorrells cases.

Sorrells v. United States, 287 U.S. 435 (1932): Sherman

v. United States, 356 U.S. 369 (1958). The Bueno

defense, that entrapment is found as a matter of law

when the government provides the contraband. is unl-

que to the Fifth Circuit, and appears in conflict with

this Court's opinion in Russell. United States v.

Russell, 411 U.S. 423 (1973). The degree of police par-

ticipation can amount to entrapment as a matter of

law, although this court seemed to reject this proposi-

tion in Russell. But because the Fifth Circuit main-

tains the viability of Bueno, and because this is a

Bueno-Type case. the government's task on re-trial is

a difficult one. “It may not rely solely on the jury's

decision to believe or not to believe the defendants

story. United States v. Bueno, 447 F.2d 903, 906 (5th Cir.

1971). Since in many cases of this type, of which Bueno

itself was one. the only witness to the alleged entrap-

ment are the defendant and the government agent or

informer. the Government must call the alleged

supplier. its officer as a witness.” Gomez-Rojas v.

United States, 507 F.2d 1213, 1218 (5th Cir. 1975)

(emphasis added).

16

Petitioner calls into question the scope of Fifth Cir-

cuit rule in Bueno, that entrapment is found as a

matter of law when the government provides the con-

traband. United States v. Mosley, 496 F.2d 1012 (5th Cir.

1974). If entrapment is found as a matter of law in this

case, the conspiracy charge cannot stand, and the jury

could quite possibly exonerate Gomez-Rojas given a

proper entrapment charge. In this sense the Bueno

defense of entrapment inures to the benefit of a co-

defendant.

The issue which is squarely presented by Gomez-

Rojas is also that of confrontation. There are very

strong indications that because of the defense of en-

trapment the participant-informant’s privilege must

give to the defendant's right to call him, especially

since the informant is known and is available. In a

case where it is alleged that the contraband came from

a government agent it is more likely that the in-

former's privilege should yield and the government be

compelled to produce the informer for cross-

examination. This conclusion follows from Bueno

which appears to hold. inter alia, that when a defen-

dant testifies that he obtained the contraband from an

informer, establishing a defense as a matter of law, the

government must produce the informer, if available,

to contradict the defendants allegations in order to

take the case to the jury.

The defendant having testified to facts which

establish a defense as a matter of law, the

government has the duty to come forward with

contrary proof, it is to carry its ultimate

burden of proving built beyond all reasonable

doubt. Bueno, 447 F.2d at 906.

17

As the Fifth Circuit said in Bueno, ‘‘[i]t was the activi-

ty of the informer, who was not called to testify. thatis

fatal to this conviction” 447 F.2d at 904. (emphasis add-

ed). Both Bueno and United States v. Oquendo, 490 F.2d

161 (5th Cir. 1974), seem to indicate that once the issue

of the informant’s complicity is broached, the infor-

mant, if available, must come forward. Thereafter. the

issue of the defendant's entrapment is properly one for

the jury. See, e.g.. United States v. Bueno, 470 F.2d 154

(5th Cir. 1972), cert. denied, 411 U.S. 949(1972). See also.

United States v. Mosley, 496 F.2d 1012 (5th Cir. 1974).

It should be noted that this is not a case like United

States v. Soto, 504 F.2d 557 (5th Cir. 1974), where the in-

formant is unavailable for testimony. This is evidenc-

ed by Smith's brief anpearance at pre-trial. (Tr. 14) In

fact. the informer is a rather notorious character.’

It is anomalous that the conviction of one co-

defenaant should be reversed because the jury was

presented erroneous law. while affirming as to the co-

defendant who was forced to base his entire defense on

the credibility of his alleged cohort, when the prosecu-

tion had the individual who could present the most

direct and material evidence sitting on the sidelines.

Smith's claim of privilege tends to exonerate Gomez-

Rojas. Certainly if Sutherlin has suffered a depriva-

tion of due process by not having Smith present to

prove entrapment, then Gomez-Rojas has suffered a

greater deprivation of fundamental fairness in not

having Smith present to prove his absolute innocence.

3 The Fifth Circuit noted in its first footnote of its opinion of

February 10, 1975, that George Smith was also involved in the com-

panion case of United States v. Waddell, 507 F.2d 1226 (5th Cir.

1975), 407 F.2d at 1217 n. 1.

18

There is no incremental cost in granting Gomez-Rojas

a new trial. The benefits of such a finding are the vin-

dication of fundamental fairness and the interests of

justice which dictate that Gomez-Rojas be given a fair

trial, one in which all the necessary evidence is

brought forth. Otherwise the Court will allow the

manifest injustice to go unremedied.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari should

be granted, and Gomez-Rojas given a new trial.

Respectfully submitted,

GUS RALLIS

1011 North Mesa Street

El Paso, Texas 79902

Attorney for Petitioner

CERTIFICATE OF SERVICE

I. GUS RALLIS, a member of the Bar of this

Honorable Court, do hereby certify that I have this day

served upon each opposing counsel copies of the

foregoing Petition for a Writ of Certiorari to the Unit-

ed States District Court, Fifth Circuit this ___ day of

April, 1975.

GUS RALLIS

la

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

f

versus

Roberto GOMEZ-ROJAS, and Michael

Rece Sutherlin, Defendants-

Appellants.

No. 74-1914.

United States Court of Appeals,

Fifth Circuit.

Feb. 10. 1975.

Appeals from the United States District Court for

the Western District of Texas.

Before THORNBERRY, GOLDBERG and GOD-

BOLD. Circuit Judges.

GOLDBERG, Circuit Judge:

Appellants Sutherlin and Gomez-Rojas were each

convicted by a jury on March 13, 1974, of conspiracy to

possess 300 pounds of marihuana with intent to dis-

tribute that substance, and of knowingly and inten-

tionally possessing that same marihuana with intent

to distribute it, in violation of 21 U.S.C. §§ 846 and

841(a)(1). Although the trial court originally sen-

tenced each appellant to two consecutive five-year

2a

terms in prison, with five years special parole, the

sentences were later modified to require Sutherlin and

Gomez-Rojas to serve the two five-year terms con-

currently, with five more years of special parole.

Sutherlin and Gomez-Rojas complain of various

errors in their joint trial. After a careful study of the

record, we conciude that Sutherlin’s conviction must

be reversed, but that the jury's verdict must stand as to

Gomez-Rojas.

On the morning of November 12, 1973, Special Agent

DeHoyos of the Drug Enforcement Administration re-

ceived a telephone call from a confidential informant,

advising DeHoyos that certain individuals at an E]

Paso, Texas, bar desired to sell a quantity of mari-

huana for $22,500. At DeHoyos’ request, one George

Smith arranged a meeting on the afternoon of the 12th

at a local motel as a prospective buyer, and Sutherlin,

the purported purveyor of contraband. When DeHoyos

balked at the price Sutherlin demanded for the mari-

huana, Sutherlin rejoined that he had no control over

the price: “I just set up deals for my man and he takes

care of the prices and delivers it.” At this point,

DeHoyos and Sutherlin adjourned to Smith's

automobile, where DeHoyos showed Sutherlin the

color of his money; the pair then walked over to

Sutherlin’s truck, from which Sutherlin removed a

kilo of marihuana which he claimed was identical! in

quality to that which he was offering for sale.

Sutherlin and the federal agent then proceeded to a

public phone, where Sutherlin made a call to an un-

known party, hung up quickly, as “his man could not

talk then” and would call back, and shortly thereafter

wuswered a call from an unknown party at the same

3a

phone. Sutherlin then advised DeHoyos that the deal

could go through, but that there were certain

procedural difficulties to be resolved first. At that

point Sutherlin left, after arranging to meet DeHoyos

later that evening at a neighborhood restaurant.

When the appointed time came, Sutherlin and

DeHoyos shared coffee and idle conversation until

they noticed Gomez-Rojas drive into the restaurant

parking lot. Sutherlin remarked, “that is my man,”

went out to talk to Gomez-Rojas for several minutes

and returned to tell DeHoyos to have George Smith

rent a car for the purpose of transporting the mari-

huana. When Smith arrived with the rental car.

Sutherlin told DeHoyos that his supplier would take

the car to a warehouse, load it with the marihuanaand

deliver the vehicle to a prearranged location. Gomez-

Rojas. who had left in the interim, returned to the

restaurant parking lot and had another private con-

versation with Sutherlin. Acting on instructions from

Sutherlin, DeHoyos drove the rental car to a parking

lot adjacent to the Rudolph Chevrolet dealership:

Sutherlin then dropped off DeHoyos and Smith ata

motel to await developments.

Soon thereafter, Gomez-Rojas drove into the lot

where DeHoyos’ rental car was parked, left his

automobile and drove the rental car next door to

Rudolph Chevrolet. where another, unidentified in-

dividual in a Cadillac traded vehicles with Gomez-

Rojas and drove the rented car to an undiscovered

location, evading a number of federal agents along the

way. Sutherlin and DeHoyos met again an hour later

and drove in separate vehicles to the parking lot ofa

da

motel, where the rental car was discovered, its trunk

loaded with 300 pounds of marihuana. Sutherlin was

arrested on the spot and Gomez-Rojas was arrested

while in his parked car 100 feet away in the same park-

ing lot.

At trial, Sutherlin took the stand and admitted most

of the comings and goings related above: he contend-

ed, however, that George Smith was the villain of the

piece and that he, Sutherlin, was entrapped. Smith, ac-

cording to Sutherlin, was a friend who took advantage

of Sutherlin’s unhappy financial situation to induce

an otherwise innocent citizen to aid him in an illicit

business transaction with DeHoyos, whom Smith rep-

resented as a marihuana dealer from Albuquerque.

Sutherlin alleged that Smith is a paid informer and a

Government agent, and that Smith was the source of

the marihuana which was found 1n the trunk of the ren-

tal car, so that we are faced with the sordid spectacle of

the Government selling marihuana to itself. Suther-

lin also claimed that Gomez-Rojas was an innocent

bystander who happened to appear in the wrong place

at the wrong time. Gomez-Rojas, who works as a

salesman at Rudolph Chevrolet, agreed with Suther-

lin’s account and, unlike Sutherlin, denied any knowl-

edge of the marihuana transaction.

I. Sutherlin

A.

Sutherlin’s sole defense was entrapment, and his in-

tention to demonstrate the truth of this theory at trial

was well-known to the district judge before the trial

5a

began. In order toestablish his defense, Sutherlin sub-

poenaed George Smith to testify as his witness on the

subject of entrapment. On the day the trial began,

however, Smith apprised the trial judge, out of the

presence of the jury and before any testimony was

heard, of his intention to assert his Fifth Amendment

right against self-incrimination if called as a

witness.' In spite of Sutherlin’s protests, the district

court excused Smith without the slightest inquiry into

the legitimacy or the scope of his proposed refusal to

testify. Furthermore, the court forbade Sutherlin to

place Smith on the stand for the purpose of eliciting a

recitation of his name, his address and the Fifth

Amendment tothe United States Constitution. Thus, at

a stroke, Sutherlin was denied the opportunity to ex-

amine the individual who, save himself, could testify

most thoroughly about the alleged entrapment.

Sutherlin argues that this was error. Sutherlin’s com-

plaint involves a complex interplay between the law

of entrapment, the informer’s privilege and Smith's

Fifth Amendment right against self-incrimination.

We will discuss each factor of the triad in turn.

The United States Supreme Court first recognized

and applied the entrapment defense in Sorrells v.

United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed.

413. In Sorrells, Chief Justice Hughes ruled for the

Court that as a matter of statutory construction, the

entrapment defense prohibits Government officials

from instigating a criminal act by persons ‘otherwise

innocent in order to lure them to its commission and to

punish them,” 287 U.S. at 448,53 S.Ct. at 215,77 L.Ed. at

1 It is perhaps worthy of note that Smith repeated this perfor-

mance one week later in the case of United States v. Waddell.5Cir

1975, 507 F.2d 1226. also decided today.

6a

413, reasoning that Congress passes criminal stat-

utes to deter crime rather than to encourage it. In 1958,

in Sherman v. United States, 356 U.S. 369, 78S.Ct. 819, 2

L.Ed.2d 848, and again in 1973, in United States v.

Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366.2 the

Court reaffirmed the principle set out in Sorrells: that

“[e]ntrapment occurs only when the criminal conduct

was ‘the product of the creative activity’ of law-

enforcement officials.” Sherman v. United States.

supra, 356 U.S. at 372, 78 S.Ct. at 821, 2 L.Ed.2d at 851.

Thus, the entrapment defense turns on the intent or

predisposition of the defendant to commit the crime.

In 1971, in United States v. Bueno, 5 Cir. 1971, 447 F.2d

903, this Court ruled that the Sorrells notion of entrap-

ment must apply as a matter of law where a defendant

is charged with dealing in contraband where the con-

traband in question was supplied to and purchased

from the defendant by Government officers or paid in-

formers.° If the supplier is a paid informer, the defense

is available even if the informer entrapped the defen-

dant on his own initiative, and regardless of whether

any Government officer knows the source of the con-

traband. United States v. Bueno, supra. See United

States v. Mosley, 5 Cir. 1974, 496 F.2d 1012 and United

States v. Oquendo, 5 Cir. 1974, 490 F.2d 161.

Once the defendant presents a prima facie case of en-

trapment indicating that Government conduct created

“a substantial risk that the offense would be commit-

2 In Russell, the Court stressed that the entrapment defense was

of a statutory nature and not a constitutional one.

3 In United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161, we deter-

mined that there was nothing in United States v. Russell. supra,

which undermined the validity of the Bueno rationale.

es

7a

ted by a person other than one ready to commit it.”

Pierce v. United States, 5 Cir. 1969, 414 F.2d 163, 168. the

burden shifts to the Government to prove beyond a

reasonable doubt that the accused was predisposed to

commit the crime charged against him. United States

v. Mosley, supra. Correspondingly, if the defendant

establishes a prima facie case of a transaction of the

Bueno variety, then the Government must prove

beyond a reasonable doubt that the objective facts nec-

essary to a Bueno defense did not occur. Once the

Government comes forward with evidence that the

defendant was not entrapped, then the case may goto

the jury. United States v. Oquendo, supra.

In an ordinary entrapment case, the Government

will seek to demonstrate the defendant's predisposi-

tion by pointing to the defendant's conduct and to his

reputation for dealing in contraband. See United

States v. Russell. supra. In a Bueno-type case.

however. the Government's task is more difficult. It

may not rely solely on the jury's decision to believe or

not to believe the defendant's story. United States v.

Bueno, supra, 447 F.2d at 906. Since in many cases of

this type. of which Bueno itself was one, the only

witnesses to the alleged entrapment are the defendant

and the Government agent or informer, the Govern-

ment must call the alleged supplier, its officer or its

informer, as a witness. If the purported supplier is un-

available, however, as in our recent case of United

States v. Soto, 5 Cir. 1974, 504 F.2d 557, where the in-

former had died in the interim, the Government may

defeat the defense of entrapment by otherwise dem-

onstrating that the contraband came from a non-

Government-related source.

8a

From this discussion of the law of entrapment, it is

readily apparent that many such cases involve in-

formers. This circumstance creates additional legal

difficulties, for such individuals are not readily

available as witnesses. The Supreme Court set out the

law of informer's privilege in Roviaro v. United

States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639:

What is usually referred to as the informer's

privilege is in reality the Government's

privilege to withhold from disclosure the

identity of persons who furnish information of

violations of law to officers charged with en-

forcement of that law... . The purpose of the

privilege is the furtherance and protection of

the public interest in effective law enforce-

ment. The privilege recognizes the obligation

of citizens to communicate their knowledge of

the commission of crimes to law-enforcement

officials and, by preserving their anonymity.

encourages them to perform that obligation.

The scope of the privilege is limited by its

underlying purpose. Thus, where the dis-

closure of the contents of a communication

will not tend to reveal the identity of an in-

former, the contents are not privileged.

Likewise, once the identity of the informer has

been disclosed to those who would have cause

to resent the communication, the privilege is

no longer applicable.

A further limitation on the applicability of

the privilege arises from the fundamental re-

quirements of fairness. Where the disclosure

of an informer's identity ... is relevant and

helpful to the defense of an accused, or is es-

sential to a fair determination of a cause, the

privilege must give way. In these situations

the trial court may require disclosure and. if

the Government withholds the information.

dismiss the action....

We believe that no fixed rule with respect to

disclosure is justifiable. The problem is one

that calls for balancing the public interest in

protecting the flow of information against the

individual's right to prepare his defense.

Whether a proper balance renders non-

disclosure erroneous must depend on the par-

ticular circumstances of each case, taking into

consideration the crime charged, the possible

defenses, the possible significance of the in-

former's testimony. and other relevant fac-

tors. 353 U.S. at 59-62, 77 S.Ct. at 627, 1 L.Ed.2d

at 644-646.

Where a defendant charges that a paid Government

informer has entrapped him, Roviaro ordinarily

demands disclosure of the informer's identity. since

the defendant's entire defense rests upon allegations

which the informer is in a unique position to affirm or

deny. See United States v. Bueno, supra and United

States v. Oquendo, supra; see also Branzburg v.

Hayes, 1972, 408 U.S. 665, 698, 92 S.Ct. 2646, 33 L.Ed.2d

626, 649. This requirement involves a legal fiction, in

that a defendant who claims entrapment cannot help

but admit that he knows the identity of the infor er.

10a

The exclusionary scope of the informer’s privilege,

however, is so broad as to cripple the defendant's

defense unless the defendant goes through the

motions of requiring disclosure, so that he may call

the informer as a witness, compel the Government to

call him or ask other witnesses questions about the in-

former. In this case, Sutherlin knows very well who

the alleged informer Smith is, and he knew before the

trial where Smith could be reached by process. for

Smith ‘was served with a subpoena to appear as

Sutherlin’s witness. It was then that Smith, apparent-

ly on his own motion, informed the trial judge that he

would refuse to testify if called. and the district court

accepted his claim of Fifth Amendment privilege

without more and excused him from testifying.

The Fifth Amendment to the United States Constitu-

tion declares in part that ‘No person... shall be com-

pelled in any criminal case to be a witness against

himself.” In Hoffman v. United States, 1951, 341 U.S.

479, 486-487, 71 S.Ct. 814. 818, 95 L.Ed. 1118, 1124, the

Supreme Court enunciated the standard for measur-

ing when a witness may properly claim his right

against self-incrimination, and thus refuse to respond

to questioning:

To sustain the privilege, it need only be evi-

dent from the implications of the question, in

the setting in which it was asked, that a

responsive answer to the question or an ex-

planation of why it cannot be answered might

be dangerous because injurious disclosure

could result. ...

- Pe ah Se OE oleh eet nee ees

|

lla

The Hoffman Court also indicated, however. that a

simple blanket declaration by the witness that he can-

not testify for fear of self-incrimination will not suf-

fice to invoke the privilege, see United States v.

Malnik, 5 Cir. 1974, 489 F.2d 682; the mechanism of the

Fifth Amendment is not automatic or self-winding.

Accordingly, the custom is for the trial judge to ex-

amine the protesting witness out of the presence of the

jury in order to determine the validity of his claim.

Once the court satisfies itself that the claim is well-

grounded as to the testimony desired, it may, in its dis-

cretion, decline to permit either party to place the

witness on the stand for the purpose of eliciting a

claim of privilege or to comment on this circum-

stance. United States v. Lacouture, 5 Cir. 1974, 495 F.2d

1237, cert. denied ___ U.S. ___., 95 S.Ct. 631, 42 L.Ed.2d

In this case, the Government cannot be penalized. ei-

ther under the Compulsory Process Clause of the

Sixth Amendment or the law of entrapment, because

Smith chose to exercise his Fifth Amendment rights.

thus making himself as unavailable for purposes of

testimony as the deceased informant in United States

v. Soto, supra. See United States v. Tatum, 5 Cir. 1974.

496 F.2d 1282. That is not to say, however, that Smith's

claim of privilege was well-founded.

In United States v. Lacouture, supra, the district

court held an extensive hearing out of the presence of

the jury in order to establish the fact that the witness

could legitimately refuse to answer essentially all

relevant questions that could be put to her. Here, on

the other hand, we have only Smith's bald assurance

12a

that he has a proper Fifth Amendment right to refuse

to answer any relevant question that Sutherlin could

ask of him. In such a situation, especially considering

the critical nature of his testimony, we conclude that

the district court erred in excusing him as a witness.

On remand, the trial court must hold a hearing to

determine whether Smith's fear of self-incrimination

is well-founded and what the parameters of his Fifth

Amendment rights are in the context of the testimony

that Sutherlin wishes to obtain from him. If the court

finds that Smith cannot properly invoke the Fifth

Amendment with respect to any relevant and material

questions which Sutherlin purposes to ask him, then

Smith must testify at the new trial. If, on the other

hand, the court finds that Smith may legitimately

refuse to answer essentially all possible relevant

questions, then the district court must decide in its in-

formed discretion whether, in light of Sutherlin’s en-

trapment defense, Sutherlin should be allowed toelicit

Smith's refusal to testify before the jury ortocomment

on that refusal.

B.

Sutherlin also objected at trial and argues now that

the trial court improperly instructed the jury when it

charged that an entrapment defense was made out

only if the Government furnished the marihuana to

Sutherlin, either directly or through Smith:

In order for there to be entrapment... you

would have to find that the Government had

delivered or turned over or made available the

marihuana that was going to be delivered, that

ee

a ee

ee eee

13a

Mr. Sutherlin was going toselltotheagent....

Now if you find from the evidence that the

Government entrapped Mr. Sutherlin, that

they furnished the means, the marihuana,

turned it over to the man Smith, or whoever it

is to use to entrap Mr. Sutherlin, then [you

would have to decide whether the Government

proved beyond a reasonable doubt that

Sutherlin was not entrapped].

Our previous discussion of the law of entrapment

demonstrates that this instruction was_ indeed

erroneous, because entrapment would arise here if

Smith had supplied the marihuana to Sutherlin from

his own resources and without the actual knowledge

of DeHoyos or any other Government officer. The law

does not require that a man be badged in order to be

capable of entrapping an innocent citizen. Given the

critical relationship of the instruction to Sutherlin’s

sole defense. and finding no other part of the instruc-

tions which remedies that defect. we conclude that

Sutherlin must have a new trial. In view of our dis-

position of Sutherlin’s appeal, we pretermit discus-

sion of his other claims of error.

Il. Gomez-Rojas

Gomez-Rojas does not claim that he was e.trapped.

but rather argues that he is innocent of any wrong-

doing. and that the evidence introduced against him

fell far short of that necessary to support the jury's

verdict against him. In reviewing the sufficiency of

the evidence supporting a criminal conviction, we

must sustain the jury verdict if, taking the view most

l4a

favorable to the Government, there is substantial

evidence to support it. Glasser v. United States, 1942.

315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v.

Velasquez, 5 Cir. 1974, 496 F.2d 1009. Although the test

for sufficiency is the same whether the evidence is

direct or circumstantial, United States v. Moore, 5 Cir.

1974, 505 F.2d 620; United States v. Velasquez, supra;

United States v. Warner, 5 Cir. 1971, 441 F.2d 821, cert.

denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58, we must

determine not only that the inferences to be drawn

from the circumstantial evidence against Gomez-

Rojas are consistent with guilt but that a jury could

conclude that those inferences are inconsistent with

every reasonable hypothesis of innocence. United

States v. Fairchild, 5 Cir. 1975, 505 F.2d 1378; United

States v. Ferg. 5 Cir. 1974, 504 F.2d 914; see United

States v. Squella-Avendano, 5 Cir. 1973, 478 F.2d 433.

The jury here heard evidence that Sutherlin told

DeHoyos at their first meeting that he. Sutherlin, was

only a middleman in this transaction, that “my man

... takes care of the prices and delivers [the mari-

huana]. DeHoyos testified that while he and Suther-

lin were seated in the restaurant, Gomez-Rojas drove

into the restaurant parking lot, at which time Suther-

lin stated “that is my man” and went out to talk to

Gomez-Rojas. After this conversation, Sutherlin in-

structed DeHoyos to rentacar for the purpose of trans-

porting the marihuana which was the object of their

negotiations. There was also testimony that im-

mediately after Smith brought the newly-rented

automobile into the restaurant parking lot, Gomez-

Rojas returned and had another private conversation

with Sutherlin. Federal agents testified that after

it ee

A nee. te mr ~

ow woe

15a

DeHoyos had driven the rental car to a parking lot

next to Rudolph Chevrolet, Gomez-Rojas drove into

the same lot, parked his car next to the rental car and

entered that car. Almost immediately thereafter, a

person dressed similarly to Gomez-Rojas was ob-

served leaving the rental car in the Rudolph Chevrolet

lot and exchanging vehicles there with an unidenti-

fied individual who drove the rental car to an un-

discovered location.’ Finally, at the time Sutherlin

was arrested in the motel parking lot while in the proc-

ess of exchanging the marihuana for DeHoyos cash.

Gomez-Rojas was apprehended while sitting in his

own automobile 100 feet away in the same parking lot.

Gomez-Rojas and Sutherlin agree on the former in-

dividual’s true role in the piece and each defendant

took the stand to give a reasonably coherent explana-

tion of Gomez-Rojas’ unfortunate ubiquity on the

night of November 12, 1973. Very generally. defen-

dants contend that they had been friends for some time

on the night in question, so that when Sutherlin saw

Gomez-Rojas enter the restaurant parking lot, he

rushed out to warn the latter away, lest Gomez-Rojas

make some amiable remark upon finding Sutherlin in

the restaurant and thereby reveal to DeHoyos the iden-

tity that Sutherlin claims he had not yet divulged.

Gomez-Rojas contends that his activities in the

Rudolph Chevrolet lot are easily explained by the fact

that he is a salesman at that establishment and fre-

quently has to move several cars about on the lot prior

4 There was some confusion among the several! agents who tes-

tified about the events in and near the Rudolph Chevrolet lot as to

whether the car that Gomez-Rojas drove into the lot was a light

brown or beige Ford or a gold Chevrolet (it was the former). We do

not believe that such confusion, especially at nightis significant.

aa

16a

to closing for the night; he necessarily adds that the

federal agents are mistaken in their contention that

one of the autos he moved that night was the rental

vehicle used in the marihuana transaction. Finally,

Sutherlin and Gomez-Rojas agree that the former had

asked the latter for a ride home from the motel that

night, not because Sutherlin actually needed such a

ride (he had his own vehicle on hand), but because

Sutherlin wanted a friend around when dealing with

DeHoyos late at night in a deserted motel parking lot.

Sutherlin and Gomez-Rojas presented the jury with

a plausible explanation of Gomez-Rojas’ behavior, an

explanation which differs in only a few particulars

from what Government witnesses testified that they

saw on that night. Be that as it may, the jury rejected

the defendants’ story and convicted Gomez-Rojas of

the offenses charged against him. Although this is a

close case, we cannot say that there is insufficient

evidence to support the verdict. A comparison of this

case with our decision in United States v. Arroyave, 5

Cir. 1973, 477 F.2d 157, will demonstrate why this ver-

dict must stand.

The defendant in Arroyave was charged with con-

spiracy to import and possess marihuana and with

possession of marihuana with intent to distribute. The

evidence there showed that Arroyave was a friend ofa

co-defendant, Posada, that Posada’s truck was seen

near Arroyave'’s home on several occasions and that

on the day when a plane carrying the marihuana upon

which the charges were based landed in the United

States and the marihuana delivered to Posada,

Arroyave was observed near the aircraft and spoke to

FUE och CUE Mi emcee slain ——

A Ow oe Bee tm oe —

PO A ee Bertie 8

i. er i eee es

en

17a

Posada at that time. We found that the evidence

against Arroyave amounted at most to guilt by

association and that the Government's circumstan-

tial evidence was insufficient to exclude the possibili-

ty that Arroyave knew nothing about the contraband

transaction.

Much of the evidence against Gomez-Rojas tends

only to establish his guilt by association with

Sutherlin, who had admitted his part in the transac-

tion. The evidence which differentiates this case from

Arroyave is the testimony by several surveilling

federal agents which tends to show that Gomez-Rojas

moved the rental automobile from the place where

DeHoyos had left it to the Rudolph Chevrolet lot.

where another individual drove it into the night. to be

loaded with marihuana by unknown hands at an un-

known place. Considered in conjunction with the other

circumstantial evidence against Gomez-Rojas, this

action was sufficient to support an inference by the

jury that Gomez-Rojas was a knowledgeable and ac-

tive member of the conspiracy, and not just an inno-

cent bystander. See United States v. Prieto, 5 Cir. 1974,

505 F.2d 8 and United States v. Sidan-Azzam., 5 Cir.

1972, 457 F.2d 1309. Once the jury made such a finding.

it could consider Sutherlin’'s alleged statements that

“his man” was supplier and that Gomez-Rojas was

“his man.” See United States v. Tyler, 5 Cir. 1975, 505

F.2d 1329. The jury could have found that this com-

bination of Gomez-Rojas’ actions and Sutherlin's

Statements was inconsistent with every reasonable

hypothesis of Gomez-Rojas’ innocence. There was

thus sufficient evidence to sustain Gomez-Rojas’ con-

viction on the conspiracy charge.

18a

Since constructive as well as actual possession of

contraband will sustain a conviction under 21 U.S.C.

§ 841(a), United States v. Ferg, 5 Cir. 1974, 504 F.2d 914,

and since the dominion and control over the contra-

band necessary to constitute such possession can be

proven by circumstantial evidence, United States v.

Richardson, 5 Cir. 1974, 504 F.2d 357, we believe that

the evidence here was sufficient to support the jury's

verdict that Gomez-Rojas indeed possessed the mari-

huana with intent to distribute it.

Gomez-Rojas also contends that the trial court erred

in failing to declare a mistrial on two occasions when

questions by defense counsel to two federal agents

elicited responses indicating that Gomez-Rojas had

previously been involved in drug transactions. There

is no merit in this argument. Each answer was in fair

response to -ounsel’s inquiry about why it was that

the surveilling agents recognized Gomez-Rojas.

There is no allegation or evidence of Government im-

propriety in the matter. See United States v.

McKinley, 5 Cir. 1974. 493 F.2d 547.

Gomez-Rojas claims that the district court should

not have admitted De-Hoyos testimony that Sutherlin

stated ‘‘[t]hat is my man” when Gomez-Rojas drove

into the restaurant parking lot for the first time. The

Government rejoins that this statement was admissi-

ble against Gomez-Rojas, as it falls within the co-

conspirator exception to the hearsay rule. This excep-

tion admits hearsay statements made by one con-

spirator about another, if the statement was made in

the course of and in furtherance of the conspiracy.

Krulewitch v. United States, 1949, 336 U.S. 440,69S.Ct.

716, 93 S.Ct. 716, 93 L.Ed. 790; United States v. Reg-

A A a i ld, lili als

ee ee ne

19a

ister, 5 Cir. 1974, 496 F.2d 1072. In order to set the

predicate for the admission of such testimony.

however, the Government must first establish.

through independent evidence, a prima facie case of

conspiracy with respect to the defendant against

whom it is to be admitted. Until that time, the evidence

is admissible only against the declarant; once the jury

finds that such a foundation has been laid, however. it

may consider the hearsay testimony for whatever else

it may show. United States v. Tyler, supra; United

States v. Apollo. 5 Cir. 1973, 476 F.2d 156; see Lutwak v.

United States, 1953, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed.

593.

The trial court here gave a full and accurate

cautionary charge to the jury at the time Sutherlin’s

statement was offered and the court repéated the

charge at the conclusion of the trial. The value of such

a charge in these circumstances is highly

questionable. especially where, as here, the evidence

against the defendant against whom it is offered is

completely circumstantial. Furthermore, itis difficult

to see what possible value the statement could have if

it is not admissible for the purpose of inculpating

Gomez-Rojas in the conspiracy. However that may be.

the case law clearly compels the conclusion that the

statement was properly admitted.

Gomez-Rojas next argues that the trial court's in-

structions to the jury constituted a directed verdict of

guilty. In reviewing a trial judge's instructions, we

must evaluate the charge as a whole, without isolating

statements which may appear prejudicial outside the

context in which they were made. United States v.

20a

Cisneros, 5 Cir. 1974, 491 F.2d 1068; United States v.

Williams, 5 Cir. 1973, 473 F.2d 507; United States v. Jac-

quillon, 5 Cir. 1972, 469 F.2d 380. Judged by this stand-

ard, although the district court at times appears to

have been less than even-handed in its recitation of the

evidence, its charge, taken as a whole, was complete

and accurate, with the exception already noted with

respect to entrapment, about which Gomez-Rojas may

not complain.

Finally, Gomez-Rojas charges that the trial was so

interspersed with judicial interference with the

presentation of his case, and so rerlete with com-

ments from the bench unfavorable to him that he was

denied a fair trial. In considering this very serious

charge, we must look to the record as a whole, United

States v. Hill, 5 Cir. 1974, 496 F.2d 201; United States v.

Ramsey, 5 Cir. 1974, 493 F.2d 457, noting that the dis-

trict judge, as governor of the trial process, may take

measures to ensure that the trial progresses smooth-

iy, and may comment on the evidence, so long as he is

careful to instruct the jury that they are the sole judges

of the facts. United States v. Cisneros, supra; United

States v. Jacquillon, supra. We will affirm a convic-

tion on the basis of a record disclosing significant

judicial participation, however, only when we are con-

vinced that the intervention could not reasonably

have led the jury to a predisposition of guilt by im-

properly confusing the functions of judge and

prosecutor. United States v. Hill, supra; see generally

Quercia v. United States, 1933, 289 U.S. 466,53 S.Ct. 698,

77 L.Ed. 1321. Although the trial judge here sometimes

seemed less than convinced by some of defendant's

evidence, and at other times displayed considerable

<7) eens th ta ~nchinsmcaaal

eae elie ee ee

2la

impatience with Gomez-Rojas’ presentation of his

case, we do not find the sort of judicial advocacy of the

Government's position which would have denied

Gomez-Rojas a fair trial.

In summary, Sutherlin’s conviction is reversed; he

is entitled to a new trial because of an erroneous jury

instruction. If, at a second trial of Sutherlin, Smith

again declines to testify, the district court must be

careful to ascertain whether and to what extent his

claim of right is well-founded, and what effect this

finding should have on Sutherlin’s presentation of his

entrapment defense to the jury. Gomez-Rojas, on the

other hand, had a trial free from reversible error.

Although the circumstantial evidence against him is

far from over-whelming, it is sufficient to sustain the

jury verdict; Gomez-Rojas’ conviction is affirmed.

Affirmed in part; reversed in part and remanded.

JUDGMENT AND COMMITMENT

Filed: June 13, 1974

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

UNITED STATES OF AMERICA

No. EP-74-CR-71

versus

ROBERTO GOMEZ-ROJAS

22a

On this 15th day of February, 1974 came the attorney

for the government and the defendant appeared in per-

son and by Gus Rallis, counsel

ITIS ADJUDGED that the defendant upon his plea of

not guilty, and a jury verdict of guilty on March 13,

1974 has been convicted of the offense conspiring to

commit offenses against the United States, in viola-

tion of 21 USC § 846, that is to say. he conspired to

possess Marihuana, a Schedule I Controlled Sub-

stance, with intent to distribute same contrary to 21

USC § 841(a)(1); and possess with intent to distribute a

quantity of marihuana, a Schedule I Controlled Sub-

stance, in violation of 21 USC § 841(a)(1) as charged in

the Indictment and the court having asked the defen-

dant whether he has anything to say why judgment

should not be pronounced, and no sufficient cause to

the contrary being shown or appearing to the Court,

IT IS ADJUDGED that the defendant is guilty as

charged and convicted. Sentence was deferred until

April 9, 1974.

IT IS ADJUDGED that the defendant is hereby com-

mitted to the custody of the Attorney General or his

authorized representative for imprisonment for a pe-

riod of FIVE YEARS, ct 1; FIVE YEARS on count 2, to

run consecutively to count 1: and FIVE YEARS

special parole.

23a

IT IS ORDERED that the Clerk deliver a certified

copy of this judgment and commitment to the United

States Marshal or other qualified officer and that the

copy serve as the commitment on the 9th day of April

1974.

/s/ Ernest Guinn

United States District Judge.

The Court recommends commitment to

Approved:

/s/ RONALD F. EDERER

Assistant U.S. Attorney

24a

IN THE UNITED STATES DISTRICT € OURT

FOR THE WESTERN DISTRICT OF '.EXAS,

EL PASO DIVISION

UNITED STATES OF AMERICA,

versus No. EP-74-CR-71

ROBERTO GOMEZ-ROJAS

ORDER MODIFYING THE SENTENCE

It appearing tothe Court that Defendant has a family

residing in E] Paso, and that the ends of justice and the

best interest of the public, as well as the Defendant,

will be subserved thereby by committing the Defen-

dant to the Federal Correctional Institution in El Paso

County so that he may be near his family, it is OR-

DERED by the Court that the Judgment and Commit-

ment entered herein on the 9th day of April, 1974 be

modified so that,

IT IS NOW THE JUDGMENT AND SENTENCE OF

THE COURT that the Defendant be. and hereby is com-

mitted to the custody of the Attorney General or his

authorized representative for a period of five years on

Count 1, and Five yearson Count2torunconcurrently

with Count 1 and Five years special parole.

The Marshal is requested to commit the Defendant to

La Tuna Correctional Institution so that his family

may be near him.

25a

IT IS ORDERED that the Clerk deliver a certified

copy of this Judgment and Commitment to the United

States Marshal or other qualified officer and that the

copy serve as the commitment of the Defendant, and

that copy be furnished to the Defendant of his modi-

fied judgment.

ENTERED THIS 24 day of May, 1974.

/s/ ERNEST GUINN

UNITED STATES DISTRICT

JUDGE

26a

| IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-1914

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO GOMEZ-ROJAS

and MICHAEL RECE SUTHERLIN,

Defendants-Appellants.

Appeals from the United States District Court forthe

Western District of Texas

ON PETITION FOR REHEARING

(March 26, 1975)

Before THORNBERRY, GOLDBERG and GODBOLD,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.