Petition — Urdiales v. United States

Iu the

Supreme Court of the United States

OCTOBER TERM, 1975

NO. @5-1347

OVIDIO OMAR URDIALES,

Petitioner

versus

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

RICHARD W. HARRIS

1517 Tower Life Building

San Antonio, Texas 78205

OSCAR C. GONZALEZ

200 Main Plaza

San Antonio, Texas 78205

Attorneys for Petitioner

_

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

INDEX

PAGE NO.

Opimions Below. ......ccccccccccccccscccccecees l

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CD TIE 6c cccbccccccssecccececpécecs 2

SEPP ETT ETL TTT PT CTT Tere TT 2

I 8 6 bob hn bbke ede tdewneteee 2

Reasons for Granting the Writ

RE eS Fe Pe Pe Pern eer ee re ee rr 5

ck vabhikebiceden bon ba eeoekbenee 88s Nene 15

cons en ceekiedsnnsneeeedsensens 19

Se aT IO, 0. oo 0'0.0:6.600645660800sb08 ain ae

Appendix A: Opinion of the United States

Court of Appeals for the Fifth

Circuit of November 24, 1975......... A-l

Appendix B: Order of the United States Court

of Appeals for the Fifth Circuit

Denying Petition for Rehearing of

February 23, 1976. ......ccccccccces B-1

‘

CITATIONS

CASES:

PAGE NO.

Boyd vs. United States (1892), 142 U.S. 450, 12 S.Ct.

PM SOY 68 6c cd K cape nssnesic

Cunha vs. Brewer (8th Cir., 1975) 511 F.2d 894

Michelson vs. United States, 335 U.S. 469, 69 S.Ct.

Per rr re

United States vs. Chrzanowski (3rd Cir., 1974)

Scns cicdenbudtecedeeeae

TeTTTT 7

United States vs. Cole (4th Cir., 1974) 491 F.2d 1276.. 7

United States vs. Eatherton (1st Cir., 1975)

ES 60665 840KK0 esa nkéen ends

United States vs. Fierson (7th Cir., 1969)

SP DENSA Wh66 0b 6s eduKccescudes

United States vs. Flick (7th Cir., 1975)

ee ee

United States vs. Franks (6th Cir., 1975)

ee

United States vs. Freeman (10th Cir., 1975)

nT ee

United States vs. Goodwin (5th Cir., 1974)

NE ee ae

iil

CITATIONS (Continued)

United States vs. Grammer (9th Cir., 1975)

SUS F.2d GTS . wcrc cccccccccccccccccees

United States vs. Moore (“th Cir., 1975)

S22 F.2d 1068... ccc ccccccccccccvvees

United States vs. Papadakis (2nd Cir., 1975)

SIO F.2d ZB7Z . ccc ccc ccccccccccvccces

United States vs. Ring (6th Cir., 1975)

SIS F.2d LOO]... cece ccrcccvcccccecs

United States vs. San Martin (Sth Cir., 1974)

SOS F.2d 91S... wcrc ccccccccccccvees

United States vs. Scanland (5th Cir., 1974)

495 F.2d 1104... ccc cevccccccsecees

United States vs. Wiggins (C.A.D.C., 1975)

SO9 F.2d 454... cc ccc ccc cceccccccees

MISCELLANEOUS:

McCormick, Evidence, 1954, p. 332.........

Speedy Trial Act of 1974, 18 USC § 3161, et. seq

1 J. Wigmore, Evidence, § 217 at 718919 (3d.

Bg BEE cccedccsccccoccescccoes

2 C. Wright, Federal Practice and Procedure,

Criminal § 410, at p. 125, note 75......

PAGE NO.

IN THE SUPREME COURT OF THE UNITED STATES

NO,

OVIDIO OMAR URDIALES,

Petitioner

versus

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The Petitioner, OVIDIO OMAR URDIALES, respect-

fully prays that a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals for

the Fifth Circuit entered in this proceeding on November 24,

1975.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Cir-

cuit was entered on November 24, 1975 and is reported in

523 F.2d 1245. A copy of the opinion of the Court of Ap-

peals is set out in the Appendix A hereto. A timely filed

Petition for Rehearing was denied on February 22, 1976 and

this Petition for Writ of Certiorari was filed within thirty

(30) days of that date. A copy of the order denying the Pe-

tition for Rehearing is set out in the Appendix B hereto.

No written opinion was entered by the District Court

for the Western District of Texas.

OR AE OE YE RO

2

JURISDICTION

This Court's jurisdiction is invoked under 28 USC

§ 1254(1).

QUESTIONS PRESENTED

1. Whether a prior criminal act was properly admitted

for the purpose of proving Petitioner's criminal intent.

2. Whether fundamental error resulted from the trial

court’s permitting the government to violate a written pre-

trial agreement.

STATUTES INVOLVED

21 USC § 846, “Any person who attempts or conspires

to commit any offense defined in this subchapter is punish-

able by imprisonment or fine or both which may not exceed

the maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or con-

spiracy; “21 USC §841 (a) (1), “Except as authorized by this

subchapter, it shall be unlawful for any person knowingly or

intentionally to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense,

a controlled substance.” and 18 USC §2(a), “Whoever com-

mits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is

punishable as a principal.”

STATEMENT OF THE CASE

Evidence of Prior Act

Two sales of heroin were made the basis of the criminal

3

prosecution in this case (R. 1-5).* Both sales occurred at

or near the Continental USA Club, a nightclub owned by

Petitioner, OVIDIO OMAR URDIALES. The sales were

made during regular business hours to undercover officers by

Billy Frank Alexander, a co-defendant who later entered a

plea of guilty. Billy Frank Alexander entered a plea of

guilty to one count of the indictment but testified as a wit-

ness for the defense during Petitioner's trial. Billy Frank

Alexander admitted making the sales but denied that Peti-

tioner, OVIDIO OMAR URDIALES, and the other co-defen-

dant, Martin Castilleja Vega, were in any way involved in the

two transactions (R. 252, 277-278). The evidence against

Petitioner and the co-defendant, Martin Castilleja Vega, was

essentially circumstantial.

Jurisdiction of the United States District Court was

properly invoked because the indictment returned against

Petitioner charged violations of laws of the United States of

America, namely: 21 USC § 846, 21 USC § 841(a) (1),

and 18 USC § 2a).

The Petitioner testified as a witness in his own behalf

and denied any involvement in the heroin sales. The govern-

ment, over strenuous objection of Petitioner’s trial counsel,

cross-examined Petitioner regarding a delivery of heroin that

occurred in 1969, approximately five years before the trans-

actions that were the basis of this prosecution (R. 351). The

1969 transaction resulted in charges being filed against

Petitioner but the charges were never prosecuted and were

later dismissed (R. 388).

* References to the Record pertain to the Deferred Appen-

dix filed in the Court of Appeals.

4

Petitioner was found guilty by the jury of each of the

three counts of the indictment (R. 457). Martin Castilleja

Vega was acquitted by the jury (R. 457). Petitioner was

sentenced by the court to serve a term of ten years on the

first count, seven years on the second count and seven years

on the third count, such terms to run consecutively for a

total of twenty-four (24) years confinement (R. 469).

Billy Frank Alexander had not been sentenced on his plea of

guilty at the time of Petitioner's trial but was iater assessed a

term of eight years (R. 482).

Omnivus Agreement

Petitioner, acting through his trial counsel, and the

United States Attorney executed a pre-trial agreement in

accordance with accepted practices and procedures of the

Western District of Texas. The government in the pre-trial

agreement assured Petitioner that the government would

not rely on prior acts or convictions of a similar nature as

proof of knowledge or intent (R. 7). The agreement, after

its execution, was approved by the United States District

Judge who later acted as the trial judge during Petitioner's

trial and was made an order of the court (R. 14). The trial

court, therefore, was aware that the government had assured

Petitioner in the agreement that prior acts would not be in-

troduced for the purpose of establishing intent. The evidence

later introduced during the trial concerning Petitioner's

prior criminal act was in direct violation of the pre-trial

agreement. Petitioner’s trial counsel was not notified of ine

government's intention to introduce prior act evidence until

the jury had been impaneled and sworn and the trial was in

progress (R. 196). The government made no effort during

the trial to justify its violation of the pre-trial agreement nor

was any attempt made to show that the violation of the

5

agreement would not result in harm to the defendant.

REASONS FOR GRANTING THE WRIT

I.

The decision of the Court of Appeals in this case is in

conflict with decisions of other courts of appeals on the same

question and such conflict presents an important question of

federal law which should be settled by this Court.

This Court has long held that evidence of extraneous

offenses is collateral to the basic issue to be tried and there-

fore generally inadmissible. Boyd vs. United States (1892),

142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077. It is universally

recognized that evidence concerning a defendant's prior bad

conduct is not admissible to show that the accused is gener-

ally of a bad character or has a criminal disposition. As not-

ed in Boyd, supra, at page 1080:

“However depraved in character, and however full

of crime their past lives may have been, the defen-

dants were entitled to be tried upon competent

evidence, and only for the offense charged.”

The reason for the general exclusionary rule was further ex-

plained by this Court in Michelson vs. United States, 335

U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, where the Court

states that such evidence is excluded not because it might not

be persuasive but because it might weigh too heavily with the

jury so as tc cause the jury to pre-judge one with a bad

general reputation, thus denying him a fair opportunity to

defend against a particular charge.

Ail circuits recognize the general exclusionary rule but a

RE re See ae teen ne

6

great deal of difficulty has been encountered in its proper

application. There have developed several well-known ex-

ceptions to the general rule of exclusion, the two most gen-

erally recognized of which are not involved in this case.

These exceptions permit the admission of prior convictions

to impeach a witness's credibility and the admission of prior

bad conduct to counter good character evidence first intro-

duced by the defendant. The law is reasonably consistent

in all jurisdictions, insofar as these two exceptions are con-

cerned. The courts, however, have permitted the develop-

ment of a number of other exceptions to the general exclu-

sionary rule and the proper application of these exceptions

threatens to overwhelm the general rule of exclusion pro-

nounced by this Court.

Several of the many exceptions have been categorized

by Professor Wigmore and include capacity, habit or custom,

design or plan, knowledge or belief, intent, motive and iden-

tification. 1 J. Wigmore, Evidence, § 217 at 718-19 (3d. ed.,

1940). The exceptions have become so numerous that Pro-

fessor Charles Alan Wright has stated:

“. .. the attitude of prosecuting attorneys may

well be like that of the man who was asked what

he thought of Prohibition and replied: ‘It sure

beats not drinking at all.’ * 2 C. Wright, Federal

Practice and Procedure, Criminal § 410, at p.125,

note 75.

The categorization suggested by Professor Wigmore

tends to produce a mechanical jurisprudence with the evi-

dence admitted if it can fit within any of the recognized ex-

ceptions. Dean McCormick has criticized this approach,

stating that it merely constitutes “pigeon-holing” and advo-

cates instead a balancing test where the actual need of the

other-crime evidence is balanced against the potential for

7

undue prejudice to the defendant. McCormick, Evidence,

1954, p. 332.

The courts of appeals have adopted several different ap-

proaches in determining the admissibility of extraneous of.-

fense evidence:

1. Some circuits have adopted a “relevancy” test by

which evidence will be admitted if it is considered relevant to

prove any issue before the court. |

United States vs. Papadakis (2nd Cir., 1975) 510 F.2d

287.

United States vs. Grammer (9th Cir.,1975) 513 F.2d 673.

2. Other circuits have adopted the “‘categorization”’ ap-

proach adopted by Professor Wigmore. If such evidence will

tend to come within any of the recognized exceptions such as

design or plan, knowledge or belief, identification, etc., the

evidence will be admitted.

United States vs. Wiggins (C.A.D.C.,1975) 509 F.2d 454,

United States vs. Freeman (10th Cir.,1975) 514 F.2d

1184.

United States vs. Flick (7th Cir.,1975) 516 F.2d 489.

United States vs. Chrzanowski (3rd Cir.,1974) 502 F.

2d 573.

United States vs. Franks (6th Cir.,1975) 511 F.2d 25.

United States vs. Cole (4th Cir..1974) 491 F.2d 1276.

3. Several circuits have adopted the “categorization”

approach of Professor Wigmore but recognize, as advocated

by Dean McCormick, that the need of the prosecution for

such evidence must be balanced against the potential for

harm to the defendant.

Cunha vs. Brewer (8th Cir., 1975) 511 F.% 894.

United States vs. San Martin (5th Cir., 1974) 005 F.

2d 918.

United States vs. Eatherton (1st Cir., 1975) 519 F.2d

603.

In analyzing the approaches of the various circuits, it will be

found that there is an obvious lack of unanimity not only

between circuits but between different panels witiin the

same circuit.

The difficulties encountered in applying these tradition-

al tests have been considered in several recent decisions.

These decisions note that one or more of the categories that

have been recognized as exceptions are present in virtually

every case. They realize that it would be rare that knowl-

edge, intent, motive, identification, design or plan would not

be at least a formal issue in virtually every criminal trial and

that to permit a mechanical application of these exceptions

would result in the general exclusionary rules being over-

whelmed. Accordingly, these courts have announced an ad-

ditional test which must be met before evidence of «xtran-

eous offenses can be admitted. This test requires that before

such evidence be admitted, it not only be relevant, he a rec-

ognized exception to the exclusionary rule, and on balance,

be not unduly prejudicial to the defendant, but, in addition,

further requires that the issue constituting the exception be

9

materially disputed during the trial.

United States vs. Ring (6th Cir., 1975) 513 F.2d 1001;

United States vs. Goodwin (5th Cir., 1974) 492 F.2d 1141:

and United States vs. Fierson (7th Cir., 1969) 419 F.2d 1020

are examples of such cases.

Of the many exceptions noted, the most difficulty seems

to have been encountered by the courts in determining the

admissibility of evidence concerning prior criminal acts for

the purpose of establishing a defendant's intent. This diffi-

culty is caused by the fact that intent is at least a formal

issue in almost every criminal trial. There are very few trials

in which the intent of the defendant to violate the law is

not at least a formal issue in the sense that the defendant

must have knowingly violated the law. As a result the

courts have tended to permit the introduction of extrane-

ous-crime evidence so long as intent is an element of the

offense charged. The courts, in doing so, have failed to rec-

ognize that while intent may be a formal issue, there will

in many cases be no real dispute as to the defendant’s in-

tent.

Each of the cases cited immediately above have re-

versed convictions because evidence of extraneous crimes was

admitted to prove a defendant’s intent when the defendant’s

intent was never made a materially disputed issue during the

trial. In each of these cases, the crime was such that if the

jury believed from the evidence introduced by the prosecu-

tion that the defendant committed the acts with which he

was charged, the jury would necessarily have found the de-

fendant did so with the intent to violate the law. The only

disputed question was, therefore, whether the defendant

had, in fact, committed the acts charged.

10

In Fierson, supra, the defendant was charged with re-

possessing an automobile, claiming that he was an FBI

agent. The defendant admitted that he repossessed the

automobile but denied stating he was an FBI agent. In Good-

win, supra, the defendant was charged with importing ap-

proximately 1,000 pounds of marijuana. Goodwin’s defense

was that he was not the same John Goodwin that the govern-

ment had implicated in the conspiracy. In Ring, supra, the

defendant was charged with mailing threatening letters.

Ring did not contend that the letters were mailed by mistake

or accident; nor did he assert any other defense that would

show an innocent state of mind.

The problem is most sharply focused in United States

vs. Ring, supra. The government in Ring attempted to justify

the admission of evidence that the defendant had previously

made threats to another person. The government argued that

since intent was an element of the offense with which the

defendant was charged, this in itself would be sufficient to

permit the admission of evidence of the previous threats to

show the defendant’s intent in the case for which he was

being tried. This contention was specificaily rejected. The

Court stated at page 1003:

“Although intent is an element of the offense

charged in the indictment, intent was not a genu-

inely contested issue in the case because Appellant

had not asserted mistake or an innocent state of

mind as a defense.”

The court stated that the jury must necessarily infer the re-

quisite criminal intent from the very nature of the crime

charged. Therefore, if the jury believed that Ring had, in

fact, mailed the threatening letter, there would have been

no question as to his intent in doing so unless the defendant

11

made his intent a disputed issue by admitting the drafting of

the letter but contending that it was mailed through mistake

or accident. The court reviewed historical problems involv-

ing prior act evidence at some length and after doing so,

stated that most of the difficulties were caused by the fact

that, in reality, two separate classes of cases were involved:

1) those cases where criminal intent cannot be readily in-

ferred from proof of the criminal act charged and 2) those

cases whereby proof of the commission of the acts alone

would cause the jury to necessarily infer criminal intent.

The court notes that examples of the first category of

eases would include passing counterfeit money, forgery,

receiving stolen property, fraud and obtaining money under

false pretenses. In each of these cases the commission of the

acts charged would not necessarily establish the requisite

criminal intent because a person may possess counterfeit

money or stolen property without the knowledge that such

money is counterfeit or property stolen, and therefore not

intend to violate the law. In such cases, proof that the de-

fendant had previously passed counterfeit money or possess-

ed stolen property would tend to establish that the defen-

dant had knowledge that the money he circulated on the sub-

sequent occasion was counterfeit or that the property poss-

essed was stolen. Such evidence would therefore be impor-

tant in establishing the defendant’s criminal intent.

In the second category of cases, intent might be a for-

mal issue but proof of the commission of the crime would

necessarily lead to the conclusion that the acts were commit-

ted with criminal intent. The court noted that mailing

threatening letters would obviously fall under this second

category.

The government in Ring further relied on the “rele-

12

vancy” and “balancing” tests but these tests were specifi-

cally rejected by the court as being inapplicable. The court

realized that such tests may be valid but rejected their appli-

cation since intent was not a dispputed issue during the

trial.

A review of the evidence in this case makes it apparent

that the crime with which Petitioner was charged would

necessarily fall under the second category considered by the

court in Ring, supra. Petitioner was charged with making

two sales of heroin. During the trial Petitioner did not as-

sert an innocent state of mind; he did not contend that he

was entrapped, that he acted as an accommodating agent,

that the sales occurred as a result of accident or mistake;

nor did he assert any other defense that would have placed

his intent in issue. His sole defense was that he did not in

any way participate in the heroin sales (R. 332-333). The

trial court, over objection, admitted evidence that Petitioner

had been involved five years previously in a narcotics trans-

action (R. 350-351). This evidence was admitted for the

stated purpose of proving Petitioner’s intent in the case on

trial (R. 202). It is inconceivable that the jury, if it believed

that Petitioner had sold the heroin, would not infer from that

fact alone the requisite intent to violate the law. The govern-

ment, therefore, had no need to introduce evidence of the

prior act.

Petitioner contended in the Court of Appeals that his

intent could not have been placed in issue merely by his

entering a plea of not guilty and denying the commission of

the offense. The Court of Appeals, however, upheld the ad-

mission of the prior act evidence. The Court of Appeals

attempts to distinguish Ring, supra, because in Ring the evi-

dence of the prior offense was introduced in the govern-

ment’s case in chief while ““***the defendant here had taken

13

the stand, admitted his presence at the scene of the trans-

action, but generally denied his involvement” (A-3). The

court stated, “This denial carried with it a denial of intent to

be involved” (A-3-4). This distinction is difficult to under-

stand because any time a defendant enters a plea of not

guilty and denies that he was involved in the commission of

the acts that would constitute the offense charged, he would

necessarily deny his intent to be involved. To carry the

court’s reasoning to its natural conclusion would mean that

any time a defendant enters a plea of not guilty and testifies

denying the commission of an offense, he makes his intent

a disputed issue in the trial. In so holding, the Court of Ap-

peals has totally failed to realize the distinction between the

two separate classes of cases discussed in Ring.

In the first category of cases, proof that the defendant

committed the acts charged would not alone necessarily

establish that the defendant committed the acts with intent

to violate the law. In this category, the government has a

strong need of additional evidence to prove the defendant's

intent and in such instances proof of extraneous crimes

tending to establish the defendant’s intent is properly admiss-

ible. Such evidence, furthermore, would be admissible in the

government's case in chief since it would be needed to es-

tablish a prima facie case.

In the second category of cases, however, proof of the

acts constituting the offense would itself establish the re-

quisite intent, thereby eliminating any need for the prosecu-

tion to introduce other evidence to establish the defendant's

intent. In such cases, evidence of extraneous crimes would

not be admissible in the government's case in chief and would

become admissible only in the event the defendant himself

made his intent a disputed issue by asserting that the commis-

sion of the acts charged was done through accident or mis-

14

take or otherwise asserting a justification for his actions,

such as entrapment or accommodating agent. In each of

these instances, however, the defendant would necessarily

have admitted committing the acts charged but would deny

that his actions were taken with intent to violate the law.

The dangers inherent in the reasoning adopted by the

Court of Appeals in this case should be readily apparent. It

must be remembered that it is not convictions for past

crimes that we are considering but the admission of evidence

concerning prior acts alleged to have been committed by a

defendant in which no conviction resulted. Under such cir-

cumstances, to permit the introduction of evidence of prior

misconduct to prove an issue that is not disputed fulfills no

meaningful purpose for the prosecution but forces a defen-

dant to elect between exercising his constitutional right to

testify as a witness in his own behalf or be faced with a

recitation of all his alleged past misconduct. The evidence

admitted against Petitioner in this case involves a single

isolated transaction that occurred five years previous to his

trial and which did not result in a conviction. Other courts

have gone so far as to permit the introduction of evidence of

a prior criminal charge of which the defendant had been tried

and acquitted. United States vs. Moore (9th Cir., 1975),

522 F.2d 1068.

The problems discussed herein are not unique to Petit-

ioner’s case but will continue to plague the courts of appeals

unless resolved by this Court. The question of the proper

admission of evidence of extraneous offenses as an excep-

tion to the general exclusionary rule is in all probability the

single evidentiary issue most often discussed by the various

courts of appeals. It is respectfully submitted that the adop-

tion by this Court of the rationale in Ring will aid the courts

of appeals by furnishing objective criteria against which the

15

propriety of admitting extraneous offense evidence can be

measured.

Il.

The action of the Court of Appeals in sanctioning the

government's violation of a pre-trial agreement represents

such a departure from the accepted and usual course of

judicial proceedings as to call for an exercise of this Court's

power of supervision.

The United States District Court for the Western Dis-

trict of Texas pioneered the implementation of pre-trial dis-

covery procedures in criminal cases as recommended by a

subcommittee of the American Bar Association. The pre-

trial discovery proceedings, commonly referred to as “Omni-

bus Proceedings,” are designed to promote an expeditious

and fair determination of the charges in criminal proceedings;

to provide the accused with sufficient information to make

an informed plea; to permit thorough preparation for trial

and minimize surprise at trial; and to reduce interruptions

and complications of trials by identifying and determining

prior to trial issues collateral to guilt or innocence. The

Omnibus procedures are strongly emphasized by the various

judges in the Western District of Texas and have been widely

accepted by counsel for both the government and defense.

The Omnibus procedure was utilized in this case. The

pre-trial agreement was signed by Petitioner, his counsel, the

assistant United States attorney acting as prosecutor, and was

reviewed, approved and made the order of the United States

District Judge who later acted as the trial judge in this case

(R. 5-14). In the agreement, Petitioner waived formal proof

of several issues that would normally be required to be prov-

en by the government. In the agreement, among other things,

16

Petitioner agreed not to assert any claim of incompetence;

not to rely on any defense of insanity, not to rely on alibi;

agreed to accept a chemist’s report in lieu of testimony ; and

stipulated inat there had been a continuous chain of custody

of government agents from the time of seizure of the contra-

band to the time of trial (R. 10-11, 13). Petitioner further

disclosed to the government the nature of the defenses that

would be asserted by him (R. 11). The disclosures, stipula-

tions and agreement made by the Petitioner materially assis-

ted the prosecution and significantly reduced the complexi-

ties of the trial.

The government in the Omnibus agreement also made

several disclosures concerning the nature of the proof that

would be introduced against Petitioner (R. 9). Among other

representations made by the government was an agreement

not to introduce evidence of prior acts for the purpose of

establishing knowledge or intent (R. 7). Petitioner and his

counsel were entitled to rely upon the Omnibus agreement

and presumed at the time of trial that proof of prior acts

would not be introduced.

A review of the record in this case will establish conclu-

sively that the government intended from the very com-

mencement of the trial to introduce testimony concerning an

alleged prior offense in direct violation of the Omnibus agree-

ment. The government subpoenaed a police officer for the

sole purpose of giving testimony concerning the prior act

(R-380). During the trial the assistant United States attorney

acting as prosecutor admitted to the trial judge that this wit-

ness was available to testify in the event that Petitioner de-

nied on cross-examination his involvement in the previous

transaction (R. 380). Petitioner, however, when asked about

the transaction, admitted his involvement. This cross-exami-

17

nation alone constituted a violation of the pre-trial agree-

ment and the violation was further compounded by the fact

that the police officer was later called and questioned about

the previous transaction (R. 381).

The admission of evidence of the prior offense in viola-

tion of the pre-trial agreement was strongly challenged by

Petitioner in the Court of Appeals. The only previous deci-

sion specifically involving a violation by the government of a

pre-trial Omnibus agreement is an earlier opinion of .the

Court of Appeals for the Fifth Circuit in United States vs.

Scanland (5th Cir., 1974) 495F.2d 1104. In Scanland the

government disclosed its intention to introduce evidence con-

trary to the pre-trial agreement at an en camera hearing held

after the jury had been chosen but before the trial commen-

ced. The Court of Appeals reversed the conviction, stating

that the district court advanced no substantial reason for re-

leasing the government from its agreement and that the ad-

mission of evidence of the prior transaction in violation of

the Omnibus agreement was reversible error unless it could

be said that the violation was harmless beyond a reasonable

doubt.

The Court of Appeals declined to consider the violation

of the Omnibus agreement in this case, stating as the reason

therefor that Petitioner's trial counsel had failed to specifi-

cally assert the violation before the trial court. The Court

held that such failure precluded a review of the trial court’s

decision on appeal. The Court of Appeals further stated that

if the violation had been strongly objected to at the time of

trial, the trial court could have taken other measures to pro-

tect the government's evidentiary rights and Petitioner's

problem of surprise and could have eliminated the necessity

of a retrial.

18

The distinction made by the Court of Appeals is extreme-

ly tenuous for several reasons:

1. A review of the record makes it apparent that Petit-

ioner’s trial counsel did object to the introduction of evi-

dence of the prior act in violation of the Omnibus agreement

(R. 350). The objection is perhaps not as specific as might

be desired but is as specific as the objection lodged in Scan-

land.

2. It is only the Court of Appeals that has raised the

question of sufficiency of the objection. The government it-

self at no time took the position before the Court of Appeals

that no objection was made.

3. The trial judge participated in the Omnibus procedure.

The pre-trial negotiations were held under his supervision and

direction. The Omnibus agreement was reviewed and ap-

proved by the court after its execution and was made an

order of the court (R. 14). The trial judge, therefore, was

aware of the content of the Omnibus agreement and it is

difficult to understand why an objection to its violation

would be necessary.

4. In this case, as compared with Scanland, the jury had

been selected, impaneled and sworn and the trial had com-

menced before Petitioner and his counsel were advised of the

government's intention to violate the agreement (R. 196).

Under such circumstances, jeopardy had attached. It is diffi-

cult to ascertain what measures the trial court could have

taken to protect the government's evidentiary rights without

sanctioning a direct violation of the pre-trial agreement.

The admission of the evidence certainly came as a surprise to

19

Petitioner and his counsel and it is inconceivable that the ad-

mission of such evidence was harmless beyond a reasonable

doubt.

5. The rationale of the Court of Appeals in this case has

placed the penalty for violating the agreement not upon the

government where it rightly belongs but upon Petitioner who

is the party wronged by the government’s violation of the

agreement. Under such circumstances, to allow Petitioner’s

conviction to stand is to knowingly permit the government to

benefit from its own wrong-doing.

To permit the decision of the Court of Appeals to stand

in this case will significantly impair efforts by the courts to

expedite the administration of criminal justice. Congress,

by passage of the Speedy Trial Act of 1974, 18 USC§ 3161,

et. seq., has issued its mandate to trial courts to expedite

the preparation and trial of criminal cases. The Omnibus pro-

cedure adopted by the Western District of Texas and similar

procedures designed to simplify the issues to be determined

during trial are the tools most readily available to meet this

mandate. If, however, the courts do not demand strict ad-

herence to pre-trial agreements made in good faith in accor-

dance with such procedures, their use will fall into disrepute

because counsel, whether prosecution or defense, will, with

justification, feel that such agreements cannot be relied upon.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the United States Court

of Appeals for the Fifth Cireuit.

Respectfully submitted,

20

RICHARD W. HARRIS

1517 Tower Life Building

San Antonio, Texas 78205

OSCAR C. GONZALEZ

200 Main Plaza

San Antonio, Texas 78205

COUNSEL FOR PETITIONER

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Petition for

Writ of Certiorari have been served on opposing counsel, this

A 7 YR day of March, 1976.

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

UNITED STATES of America,

Plaintiff- Appellee,

v.

Ovidio Omar URDIALES,

Defendant- Appellant

No. 75 - 1289

November 24, 1975

Appeal from the United States District Court for the

Western District of Texas.

Before BROWN, Chief Judge, and TUTTLE and

RONEY, Circuit Judges.

RONEY, Circuit Judge:

Defendant Ovidio Omar Urdiales, convicted on three

narcotics counts under 21 U.S.C.A. §§ 841(a)(1) and 846

and 18 U.S.C.A. § 2, asserts the following errors on appeal:

admission of prior offense evidence; admission of a co-con-

spirator’s out-of-court hearsay statements; failure to acquit

on insufficiency of evidence; admission of evidence produced

by an alleged illegal search of defendant’s automobile; _ fail-

ure to grant a mistrial because of the improper prejudicial

testimony and questioning of Government witnesses; and

improper charge to the jury as to an accomplice’s testimony.

We affirm.

A-2

The crimes charged were conspiracy and aiding and

abetting a co-defendant’s unlawful distribution of 22 7 and

245.09 grams of heroin. The two transactions occurred with-

in a few days of each other at a club owned by defendant.

The purchases were made by a Government agent from the

co-defendant, an employee at defendant's club, who had pled

guilty prior to trial.

Prior 1969 Heroin Offense

The most troublesome point on appeal concerns the

introduction into evidence during defendant’s cross-examina-

tion by the Government of a 1969 narcotics transaction.

No conviction had been obtained as a result of this prior

transaction, the charges having been dismissed upon comple-

tion of the defendant’s agreement to cooperate with the

Government in obtaining the conviction of a prime target.

The defendant contends his involvement with heroin in 1969

was improperly admitted to prove intent for two reasons:

first, intent, although a material element of the crime charg-

ed, was not a genuine issue in the case, and second, the use

of the prior transaction to prove intent violated the terms of

a pretrial omnibus agreement.

[1] The defendant concedes that, contrary to the gen-

eral rule prohibiting evidence of separate criminal trans-

actions, use of other offenses is permitted for the purpose

of establishing intent. Relying on cases such as United States

v. Ring, 513 F.2d 1001 (6th Cir. 1975), however, he con-

tends that other offenses are admissible under this exception

only when intent is a genuinely contested issue in the case.

[2.3] A series of Fifth Circuit cases has developed the

law concerning the “intent” exception to the general rule.

A-3

E.g., United States v. San Martin, 505 F.2d 918 (Sth Cir.

1974); United States v. Goodwin, 492 F.2d 1141 (5th Cir.

1974); United States v. Martinez, 466 F.2d 679 (5th Cir.

1972); reh. denied, 481 F.2d 896 (5th Cir.), cert. denied,

414 U.S. 1065, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973);

Matthews v. United States, 407 F.2d 1371 (5th Cir. 1969),

cert. denied, 398 U.S. 968, 90 S.Ct. 2177, 26 L.Ed.2d 554

(1970); Baker v. United States, 227 F.2d 376 (5th Cir.

1955); Weiss v. United States, 122 F.2d 675 (5th Cir.), cert.

denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941).

Synopitally, the prerequisites needed for application of the

exception are fourfold: (1) plain, clear and convincing evi-

dence of a prior similar offense,(2) not too remote in time,

(3) in which intent is a material element, and (4) the proof

of which is substantially needed by the Government to the

extent that material prejudice to the defendant is outweigh-

ed. The prior offense introduced in this case, substantially

similar to the offenses for which defendant was on trial,

satisfies these requirements and was properly held admissible.

See, in addition to those cases cited previously, United States

v. Simmons, 503 F.2d 831 (5th Cir. 1974); United States v.

Cavallino, 498 F.2d 1200 (5th Cir. 1974); United States v.

Arias-Diaz, 497 F.2d 165 (5th Cir. 1974); United States v.

Fonseca, 490 F.2d 464 (5th Cir.), cert. denied, 419 U.S.

1072, 95 S.Ct. 660, 42 L.Ed. 2d 668 (1974).

We need not rule here on whether a plea of “not guilty”

would put intent sufficiently in issue to support admission of

the evidence in the Government's case in chief. Unlike the

Sixth Circuit’s decision in United States v. Ring, supra, and

cases cited therein, where the prior offenses were proved in

the Government’s case in chief, the defendant here had taken

the stand, admitted his presence at the scene of the trans-

action, but generally denied his involvement. This denial

A-4

carried with it a denial of intent to be involved. No cases

cited support defendant’s contention that the kind of defense

asserted in this case removed intent as a material issue to the

point where the prior transaction “intent’’ exception should

not apply.

[4] On objection to the admission of the evidence in

the trial court, the defendant did not assert a violation of the

pretrial omnibus agreement, a point he vigorously argues on

appeal. We believe that this is the kind of argument that

must be specifically asserted before the trial court to be re-

viewable on appeal. See F.R. Crim. P.51; cf. United States

v. Anderson, 471 F.2d 201, 203 (5th Cir. 1973). Even

assuming the defendant’s interpretation of the omnibus a-

greement would have been upheld by the district court if

asserted at trial, other measures could then have been taken

to protect both the Government’s evidentiary rights and the

defendant’s problem of surprise and could have eliminated

the necessity of a retrial. See generally 3 Wright, Federal

Practice & procedure (Criminal) § 842 (1969). Under such

circumstances, we find no reversible error in the admission

of the evidence and no cause to consider the application of

United States v. Scanland, 495 F.2d 1104 (5th Cir. 1974).

Co-Conspirator’s Hearsay

[5,6] Hearsay statements made to a Government

agent by a co-conspirator are properly admissible if the

prosecution proves the conspiracy’s existence by independent

evidence. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct.

457, 86 L.Ed. 680 (1942); United States v. Oliva, 497 F.2d

130, 132-133 (5th Cir. 1974). We believe the evidence in

this case was sufficient to show existence of the conspiracy

independent of the hearsay statements. The Government

agent had questioned defendant moments before the first

A-5

heroin transaction as to whether everything was ready.

Urdiales replied that ‘‘everything is ready, go in and talk to

Alex.” Defendant was present at the club during the entire

transaction, and even gestured in an affirmative manner in

response to the agent’s visual inquiries when the heroin

pickup was made. During the second transaction defen-

dant’s actions in reference to the co-conspirator’s concomit-

ant movements in and out of the club, and the discovery of

the money beneath the floor mat of the defendant’s car,

further support the conspiracy’s existence apart from the

implicating remarks.

Sufficiency of the Evidence

[7] A review of the record reveals that the evidence,

though circumstantial, was sufficient when viewed in the

light most favorable to the jury verdict to support a finding

beyond a reasonable doubt that a conspiracy did exist. See

Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457

(1942).

Automobile Search

[8] Defendant contests the admission into evidence of

$3.000 found by a Government agent who noticed through

the car window a distinctive bulge under the floor mat of

defendant’s car. The evidence withstands the illegal search

challenge under the principles of Chambers v. Maroney, 399

U.S. 42, 46-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022,

29 L.Ed.2d 564 (1971). Although the car was not being

driven, it was in the process of being towed away. Immediate

action by the officer was justified. The agent had seen the

defendant with the car on a prior occasion. The automobile,

found in a parking lot behind a bus station had earlier in the

A-6

day been parked across from the club owned by Urdiales,

the scene of the two transactions. Although no agent saw

defendant move the car, it had indisputably been moved

between the time the defendant had entered and left the

club until he was arrested inside the bus station, a period of

only a few minutes. The agent testified that he knew of

the missing $3,000 even before the car was searched. Under

these exigent circumstances, there is no merit to defendant's

contention that a search warrant should have been obtained.

Jury Charge

The judge charged that:

An alleged accomplice does not become incompetent as a

witness merely because of participation with others in

the criminal act charged. However, the jury should keep in

mind that the testimony of an alleged accomplice, if you

decide he was an accomplice, should be closely examined,

received with caution and weighed with great care.

[9] The accomplice had testified, contrary to his

earlier hearsay statements, that defendant played no role in

the drug deals. This Court in United States v. Nolte, 440

F.2d 1124, 1126 (5th Cir.), cert. denied, 404 U.S. 862,

92 S.Ct. 49, 30 L.Ed.2d 106 (1971), stamped its imprima-

tur on a similar jury charge where an accomplice had excul-

patorily testified for the defense. The Supreme Court in

Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 34

L.Ed.2d 335 (1972), cited Nolte with approval. The instant

case does not concern a charge which predicated the jury's

acceptance of the testimony on finding it true beyond a

reasonable doubt, as in Cool. Here the charge concerned

only the weight to be accorded the evidence, a practice

recognized as proper by Cool.

A-7

Harmless Error

[10] The testimony received from a Government

agent concerning defendant's reputation in heroin traffic

and the prosecutor's reference to defendant's attempt at bar-

gaining with the Government after “the case was made,”

did not constitute reversible error under the circumstances

of this case. At best, they only rise to the level of harmless

error. See F.R. Crim. P. 52(a).

Affirmed.

a

et

B-]

APPENDIX B

ORDER DENYING PETITION FOR REHEARING

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75 - 1289

U.S. Court of Appeals

FILED

Feb 23, 1976

Edward W. Wadsworth, Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

OVIDIO OMAR URDIALES,

Defendant-Appellant

Appeal from the United States District Court for the

Western District of Texas

ON PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

(Opinion Nov. 24, 1975, 5 Cir., 1975, F.2d )

(FEBRUARY 23, 1976)

Before BROWN, Chief Judge, TUTTLE and RONEY, Circuit

Judges.

PER CURIAM:

B-2

[x] The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

bane, (Rule 35 Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 12) the Petition for Rehearing En Banc is

DENIED.