# Petition — Urdiales v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 920

## Text

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
ee et ied idee eud oddeees dee 2
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1883%3A1. Public record. Not legal advice.