Petition — Arteaga-Limones v. United States

{ Supreme Court, U. &

im FILED

, JUL 15 = (197°

In THE MICHAT! pANnAY _

Supreme Court of the

United States

Ocroser TERM, 1976

No. _. 76 - 5 2

Jose DemMeTRio ARTEAGA-LIMONES,

Petitioner

v.

THe Unrrep STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

KENNETH E. Houp, Jr.

Counsel for Petitioner

P.O. Box 1687

Austin, TX 78767

INDEX

Opinion Below _.......................

IID Jk: scisinichinevsinnosionsdensentinameiabiannaianninnmentinane

Questions Presented for Review

Constitutional Provisions and Statutes Involved _..

LR SOS re ase RA NEED

Reasons for Granting The Writ .....

Conclusion FOP ee REED Te

APPENDICES:

A—Opinion of the United States Court of Appeals

B—Opinion of the United States Court of Appeals

Denying Rehearing

C—Judgment of the United States Court of Appeals

LIST OF AUTHORITIES CITED

CASES: -

American Tobacco v. United States,

I IS TI gaia lace tiiiees REP a

Blumenthal v. United States,

nn

Boyd v. United States, 142 U.S. 450 _ ae

Braverman v. United States,

I I I i encesecsceeninccisenenctenste

L. P. Steuart & Bro. v. Bowles,

+ | f

12

PAGE

Marshall v. United States,

360 U.S. 310 _.... ar

Ross v. United States,

349 F.2d 210 (D.C. Cir., 1965) -

Russell v. United States,

429 F.2d 237 (5th Cir., 1970)

Spencer v. Texas, 385 U.S. 554

United States v. Adcock,

487 F.2d 637 (6th Cir., 1973) 0

United States v. Brignoni-Ponce,

45 L.Ed. 2d 607

United States v. Covington,

411 F.2d 1087 (4th Cir., 1969)

United States v. Honneus,

525 F.2d 943 (5th Cir., 1975)

United States v. Houltin,

525 F.2d 943 (5th Cir., 1975)

United States v. Marion,

IE MII: SIT catsctbicesnsecmenasiacissssiinin -

United States v. Marotta,

518 F.2d 681 (9th Cir., 1975) - has

United States v. Mori,

444 F.2d 240 (5th Cir., 1971) .

United States v. Noah,

475 F.2d 688 (9th Cir., 1973) _

OTHER:

H.R. Rep. No. 91-1444, 90th Cong. (1973)

Page

ll

In THE

Supreme Court of the

United States

Ocroser TERM, 1976

RSE ee Ra oa

Jose DemMeTRIO ARTEAGA-LIMONES,

Petitioner

Vv.

Tue Unitep STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jose Demetrio Arteaga-Limones, prays that a writ of certio-

rari issue to review the judgment of the United States Court

of Appeals for the Fifth Circuit, entered in this case on April

8, 1976, petition for rehearing denied June 9, 1976.

OPINION BELOW

The opinion of the Court of Appeals is not yet reported.

It affirmed (with a dissent) a judgment of conviction of peti-

tioner for conspiracy to import marijuana, importation of

2

marijuana, conspiracy to possess marijuana with intent to

distiibute, and possession of marijuana with intent to dis-

tribute Petitioner was tried in the District Court by a jury,

and there is no opinion of that Court.

JURISDICTION

The judgment of the United States Court of Appeals was

entered on April 8, 1976, petition for rehearing denied on

June 9, 1976. Jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the consecutive sentences received by Petitioner

on two conspiracy counts violated his Fifth Amendment

right not to be twice punished for the same offense, when

the evidence showed only one conspiracy?

2. Whether Petitioner was denied due process and a fair trial

when a twelve-year old conviction was introduced against

Petitioner during the Government’s case-in-chief?

3. Whether Petitioner was effectively prevented by action of

the. Government from asserting his only defense, alibi, and

thus denied due process and a fair trial, by virtue of the

Government's inability to plead wiih certainty, and the

Government's only material witness’ inability to remember,

the dates when the eriminal conduct occurred?

CONSTITUTICG:: AL PROVISIONS AND

STATUTES INVOLVED

1. The Fifth Amendment, United States Constitution.

2. The Sixth Amendment, United States Constitution.

3. Two of the statutes under which Petitioner was prosecuted,

although nothing turns on their terms, were 21 U.S.C. §§

846 and 963.

3

STATEMENT

After a jury trial in the United States District Court for the

Western District of Texas, Del Rio Division, Petitioner was

convicted on all four courts charging violations of 21 U.S.C.

§§ 963, 952(a), 846, and 841(a)(1). He received a sentence

of five years imprisonment and five years special parole on

each count, to be served consecutively.

The evidence concerning the actus rea of the offenses

charged came from one Julio Castillo-de-la Garza (hereinafter

referred to as “Castillo”). The chronology of events testified

to by Castillo is set forth in detail in the opinion below. (See

Appendix “A” infra.) Castillo was an unindicted co-conspirator

in Petitioner's indictment, an admitted perjurer, and awaiting

sentence at the time of Petitioner's trial for a separate drug

transaction not involving Arteaga.

The transaction alleged in the indictment with respect to

Petitioner was, in essence, a completed one which occurred

between January 1, 1973, and October 7, 1973. Said transac-

tion remained undetected until Castillo was convicted at his

own trial of an unrelated charge in May, 1974, of importation

of 301 pounds of hashish. Castillo then came forward and

confessed all at Petitioner's trial, including the fact that he had

perjured himself at his own trial in order “to get out of the

charge.”

At trial, Petitioner attempted to interpose the defense of

alibi, both through cross-examination of Castillo, and by the

undisputed and unimpeached defense testimony of attorneys

from Mexico, to show that on January 29-30, 1973, and con-

tinuously from April 26, 1973, to May 20, 1973, Petitioner was

in Guadalajara, Mexico, and thus could not have been in Del

Rio, Texas, on May 5, 1973, when the marijuana was supposed

to have been imported, nor in Sari Marcos, Texas, on May 16,

1973, when the marijuana purportedly was distributed.

The replies to Petitioner's questions which attempted to tie

4

Castillo down to a date certain are best exemplified by that

exchange set out in footnote 5 of the opinion below. (See Ap-

pendix “A”, infra.) The record is replete with other examples

of Castillo’s loss of memory of key dates. The indictment itself

alleged dates “on or about, the exact date unknown.”

Furthermore, during the trial in its case-in-chief, the Gov-

ernment introduced over Petitioner's objection a twelve-year

old conviction of Petitioner for “smuggling marijuana” (21

U.S.C. §176a, since repealed ). The District Court erroneously

admitted (as found by the Court below) the prior conviction

under the theory that since the prior conviction was for a

similar offense, it was admissible on the issue of intent or

guilty knowledge.

REASONS FOR GRANTING THE WRIT

1. The opinion below is in conflict with opinions of the First

and Sixth Circuits which preclude multiple punishments for

conspiracy to import narcotics and conspiracy to possess nar-

cotics with the intent to distribute where the evidence shows

only one criminal agreement. United States v. Honneus, 508

F.2d 566 (1st Cir., 1974), cert. denied, 421 U.S. 945, 44 L.Ed

2d 101, 95 S.Ct. 1677; United States v. Adcock, 487 F.2d 637

(6th Cir., 1973).

The Court below, without citation, apparently aligns itself

with the leading case in the Fifth Circuit on the issue, United

States v. Houltin, 525 F.2d 943 (5th Cir., 1976) and the Ninth

Circuit, United States v. Marotta, 518 F.2d 681 (9th Cir.,

1975).

Another conflict, in interpretations of opinions of this Court,

is apparent from an analysis of the various cases condemning

or sustaining the practice of double sentencing. In those cases

condemning the practice, Honneus, supra; Adcock, supra, c.f.

United States v. Mori, 444 F.2d 240 (5th Cir., 1971); United

States v. Noah, 475 F.2d 688 (9th Cir., 1973), Braverman v.

United States, 317 U.S. 49, 87 L.Ed. 23, 63 S.Ct. 99 (1943), is

5

cited as authority. In that line of cases sustaining the practice,

Houltin, supra, Marotta, supra and Petitioner's opinion below,

American Tobacco Co. v. United States, 328 U.S. 781, 90

L.Ed. 1575, 66 S.Ct. 1125 (1946), is cited as authority and

Braverman, supra, is distinguished or not considered. Peti-

tioner submits that the confusion caused between Braverman

and American Tobacco should be resolved and that direction

be given the various Circuits and District Courts as to their

applications.

But Houltin, supra, and Marotta, supra, tred farther than

reliance upon American Tobacco. While conceding in Marotta

and by implication conceding in Houltin, that there was only

one agreement, the respective Courts of Appeal find that it

was the intent of Congress in enacting separate conspiracy

statutes (21 U.S.C. §§ 963 and 846) to punish “. . . such con-

spiracies twice as severely as those which embrace only one

of the specified criminal objects.” Marctta, supra, at 685.

The fallacies in that logic are manifest and are of consti-

tutional magnitude.

To begin with, the rulings in Houltin and Marotta do not

take into account the necessity for separate conspiracy statutes

to cover the situation where there is only proof of one or the

other.

But more importantly, both rulings miss the intent of Con-

gress in separately enacting §§ 963 and 846 by a mile. What

the Courts of Appeal in Houltin and Marotta see as a Con-

gressional mandate to doubly punish drug offenders, is actually

nothing more than Congressional Committee jurisdictional

delineation.

The legislation [Comprehensive Drug Abuse Preven-

tion And Control Act of 1970] was further considered in

executive sessions before the full Interstate and Foreign

Commerce Committee on 8 occasions, and titles I and II

were ordered reported to the House unanimously on

August 14, 1970, together with title III [21 U.S.C. §§ 951

6

et. seq.] incorporated in the bill pursuant to action of the

Ways and Means Committee. (as indicated below ).

. . . Because the proposed legislation repeals the tax

laws and other laws under the jurisdiction of the Com-

mittee on Ways and Means used to control narcotic drugs,

the President's message was first referred to the Commit-

tee on Ways and Means. However, because the proposed

legislation also deals with drugs regulated under the Fed-

eral Food, Drug, and Cosmetic Act, the proposed legisla-

tion was divided into two bills, H.R. 13742 (referred to

the Committee on Ways and Means) and H.R. 13743

(referred to the Committee on Interstate and Foreign

Commerce. )

.. . Thereafter the Committee on Ways and Means de-

cided to consider only the provisions relating to imports

and exports of narcotic drugs, marijuana, and depressant

and stimulant drugs and recommended to the Interstate

and Foreign Commerce Committee an amendment to

H.R. 18583 which is incorporated in the bill as title III

thereof The reported bill is based upon the provisions of

the legislation heretofore discussed, with the form in

which the bill is reported being designed to preserve the

jurisdiction of the Ways and Means Committee over fu-

ture amendments te this legislation relating to imports and

exports of drugs covered by the bill. H.R. Rep. No. 91-

1444, 90th Cong. (1970) (bracketed and italicized ma-

terial added ).

Tie legislative history cited at length above indicates that

the intent of Congress had nothing to do with punishment

considerations.

Even if the intent of Congress could arguably be said to

have been to doubly punish drug offenders, Congress may not

by its legislation override the Constitution any more than

Courts by their opinions may ignore the Constitution. cf.

United States v. Brignoni-Ponce, _ U.S. __., L.Ed.2d 607,

95 S.Ct. , (1975). Since Congress may not legislate around

the Fifth Amendment, it can only be assumed that the Court

7

of Appeal in Houltin and Marotta chose to ignore the Consti-

tution and add additional punishment on top of that autho-

rized by Congress.

_. . it is for Congress to prescribe the penalties for the

laws which it writes. It would transcend both the judicial

and administrative function to make additions to those

which Congress has placed behind a statute. L.P. Steuart

¢> Bro. v. Bowles, 322 U.S. 398, 404, 88 L.Ed. 1350, 1354,

64 S.Ct. 1097 (1944).

The Court below chose to take the facts and add 1 plus 0

to come up with 2. The facts in Petitioner's case can support

but one finding, and that is one conspiracy.

This Honorable Court has formulated the standard for de-

termining when there are one or more conspiracies, and that

is whether “a common end or single unified purpose” is to be

achieved by the conspirators. Blumenthal v. United States,

332 U.S. 539, 92 L.Ed. 154 68 S.Ct. 248 (1947). The Marotta,

Houltin and Petitioner's decisions fly directly in the face of

that standard, and present further grounds for this Honorable

Court to grant Petitioner's application.

2. This case merits review by this Honorable Court on certio-

rari because this Court needs to settle the question of when,

without violating due process or the right to a fair trial, proof

of a prior conviction may be had during the Governments

case-in-chief.

The Court below found that the introduction of the 1961

conviction of Petitioner for “smuggling marijuana” was error,

the conviction being too remote to be probative and the preju-

dice to the Petitioner greater than any need for the proof by

the Government. Quoting from the opinion, (Appendix “A”,

p.p. 2821-22 infra):

Arteaga did not limit his challenge to the mens rea;

rather, he attacked the whole account. In such cases, the

danger of convicting defendants for their evil character,

8

instead of their evil acts remains great. Where, as here,

the evidence is not reasonably susceptible of the interpre-

tation that the acts alleged to constitute the crime were

innocently performed and no defense is presented which

may properly be rebutted by the introduction of the prior

conviction, the intent exception to the rule against admit-

ting prior convictions is not available.

Having found error otherwise sufficient for reversal, the

Court below concluded that this error had not been sufficiently

called to the Trial Court’s attention (Rule 51, Federal Rules of

Criminal Procedure ) and was therefore not properly preserved

for review. The majority below went on to find the error

armless even if preserved due to some incriminating state-

ments concerning Petitioner's knowledge of drug trafficking

made to Government witness Justice of the Peace Roger Cerny.

Petitioner would submit, for the sake of brevity, that the

dissenting opinion below of Judge Charles Clark sufficiently

answers the preservation and harmless error questions. (See

Appendix “A”, p.p. 2824-26, infra. )

This Court has never squarely met the question here pre-

sented. Spencer v. Texas, 385 U.S. 554, 17 L.Ed.2d 606, 87

S.Ct. 648 (1967) (dissenting opinion of Chief Justice Warren

at U.S. 572-73; L.Ed. 2d 619).

It is axiomatic that a defendant has the right to a determina-

tion of guilt or innocence based solely upon the charge brought

against him. Boyd v. United States, 142 U.S. 450, 35 L.Ed.

1077, 12 S.Ct. (1892). The Court below having correctly de-

cided that the introduction of the 1961 conviction met no

cognizable exception to the general prohibition against such

matters, the inescapable conclusion is that the Petitioner was

tried before this Jury as being a criminal generally. If this is

not sufficient to rise to error of constitutional gravity, it should

at least be sufficient to invoke the exercise of this Court’s

supervisory power to formulate and apply proper standards for

enforcement of the crimina! law in federal courts. Marshall v.

United States, 360 U.S. 310, 3 L.Ed.2d 1250, 79 S.Ct. 1171

9

(1959). The confusion this question has caused in the lower

federal courts is amply reflected by the confusion of the Dis-

trict Judge, prosecutor and defense attorney in the dialogue

quoted in the opinion below (Appendix “A”, p.p. 2819-20, in-

fra) as to the grounds for admissibility. The question of the ad-

missibility of prior convictions during the Government's case-

in-chief is particularly serious because it strips the defendant of

the presumption of innocence in the eyes of the Jury before

he’s had an opportunity to utter a word or offer witnesses.

The proposition that the Government may introduce during

its case-in-chief prior convictions for similar offenses bearing

on the issue of innocent intent or knowledge, before that ele-

ment has ever been raised by any defensive testimony, is pre-

posterous. Petitioner's case is a classic example. Assuming for

the sake of argument that the 1961 conviction was admissible

on the theory that it went to negate the lack of innocent in-

tent, how could its admission be ripe in the Government's

case-in-chief? If, as in Petitioner's case, it subsequently became

obvious that his defense was not lack of innocent intent, but

rather “alibi”, or an unqualified plea of “not guilty”, would

the District Court upon defense motion or on its own motion

be required to direct the Jury to disregard the previously ad-

mitted prior conviction? The Petitioner's guilt or innocence

should not be predicated upon the Government's ability to

second guess his defensive strategy, particularly where the

prior conviction was inadmissible under any theory at the

time it was introduced. c.f. Marshall, supra.

However depraved in character, and however full of

crime their past lives may have been, the defendants were

entitled to be tried upon competent evidence, and only

for th offense charged. Boyd, supra, at U.S. 458, L.Ed.

1080.

3 This Honorable Court expressly left open the question as

to whether pre-arrest delay could. result in a denial of due

process in United States v. Martin, 404 U.S. 307, 30 L.Ed.2d

468, 92 S.Ct. 455 (1971). “However, we need not, and could not

now, determine when and in what circumstances actual preju-

LO

dice resulting pre-accusation delays .°jnires the dismissal of

the prosecution . . . To acconiodate the s,und administration

of justice to the rights of the deternlant to a fair trial will

necessarily involve a delicate judgme:t based on the circum-

stances in each case.” Marion, supra, at U.S. 324-25, L.Ed.2d

481. (Emphasis added}

Petitioner does not contend that the indictment was not

presented within “.e applicable statute of limitations. Nor does

he claim a denial of the right to a speedy trial once the indict-

ment was returned.

He does contend that the unwillingness or inability of the

Government's only fact witness, an admitted perjurer, to recall

the dates involved, in the manner the Government presented

its case, effectively denied him, to his substantial prejudice,

the ability to present his only defense, and thus denied him

the due process of law.

The length of time between the crime alleged and the Peti-

tioner’s arrest is not the crucial element. What is crucial is that

during that time, the Government's sole fact witness, Castillo,

“forgot” when the crime was to have occurred.

Petitioner was thwarted at every turn i. his effort to estab-

lish an alibi based on the dates “alleged” in the indictment.

He was frustrated by the very allegations of the indictment,

“. .. the exact date unknown to the grand jurors . . .” He was

thwarted by the Court’s charge. (Appendix “A”, p. 2817, infra. )

He was thwarted by argument of the Government, e.g., “The

Grand Jury Indictment charges on or about a certain date, the

exact date unknown. Where is the requirement that the Gov-

ernment prove it happened exactly on a certain date?”

In fact, the Government attempted to base its prosecution

upon its inability to prove exact or near-exact dates: “The

Grand Jury Indictment does not require and does not exhibit

and does not allege a specific date. Mr. Castillo never alleged

ll

or testified to a specific date. And I suggest to you that that

is a defense of this case to set up specific dates and then show

they didn’t happen on specific dates. The Defense Attorneys

are the ones who are alleging that things happened on specific

dates. And they are alleging other things happened on those

same specific dates.” But most of all, Petitioner was frustrated,

thwarted and prejudiced by the repeated assertions of Castillo,

an admitted perjurer, that he, Castillo, “did not remember”

the dates. The best Castillo could do was parrot the phrase

“mas o menos” (more or less), when the defense attempted

to tie him to a date certain. Petitioner's indictment, by virtue

of Castillo’s testimony alleges no dates upon which a defense

could be established.

Petitioner concedes that ordinarily “time” is not an element

of an offense.

However, in order to present a defense of alibi, under the

facts of this case, would Petitioner have to account, through

witnesses, for his whereabouts during every minute of every

day and night between January 1, 1973, and October 9, 1973?

The very asking of the question points out the ludicrousness

of the Government's contention that it is not bound to any

date, as it also points out the impossibility of the burden upon

the Petitioner.

To hold—where, as here, a factual, unimpeached defense

places the date of the commission of the offense in issue—that

the Government without discernible parameters, need not

prove a date “within reasonable limits,” c.f. Russell v. United

States, 429 F.2d 237, 238, (5th Cir., 1970), but may hide be-

hind “the exact date :mknown, mas o menos”, is to abolish

the defense of alibi, and make an unqualified plea of “not

guilty” meaningless.

Within the import of Marion, Petitioner was prejudiced by

the unwillingness or inability of the admitted perjurer Castillo

to remember the dates involved, and thus he was denied due

process of law and a fair trial. See also, United States v. Cov-

12

ington, 411 F.2d 1087, 1089 (4th Cir., 1969); Ross v. United

States, 349 F.2d 210 (DC. Cir., 1965). The claim of prejudice

the Court in Marion found to be premature, has matured in

Petitioner's case, and bore fruit for the Government.

CONCLUSION

For the foregoing reasons it is respectfully submitted that

the petition for certiorari should be granted to review the

judgment of the United States Court of Appeals for the Fifth

Circuit,

ENNETH E. Houp, JR.

Counsel for Petitioner

P.O. Box 1687

Austin, TX 78767

CERTIFICATE OF SERVICE

I, a member of the bar of this Court, certify that a true and

correct copy of the foregoing Petition for Writ of Certiorari

was delivered by United States Mail, certified, to the Solicitor

General, Department of Justice, Washington, D.C. 20530, on

this the __ yt day of ‘on , 1976.

Kumold €.

KENNETH E. Hovup, Jr.

APPENDICES

UNITED STATES v. ARTEAGA-LIMONES

UNITED STATES of America,

Plaintiff-A ppellee,

v.

Jose Demetrio ARTEAGA-LIMONES

and Mike Lozano Cantu,

Defendants-Appeiiants.

No. 75-1648.

United States Court of Appeals,

Fifth Circuit.

April 8, 1976.

The United States District Court for

the Western District of Texas, at Del

Rio, John H. Wood, Jr., J., found defend-

ants guilty of drug-related offenses, and

they appealed. The Court of Appeals,

Ingraham, Circuit Judge, held, inter alia,

that where no allegation of a variance

between the narcotics charges and proof

was made, and no other circumstance

demonstrating that defendant was in

any way disadvantaged was brought to

light, there was no error in the fact that

each count of the indictment did not re-

peat the division and district in which

the crime was charged to have been

committed; and that where defendant’s

prior narcotics conviction was clearly ad-

missible, as pointed out by the govern-

ment at trial, to show a common design,

scheme or plan, where the evidence was,

however, admitted by the court on an

incorrect theory to establish criminal in-

tent, and where defense counsel asked

only that the evidence be excluded, the

court’s technical error in apparently bas-

ing its ruling on the wrong ground did

not result in prejudice to defendant and

did not require reversal. As to the other

defendant, the Court held, inter alia,

that his prior conviction, while elemen-

tally nearly identical to the charges in

the instant case, was committed 12 years

before and was too remote to possess

probative value; further, the need for

such proof was outweighed by the poten-

tial prejudice to defendant; however, de-

fendant’s objection at trial was tov loose-

ly formulated and imprecise to apprise

the court of the legal grounds for his

complaint and the error was thus not

preserved for appellate review.

Affirmed.

Clark, Circuit Judge, filed an opin-

ion concurring in part and dissenting in

part.

1. Criminal Law #1177

Since defendant received concurrent

sentences, no reversible error was

present if the proof was adequate as to

either count.

2. Criminal Law @1144.13(3)

On appeal from a conviction, Court

of Appeals must view the evidence in

light most favorable to the Government.

3. Conspiracy @=47(1)

Only slight evidence is required to

link a defendant to a conspiracy once the

fact of conspiracy has been established.

4. Conspiracy @—47(12)

Drugs and Narcotics #123

Jury could reasonably find, from the

testimony as to defendant’s involvement

with another individual who was convict-

ed of illegally importing hashish, his pro-

vision of hiding place for marijuana and

his service as a delivery courier, that he

participated in the charged conspiracy to

possess marijuana with intent to distrib-

ute; and the latter activity, allegedly in-

volving a transfer of marijuana at San

Marcos, Texas, also provided a valid ba-

sis for a finding that defendant pos-

sessed marijuana with intent to distrib-

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1976, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

INDEXED

2806 UNITED STATES v. ARTEAGA-LIMONES

ute it. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970,

§§ 401(aX1), 406, 21 U.S.C.A. §§ 841

(aX1), 846.

5. Indictment and Information 255

Validity of an indictment is deter-

mined by practical, not technical, consid-

erations. Fed.Rules Crim.Proc. rule 7c),

18 U.S.C.A.

6. Indictment and Information e117

While the counts of an indictment

must stand independently for the pur-

pose of being judged as to sufficiency,

they need not be read apart from the

caption and heading of the indictment.

7. Criminal Law #113

Defendants had the right to be tried

in the district and division where the

offense was committed, not the right to

be told they would be tried there.

8. Indictment and Information @=86(2)

Where no allegation of a variance

between the narcotics charges and proof

was made, and no other circumstance

demonstrating that defendant was in

any way disadvantaged was brought to

light, there was no error in the fact that

each count of the indictment did not re-

peat the division and district in which

the crime was charged to have been

committed.

9. Criminal Law @1169.11

Where defendant’s prior narcotics

conviction was clearly admissible, as

pointed out by the government at trial,

to show a common design, scheme or

plan, where the evidence was, however,

admitted by the court on an incorrect

theory to establish criminal intent, and

where defense counsel asked only that

the evidence be excluded, the court’s

technical error in apparently basing its

ruling on the wrong ground did not re-

sult in prejudice to defendant and did

not require reversal.

10. Criminal Law @1159.2(1)

Standard for review of the sufficien-

cy of the evidence, irrespective of wheth-

er the evidence is direct or cireumstan-

tial, is whether reasonable minds could

conclude that the evidence is inconsistent

with the hypothesis of the accused’s in-

nocence.

11. Conspiracy @=47(12)

Drugs and Narcotics @=123, 124

Evidence adduced at trial clearly

supported jury’s verdict finding defend-

ant guilty of conspiracy to import mari-

juana, illegal importation of marijuana,

conspiracy to possess marijuana with in-

tent to distribute, and possession of mar-

ijuana with intent to distribute. Com-

prehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401(a\1), 406,

1002%(a), 1010(a\1), 1013, 21 U.S.C.A.

§§ 841(aX1), 846, 952(a), 960(a\1), 963.

12. Criminal Law @1037.1(1)

Although the prosecutor's closing re-

marks, tending to vouch for the credibili-

ty of the Government’s primary witness,

were improper and unprofessional, they

did not constitute plain error preserved

in the absence of objection at trial, and

furthermore, the trial court’s repeated

admonitions to the jury that nothing

said during argument could be con-

sidered as evidence dispelled any preju-

dice which may have arisen.

13. Criminal Law @= 1038.3

Because defendant failed to request

an instruction concerning the credibility

of the prosecution’s chief witness, an ad-

mitted perjurer, a proper foundation was

not laid to obtain review of that alleged

error. Fed.Rules Crim.Proc. rules 7(c),

18, 18 U.S.C.A.

14. Criminal Law @1168(1)

While defendant claimed that, be-

cause his defense of alibi was dependent

UNITED STATES v. ARTEAGA-LIMONES 2807

upon a showing that he was nowhere

near the place where the offenses oc-

curred on the dates alleged, he was pre)-

udiced by the Government’s failure to

prove the exact dates of the offenses

charged, defendant was not in fact prej-

udiced by the chief prosecution witness

failure of memory, considering the trial

court’s careful admonitions and defense

counsel’s vigorous cross-examination of

the witness.

15. Conspiracy *=47(12)

While defendant claimed that the

evidence showed only one conspiracy,

rather than two separately identifiable

ones, and that his trial, conviction and

consecutive sentencing on all counts vio-

lated the Fifth Amendment’s double

jeopardy clause by imposing multiple

punishments for the same offense, the

existence of separate conspiracies was

established by proof that the objects of

the conspiracies were different, viz., im-

portation and distribution, that the per-

sons involved were different, and that

the locales were also different. Compre-

hensive Drug Abuse Prevention and

Control Act of 1970, §§ 406, 1013, 21

U.S.C.A. §§ 846, 963; U.S.C.A.Const.

Amend. 5.

16. Criminal Law @=656(1), 1035(9)

While defendant complained that

the trial court denied him a fair trial by

interjecting references to his incarcera-

tion, the record established that refer-

ences to his pretrial confinement were

invited by defendant himself, that he

failed to object thereto at trial, thus not

preserving the alleged error for review,

and that the objectionable statement

was at most cumulative of other evi-

dence placed before the jury without ob-

jection.

17. Criminal Law @=371(1)

Propriety of admitting evidence of

prior convictions to show intent is estab-

lished by showing four factors: (1) plain,

clear and convincing evidence 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 outweighed.

18. Criminal Law @=369.2(1), 1043(2)

Defendant’s prior conviction, while

elementally nearly identical to the

charges in the instant case, was commit-

ted 12 years before and was too remote

to possess probative value; further, the

need for the proof was outweighed by

the potential prejudice to defendant;

however, defendant’s objection at trial

was too loosely formulated and imprecise

to apprise the court of the legal grounds

for his complaint and the error was thus

not preserved for appellate review.

19. Criminal Law @371(1)

Where the evidence is not reason-

ably susceptible of the interpretation

that the acts alleged to constitute the

crime were innocently performed and no

defense is presented which may properly

be rebutted by the introduction of a pri-

or conviction, the intent exception to the

rule against admitting psior convictions

is not available to the prosecution.

20. Criminal Law @ 1169.11

Improper admission of an extrane-

ous offense can constitute harmless er-

ror.

21. Drugs and Narcotics 103

Indictment’s second count, charging

illegal importation of marijuana, was not

fatally defective in failing to include

“knowingly or intentionally” in its lan-

guage, where the language used was ac-

companied by specification of the statu-

tory section numbers, and where the

2808 UNITED STATES v. ARTEAGA-LIMONES

jury was charged that they had to find

knowledge or intent in order to convict.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 1002(a),

101Q@(aX1), 21 USCA. §§ 952(a),

960( a) 1).

22. Indictment and Information e109

An indictment is defective if it fails

to allege scienter elements expressly con-

tained in pertiment statute, but the ele-

ments need not be alleged in terms, and

a pleading is good if it fairly imports

knowledge or in ent.

Appeals from the United States Dis-

trict Court for the Western District of

Texas.

Before COLEMAN, CLARK and IN-

GRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Jose Demetrio Arteaga-Limones (Ar-

teaga) and Mike Lozano Cantu (Cantu)

appeal from their convictions of drug-re-

lated offenses. Arteaga was convicted

under 21 U.S.C. § 963, conspiracy to im-

port marijuana; 21 U.S.C. §§ 952(a),

960(a\(1), illegal importation of marijua-

na; 21 U.S.C. § 846, conspiracy to pos-

sess marijuana with intent to distribute;

and 21 U.S.C. § 841(aX1), possession of

marijuana with intent to distribute. He

received a sentence of five years impris-

onment and five years special parole on

each count, to be served consecutively.

Cantu was convicted of the two latter

offenses and received a sentence of five

years imprisonment and five years spe-

cial parole on each count, to be served

concurrently. Both defendants assert

numerous claims of error. Arteaga’s ap-

peal was argued orally to the court; that

of Cantu was submitted on briefs only.

FACTS

In May 1974, during the trial of Julio

Castillo-de la Garza (Castillo) on charges

involving the illegal importation of a

300-pound shipment of hashish, evidence

was developed that implicated Arteaga-

Limones, Cantu and one Alvaro Moreno

in the importation and distribution of

350 pounds of marijuana between Janu-

ary 1, 1973 and October 9, 1973. Castillo

was convicted on the hashish charges

and became the chief witness in the in-

stant trial of Arteaga-Limones and Can-

tu. The following account of the events

preceding and following the importation

of the marijuana is primarily drawn

from his testimony.

On or about January 30, 1973, Castillo

and Arteaga travelled across the border

to Ciudad Acuna, Mexico (the residence

of Castillo), and carried back two sacks

of marijuana. They stored the sacks at

Arteaga’s home in Del Rio, Texas, and

later transported them to the San Anto-

nio area and sold them to an unidenti-

fied purchaser. No money changed

hands at the time of delivery, but Castil-

lo later received several payments total-

ing approximately $60,000, which he

turned over to Arteaga. Castillo then

met Moreno, a narcotics dealer, and dis-

cussed transporting marijuana for him.

Around May 5, 1973, Arteaga and Castil-

lo met at Arteaga’s home and traveled

to a small ranch near the Mexican bor-

der, where they observed two of Artea-

ga's employees arrive from the direction

of Mexico with sacks of marijuana. Ar-

teaga and Castillo stored the sacks at

Arteaga’s house. Later, when Moreno

asked to buy some marijuana from Cas-

tillo, Castillo told him of the recent im-

portation. Moreno requested a credit

transaction. Castillo agreed, subject to

Arteaga’s approval. Arteaga agreed and

implied that Cantu would make the de-

UNITED STATES v. ARTEAGA-LIMONES 2809

livery. The next morning, when Castillo

met Cantu in a motel restaurant in San

Marcos, Cantu told Castillo that part of

the marijuana was in his car. Moreno

came to the restavrant and left in Can-

tu’s car. Arteaga arrived and reported

that the rest of the marijuana was in

another car parked nearby. Moreno re-

turned to the restaurant and left in this

car also. After two months passed with-

out word or payment from Moreno, Cas-

tillo traveled to New York to see More-

no. Castillo received $800 and returned

to Ciudad Acuna. About a month later

Castillo and Arteaga received $11,500

from Moreno. None of the marijuana

was recovered, since it had already en-

tered the distribution network by the

time Castillo’s account came to light.

CANTU

Cantu asserts claims of error relating

to the sufficiency of evidence, the suffi-

ciency of Count Four of the indictment

and the admission of an extraneous of-

fense.

{1] 1. Sufficiency of the evidence.

Cantu challenges the sufficiency of the

evidence to support his conviction on

Counts Three and Four, asserting that

there was no evidence “other than hear-

say” to establish the existence of a con-

spiracy or Cantu’s connection with it,

and no evidence of Cantu’s possession of

the marijuana with intent to distribute

it. We begin by noting that Cantu re-

ceived concurrent sentences for the vio-

lations; accordingly, if the proof be ade-

quate as to either count, no reversible

error is present. Hirabayashi v. United

States, 320 U.S. 81, 63 S.Ct. 1375, 87

L.Ed. 1774 (1956); United States v. Ran-

som, 515 F.2d 885, 891 (5th Cir. 1975).

1. Count Four read, in its entirety:

COUNT FOUR

(21 U.S.C. § 841(a)(1))

[24] We approach the evidence with

the responsibility to view it on appeal in

the light most favorable to the govern-

ment, as required by Glasser v. United

States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.

680 (1941). Accordingly, we have no dif-

ficulty finding sufficient evidence to

support both the conspiracy and substan-

tive charges. Castillo’s account firmly

establishes a basis for the existence of a

conspiracy between himself, Arteaga and

Moreno. Only slight evidence is required

to link a defendant to a conspiracy once

the fact of conspiracy has been estab-

lished. United States v. Lawson, 523

F.2d 804, 807 (5th Cir. 1975); United

States v. McGann, 431 F.2d 1104, 1107

(5th Cir. 1970), cert. denied, 401 U.S. 919,

91 S.Ct. 904, 27 L.Ed.2d 821 (1971). We

believe that a jury could reasonably find,

from the testimony as to Cantu’s in-

volvement with Castillo, his provision of

a hiding place for the marijuana and his

service as a delivery courier, that he par-

ticipated in the conspiracy as charged in

Count Three. See United States v. San-

chez, 508 F.2d 388, 392-93 (5th Cir.),

cert. denied, —— U.S. ——, 96 S.Ct. 45,

46 L.Ed.2d 44 (1975). The latter activity

allegedly involving a transfer of mari-

juana at San Marcos, Texas, also pro-

vides a valid basis for a finding taat

Cantu possessed marijuana with intent

to distribute it as charged in Count

Four.

(5) 2. Sufficiency of Count Four of

the indictment. Both Arteaga and Can-

tm urge that Count Four of the indict-

ment, charging actual violation of 21

U.S.C. § 841(aX1), was fatally defective

in that it failed to allege any location for

the commission of the offense.' They

That on or about May 16, 1973, the exact

date unknown to the gran jurors, Defend-

2810 UNITED STATES v. ARTEAGA-LIMONES

support their position with language

from United States v. Miranda, 494 F.2d

783, 788 (5th Cir.), cert. denied, 419 U.S.

966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974),

stating that “[flailure to specify the pre-

cise location of the offense is not fatal if

the district is alleged.” From this state-

ment they infer an alternative rule that

where the district is not alleged, the fail-

ure to specify the location of the offense

is fatal to the indictment. We refuse to

make this inferential interpretation. In

Miranda, this court specifically noted

that the validity of an indictment under

Rule 7(c) is determined by practical, not

technical, considerations. 494 F.2d at

788, citing United States v. Miller, 491

F.2d 638, 649 (5th Cir.), cert. denied, 419

U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186

(1974). Miranda further held that the

sufficiency of the indictment must be

tested under the standard enunciated in

Hagner v. United States, 285 U.S. 427,

52 S.Ct. 417, 76 L.Ed. 861 (1932). It

cited as support for the statement on

which Arteaga and Cantu rely United

States v. Tomasetta, 429 F.2d 978 (lst

Cir. 1970). Tomasetta specifically repu-

diates the proposition that any single

averment determines the sufficiency of

the indictment? and states “(t]he failure

to specify with greater precision the lo-

cation of the alleged offense would sure-

ants JOSE DEMETRIO ARTEAGA-LI-

MONES, ALVARO MORENO, MIKE LOZA-

NO-CANTHU, Julio Castillo-de la Garza, (the

said Julio Castillo-de la Garza being named

as a principal but not as a defendant herein)

and other persons to the grand jurors un-

known, knowingly and intentionally did pos-

sess with intent to distribute approximately

350 pounds of marijuana, a Schedule | con-

trolled substance.

2. The repudiation appears twice:

{A]rbitrary rules as to the necessity, in the

abstract, of a given averment have no place

in the analysis, as the question is whether

ly not have given rise to this [reversal

for insufficiency] [had] sufficient addi-

tional facts [been] averred.” Id. at 980.

The statement in Miranda was intended

as no more than a summary of the

court’s comparison between the Miranda

and Tomasetta situations. The construc-

tion suggested by defendants would con-

flict with the law of all circuits that

have faced this issued. See United

States v. Honneus, 508 F.2d 566 (ist Cir.

1974), cert. denied, 421 U.S. 948, 95 S.Ct.

1677, 44 L.Ed.2d 101 (1975); United

States v. Powell, 498 F.2d 890 (9th Cir.),

cert. denied, 419 U.S. 866, 95 S.Ct. 121,

42 L.Ed.2d 103 (1974); Flores v. United

States, 338 F.2d 966 (10th Cir. 1964); 1

C. Wright, Federal Practice & Procedure

§ 125 (1969).5 It would not advance the

policies of the Federal Rules of Criminal

Procedure applicable to _ indictments.

See F.R.Crim.P. 7c), 18.

[6-8] While the counts of an indict-

ment must stand independently for the

purpose of being judged as to sufficien-

cy, they need not be read apart from the

caption and heading of the indictment,

which clearly state that the action is be-

ing brought in the Western District of

Texas, Del Rio Division. Defendants

had the right to be tried in the district

and division where the offense was com-

mitted, not the right to be told they

the indictment as a whole conveys sufficient

information to properly identify the conduct

relied upon by the grand jury in preferring

the charge.

429 F.2d at 979.

{In concluding that the indictment is insuf-

ficient] we stress that no one factor is deter-

minative.

Id. at 980.

3. Professor Wright suggests that, in these cir-

cumstances, a bill of particulars should have

been made available to the defendants upon

request. Id. at 246. No such request appears

in the record.

——

UNITED STATES v. ARTEAGA-LIMONES 2811

would be tried there. See Carbo v. Unit-

ed States, 314 F.2d 718 (9th Cir. 1963),

cert. denied, 377 U.S. 953, 84 S.Ct. 1626,

12 L.Ed.Zd 498 (1964). Where, as here,

no allegation of a variance between

charges and proof is made, and no other

circumstance demonstrating that the de-

fendent was in any way disadvantaged

has been brought to light, we refuse to

find error in the fact that each count of

this indictment did not repeat the divi-

sion and district in which the crime was

charged to have been committed.

8. Admissibility of an extraneous of-

fense. The government offered evidence

of Cantu’s 1974 narcotics conviction to

establish intent and a general scheme or

design:

Q Mr. Castillo, on or about May

2nd, 1974 were you convicted of an

offense in violation of Federal law?

A Yes, sir, I was convicted of pos-

session and with intent to distribute

301 pounds of hash. And I am pres-

ently awaiting sentence.

Q And hashish is a type of mari-

juana, isn’t it?

A Yes, sir, it’s a substance of

marijuana.

Q All right, who else was convict-

ed with you in that case?

A In that was case was convicted

Mike Lozano Cantu.

Q All right. Looking around the

courtroom today, do you see the per-

son that you know of as Mike Lozano

Cantu?

A Yes, sir.

Q Would you describe where he is

in .pe vourtroom and what he is wear-

ing:

A He’s over here. te’s wearing a

yellow suit and brown with long hair

and a brown shirt.

MR. KERR: Your Honor, at this

time I'll offer into evidence Govern-

ment’s Exhibit Number One.

THE COURT: All right, any objec-

tion, Mr. Gonzalez?

MR. GONZALEZ: Your Honor, we

are going to object to that, if the

Court please, because it’s being offered

prior to the taking of the stand by the

Defendant. It serves no purpose

whatsoever in this case.

THE COURT: Well, are you tak-

ing the position that this conviction is

not admissible?

MR. GONZALEZ: We are taking

the position that this Defendant was

not tried with my client. It was an

entirely separate hearing. They were

not tried together. And I don’t think

that anything that might have hap-

pened to my client has any bearing in

this particular case because it was a

separate and distinct offense.

THE COURT: Let me ask you

this: I have forgotten because I’ve

tried a good many of these cases, but

were they tried together, Mr. Kerr?

MR. KERR: Your Honor, Mr. Can-

tu pled guilty.

THE COURT: That was my recol-

lection. And you are merely introduc-

ing this particular judgment that I en-

tered in this case as Government’s Ex-

hibit Number 1 to show that he did

plead guilty to the offense charged?

MR. KERR: Your Honor, I am

showing a separate marijuana convic-

tion as a similar act which goes to the

issue of intent which is an element of

this offense. I’m also showing a gen-

eral scheme or design which is related

to the same scheme or design in this

2812 UNITED STATES v. ARTEAGA-LIMONES

case. Mr. Gonzalez is absolutely cor-

rect that it is a different case, but it is

an identical offense.

THE COURT: Well, in order to

get it in, you have to establish that it

is—while the Fifth Circuit Court of

Appeals says similar, I think it almost

means identical. I believe that it was

testified that hash is a form of mari-

juana. Is that right, Mr. Castillo-de la

Garza?

THE WITNESS: Yes, it is mari-

juana.

THE COURT: And this was a

marijuana conviction. If there any

doubt about that?

MR. GONZALEZ: Yes, sir. In ad-

dition to that, sir, this is an offense

which took place in October of 1973

while the Defendants are now on Trial

for an offense that took place in 1972.

THE COURT: You mean you are

taking the position now that the plea

of guilty to the charge involving mari-

juana is too remote? ‘73 is very

rece it.

MR. GONZALEZ: I am taking the

position that it is not admissible as

original evidence. That it would be

admissible for impeachment purposes.

THE COURT: Oh, no. I'll over-

rule the objection. I'll receive it into

evidence. Government’s Exhibit Num-

ber 1 will be received in evidence.

[9] The foundation laid for the intro-

duction of Cantu’s 1974 conviction estab-

lished that, although it involved a differ-

ent load of drugs, it resulted from the

same conspiracy for which Cantu was on

trial in this case and was closely connect-

ed in time with the events alleged here.

See United States v. Goodwin, 492 F.2d

1141, 1152-53 (5th Cir. 1974); 2 J. Wig-

more, Evidence § 304 at 202—03 (1940).

Thus the prior conv’tion of Cantu was

clearly admissible, as pointed out by the

government at trial, to show a common

design, scheme or plan. Here, evidence

was admitted on an incorrect theory to

establish criminal intent. United States

v. Miller, 500 F.2d 751, 761-63 (5th Cir.

1974). But the evidence was properly

receivable on another theory specified by

counsel for the government to establish

a common scheme or design. United

States v. Yaughn, 493 F.2d 441 (5th Cir.

1974). Defense counsel asked only that

the evidence be excluded. In this situa-

tion, we hold that the technical error of

the trial court in apparently basing his

ruling on the wrong ground did not re-

sult in prejudice to Cantu and does not

require reversal. See C. McCormick, Ev-

idence § 52 at 117 (Cleary Ed.1972).

Additionally, it is clear that Cantu

failed to state a specific objection to the

admissibility of the 1974 conviction.

Cantu’s objection was too ioosely formu-

lated and imprecise to apprise the court

of the legal grounds for his complaint,

and thus did not preserve error. See

United States v. Fendley, 522 F.2d 181,

185—86 (5th Cir. 1975).

ARTEAGA

Arteaga asserts nine claims of error

that are individually considered below.

{10,11} 1. Sufficiency of the evi-

dence. The standard for review, irre-

spective of whether the evidence is di-

rect or circumstantial, is whcther reason-

able minds could conclude that the evi-

dence is inconsistent with the hypothesis

of the accused’s innocence. United

States v. Ragano, 520 F.2d 1191, 1203 n.

16 (5th Cir. 1975). The evidence adduced —

at trial clearly supports the jury’s ver-

dict of guilty.

{12] 2. Jury argument. During the

government’s closing argument, the

prosecutor stated:

UNITED STATES v. ARTEAGA-LIMONES 2813

Ladies and Gentlemen, for you to

find the Defendants not guilty, you

are going to have to disbelieve Mr.

Castillo’s statements and testimony,

and you are going to have to believe

that the Government would bring to

ou evidence of that nature knowing

that it was not subject to being be-

lieved and that his veracity and credi-

bility could not be believed. You are

going to have to totally disregard all

that Mr. Castillo has told you.

Arteaga did not interject an objection at

trial to the government’s argument.

‘evertheless, for the first time on ap-

peal, he argues that the prosecutor’s re-

marks improperly vouched for the credi-

bility of its primary witness Julio Castil-

lo. Although we recognize that the

government’s arguments were improper

and unprofessional,‘ the remark did not

constitute plain error. Therefore, be-

cause jefense counsel did not object at

trial, error is not preserved for appellate

review. E. g., Fogarty v. United States,

263 F.2d 201, 204 (5th Cir.), cert. denied,

360 U.S. 919, 79 S.Ct. 1437, 3 L.Ed.2d

1534 (1959). Furthermore, the trial

court’s repeated admonitions to the jury

that nothing said during argument can

be considered as evidence (R. 357, 365,

373, 374, 375, 379) dispelled any prejudice

which might have arisen from ‘he prose-

cutor’s closing argument. See, United

States v. Davis, 487 F.2d 112, 124-25

(5th Cir. 1972), cert. denied, 415 U.S. 981,

94 S.Ct. 1573, 39 L.Ed.2d 878 (1974);

United States v. Corbett, 518 F.2d 113,

116 (8th Cir. 1975).

3. Instructions on the credibility of a

government witness. During cross-ex-

4. See Lawn v. United States, 355 U.S. 339, 359

r. 15, 78 S.Ct. 311, 323, 2 L.Ed.2d 321, 335

(1957), Hall v. United States, 419 F.2d 582

(5th Cir. 1969); United States v. Coppola, 479

F.2d 1153, 1163 (10th Cir. 1973); United States

amination Julio Castillo aumitted that he

perjured himself at an earlier trial “to

get out of the charge”:

Q And at that time [when you

were being tried in De! Rio, Texas] he

asked you this question: ‘Okay, now

did you testify under oath on March 4,

1974 in San Antesic”’

A Yes.

Q And your answer to that ques-

tion was “did I what?” And the follow-

ing question was “Did you testify in

Court in San Antonio on March 4th?”

And your answer to that was “Yes. |

said that I never deal with dope or

nothing.” Is that correct, sir?

A Yes, sir.

A Well, I said that in Court be-

cause I was trying to hid. But now

that I am—lI have repented for what I

did, you know. Now I’m telling the

truth to everybody.

Q At that time you were not tell-

ing the truth, is that correct?

A No, sir, ! was lying at that

time.

Q Sir?

A I was lying at that time.

& You were lying then, sir?

A Yes.

A Well, I said [that I worked as

an undercever agent for the DEA in

May 1973] in Court, you know, because

all of the Spe «| Agents, all of narc

agents, they are all my friends. Since

I got back from Mexico City, I was

v. Cummings, 468 F.2d 274, 278 (Sth Cir.

1972); United States v. Handman, 447 F.2d

853 (7th Cir. 1971); ABA, Code of Professional

Responsibility DR 7-106(C)\(3-4), EC 7-13.

2814 UNITED STATES v. ARTEAGA-LIMONES

working in Las Alpes as the Manager

over there and I met everybody, you

know.

THE COURT: That isn’t what he

asked you. Did you testify under oath

in the trial in which a Jury verdict

was returned on May the 3rd, 1974,

that you were working as an under-

cover Agent for the Mexican and the

United States Government?

THE WITNESS: I’m not sure, you

know. I’m not sure if I said it or not.

But I didn’t work with them.

THE COURT: All right, he admits

he didn’t work with them. He doesn’t

remember what his testimony was, but

in other words, that was not true?

THE WITNESS: Right. I did not

work for them.

Q (By Mr. Reich:) Then if that is

within your record, then you were not

telling the truth then, is that correct?

A No. I knew I was doing the

wrong. I was doing wrong.

Q But if it’s in the record that

you testified that you were working

for the federales and the Agents here

in the United States, Drug Enforce-

ment Agents, then you were lying

then?

A Well maybe. I don’t know. I

don’t know if I was lying. I don't

remember.

Q I'll ask you whether or not you

are telling the truth now or are you

lying?

A Now I’m telling the truth.

Q Now you are telling the truth?

A Yes, sir.

The trial court instructed the jury, in

pertinent part, as follows:

You are indeed the exclusive judges

of the credibility, and credibility

means and it is synonomous with be-

lievability of the witnesses and the

weight to be given to the testimony

of each witness who appeared before

you.

Now as exclusive judges of the

credibility or believability of the

witnesses, you must consider the tes-

timony of all the witnesses who ap-

peared in the case. In this connec-

tion, you can disregard all or any

part of the testimony of a given wit-

ness and you can accept that portion

of the witnesses testimony which

you feel that you can and should

believe, and you can reject all or any

part of the remainder of the testi-

mony which you feel is not plausible

or worthy of your belief.

Now, there has also been evi-

dence of accomplice testimony in

this case, that is, Mr. Castillo-de la

Garza, a witness in this case. Now,

an accomplice is one who voluntarily

and with common intent participates

with another person in the commis-

sion or the planning of a criminal

offense. Now, an accomplice does

not become incompetent as a witness

because of participation in the al-

legee criminal act charged. Quite to

the contrary, the testimony of an

accomplice alone if believed by the

Jury may be sufficient and of suffi-

cient weight to sustain a verdict of

guilty as to any given Defendant

even though not corroborated or

supported by other testimony or oth-

er evidence. However, the Jury

should keep in mind that the testi-

mony of an alleged accomplice

should be closely examined, received

with caution and weighed with

great care.

UNITED STATES v. ARTEAGA-LIMONES 2815

On the other hand, if the Jury

believes ‘lie testimony of an accom-

plice to be true beyond a reasonable

doubt, that testimony is sufficient to

convict a Defendant even though it

is not corroborated by other witness-

es testimony or other evidence. The

Jury should not convict a defendant

upon the unsupported, uncorroborat-

ed testimony however, of an accom-

plice unless it believes the unsup-

ported testimony beyond a reasona-

ble doubt.

Arteaga contends that the trial court’s

failure to caution the jury on the weight

to be given testimony of an admitted

perjurer constituted reversible error.

Nevertheles:, Arteaga neither requested

a charge on the testimony of a perjurer

nor objected to the trial court’s failure

to include such an instruction.

Rule 30 of the Federal Rules of Crimi-

nal Procedure provides that “[njo party

may assign as error any portion of the

charge or omission therefrom unless he

objects thereto before the jury retires to

consider its verdict, stating distinctly the

matter to which he objects and the

grounds of his objection.” See United

States v. Rodriguez, 498 F.2d 302, 307

(5th Cir. 1974). The purpose of this is to

provide the trial court an opportunity to

correct any error or omission in the

charge before the jury begins its deliber-

ations. If prompt objection is made, the

error can then be corrected. Wright, 2

Federal Practice & Procedure §§ 484,

496 nn. 47-50 (1969).

[13] Because Arteaga failed to re-

quest an instruction concerning the cred-

ibility of Castillo’s testimony, the proper

foundation was not laid to obtain a re-

view of this alleged error. Franano v.

United States, 310 F.2d 533 (8th Cir.

1962), cert. denied, 373 U.S. 940, 83 S.Ct.

1545, 10 L.Ed.2d 694 (1963); Mims v.

United States, 254 F.2d 654 (9th Cir.

1958); United States v. Muncy, 526 F.2d

1261 (5th Cir. 1976).

4. Due process and a “witness’ failure

of memory.” The indictment charged

that the offenses occurred “on or about”

certain specified days, “the exact date

unknown to the grand jurors.” From

the outset the primary government wit-

ness acknowledged that he was unable to

recall the exact dates during which the

drug offenses occurred:

A About a year-and-a-half ago I

was looking for a connection to delve

in narcotics in Mexico.

A_ I knew a man that was dealing

in narcotics. I talked to him if he

could introduce me with somebody

that would deal in narcotics. He told

me he wasn’t dealing in narcotics any

more, that he was out. So he told me

that he was going to meet me. He

was going to introduce me to a man

from Laredo, Mexico, Tamaulipas,

Mexico. His name was Alvaro More-

no. That was about January or Feb-

ruary, I don’t remember the exact

date. But they both came into my

club, and Villarreal introduced me

with him. And Moreno and me start-

ed talking. And I told him, you know,

if I could help him on smuggling. He

told me yes, because Villarreal is not

working any more, in narcotics any

more. He told me that he will be

back in about a month.

A [Mr. Arteaga] said Mike Lozano

Cantu will deliver the marijuana at

the Holiday Inn around 10:00 o'clock

in the morning.

Q All right.

A The next day, May the 16th.

2816 UNITED STATES v. ARTEAGA-LIMONES

Q All right. Actually, Mr. Castil-

lo—

THE COURT: May the 16th of what

year would that have been?

CHE WITNESS: 1973.

Q (By Mr. Kerr): All right, we

don’t know that that’s the exact date,

do we?

A Well no, I don’t remember ex-

actly, you know, if it was the exact

date.

The evidence, however, clearly estab-

lished that the offenses occurred before

the return of the indictment and within

the statute of limitations; accordingly,

since the exact dates were not essential

elements of the offenses, the inability of

the government to prove the dates with

precision was not fatal. Russel] v. Unit-

ed States, 429 F.2d 237, 238 (5th Cir.

1970).

[14] On appeal Arteaga claims that

because his defense of alibi was depend-

ent upon a showing that he was no

where near the place where the offenses

vecurred on the dates alleged, he was

5. The following is a brief excerpt from the

lengthy attack on Castillo’s failure to recall the

exact dates relevant to the criminal transac-

tions:

Q Now Mr. Castillo, it’s alleged in the

indictment, and we are talking about Count

Two of the indictment, that on or about May

5, 1973, the exact date unknown to the

Grand Jurors, in the Western District of

Texas, the Defendant Joe Demetrio Arteaga-

Limones and Julio Castillo-de ia Garza _ .

it says nothing about Mr. Cantu?

A Right.

Q Was it on that date that the marijuana

was brought across the river?

A Which date did you say?

Q May 5th, 1973.

A I'm not sure, but it was about those

dates. !’m not pretty sure, but it was about

those dates.

Q Well, would you say May the Ist, May

2nd, May 3rd, May 4th?

prejudiced by the government’s failure

to prove the exact dates of the offenses

charged. Nevertheless, the record does

not support Arteaga’s contention, for his

counsel took full advantage of Castillo’s

failure of memory. Counsel for Arteaga

and Cantu subjected Castillo to exten-

sive cross-examination concerning his in-

ability to recall the exact dates of the

criminal episodes (R. 136-46, 161-63,

166-70, 178-84, 189-90).5

Arteaga presented testimony from

three members of a Mexican law firm

with whom he conferred in Guadalajara

from May 1 to May 20, 1973. In closing

argument counsel stressed Castillo’s ina-

bility to recall specific dates, arguing

that the witness’ failure of memory sup-

ported their contention that Castillo’s

account of the criminal transactions was

a fabrication designed to secure leniency

at the future sentencing procedure.

The court instructed the jury on mat-

ters of the presumption of innocence, the

burden of proof and reasonable doubt,

the defense of alibi, and the suspect na-

ture of accomplice testimony. Addition-

A May 5th, yes.

Q May 5th? 6th?

A Yeah, about those dates.

Q Would you say that you remember the

date because May—

A It was about ten days before Alvaro

visited me in the Macarena.

Q About ten days before?

A Yes.

Q The date that Alvaro visited you—

A Six days or eight days, | don’t know

It was about a week.

Q The date that you say that Alvaro

Moreno visited you at the Macarena was on

May 16, 1973?

A No.

Q And May 15, 1973?

A Alvaro was one day before we went to

San Marcos.—In there. He was there, you

know. fe

UNITED STATES v. ARTEAGA-LIMONES 2817

ally, placing the issue of the date of of-

fense in its proper perspective, the court

stated:

Now, you will note that the Indict-

ment charges that the offense or the

complaints or the charges were com-

mitted on or about a certain date. It

is not necessary that the proof estab-

lish with certainty the exact dates of

the alleged offense. It is sufficient if

the evidence shows beyond a reasona-

ble doubt that the offense or incident

was committed on a date reasonably

near or approximating the date al-

leged.

The jury, exercising its responsibility as

the sole judge of facts and credibility,

concluded that Castillo’s account was be-

lievable notwithstanding his inability to

remember the exact dates of the crimi-

nal enterprise.

In light of the trial court’s careful ad-

monitions and defense counsel's vigorous

cross-examination of the government

witness, we conclude that Arteaga was

not prejudiced by Castillo’s failure of

memory. Appellant’s claim is without

merit.

{15} 5. Double jeopardy: one con-

spiracy or two? Arteaga contends that

the evidence here shows only one con-

spiracy, rather than two separately iden-

tifiable ones, and that his trial, convic-

tion and consecutive sentencing on all

counts violates the Double Jeopardy

clause of the Fifth Amendment by im-

posing multiple punishments for the

same offense. We find no merit in this

claim. The objects of the two conspira-

cies were different (importation and dis-

tribution). The persons involved were

different; for example, the evidence

links Cantu only to the “distribution”

portion. Finally, the locales were differ-

ent. Castillo’s account alleged that the

importation took place in the Del Rio

area; the distribution began there, but

the ultimate consumers of the marijuana

were in New York. Yet Castillo’s story

does not portray a regular “Del Rio con-

nection” in which a New York-based op-

eration regularly dealt with Castillo, Ar-

teaga and Cantu, but the largely fortui-

tous consummation of a transaction pre-

viously contemplated only in barest out-

line. Clearly Moreno was the intended

customer, but it is equally clear that oth-

er arrangements could and would have

been made had Moreno’s hoped-for pur-

chase not materialized. Thus two distin-

guishable conspiracies may be charged,

prosecuted and punished when the jury

sc chooses to interpret the evidence. See

American Tobacco Co. v. United States,

328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575

(1946).

[16] 6. Destruction of the presump-

tion of innocence. Arteaga complains

that the trial court denied him a fair

trial by interjecting references to his in-

carceration. During direct examination

of defense witness Richard Rios, chief

jailer at the Val Verde County Jail, Ar-

teaga’s counsei elicited the following tes-

timony:

Q How long have you been Chief

Jailer in the Val Verde County Jail?

A A little over a year.

Q Are you the custodian of records

over there and have access to the

records?

A Yes, sir.

Q I'll ask you as a-result of my

request did you bring over a record of

Jose Demetrio Arteaga?

A Yes, sir.

Q Do you have that with you?

A_ Yes, sir.

Q Would you please refer to that.

Is this the official record as to when

2818 UNITED STATES v. ARTEAGA-LIMONES

Mr. Jose Demetrio Arteaga entered

the Val Verde County Jail?

A Yes, sir, it is.

Q Would you please recite the

date?

A 8-23-74.

Q (By Mr. Reich); Now, has he

been confined within the Val Verde

County Jail all of this time?

A Yes, sir.

Q_ Is this the record as to when an

indictment was returned against him

or is this the record when he first

came in to the County Jail?

A This is when he first came in to

the County Jail.

Q (By Mr. Reich): Now, do you

have all of the records of when Mr.

Jose—Mr. Jose has not been out of

Jail at any time for any particular rea-

son as far as being let out on bond or

otherwise from the date that he first

entered the Jail on this offense which

he is charged with?

A No, sir, he hasn't.

Q Well, you are certain that he

wasn’t there before then? As a mat-

ter of fact, if you will look on your

records you will find July 16, 1974.

MR. KERR: Your Honor, Mr. Reich

is impeaching his own witness.

THE COURT: I believe you are.

MR. REICH: I just want to find his

records is all, Your Honor. The record

should speak for itself.

THE COURT: Well, I would think

so. Mr. Kerr, is there any doubt about

this?

MR. KERR: Your Honor, I don’t

know because he’s not in jail under a

Federal charge. He is suggesting to

this witness that Mr. Arteaga has been

in Jail since July or August in connec-

tion with the Federal charge. He is a

State prisoner. He is in Court today

on the basis of a writ issued to the

Sheriff. He is a State prisoner and he

is not in Federal Custody and has not

been in Federal custody since he was

placed in jail.

THE COURT: I don’t think he’s a

Federal prisoner over there, is he?

Why is this important?

MR. REICH: Well, I just want to

show how long the man has been in

the Jail and also as to when Mr. Julio

Castillo-de la Garza entered the Jail.

THE COURT: You mean how long

he has been on the State charges?

MR. REICH: No, in Jail, straight

through from the date he first got in

Jail on the State charge and when the

warrant was issued out on the Federal

Charge.

THE COURT: Well, I’m sure this is

interesting, Mr. Reich, but why is it

relevant? What is the materiality of

it?

MR. REICH: We will just skip that

and we will go into the point as to Mr.

Julio Castillo-de la Garza.

References to Arteaga’s pre-trial con-

finement were invited by appellant him-

self. Additionally, because Arteaga

failed to object at trial, error is not pre-

served for appellate review. See United

States v. Cochran, 499 F.2d 380 (5th Cir.

1974), cert. denied, 419 U.S. 1124, 95

S.Ct. 810, 42 L.Ed.2d 825 (1975).

Evidence of a similar nature was elic-

ited during the government’s direct ex-

amination of Julio Castillo:

Q Mr. Castillo, on December 18,

1974 did you have a conversation with

Mr. Arteaga?

UNITED STATES v. ARTEAGA-LIMONES 2819

December the what, sir?

18th, 1974. Just this last month.

Yes, sir.

All right. Where was that con-

versation?

A In jail.

Q All right, where?

A Right here in the Del Rio Coun-

ty Jail.

Q All right, was anyone else

present during that conversation?

A He was alone and Alfredo the

Jailer was outside.

No objection was made by Arteaga or

Cantu. Therefore, the objectionable

statement was at most cumulative of

other evidence placed before the jury

without objection. See United States v.

McKinley, 493 F.2d 547, 552 (5th Cir.

1974).

7. Evidence of a prior conviction. Ar-

teaga complains that the tr «! court erro-

neously admitted evidence of a 1961 con-

viction for “smuggling marijuana.”

The record reflects the following testi-

mony relating to Arteaga’s claim:

(At the Bench)

MR. REICH: Mr. Kerr has shown

me a couple of exhibits which he in-

tends to introduce through this wit-

ness. This witness has not taken the

stand. A prior conviction cannot be

used against him. If he does not take

the stand, the Jury would have to be

told not to consider anything pertain-

ing to his record.

THE COURT: I happen to know

the law. Here is my case, the United

States versus Robert Fonseca. “Only

prior misconduct or prior criminal ac-

tivity, whether involving a connection

oO, >

6. The 1961 conviction was obtained under 21

U.S.C. § 176a, since repealed. The elements of

the 1961 offense are very similar to those re-

or not, can only be introduced for the

lim’ ated purpose of showing intent or

knowledge.”

MR. KERR: Your Honor, it can also

show—

THE COURT: “Proof asserting a

similar offense to establish necessary

intent, the other offense proved must

exclude the essential elemeriis of the

offense charged by competent evi-

dence.”

All right. Now, my next case, Unit-

ed States v. Sanchez was also in my

Court. “It sustains any holding. In

order to prove intent or guilty knowl-

edge, other offenses offered and testi-

fied to must be similar.”

MR. KERR: This is offered to show

it is an identical offense. They went

up on Robinson and it was affirmed by

the Fifth Circuit.

MR. REICH: The fact is that this

man hasn't taken the stand and

doesn’t intend to take the stand. And

if in the event this is brought up, of

course it will be detrimental to him.

THE COURT: Make your objection,

and I will give the usual and standard

instruction to the Jury. It can only be

done for the limited purposes I have

stated here. There is no question

about it. I'll give you the cases.

Fonseca is the latest case.

MR. REICH: I can find cases too,

Your Honor.

THE COURT: In the cases decided

by my overseers in New Orleans, I

have to give the instruction. When

you make an objection, I will have to

limit it.

o *. . . . .

quired for a conspiracy conviction under

present 21 U.S.C. §§ 963 and 952(a), as

charged in Count One of the case sub judice.

2820 UNITED STATES v. ARTEAGA-LIMONES

(In the presence of the jury)

Q And in 1961, did you have an

occasion to meet an individual who has

been identified to you as Jose Deme-

trio Arteaga?

A Yes, sir, I knew him.

Q All right, looking around the

courtroom today, do you see that indi-

vidual?

A He is seated at counsel table di-

rectly behind you on the corner at the

back of the table.

MR. KERR: Your Honor, may the

record reflect the Defendant has been

identified.

THE COURT: Yes, the record will

reflect the witness has identified the

Defendant.

MR. KERR: May I approach the

witness, Your Honor?

THE COURT: Yes, you may.

Q (By Mr. Kerr): Mr. Killman, I

have handled to you what’s been

marked as Government’s’ Exhibit

Number 3. It lists the names of three

individuals, one of whom is Jose Dem-

etrio Arteaga.

A Yes sir.

MR. REICH: May it please your

Honor, at this time we wish to offer

our objection to any prior conviction or

anything that has to do with any other

matter other than this matter before

the Court at this time.

THE COURT: All right. Now,

what was the date of the alleged of-

fense?

MR. KERR: 1961.

THE COURT: All right, what was

the offense charged?

MR. KERR: Smuggling marijuana.

THE COURT: Was there a convic-

tion?

MR. KERR: Yes, Your Honor.

THE COURT: All right, that’s an

identical offense. Members of the

Jury, in order for you to consider prior

or other similar convictions of this De-

fendant, Mr. Arteaga, for the same

type or similar type of offense for

which he is presently charged, you

may consider it only for the limited

purpose of showing knowledge or in-

tent and for no other purpose. You

are instructed that the fact that the

accused may have committed an of-

fense at some time is not any evidence

or proof whatsoever that at a later

date Mr. Arteaga committed the al-

leged offense or offenses, if any,

charged in this particular case, this

particular indictment, even though

both offenses are of a similar or like

nature.

If the Jury should find beyond a

reasonable doubt from the other evi-

dence in the case that the accused did

the act or acts charged in this indict-

ment, then the Jury may consider evi-

dence of a prior or similar offense of a

like nature in determining the state of

mind or intent with which the accused

did the act or acts charged in this In-

dictment, if any, and for no other pur-

pose. It is limited to that.

MR. REICH: Note our exception,

Your Honor, to the ruling of the

Court.

[17] The propriety of admitting evi-

dence of prior convictions to show intent

is established by showing four factors:

(1) plain, clear and convincing evidence

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 out-

UNITED STATES v. ARTEAGA-LIMONES 2821

weighed. United States v. Urdiales, 523

F.2d 1245, 1247 (5th Cir. 1975).

In this case the first aud third prereq-

uisites have been satisfied. The convic-

tions were introduced »y way of docu-

mentary evidence from court records and

verified by oral testimony from govern-

ment witness William D. Killman, a for-

mer customs agent stationed in Del Rio.

Furthermore, it is clear from the lan-

guage of the statutes that intent is a

material element in this case. The use

of Arteaga’s twelve year old conviction,

however, raises serious questions.

{18} The prior crime, while elemen-

tally nearly identical to the charges in

this case, was committed twelve years

before the activity charged to be crimi-

nal here. We adhere to our position in

United States v. San Martin, 505 F.2d

918, 922-23 (5th Cir. 1974):

The test for remoteness need not,

and indeed cannot, be a simple rule of

thumb based solely on the number of

years that have elapsed between the

prior crime and the present offense

charged. The better test . . ___ is

whether the prior crime is similar in

nature and in its material elements to

have clearly probative value with ~»-

spect to the intent of the accused at

the time of the offense charged.

Under the facts of this case, we conclude

that evidence of Arteaga’s 1961 convic-

tion was too remote to possess probative

value.

Also, the fourth element—the need for

the proof as weighed against the preju-

dice to the defendant—was not satisfied

in the instant case. In United States v.

Milier, 500 F.2d 751 (5th Cir. 1974), this

court wrote:

Even if we were to assume that the

prior conviction had some probative

value in the present case, the govern-

ment has done little to show any actu-

al need for that evidence in view of

other available evidence. Terry Lee

Smith, the alleged co-conspirator, testi-

fied that McDuffie helped weld the

still pots, helped mix the mash for fer-

mentation, paid Smith for work at the

still, and furnished a condenser, a still

cap, wheat shorts, and plastic contain-

ers to Smith to be carr “1 to the Ma-

con area. If the jury elieved that

McDuffie actually performed these

acts, they logically would infer from

that conduct that he possessed the req-

uisite criminal intent. See Fallen v.

United States, 5th Cir. 1955, 220 F.2d

946, 948, cert. denied, 350 U.S. 924, 76

S.Ct. 213, 100 L.Ed. 808.

An almost identical situation is present-

ed in the instant case. The alleged co-

conspirator Castillo gave u compendious

account of the smuggling operation, in-

cluding approximate dates, places, par-

ticipants and details of the operation, in

much the same way the witness Smith

did in Miller. The linchpin of the

government’s case against Arteaga and

Cantu was Castillo’s testimony, without

which there is no evidence that any mar-

ijuana was ever smuggled at all.

{19} As was the case in Miller, it is

highly unlikely that the jury would

choose to believe the principal witness’

testimony as to the existence of the con-

traband or the physical facts of the ille-

gal activity but find that the acts were

performed unknowingly or unintention-

ally. Arteaga did not limit his challenge

to the mens rea; rather, he attacked the

whole account. In such cases, the dan-

ger of convicting defendants for their

evil character instead of their evil acts

remains great. Where, as here, the evi-

dence is not reasonably susceptible of the

interpretation that the acts alleged to

constitute the crime were innocently per-

ee OL

2822 UNITED STATES v. ARTEAGA-LIMONES

formed and no defense is presented

which may properly be rebutted by the

introduction of the prior conviction, the

intent exception to the rule against ad-

mitting prior convictions is not available

to the prosecution. See United States v.

Miller, supra; United States v. Dryden,

423 F.2d 1175, 1178 (5th Cir.), cert. de-

nied, 398 U.S. 950, 90 S.Ct. 1869, 26

L.Ed.2d 290 (1970); United States v.

Klein, 340 F.2d 547, 549 (2d Cir. 1965).

Nevertheless, United States v. Fendley,

522 F.2d 181, 185-86 (5th Cir. 1975), pre-

cludes our review of appellant’s claim.

In Fendley defense counsel objected to

the admission of business records be-

cause, among other things, the proffered

evidence violated the general rule

against hearsay. The court held that the

objection was inadequate to preserve er-

ror:

It appears to us that this loosely for-

mulated and imprecise objection at

most comes to this: (1) that the docu-

ment was hearsay; (2) that the wit-

ness laying the foundation for its in-

troduction was someone other than the

preparer; and (3) that the witness

laying the foundation was unable to

personally attest to the accuracy of

the figures contained in the document.

There was no objection on the only

grounds which would have permitted

the trial court to have required that a

fuller foundation be laid for the ad-

mission of the exhibit—that the print-

out was made and kept in the regular

course of business, for regular business

purposes and relied upon by the busi-

ness, and finally that it was not “mere

accumulations of hearsay or unin-

formed opinion.” United States v.

Miller, supra, 500 F.2d at 754.

The grounds asserted in the defend-

ant’s objection are clearly insubstan-

tial. While, obviously, the document

was hearsay, this in itself fails to state

an objection as to whether the exhibit

met the admissibility requirements of

the Business Records Act.

The defendant now on appeal raises

new grounds as a basis for objecting

to the admissibility of Exhibit 9—108.

In our view the defendant is foreclos-

ed from making these objections at

this time, as he failed to comply with

the requirements of Rule 51, Federal

Rules of Criminal Procedure, that he

make “known to the [trial] court the

action which he desires the court to

take or his objection to the action of

the court and the grounds therefor.”

Clearly if the defendant fails to object

to the admission of evidence, objection

is normally waived, United States v.

Maddox, 492 F.2d 104 (5th Cir. 1974)

unless the admission of such evidence

is such clear error that it affects sub-

stantial rights. See United States v.

Davis, 496 F.2d 1026 (5th Cir. 1974);

Sykes v. United States, 373 F.2d 607

(5th Cir. 1966). Here, although the

defendant objected in general terms

on the three grounds of hearsay au-

thorship and accuracy, he failed to ob-

ject with that reasonable degree of

specificity which would have adequate-

ly apprised the trial court of the true

basis for his objection—if in fact he

wished to object to the lack of a prop-

er foundation under the business

records statute. United States v.

Bryant, 480 F.2d 785, 792 (2d Cir.

1973).

522 F.2d 181, 185-86.

Likewise, in Arteaga, appellant’s ob-

jection was “too loosely formulated and

imprecise” to apprise the trial court of

the legal grounds for his complaint. Be-

cause Arteaga did not specify the legal

UNITED STATES v. ARTEAGA-LIMONES 2823

theory on which he now relies—{1) too

remote to possess probative value and (2)

prejudice to the defendant outweighs the

need for proof—error is not preserved

for appellate review.

{20} Additionally, several recent cases

have held that the improper admission of

an extraneous offense can constitute

harmless error. E. g., Swanson v. Es-

telle, 523 F.2d 1250 (5th Cir. 1975);

Thomas v. Savage, 513 F.2d 536 (5th Cir.

1975).

In this case Arteaga made several in-

criminating remarks to Justice of the

Peace Roger Cerny:

(Direct examination by the govern-

ment)

Q Did Mr. Arteaga make any

statement to you concerning the smug-

gling of marijuana?

A Yes, sir, he did.

Q Now, as best you can recall what

did Mr. Arteaga state you concern-

ing his having smuggled marijuana?

A He said that he had smuggled

marijuana into this country.

Q All right, and did he make any

statement concerning his knowledge as

to where to smuggle marijuana?

A Yes, sir. He said that he knew

every crossing point on the Texas

Mexican Border.

(Cross examination by counsel for Ar-

teaga)

Q All right. Now Mr. Cerny, you

did recall the 27th. You stated noth-

7. Count Two read, in its entirety:

COUNT TWO

(21 U.S.C. § 960(a)(1) & 952(a))

On or about May 5, 1973, the exact date

unknown to the grand jurors, in the Western

District of Texas, Defendant JOSE DEME-

TRIO ARTEAGA-LIMONES and Julio Cas-

ing on the 16th, you are positive of

that?

A Counselor, on the 16th day of

May 1974 in my office in Del Rio, Tex-

as, 209 East Losoya, between the

hours of 1:15 P.M. and 2:00 P.M., Mr.

Arteaga told me during the course of

the conversation with you present that

he had smuggled marijuana and that

he knew every crossing point on the

Texas-Mexican Border. And this oc-

curred on May 16, 1974.

Under the particular facts of this case,

error pertaining to the admission of the

1961 conviction, if preserved, was harm-

less.

8. Sufficiency of Count Four of the

indictment. Like appellant Cantu, Ar-

teaga contends that Count Four of the

indictment is fatally defective because it

fails to allege any location for the com-

mission of the offense. For reasons stat-

ed above, we conclude that Arteaga’s

claim is without merit.

{21,22} 9. Sufficiency of Count Two

of the indictment. Arteaga argues that

Count Two’ was fatally defective in fail-

ing to include “knowingly or intentional-

ly” in its language. We disagree. An

indictment is defective if it fails to al-

lege scienter elements expressly con-

tained in the pertinent statute. See, ce.

g., Hagner v. United States, 285 US.

427, 52 S.Ct. 417, 76 L.Ed. 861 (1932).

But the clements need not be alleged in

terms, and a pleading is good if it fairly

imports knowledge or intent. 1 C.

Wright, Federal Practice & Procedure

§ 125 at 243-44 (1969).

tillo-de la Garza, (the said Julio Castillo-de

la Garza being named as a principal but not

as a defendant herein), imported and caused

to be imported approximately 350 pounds of

marijuana, a Schedule | controlled sub-

stance.

2824 UNITED STATES v. ARTEAGA-LIMONES

Here, the language used was accompa-

nied by specification of the statutory

section numbers. The jury was charged

that they must find knowledge or intent

in order te convict. The indictment’s ad-

equate apprisal of the offense charged

and the trial court’s instruction concern-

ing the need for evidence of scienter,

prevented any injustice to Arteaga. See

Gearing v. United States, 432 F.2d 1038

(5th Cir. 1970), cert. denied, 401 U.S. 980,

91 S.Ct. 1213, 28 L.Ed.2d 331 (1971);

Glenn v. United States, 303 F.2d 536,

538-39 (5th Cir. 1962), cert. denied, 372

U.S. 920, 83 S.Ct. 734, 9 L.Ed.2d 725

(1963); Tallman v. United States, 465

F.2d 282 (7th Cir. 1972); United States

v. Mixon, 374 F.2d 20 (6th Cir. 1967).

CONCLUSION

For the reasons stated, the convictions

and sentences imposed are AFFIRMED.

CLARK, Circuit Judge, concurring in

part and dissenting in part.

I concur in the affirmance of Cantu’s

conviction and in the portions of the ma-

jority opinion which reason to that con-

clusion. However, because I believe that

in the circumstances of this case suffi-

cient objection was made to the intro-

duction of Arteaga’s 1961 conviction at

the trial below and that its introduction

was not harmless error, I must dissent

from affirmance of his conviction. Ac-

cordingly, I express no opinion on the

other issues raised by Arteaga and

reached by the majority. .

The majority concedes that two of the

four prerequisites for admissibility of a

prior offense—nonremoteness and need

1. To be responsive to the majority's view, the

discussion of the sufficiency of Arteaga’s ob-

jection assumes that he had the responsibility

to justify the exclusion of the prior conviction

rather than that, upon objection, the Govern-

for the evidence outweighing its poten-

tial for prejudice—are absent in the case

at bar. See majority opinion at 2821-

2823: United States v. Urdiales, 523

F.2d 1245 (5th Cir. 1975); United States

v. Miller, 500 F.2d 751 (5th Cir. 1974).

However, United States v. Fendley, 522

F.2d 181, 185-86 (5th Cir. 1975), is said

to “preclude our review of appellant’s

claim” because Arteaga’s counsc!, like

Fendley’s, failed to make known the

grounds of his objection as required by

Fed.R.Civ.P. 51. I do not believe, how-

ever, that Fendley either articulates a

legal rule or describes a situation so sub-

stantially identical to the facts before us

that we are bound by that decision.'

Rule 51 analysis must proceed on a

case-by-case basis. The language re-

quired to “make known” the ground for

the action desired by counsel necessarily

will vary with the facts and arguments

presented to the court preceding the ob-

jection in question. Our cases and those

of other circvits reject the proposition

that counsel must always articulate ob-

jections in any fixed or certain style.

See Jackson v. United States, 250 F.2d

897 (5th Cir. 1958); United States v.

Semensohn, 421 F.2d 1206, 1209 (2d Cir.

1972); cf. United States v. Indiviglio,

352 F.2d 276 (2d Cir. 1965) (en banc),

cert. denied, 383 U.S. 907, 86 S.Ct. 887,

15 L.Ed.2d 663 (1966). The question in

each case must be whether the objection

expressed its ground or grounds with

sufficient specificity to focus the trial

judge’s attention on the legal issue in-

volved. In the situation before us, four

features not present in Fendley or any

other case cited by the majority convince

ment was required to respond to his objection

with a proper authentication of the evidence.

In fact, the latter is clearly required. See

United States v. Miller, supra, 500 F.2d at 761

62 and n.14.

UNITED STATES v. ARTEAGA-LIMONES 2825

me that defense counsel's position was

adequately expressed.

Fendley’s counsel objected on the

ground of hearsay. Of all rules of evi-

dence, hearsay is the most riddled by

exception—including the Business

Records Act upon which the Government

relied in Fendley. He objected on

grounds which were not merely impre-

cise, but clearly incorrect under the Busi-

ness Recc 3 Act. The objection was the

same as meritless objections to several

preceding exhibits. Finally, Fendley

contains no indication that the trial

court cut into or dominated the discus-

sion on the objection.

By contrast, counsel for Arteaga did

timely object to the introduction of the

conviction on the basis of the general

rule against admission of evidence of

this type, a meritorious objection, as the

majority notes. Second, the trial court

itself before admitting Arteaga’s prior

conviction inquired of government coun-

sel as to its date and received the answer

“1961.” Third, earlier in the trial, at the

time of the introduction of Cantu’s con-

viction, the only other time an instance

of this type arose during the trial, the

trial court itself had asked of Cantu’s

counsel whether he was objecting on the

ground of remoteness. Finally, the trial

court conducted the inquiry into the ad-

missibility of the conviction in such a

fashion as to limit severely the amount

of discussion by counsel on both sides, to

a degree that brings this case perilously

ciose to classification as a “no-opportuni-

ty” case. See, e. g., United States vy.

Huffman, 467 F.2d 189 (6th Cir. 1972).

In these circumstances, I cannot concur

in an affirmance of Arteaga’s conviction

on the grounds that his objection to the

unnecessary use of a 1961 conviction

lacked specificity.

Trial judges must understand objec-

tions to expedite their rulings. Artea-

ga’s counsel should have made a clear,

precise objection by itemizing the crite-

ria articulated in Miller and Urdiales, su-

pra, and missing from the prosecution’s

argument below. But it seems plain to

me that even in the absence of such clar-

ity and precision, the trial court received

from the combination of defense objec-

tions and its own requests sufficient in-

formation to have made the proper rul-

ing as to admissibility of a conviction of

this vintage. Therefore, | would adopt

the functiona! approach of the Eighth

Circuit in United States v. Williams, 484

F.2d 428 (8th Cir. 1973), which asks what

the objection, considered in context, rea-

sonably conveyed to the court and what

prejudice the ruling carried for the de-

fendant. Such a test does not stop at

the literal words used by counsel.

Moreover, I cannot agree with the ma-

jority that the error was harmless be-

yond a reasonable doubt under Kottea-

kos v. United States, 328 U.S. 750, 66

S.Ct. 1239, 90 L.Ed. 1557 (1946). The

testimony of Justice of the Peace Cerny

may provide some link between Castillo’s

story and Arteaga, but it lacks the tan-

gibility or the authority of a prior con-

viction. The introduction of the convic-

tion well may have stilled doubts about

the credibility of Castillo’s account of

Arteaga’s involvement in the minds of

one or more jurors, since an account,

specific or general, of a smuggling oper-

ation that may sound like the product of

a fertile imagination when told about a

defendant with no apparent history of

crime may acquire an aura of truth if

the actor is shown to have a record of

prior criminal conviction. Then too,

while the jury was informed that Artea-

ga had been convicted of a similar of-

fense, they were not told that since 1964

2826 UNITED STATES v. ARTEAGA-LIMONES

he had not been in custody. If a prior

conviction can be both relevant and nec-

essary and at the same time harmless, it

seems to me that at least the jury should

have been told that Arteaga had “served

his time” and been back in society for

nine years to still reasonable doubts that

the use of the conviction was harmful to

Arteaga’s defense. In these circum-

stances, I cannot say with assurance that

Arteaga was convicted because the

government proved beyond a reasonable

doubt he committed the acts presently

charged. I maintain it is likely that he

was convicted because he was shown to

have been convicted for a similar offense

at a time too remote to have had any

legal probity for the issues presented be-

low.

I, therefore, respectfully dissent from

the affirmance of Arteaga’s conviction.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

UNITED STATES v. ARTEAGA-LIMONES 3913

UNITED STATES of America,

Plaintiff-Appellee,

v.

Jose Demetrio ARTEAGA-LIMONES

and Mike Lozano Cantu,

Defendants-Appellants.

No. 75-1648.

United States Court of Appeals

Fifth Cireuit.

June 9, 1976.

Appeals from the United States Dis-

trict Court for the Western District of

Texas; John H. Wood, Jr., Judge.

ON PETITION FOR REHEARING

AND PETITION FOR REHEAR-

ING EN BANC

(Opinion April 8, 1976, 5 Cir., 1976,

529 F.2d 1183).

Before COLEMAN, CLARK and IN-

GRAHAM, Circuit Judges.

PER CURIAM:

The Petition for Rehearing on behalf

of Jose Demetrio Arteaga-Limones 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 banc,

(Rule 35 Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 12) the

Petition for Rehearing En Banc is DE-

NIED.

CLARK, Circuit Judge (dissenting):

For the reasons stated in my dissent to

the panel opinion, I would grant the pe-

tition for rehearing.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

ee ee

United States Court of Appeals

FOR THE FIFTH CIRCUIT

October Term, 1975

No. 75-1648

D. C. Docket No. DR-74-CR-103

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE DEMETRIO ARTEAGA-LIMONES

and MIKE LOZANO CANTU,

De fendants-Appellants.

AppeaB from the United States District Court for the

Western District of Texas

Before COLEMAN, CLARK .~.d INGRAHAM, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Western District

of Texas, and was argued by counsel for appellant, Arteaga-Limones and

appellee, and was submitted on briefs by counsel for appellant, Cantu;

ON CONSIDERATION WHEREOF, it is now here ordered and adjudged

by this Court that the judgment of the said District Court in this

cause be, and the same is hereby, affirmed.

April 8, 1976

CLARK, Circuit Judge, concurring in part

and dissenting in part.

Issued as Mandate: ‘yn 17 1976

(AS TO JOSE DEMETRIO ARTEAGA-LIMONES ONLY)

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