# Petition — Arteaga-Limones v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0280%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 920 ## Text { 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) | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0280%3A1. Public record. Not legal advice.