Petition — Almendarez v. United States

;

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO. 76-268

TOMAS LOPEZ ALMENDAREZ, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

TO THE UNITED STATES COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

|

FOR THE FIFTH CIRCUIT

LAw OFFICES OF GARCIA & GARCIA

RAMON GARCIA

107 N. 10th

Edinburg, Texas 78539

Attorney for Petitioner

Alpha Law Brief Co., One Main Plasa, No. 1 Main St., Houston, Texas 77002

Questions Presented .....................

Constitutional Provisions and Statutes Involved

Statement of the Case ..................

ne ees :

CITATIONS

CASES

United States v. Coke, 339 F.2d 183 ........

United States v. Commissiong, 429 F.2d 834

United States v. Elgisser, 334 F.2d 103 ......

United States v. Hanna, 341 F.2d 906 ......

United States v. Robinson, 325 F.2d 391 ....

United States v. Tucker, 380 F.2d 206...

a=)

©

YW~AaAarkwnnne- B

N N _

EeGess

Page

MAAann

Supreme Court of the United States

OCTOBER TERM, 1976

NO.

TOMAS LOPEZ ALMENDAREZ, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Tomas Lopez Almendarez, prays that a Writ

of Certiorari be issued to review the judgment of the

United States Court of Appeals for the Fifth Circuit

affirming the district court below, entered in the above

entitled case on July 2, 1976.

OPINION BELOW

The opinion delivered by the Fifth Circuit Court of

Appeals is reported at 534 F.2d 648 (1976), and is

appended to this Petition as Appendix “A”. The opinion

delivered by the United States District Court for the

Southern District of Texas, which was affirmed by the

Court of Appeals, is attached as Appendix “B”.

2

Also attached as Appendix “C” is a copy of the judg-

ment of the Court of Appeals. A copy of the order deny-

ing the Petition for Rehearing en Banc is attached hereto

as Appendix “D”. A copy of the Stay of Mandate is

appended hereto as Appendix “E”.

JURISDICTION

The opinion of the United States Court of Appeals for

the Fifth Circuit was entered on July 2, 1976 (See Ap-

pendix “A”). The jurisdiction of the Supreme Court is

invoked pursuant to 18 U.S.C. § 1254(1).

QUESTIONS PRESENTED

I. Whether or not the decision of the United States

Court of Appeals for the Fifth Circuit is in conflict with

the decision of other Courts of Appeal on the same

subject matter.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Amendment Four:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue except on probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

United States Constitution, Amendment Five:

“. . . nor be deprived of life, liberty, or property without

due process of law.”

3

United States Constitution, Amendment Six:

“. . . to be confronted with the witnesses against him

Rule 26, Federal Rules of Criminal Procedure:

“In all trials the testimony of witnesses shall be taken

orally in open court unless otherwise provided.”

STATEMENT OF THE CASE

The petitioner was indicted on November 11, 1975 for

the offense of knowingly and intentionally importing 3,065

pounds of marijuana into the United States from Mexico,

contained in the first count of the indictment, and inten-

tionally possessing with intent to distribute 2,065 pounds

of marijuana, in the second count of the indictment.

Thereafter, on January 14, 1976, the Respondent’s motion

to dismiss count one of the indictment was granted, the

Petitioner was found guilty after a trial before the Court

of intentionally possessing with intent to distribute, 3,065

pounds of marijuana, after pleading not guilty.

A pre-sentence investigation was ordered, and on

February 20, 1976, the Court sentenced Petitioner to

serve five (5) years imprisonment with a special term

of parole of two (2) years. From such action, the Peti-

tioner appealed. The conviction was affirmed by the United

States Court of Appeals for the Fifth Circuit on July 2,

1976, in the United States of America v. Tomas Lopez

Almendarez, 534 F.2d 648 (1976). The Court of Appeals

found that the informer was merely a tipster and not an

active participant in the offense charged, therefore holding

that the Respondent was not required to disclose his

identity. Thereafter, Petitioner filed a Petition for Rehear-

ing on July 15, 1976, with the United States Court of

Appeals, in its opinion affirming the Judgment of Con-

4

viction, did not rule on Petitioner’s Point of Error Number

Two, which is as follows:

The Trial Court erred in denying Defendant’s Motion

to Require Disclosure of Identity of Informer because

the information supplied by said informer provided

the “Main Bulk” or case of evidence used to establish

probable cause in this case.

The Court of Appeals denied Petitioner’s Petition for

Rehearing on July 23, 1976.

On August 2, 1976, the Court of Appeals issued its

mandate, and Petitioner filed his Motion to Recall and

Stay Mandate Pending Certiorari, in the Court of Ap-

peals. Meanwhile, the Honorable Judge of the United

States District Court for the Southern District of Texas

at Brownsville issued an Order that Defendant surrender

to the United States Marshal. Then, on August 11, 1976,

the Court of Appeals issued an order granting Petitioner’s

motion for recall and stay of mandate pending certiorari

until and including August 22, 1976 and requested that

the clerk of the District Court for the Southern District

return the opinion and judgment issued as mandate.

Reasons For Granting the Writ:

1. Under Supreme Court Rule 19(1)(b), a Writ of

Certiorari may be granted when a court of appeals has

made a decision in conflict with the decisions of other

courts of appeal on the same subject matter. In the in-

stant case the Fifth Circuit’s decision in the area of law

concerning the required disclosure of an informant’s

identity by the government, is not entirely consistent with

several relevant courts of appeal decisions.

In the Court of Appeal’s opinion, it is stated that

“where, as here, an informant is merely a tipster and not an

5

active participant in the offense charged, we have repeatedly

held that the Government is not required to disclose his

identity.” It is the Petitioner's position that such a decision

is in conflict or inconsistent with the principle that “the

informer’s identity should be disclosed where it is vital

to a fair trial or vital to the integrity of the conviction.”

United States v. Hanna, 341 F.2d 906 (6th Cir., 1965);

United States v. Coke, 339 F.2d 183 (2nd Cir., 1964).

The instant case is similar to other courts of appeals

decisions wherein it has been held that the “disclosure

of the identity of the informer will be required whenever

the informer’s communications are essential to the estab-

lishment of probable cause, that is that the information

provided by the informer comprised the essence or core

or main bulk of the evidence used to establish probable

cause by the arresting officer. United States v. Tucker,

380 F.2d 206 (2nd Cir. 1967); United States v. Elgisser,

334 F.2d 103 (2nd Cir.), cert. den. sub. nom; United

States v. Robinson, 325 F.2d 391 (2nd Cir. 1963); United

States v. Commissiong, 429 F.2d 834 (2nd Cir., 1970).

In the instant case there is no question that the in-

formation provided by the informant comprised the es-

sence or core or main bulk of the evidence used by the

officers to establish probable cause. On page 30 of the

Record on Appeal, Lines 21 to 25, the officer in charge

testified to the effect that the only reason (emphasis

added) he stopped and searched Petitioner’s vehicle was

because of the information that he received from this

informer. All of the evidence presented at the trial of this

cause clearly demonstrates that the information provided

by the informer herein was the only basis for stopping

and searching the Petitioner’s vehicle and arresting him.

Absent this information, the officers had no other evidence

to establish probable cause.

6

If the Court of Appeals’ decision is to allow the non-

disclosure of an informer’s identity when he has provided

the only basis used for the establishment of probable

cause, it would unjustly, and without due regard to the

fundamental requirement of fairness, restrict and/or de-

prive a defendant of an extremely vital and relevant ele-

ment to the preparation of his defense.

CONCLUSION

For the foregoing reasons, this Petition for Certiorari

should be granted.

Respectfully submitted,

Law OFFICES OF GARCIA & GARCIA

107 N. 10th

Edinburg, Texas 78539

RAMON GARCIA

Attorney for Petitioner

CERTIFICATE OF SERVICE

I, Ramon Garcia, a practicing attorney and a member

of the Bar of the State of Texas for over a period of three

years and an applicant to the Bar of the Supreme Court

of the United States, do hereby certify that two (2)

copies of the foregoing Petition for Writ of Certiorari

have been served on Respondent by depositing same

with the United States Postal Service, Certified Mail,

postage prepaid, addressed as follows: Anna E. Stool,

Suite 3, 1219 Autrey St., Houston, Texas 77025, on this

the ___. day of August, 1976.

RAMON GARCIA

7

APPENDIX “A”

Opinion of the United States Court of Appeals

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Tomas Lopez ALMENDAREZ,

Defendant-Appellant.

No. 76-1672

Summary Calendar.*

UNITED STATES COURT OF APPEALS,

Fifth Circuit.

July 2, 1976.

Defendant was convicted before the United States Dis-

trict Court for the Southern District of Texas, Reynaldo G.

Garza, Chief Judge, of possession of marijuana with intent

to distribute, and he appealed. The Court of Appeals held

that where informant did not participate in offense, Gov-

ernment was not required to disclose his identity, that

requirement that informant be credible and reliable was met,

and that evidence to effect that defendant was appre-

hended near the Mexican border in the middle of the

night driving truck containing over 3,000 pounds of

marijuana was sufficient to support his conviction.

Affirmed.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part. I.

8

Appeal from the United States District Court for the

Southern District of Texas.

Before AINSWORTH, CLARK and RONEY, Circuit

Judges.

PER CURIAM:

Tomas Lopez Almendarez -was convicted following a

jury-waived trial of possession of marijuana with intent to

distribute, in violation of 21 U.S.C. § 841(a). On appeal,

he contends that the District Court erred (1) in refusing

to require disclosure of the identity of the informant who

provided the information which led to his arrest; (2) in

holding that the Government had met its burden of estab-

lishing that the informant was credible and reliable under

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.

2d 723 (1964); and (3) in denying his motion for ac-

quittal based on the alleged insufficiency of the evidence.

We affirm the conviction.

On September 28, 1975, a Drug Enforcement Adminis-

tration (DEA) agent received a call from a confidential

informer advising him that a large truck with a red and

white cab, high sideboards, and trumpet air horns mounted

on the roof was being loaded with marijuana near the

Rio Grande River in the vicinity of Fronton, Texas. Sur-

veillance was set up covering the possible routes out of the

loading area, and after several hours of waiting, a truck

matching the informant’s description appeared. The truck

was stopped, approximately 3,065 pounds of marijuana

were found, and the appellant, who was the driver and

sole occupant of the truck, was arrested and advised of

his rights.

[1] Where, as here, an informant is merely a tipster

and not an active participant in the offense charged, we

—

9

have repeatedly held that the Government is not required

to disclose his identity. Bourbois v. United States, 5 Cir.,

1976, 530 F.2d 3; United States v. Clark, 5 Cir., 1973,

482 F.2d 103; United States v. Herrera, 5 Cir., 1972, 455

F.2d 157; United States v. Mendoza, 5 Cir., 1970, 433

F.2d 891, cert. denied, 401 U.S. 943, 91 S.Ct. 953, 28

L.Ed.2d 225 (1971). While the informant relayed in-

formation based upon personal observation, he did not

participate in the offense, and the District Court properly

denied appellant’s motion seeking disclosure of his identity.

[2] The informant in question had provided reliable,

independently verifiable information on numerous prior

occasions. Moreover, the information regarding the descrip-

tion of the truck was corroborated by independent observa-

tions of various DEA agents prior to the time the truck

was stopped. Aguilar’s requirement that the informant be

credible and reliable was thus met. See United States v.

Squella-Avendano, 5 Cir., 1971, 447 F.2d 575.

[3] Finally, viewed in the light most favorable to the

Government, Glasser v. United States, 315 U.S. 60, 62

S.Ct. 457, 86 L.Ed. 680 (1942), the evidence adduced

at trial to the effect that appellant was apprehended near

the Mexican border in the middle of the night driving a

truck containing over 3,000 pounds of marijuana was

more than sufficient to support his conviction.

AFFIRMED.

10

APPENDIX “B”

Opinion of the United States District Court

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

CRIMINAL NUMBER 75-B-340

UNITED STATES OF AMERICA

VS.

TOMAS LOPEZ ALMENDAREZ, aka,

TOMAS ALMENDAREZ-LOPEZ

Honorable Edward B. McDonough, Jr., United States

Attorney, of Houston, Texas, and John Patrick Smith,

Assistant United States Attorney, of Brownsville,

Texas, for the Government.

Garcia & Garcia (Ramon Garcia) of Edinburg,

Texas, for the Defendant.

MEMORANDUM AND ORDER

“The Defendant, Tomas Lopez Almendarez, aka Tomas

Almendarez-Lopez, was indicted by a Grand Jury on two

counts. Count One charges that on September 28, 1975,

the Defendant knowingly and intentionally imported 3,065

pounds of marihuana into the United States from Mexico,

in violation of 21 U.S.C. §952(a). The second count

11

alleges that on the same date the Defendant knowingly and

intentionally did possess, with intent to distribute, 3,065

pounds of marihuana, contrary to 21 U.S.C. §841(a)(1).

The Defendant pleaded not guilty to both counts, and sub-

sequently filed a Motion to Suppress Evidence and a

Motion to Require Disclosure of Identity of Informer.

“On January 5, 1976, a hearing on Defendant’s Motions

was begun. However, it soon became apparent that the

testimony of an absent witness, who was out of the

country, was critically necessary for a just and informed

determination of the issues posed by the Motions. The

hearing was therefore postponed. On January 14, this

action came on for trial. At that time, in open court and

in writing, the Defendant waived his right to be tried

by a jury. In addition, the Government moved that the

first count of the indictment be dismissed, which Motion

was granted. The trial before the Court commenced there-

after, with Defendant’s Motions heard simultaneously.

“The Government called three witnesses: Jesse M.

Torrez and Jack W. Derington, Special Agents for the

Drug Enforcement Administration, and Supervisory Cus-

toms Patrol Officer Lloyd Springer. Drug Enforcement

Administration Agent Michael L. Harper testified briefly

at the hearing on January 5, but was not recalled on Jan-

uary 14. At the conclusion of the testimony on January

14, the Defendant stipulated that a sample of the substance

seized was sent to a chemist, analyzed and found to be

marihuana. Additionally, the Defendant stipulated that

the chain of custody was properly maintained. Both sides

then closed. From the evidence presented, this Court finds

the facts to be as delineated below.

“On September 28, 1975, at around 8:30 p.m., Agent

Torrez received a call from a confidential informer. This

12

informer had furnished information which proved reliable

on several occasions in the past. One tip led directly to an

arrest about two years ago. Subsequently, the informer

has provided information 10 or 15 times, confirming data

already obtained concerning marihuana and heroin trans-

actions; on one of these occasions, people and purchase

money were found, but not the heroin, and on the other

occasions the people escaped, although marihuana debris

was sometimes found.

“The informer told Agent Torrez he had just observed

a large truck—with a red and white cab, high sideboards,

and “trumpet” air horns mounted on the roof—being

loaded with marihuana immediately near the Rio Grande

River and in the Fronton, Texas, area. The informer knew

the substance was marihuana because of the sacks in which

it was contained. The informer also stated that he saw a

man at the loading spot whose nickname is “Tornillo”;

according to Agent Torrez, Tornillo is a well-known smug-

gler in the Roma-Rio Grande area. The informer did not

mention the Defendant. As indicated above, the informer

acquired his information by sight, but he did not par-

ticipate in the commission of the offense.

“Agent Torrez decided not to attempt an interception

of the illicit activities at the loading spot. Based on ex-

perience in similar past situations, he determined that he

could not have approached unseen, and that if he tried

to do so he would have found a lone loaded truck. Instead,

Agent Torrez radioed other officers to set up “surveil-

lances” at two points on Highway 83, one of which the

truck would necessarily pass upon exiting from the river

area. Fronton Road leads directly from the Rio Grande

River north to Highway 83; there is no way to get to

83 except via Fronton Road, and once 83 is reached, one

13

must turn either left or right on that East-to-West highway.

The 83 - Fronton Road junction is about five miles north

of the Rio Grande River.

“Officer Springer received a description of the truck

from Agent Torrez. At around 8:45 p.m., Springer and

another Agent established a surveillance on Highway 83,

two miles east of Fronton Road. Torrez “set up” just to

the east of Fronton Road and other Agents established

a lookout to the west of that road on 83. All of the Agents

maintained radio contact through Agent Torrez.

“After waiting a while, Agent Torrez began to worry

about the truck, which had not yet been observed. Torrez

contacted the informer, and the latter assured Torrez that

the truck had not emerged from the river area. The in-

former then joined Torrez on Highway 83. When the

truck came out and passed Torrez’ position, shortly after

1 a.m. (September 29), the informer identified the vehicle.

“The truck turned to the East on Highway 83, passed

Agent Torrez’ location, and then passed Officer Springer

at about 1:10 a.m. Torrez and Springer followed the truck

in separate vehicles. Meanwhile, Agent Torrez had radioed

a description of the truck to Agent Derington, who was

at the Port of Entry Bridge in nearby Roma, Texas. At

around 1:10 a.m., Agent Derington was approaching High-

way 83 trom a road which runs parallel with, and east of,

Fronton Road. He spotted the truck travelling east on

Highway 83, and he, too, trailed the Defendant.

“Officer Springer passed the truck and then stopped it.

The stop was made about three miles east of Fronton Road

and about one mile east of Springer’s surveillance point.

The Defendant was the driver and the sole occupant. The

Agents climbed onto the back end of the truck, lifted up

14

a tarp, and observed numerous sacks of marihuana. Sacks

which were each three to three and a half feet high covered

the entire cargo area, and the Agents smelled the odor

of marihuana. In all, there were approximately 3,065

pounds of marihuana; the wholesale price at the time of

the seizure was about $20 per pound.

“Agent Torrez then placed the Defendant under arrest

and advised him in Spanish of his rights. The Defendant

stated he understood his rights, and Torrez asked if the

Defendant had anything to say. The Defendant said that

he had been hired in McAllen, Texas, by an unknown

Mexican male, and that he was given $35 to drive the

truck back to McAllen, but he did not know what was in

the truck. Finally, the Defendant took Agent Torrez to

a location, about a mile from the Rio Grande River, where

he claimed he had picked up the truck; Agent Torrez did

not believe the Defendant was telling the truth.

“The registered owner of the truck is Antonio Balades.

However, Agent Torrez checked out the latest address and

found it to be nonexistent.

“By his Motion to Suppress Evidence, Defendant claims

that he was arrested without a warrant, that the informa-

tion available to the officers did not constitute probable

cause, and that the informer was neither credible nor

reliable; therefore, he contends, his statements and all

tangible evidence must be suppressed. For the reasons

discussed below, these claims are wholly lacking in merit.

“Although the general rule is that searches must be

conducted pursuant to a duly authorized search warrant,

several exceptions to the rule are recognized. All elements

of the “probable cause plus exigent circumstances” ex-

ception are fully satisfied in this case.

15

“In Williams v. United States, 404 F.2d 493, 494 (C.A.

5, 1968), the Fifth Circuit Court of Appeals held:

“... there is probable cause to search when there exists

(sic) facts and circumstances sufficient to warrant a

reasonably prudent man to believe that the vehicle con-

tains contraband.” Since the “facts and circumstances”

in this case relate largely to the informer’s tip, the two-

prong test of Aguilar — that is, the credibility and re-

liability of the informer— must be supported by the

evidence. Aguilar v. Texas, 378 U.S. 108 (1964).

“The credibility of the informer was solidly shown.

Reliable information had been provided by him on num-

erous prior occasions. In addition, Agent Torres knew

of the reputation and background of Tornillo, one of the

observed participants at the loading spot. United States

v. Harris, 403 U.S. 573, 583 (1971).

“Evidence concerning the underlying facts which dem-

onstrated the informer’s reliability is equally conclusive.

The information was obtained through personal observa-

tion. United States v. Harris, supra, at 581. Furthermore,

the informer supplied a wealth of detail. Finally, his

prediction that the described truck would travel from

the river area via Fronton Road to Highway 83 proved

correct, as independently verified by at least three govern-

ment agents. Weeks v. Estelle, S09 F.2d 760, 765 (C.A.

5, 1975).

“It should be noted that the existing probable cause

was not nullified or impaired by the fact that there was

radio communication among the agents or that the

search was not personally conducted by the agent who

received the informer’s tip. Quoting in part from an earlier

decision, the Court observed in United States v. Nieto,

510 F.2d 1118, 1120 (C.A. 5, 1970), “that ‘probable

16

cause . . . can rest upon the collective knowledge of

the police, rather than solely on the officer who actually

makes the arrest,’ when there is ‘some degree of communi-

cation between the two.’”

“Having determined that the agents had probable cause

to search the truck, the next inquiry concerns whether or

not exigent circumstances existed. An affirmative answer

is clearly dictated by the facts. The movable vehicle was

stopped on the highway and the sole occupant was

alerted. See Chambers v. Maroney, 399 U.S. 42, 51

(1970). As the Court succinctly stated in United States

v. Rodriguez, 523 F.2d 738, 740 (C.A. 5, 1975), “where

there is probable cause to search an automobile, an im-

mediate search is constitutionally permissible.”

“Defendant’s second Motion urges this Court to require

disclosure of the informer’s identity. Several grounds pur-

portedly demonstrating the need for such identity are

asserted. Immediately after the conclusion of the trial

of this case, the Defendant, his counsel and counsel for

the Government were called to chambers. This Court had

then just received copies of two decisions pronounced by

the Fifth Circuit Court of Appeais in which disclosure of

the informer’s identity and in camera interview with the

informer were discussed. United States v. Freund, 525

F.2d 873 (C.A. 5, 1976); United States v. Doe, 525

F.2d 879 (C.A. 5, 1976). Upon reviewing the decisions

with counsel, this Court concluded that an in camera

interview was not warranted in this case. That conclusion

remains firm; Defendant has completely failed to establish

the requisite predicate for either disclosure or in camera

interview.

“In the case of Roviaro v. United States, 353 U.S. 53,

62 (1957), the Supreme Court of the United States

17

announced the now familiar guidelines for assessing the

need for disclosure:

“We believe that no fixed rule with respect to dis-

closure is justifiable. The problem is one that calls

for balancing the public interest in protecting the

flow of information against the individual’s right to

prepare his defense. Whether a proper balance rend-

ers nondisclosure erroneous must depend on the

particular circumstances of each case, taking into

consideration the crime charged, the possible de-

fenses, the possible significance of the informer’s

testimony, and other relevant factors.’

“The considerations in this case weigh heavily against

disclosure. Uncontradicted evidence revealed that the in-

former did not participate in the. commission of the of-

fense. In fact, althugh he did observe the loading of the

marihuana, he was even less involved in the transaction

than the informer in United States v. Clark, 482 F.2d

103 (C.A. 5, 1973). Yet disclosure was denied in Clark:

“We have held that where the evidence shows that an

informer is nothing more than an informer and does not

participate in the transaction, no disclosure of his identity

is required.” United States v. Clark, supra, at 104. Finally,

it is inconceivable to this Court that the informer “set up”

the Defendant, thus risking the loss of a truck and. over

$60,000 worth of marihuana.

“In his Motion, Defendant contends that the informer

could aid in a determination of the existence of entrap-

ment. However, Defendant made no proffer regarding

such a defense, and “the mere invocation of the word

‘entrapment’ does not magically create a viable defense.”

Alvarez v. United States, 525 F.2d 980 (C.A. 5, 1976).

18

“The sole defense raised at this nonjury trial was the

lack of probable cause. To this extent, United States v.

Freund, supra, is similar to the instant case. However,

unlike Freund, this is an “ordinary tipster situation” and

the issue of probable cause is not a close one. “When

the informant plays no part in the prohibited transaction

but merely supplies information which leads to probable

cause for an arrest or search, the proper balance is more

easily struck. We have held that where the evidence shows

that an informer is a mere tipster, no disclosure of his

identity is required.” United States v. Freund, supra, at

876.

“At the conclusion of the evidentiary stage of the trial,

counsel for the Defendant cited four opinions from other

Circuits which discussed disclosure in relation to probable

cause. United States v. Gocke, 507 F.2d 820 (C.A. 8,

1974), cert. denied, 420 U.S. 979 (1975); United States

v. Hurse, 453 F.2d 128 (C.A. 8, 1971), cert. denied, 414

U.S. 908 (1973); United States v. Comissiong, 429

F.2d 834 (C.A. 2, 1970); United States v. Tucker, 380

F.2d 206 (C.A. 2, 1967). This Court, however, is bound

only by decisions of the Fifth Circuit Court of Appeals

and of the Supreme Court of the United States. United

States v. Northside Realty Associates, Inc., 518 F.2d

884, 886 (C.A. 5, 1975). In addition to the matters

already discussed, Defendant offered few clues concerning

the materiality and relevancy of disclosure to his case —

as this Circuit requires. See Alvarez v. United States,

Supra, at Footnote 6. Moreover, the reasoning and inter-

pretations articulated in the four cited opinions do not

compel a contrary resolution of the disclosure issue.

“Testimony did emerge relating to a potential defense.

Specifically, the evidence revealed that after he was placed

19

under arrest, the Defendant told Agent Torrez he did

not know what was in the truck. However, this testimony

was elicited by the Government on direct examination.

The Defendant did not even remotely indicate reliance

upon an “unknowing possession” defense, and disclosure

of the informer’s identity is therefore patently unnecessary.

It should also be noted that Agent Torrez did not believe

Defendant. In addition, even if disclosure were ordered

and even if the informer were to testify that he did not

see the Defendant at the loading spot, Defendant would

not thereby achieve exoneration. The circumstances

severely and substantially contradict an assertion of un-

knowing possession: in close proximity to the Rio Grande

River and in the middle of the night, Defendant was in

sole control of a large truck containing over 3,000

pounds of odorable marihuana.

“Finally, yet another factor further tips the scales

against disclosure. One of the weighty considerations in

the balancing process is protection of the flow of informa-

tion. From the evidence presented, it can be inferred that

the informer’s usefulness in the future hinges upon his

continued anonymity. Undetected and unsuspected ob-

servation is clearly critical to his procurement of informa-

tion, and the bountiful flow of trustworthy tips which he

provides would be jeopardized by disclosure of his identity.

“Accordingly, Defendant’s Motion to Suppress Evidence

and Motion to Require Disclosure of Identity of Informer

are hereby denied.

“Based upon the evidence adduced at trial and upon

the stipulations entered into between the Defendant and

the United States Attorney, this Court finds that the De-

fendant, Tomas Lopez Almendarez, aka Tomas Almen-

20

darez-Lopez, did knowingly and intentionally possess,

with intent to distribute, 3,065 pounds of marihuana. As

discussed above, the circumstances support an inference

of knowing and intentional possession. Furthermore, be-

cause of the large quantity of marihuana involved, intent

to distribute can be, and is, inferred. This Court finds

the Defendant guilty beyond a reasonable doubt of the

offense charged in Count Two of the Indictment.

“The Defendant, Tomas Lopez Almendarez, will appear

before this Court on February 20, 1976, at 9:00 a.m. for

sentencing.

“The ‘Clerk will send copies of this Memorandum and

Order to the Defendant, his counsel, and the United States

Attorney.

“DONE at Brownsville, Texas, on this the 20th day of

February, 1976.

/s/ REYNALDO G. GARZA

Reynaldo G. Garza

United States District Judge”

ee een <n et

21

APPENDIX “C”

Judgment of the United States Court of Appeals

- Affirming the District Court

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 76-1672

Summary Calendar

D. C. Docket No. CR-75-B-340

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMAS LOPEZ ALMENDAREZ,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

Before AINSWORTH, CLARK and RONEY, Circuit

Judges.

JUDGMENT

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

record from the United States District Court for the

Southern District of Texas, and was taken under submis-

sion by the Court upon the record and briefs on file, pur-

suant to Rule 18;

22

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.

July 2, 1976

Issued as Mandate: August 2, 1976

23

APPENDIX “D”

Denial of Petition for Rehearing

IN THE

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 76-1672

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMAS LOPEZ ALMENDAREZ,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(JULY 23, 1976)

Before AINSWORTH, CLARK and RONEY, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby DENIED.

24

APPENDIX “E”

Mandate Recalled and Stayed

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

August 11, 1976

TO ALL COUNSEL AND THE DISTRICT CLERK:

No. 76-1672—U.S.A. v. Tomas Lopez Almendarez

MANDATE RECALLED AND STAYED TO AND

INCLUDING August 22, 1976

(SEE ENCLOSED ORDER)

Gentlemen:

The court has this day granted the recall and stay of the

mandate to the date shown above. If during the period of

the stay there is filed with the clerk of this court a notice

from the clerk of the Supreme Court that the party who

has obtained the stay has filed a petition for the writ in

that court, the stay shall continue until final disposition

by the Supreme Court. Upon the filing of a copy of an

order of the Supreme Court denying the petition for writ

of certiorari the mandate shall issue immediately under

Rule 41, FRAP.

Under revised Rule 21(1) of the Supreme Court effective

July 1, 1970, a record is no longer required in connection

with an application for writ of certiorari, and therefore

will not be routinely prepared by this office (38 LW 3502).

A copy of the opinion, judgment and denial of rehearing

are still required by the Supreme Court to be incorporated

as an appendix to your petition. Enclosed are copies of

the said documents which have been entered in this cause.

25

By copy of this letter to the clerk of the District Court,

we request that he return the opinion and judgment issued

as mandate on August 2, 1976.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/ MARY BETH BUCEUX

Deputy Clerk

enc.

cc Mr. Ramon Garcia

Ms. Anna E. Stool

Mr. V. Bailey Thomas, Clerk