Petition — Vasquez v. United States

OO —

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH

CIRCUIT

JOSEPH A. CALAMIA

CHARLES MICHAEL MALLIN

Attorneys for Petitioner

Suite 1300 Bassett Tower

El Paso, Texas 79901

TABLE OF CONTENTS

Statues Inmmiwea . 6 « 6 ce te ee tl

Gees « omic jd 0 ole @ 6b 6% o é

Reasons for Granting the Writ

Tee GB we alt oe 6 oe 6 8 ee 6 ss

Fruit of the Poisonous Tree ..... P

pe ee ee ee ee a

GURGEMBAGR 6:6 6 oes 0 0 @ 6 s

Certificate of Service .....

Rempemmax BG. wc cc ee eee °%

INDEX OF AUTHORITIES

Aguilar v. Texas, 378, US 108, 12 LEd

Y @ 3 2 2 Bee ee ee ee

Barber v. Page, 390 US 719, 88 S Ct

1318 20 LEd2d 255 (1968) .......

Brookhart v. Janis, 384 US 1 86 S Ct

1245, 16 LEd2d 314 (1966) .......

Brown v. Illinois, 422 US 590 45 LEd

yr Fe FS G&G Fe ee ee ee

Bruton v. United States, 391 US 123, 20

1GaG 476, GBS Ce 16D. ec ee ee

Carroll v. United States, 267 US 132, 69

ie Sener GE SGE Mec cc eenees

Gray v. United States, 407 F 2d 830

cpus Gam. Bee o 6 te ee i: oe se &

Johnson v. Middlebrook, 5th Cir 383

eo Pe ree oe ee ee ee

Marsh v. United States, 5th Cir. 344

is 2 See aw a ae ee

Nelson v. O'Neil, 402 US 622, 29 LED

Ff & & f @. | Pe eee ee ee

Page

ell oe

13

22

23

9, 16

18, 19, 22

1l

22

14

13

21

INDEX OF AUTHORITIES (continued)

Pointer v. Texas, 380 US 400 S Ct

a. Be eee eee 6 6-4 ee eee 22

United States v. Jacquillin, 469 F

, > FF. Cee | ee oe 14

Whiteley v. Warden of Wyaming Penitentiary

401 US 506, 28 LEd2d 306 at 312, 91S Ct

an < 6:¢ © 4.6.46 6 6 8 & * 8 . els 13

Wong Sun v. United States, 371 US 471,

Gece sceesetsovevee ee ee 15

Constitutional Amendments and

Statutes Involved

Amendment IV, U.S.Conmstitution.... 2

Amendment VI, U.S.Constitution.... 2

an Ue Gee. GIB -« we wc ee eee ,* * 3

an Gee Gees Gon Ge 4B) co 0 0 6 6 6 6 3

Miscellaneous

os ee 14

ii

> we

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1976

ROBERTO VASQUEZ, Petitioner

vs.

UNITED STATES OF AMERICA

PETITION FOR A WRIT CF CERTIORARI TO THE

UNITED STATES COURT CF APPEALS FOR THE

FIFTH CIRCUIT

The Petitioner, Roberto Vasquez, petitions

for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fifth

Circuit, entered in this case on the 9th day of

July, 1976.

OPINION BELOW

The opinion of the court of appeals ( App. A,

pp. 25-34, infra ) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App. A.,

pp. 25-34, infra ) was entered on July 9, 1976.

The mandate was issued August 2, 1976 (App.B p.35 infra)

The jurisdiction of this Court is involved under

28 U.S.C. J 1254 (1).

QUESTIONS PRESENTED

Did the Fifth Circuit error in affirming the

district court's action in not granting Petitioner's

motion to suppress his confession which was the

fruit of Petitioner's illegal arrest and unconstitu-

tional detention under the Fourth Amendment to the

United States Constitution?

Whether the Fifth Circuit errored in affirming

the district court's action allowing a powerfully

incriminating extrajudical statement of a co-defen-

dant, who stood accused side by side with Petitioner

deliberately spread before the jury in their joint

trial thereby violating Petitioner's Sixth Amendment

right of cross-examination, and in disregard of

BRUTON V. UNITED STATES, 391 US 123, 20 L Ed 2d

476, 88 S Ct 1620?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED.

A. United States Constitution

1. Amendment IV to the United States Consti-

tution provides:

"The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause,

supported by Oatn or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized."

2. Amendment VI to the United States Consti-

tution provides:

"In all criminal prosecutions the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district where-

in the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the Assistance

Be

- of Coynsel for his defense."

Statutes:

21USC } 846 and 21] USC } 841 (a) (1)

STATEMENT

ROBERTO VASQUEZ, Petitioner herein, was in-

dicted on June 5, 1975, along with five others for

violations of 21 USC ' 846 and 21 USC } 841 (a) (1).

He allegedly on February 2, 1975, conspired to

knowingly and fraudulently possess marihuana, and

that said Petitioner did knowingly and intention-

ally possessed witn intent to distribute approxi-

mately 1,137 pounds of marihuana. The indictment

was in two counts, tne second only charging Peti-

tioner and four others. A jury trial was had on

August 14, 1975, before the Honorable William S.

Sessions, where the Petitioner entered a plea of

not guilty as to both counts of the indictment.

Tne jury found Petitioner guilty on both counts on

August 15, 1975, and the Court sentenced him to

five (5) years imprisonment on Count 1 with a

special parole term of eight (8) years and three (3)

3.

years imprisonment on count 2, with a special

parole term of five (5) years. Count 2 was to mn

consecutively to count l.

A hearing on the motion to suppress was heard

before the Honorable William S. Sessions on July

10, 1975. The motion to suppress was filed; which

alleged that the oral confession was inadmissible

for the reason that it was tainted by an illegal

detention arising from the illegal arrest of Peti-

tioner.

The evidence briefly stated at trial reflect

that customs patrol officer Epps testified that on

February 26, 1975, at approximately 1:30 in the

morning in the Acola Esperanza area by the Rio

Grande River, separating Mexico and the United

States, he and his partner Kenneth Wright, observed

headlights coming from the Rio Grande River from

what is known as the west road of Balluco Arroyo.

Iney observed the lights come on up and hit a farm

road FM192, and tum west on FM192. They started

following this vehicle which was a green and white

Ford van for the sole reason that it didn't belong

in that area.

As the officers approached the town of Esperanza,

and while still following the Ford van, they observed

two vehicles coming towards them. The first van made

no attempt to stop as it approached the two vehicles.

During all this time the officers did not have their

headlights on. The first vehicle looked like it was

making a U-turn. The officers turned their headlights

on, and the Ford van increased its speed. The off-

icers began to pursue the Ford van and as it passed

the town of Esperanza proceeding west on FM-192 the

Ford van failed to negotiate a curve and crashed.

When the officers approached the scene they turned

on their red overhead roof lights, and observed

what appeared to be a large quantity of marihuana

over an area around the van.

At this time the two other vehicles were behind

the officers. Officer Epps testified that he attempted

to flag down the two vehicles as they approached him

but they continued going without stopping. At ap-

proximately 2:30 a.m. the El Paso Police Department

stopped the van with the license plate observed by

5.

Officer Epps and matching the description that Officer

Epps had obtained. Petitioner and three other sub-

jects were apprehended in the 9400 block of Socorro

Road, some 60 miles away from the scene of the wrecked

van. At the scene of the wreck an individual was found

dead, who had been critically injured in the wreck. -

Officer Epps testified to the fact that the rea-

son he had the van stopped which Petitioner was in, was

that that van was in the same proximity as the van that

turned over and scattered marihuana, that it slowed down

to look at the wreck, and that it made no attempt to

stop. However, during the entire episode from the time

Officer Epps observed the vehicles until the time that

van overturned and the other two vehicles past him he

never saw any of the occupants of those two vehicles

talking with each other, stop or in any manner indicate

that these two vehicles were together. Nor, was evidence

adduced which indicated that the two vehicles were with

the van that overturned.

The evidence at the motion to suppress concerning

the issue of Petitioner's confession consist of the

following: The custams partol officers spotted the

van which eventually failed to negotiate the curve

and turned over at approximately i:30 a.m. on February

26, 1975. At approximately 2:30 a.m. the El Paso

Police stopped the van which Petitioner was in on

Soccorro Road in El Paso, Texas. At 2:25 a.m. off-

icers began tracking a subject who had fled the scene

on f-ot. After the van in which Petitioner was in

was stopped on Soccorro Road and Avenida De Las

American in Soccorro Texas, Petitioner and other

subjects were brought out of the van.

After the van Petitioner was in was stopped in

Soccorro, Texas, Agent Ismael Fuentes of the Drug Fnforce-

ment Agency, arrived at the Soccorro scene sometime after

3:30 a.m., and questioned Mr. Pablo Ruiz-Aguilar, he

illicted from him the fact that on the night of February

26, 1975, he had been picked up by Petitioner, and that

he had gone down to assist in the transportation of

marijuana. Agent Fuentes testified to Aguilar's state-

ments, at Petitioner's joint trial with the other co-

defendants, of which Pablo Ruiz-Aguilar was one such co-

defendant who did not take the stand. Fuentes’ testi-

mony came in over Petitioner's timely and proper abjection.

Ve

The trial court did not grant a severance nor

did the court instruct the jury that agent Fuentes’

testimony could not be used against Petitioner.

- After Petitioner had arrived at the county jail

that same morming at approximately 6:30 a.m., and

Fuentes had already talked to Petitioner, and told

him officer Jose Contreras had arrived, and talked

to Petitioner at the jail this is when Petitioner's

confession was taken which will be discussed more

fully under the appropriate issue. The trial

court overruled Petitioner's motion to suppress.

REASONS FOR GRANTING THE WRIT

ISSUE NUMBER ONE

Tne Fifth Circuit by affirming the case at

bar has decided an important Federal Constitutional

question that is in apparant conflict with principles

announced by this Court in BROWN V. ILLINOIS,422 US 590

45 L Ed 2d 416, 95 S Ct2254 in that Petitioner's

confession was the fruit of his illegal arrest and

unconstitutional detention under the Fourth Amend-

ment to the United States Constitution. The basic

question which this Court must determine is whether

the arrest which led to VASQUEZ's conviction was

valid. In essence the issue is whether there was

probable cause to stop, arrest, and question VASQUEZ

on February 26, 1975 in Soccorro, Texas.

In the case at bar, after the van which Petitioner

was in had been stopped and agent Fuentes had arrived

at the Soccorro scene, and the Petitioner had already

been transported to the El Paso County Jail several

hours later Fuentes interviewed VASQUEZ. He confronted

Petitioner with the facts he had, and Petitioner apparently

submitted; said he'd cooperate. But, he wanted to

speai. to Joe Contreras who was a detective with the

Task Force of the D.E.A.. Petitioner was alleged to

have made the following statements to detective Contreras,

which Contreras testified to and which came into evidence

in the Government's case in Chief: (Record on Appeal 317-319)

". . . SO he (VASQUEZ) went on to relate

that he was the money man for the operation,

that three loads of 500 pounds each were to be

crossed across the border in the vicinity of

McNary, Texas, into the United States.

Also, that he (VASQUEZ) was to wait at the Sun

Valley Motel somewhere close to Ysleta, and he

was going to be the money man for the operation

and that the - - - when the loads were crossed,

they were to be placed inside two vans which would

be positioned somewhere in the vicinity of

Zaragosa and Alameda and that two unidentified

anglo males were going to come and see the marijuana,

and after they would see the marijuana, they

would go to the motel and pay him the money.

However, all of this did not occur due to

the fact that the incident where one person died

in an accident, because he was called from Mexico

by an unidentified person and advised him to go warn

the people to come back to El Paso, because samebody

had put che finger. In other words, somebody had

squealec or whatever you want to call it.

So he then went on to state that he went

with his girl-friend to the vicinity of McNary,

Texas, to warn the people. However, as he was

approaching the point, the crossing point, he

Saw an Overturned van, and he then fled the

scene.

10.

. . « he mentioned same guns had been purchased.

. . he mentioned that ne had rented either two

or three rooms - - - don't recollect how many but

I remembered the room that he told me he was

staying was apartment no. - - - well room 23, I

believe... "

The van VASQUEZ was in was stopped and Petitioner

was arrested on marijuana charges. Officer Epps while

in the Esperanza area and after the first van turned over and

he tried to flag down Petitioner's van and the other

vehicle he requested that these later two vehicles be

stopped, and detained. Petitioner's vehicle was sub-

sequentley stopped, detained and arrested in the 9400

block of Soccorro in El Paso, Texas, by the El Paso

Police. This was same 60 miles away from the scene

where the green van had overturmed and the marijuana

found. Petitioner was arrested without a warrant.

In 1925 in CARROLL V. UNITED STATES, 267 US 132,

69 L Ed 543, 45 S Ct 280, this Court noted "travelers

may be so stopped in crossing an international boundary

because of national sel protection, reasonablly requir-

ing one entering the country to identify himself as

entitled to come in, and his belongings as effects

which may lawfully brought in. But those lawfully within

ll.

the country, entitled to use public highways, have a

right to free passage without interruption or search

unless there is" * * * a warrant with probable cause

or probable cause plus exigent circumstances.

It is tne contention of VASQUEZ that officer

Epps had no probable cause to have the El Paso Police

officers stop him while driving a van truck on February

26, 1975, and that the arrest was made without probable

cause, and that the confession which was subsequently

obtained by officer Contreras was the fruit of the poisonous

tree. All that officer Epps had was the fact that the

green van which he intially followed turned over and

scattered marijuana on the road. He saw the van which

Petitioner was in appear to make a U-turn, and the fact

nis van slowed down to look at the wreck, and that when

Petitioner apparently saw Epps standing in the middle

of the road Petitioner made no attempt to stop whatsoever.

In fact the reason why Epps ordered the police to stop

Petitioner's van was on Epps' imre suspicion, and he

wanted Petitioner (who he could not identify) held for

custams to ascertain if they were connected with the

other van on the basis that Petitioner's van was in the

12.

area at the time, that according to Epps Petitioner and

the other vehicle did not belong in that county, and the

fact that Petitioner and the other vehicle did not stop

when Epps was trying to flag them dom.

In fact Epps had no evidence or knowledge at all

that any of the vehicles there in Esperanza at 1:30 in

the morning were connected or together. See AGUILAR V.

TLXAS, 378 US 108, 12 L Ed 2d 723, 84 S Ct 1509;

WHITELEY V. WARDEN OF WYOMING PENITENTIARY, 401 US

506, 28 & Ed 2d 306 at 312, 91 S Ct 1031.

This Court must look to what Officer Epps had as

his factual basis, and not what the El Paso Police had

from Epps when they stopped Petitioner's van in Socoorro.

In MARSH V. UNITED STATES, Sth Cir. 344 F 2d 317, it is apparent

that the test as to probable: cause is the information known

to the officer who requests another officer to effect an

arrest. Here Epps possessed no such probable cause in fact,

he could not even identify the occupants in Petitioner's

van.

The Governrent argued that there was probable

cause because when officer Epps tried to flag Petitioner

13.

down to stop immediately after the first van overturned,

Petitioner continued going, this argument must likewise

fail. First, Officer Epps admitted that he was attempt-

ing to stop Petitioner and the other subjects, mainly

for identification, because there was very little traffic

in that area, and the fact that the vehicles were

there at the same time the one van that overturned and

he thought they should identify themselves. Officer

Epps had no legal right to try and stop these vehicles

for such a purpose. Custom agents are not general

guardians of the public place, as are State or local

police. Their powers are limited by Title 19 usc }482.

By claiming that the subjects failed to stop for him

Epps is attempting to bolster a mere suspicion into

probable cause.

Secondly, the fact tnat Petitioner may have tried

to flee the area is not sufficient to constitute prob-

able cause, although it may be a factor to be considered.

UNITED STATES V. JACQUILLIN, 469 F 2d 380 (Sth Cir. 1972).

JOHNSON V. MIDDLEBROOK, 5th Cir. 383 F 2d 386.

14.

FRUIT OF THE POISONOUS TREE

It is Petitioner's further contention that the

stopping of Petitioner in Soccorro was illegal, and that

from that point on, Petitioner VASQUEZ was illegally

kept in custody by the Government agents; had VASQUEZ not

been illegally detained in Soccorro, and subsequently

at the El Paso County Jail there would have been no

' Opportunity for detective Contreras to have abtained

the confession herein in question, nor in fact would

Petitioner ever have been questioned by agent Fuentes,

or detective Contreras, and no confession would have

ever been given. It is Petitioner's contention that the

confession was vitiated and inadmissible because it was

predicated upon an illegal custody. The result in

this case was a chain of events which led directly

from the illegal detention to the giving of the alleged

confession while Petitioner was significantly deprived

of his freedom. The Government in this case utilized the

products of the illegal detention namely the confession

Which was used against Petitioner in the Government's

case in chief. The confession which was obtained from

VASQUEZ while he was in illegal custody comes within the

15.

rule that Fruits of the Poisonous Tree must be suppressed. In the case at bar MIRANDA warnings may have been

WONG SUN V. UNITED STATES, 371 US 471, at 485.

given Petitioner, but Petitioner's illegal detention was

Petitioner's intial stopping was illegal, and made without probable cause or an arrest warrant. Officer

he was illegally detained, the El Paso Police officers . ° Epps had no probable cause to have Petitioner detained,

who stopped him had no probable cause, and they had ) and Petitioner was detained for the sole purpose of con-

no right to seize and detain VASQUEZ. The agents ducting an exploratory and inquisitorial questioning

utterly failed to comply with the techinical require upon Petitioner. Furthermore, Petitioner was in custody

ments of an arrest warrant. by tne officers throughout the entire period of time,

he had only a twelfth grade education, his alleged con-

The lower court in BROWN V. ILLINOIS, 422 uS590 45 L

fession was tainted by his illegal detention, further-

Bd 24 416, 95 5 CeéeStthough sacoguising Ge Se more, this confession was taken before Petitioner was

ness of the defendant's arrest, held that the statements lawfully arraigned.

were admissiable on the ground that the giving of MIRANDA

warnings served to break the causual connection between

the illegal arrest and the giving of the statements, and

defendant's act in making the statements was sufficiently

an act of free will to purge the primiary taint of the un-

lawful arrest. This Court held that "the Miranda warnings,

alone and per se cannot always make the act sufficiently

a product of free will to break, for fourth amendment ° .

purposes, the causual connection between the illegality

and tne confession."

16. 17.

ISSUE NUMBER TWO

By affirming the case at bar the Fifth Circuit

has decided an important Federal Constitutional ques-

tion that is in conflict with principles announced

by this Court in BRUTON V. UNITED STATES, 391 US 123,

20 L Ed 2d 476, 88 S Ct 1620, and at the very least,

the lower court in the case at bar departed from a

course of judicial proceedings as to deprive Petitioner

of a fair trial calling for this court to exercise

its supervisory power over the federal courts.

After the van which Petitioner was in was stopped

in Soccorro, agent Fuentes arrived at the scene in the

area Of Zaragosa. lie then escorted Pablo Ruiz-Aguilar,

(a co-defendant), to the left-front side of the van,

and Aguilar made certain statements to Fuentes.

Fuentes testified over trial counsel's abjection

that Aguilar had made certain statemerts to the effect

that: Petitioner had picked him (Pablo Ruiz-Aguilar)

up earlier, and that he went down there to assist

in the transportation of marijuana. That they fol-

lowed a certain routine “something to the effect that

18.

og EE

they turned their lights on or off, that he did not

know who waS going to bring the marijuana across and

all that he was going to do was assist in the trans-

portation of marijuana." Aguilar also stated to

agent Fuentes "it was a big mistake, and that he

was real disappointed about everything."

Pablo Ruiz-Aguilar was a co-defendant, and was

tried in a joint trial with Petitioner. The afore-

mentioned testimony was spread before the jury,

over trial counsel's timely abjection. Just prior

to Fuentes' testimony, trial counsel had taken

agent Fuentes on Voir Dire out of the presence of the

jury. Trial counsel abjected to agent Fuentes'

testimony on the ground that defendendant would not

have an opportunity to cross-examine the defendant,

Pablc Ruiz-Aguilar, and confront witnesses against

him.

BRUTON V. UNITED STATES, 391 US 123, 20 L Ed

2d 476, 88 S Ct 1620, dealt with a situation wnere

during a joint trial of one Evans and Bruton of a

federal charge of armed postal robbery, at which

19.

“Evans did not testify, a postal inspector testified

to Evans’ oral confession that Evans and Bruton had

committed the robbery. The trial court there instructed

the jury tnat although Evans’ confession was campetent

evidence against Evans, it was inadmissible hearsay against

Bruton and must be disregarded in determining Bruton's

guilt or innocense. This Court said:

"We hold that, because of the substantial

risk that the jury, dispite instructions to the

contrary, looked to the incriminating extra-

judicial statements in determining petitioner's

guilt, admission of Evans', confession in this

joint trial violated petitioner's right of

cross-examination secured by the confrontation

clause of the Sixth Amendment. We therefore,

overrule Delli Paoli and reverse."

In the case at bar, the prejudice in Petitioner's

case was extremely serious because of the powerfully

incriminating extrajudicial statements of Aguilar, a

co-defendant, who stood accused side by side with the

Defendant were deliberately spread before the jury in

a joint-trial. In this cause there was not “any re-

cognized exception to the hearsay rule” which would

allow agent Fuentes' testimony to be admitted against

Petitioner. For Aguilar's statements to Fuentes were

20.

made after the defendants were arrested. At that

time no conspiracy was continuing, and Aguilar's

statements could not possibly be construded in further-

ance of the conspiracy which Petitioner and the co-

defendants stood charged.

In the case at bar, Aguilar did not take the

stand, and Petitioner could not call him, as he was

a co-defendant. So this case is not like NELSON V.

O'NEIL, 402 US 622, 29 L Ed 2d 222, 91 S Ct 1723.

The introduction of Aguilar's incriminating extra-

judicial statement powerfully incriminated Petitioner,

as it tied Petitioner into the crime by picking up

Aguilar and proceeding to attempt to transport mariju-

ana at the time in question, and since it is Petitioner's

contention that his confession was tainted because it

was taken while he was in illegal custody, the intro-

duction of Aguilar's incriminating extrajudicial state-

ment, added crucial weight to the Government's case

in a form not subject to cross-examination, since

Aguilar did not take the Stand. Hence, Petitioner's

right of cross-examination secured by the confronta-

tion clause of the Sixth Amendment was violated.

21.

beyond a reasonable doubt, it is hard to see this

POINTER V. TEXAS, 380 US 400 S Ct 1065, 13 L Ed 2d because the case at bar involves an extrajudicial

923; BARBER V. PAGE, 390 US 719, 88 S Ct 1318 20 admission of one defendant that inculpates Petitioner.

L Ed 2d 255 (1968). See also GRAY V. UNITED STATES, That said statements were used in the Government's

407 F 2d 830 (Sth Cir. 1969). ; case in chief, and that they were crucial to the

Government's case. It involved a joint trial and the

It is admitted that trial counsel did not move ° . tein Guat of ~ ‘nation. BROOKHART Vv.

for a severance nor did he request that the court JANIS, 384 US 1 86 S Ct 1245, 16 L Ed 2d 314 (1966).

instruct the jury "that although Aguilar's state-

ments were competent evidence against Aguilar, it CONCLUSION

was inadmissiable hearsay against Petitioner and —_ '

For the reasons stated, the petition for writ

must be disregarded in determini Petitioner's Lilt

“9 Pe ee - of certiorari should be granted.

or innocence." As to the latter curative instruction,

it is Petitioner's contention that no such instruction Respectfully submitted,

to the jury could have eleminated the damaging and a er

prejudical effect to Petitioner's defense, BRUTON V.

UNITED STATES, supra, and at the very least the trial LMM Mb

court should have given such an instruction sua sponte,

nich wl _

ich might have lessened somewhat the prejudical Attorneys for Petitioner,

' : - . Roberto Vasquez

and damaging effect of agent Fuentes’ testimony as Suite 1300 am

to what Aguilar had told him. El Paso, Texas 79901

That although the Fifth Circuit held that if

there was a BRUTON violation it was harmless error

22. 23.

CERTIFICATE OF SERVICE

I, JOSEPH A. CALAMIA, one of the attorneys for

the Petitioner, ROBERTO VASQUEZ, and a member of the

Bar of the Supreme Court of the United States, hereby

certify that on this the 2) day of Onouck,

1976, I served three copies of the foregoing petition

for writ of certiorari each, on the following:

1. Om Mr. William B. Hardie, Assistant United

States Attorney for the Western District of Texas,

El Paso Division, by mailing him three copies of the

same at his offices, Federal Courthouse Building, El

Paso, Texas, 79901.

2. MQ the United States by mailing three copies

thereof in a duly addressed envelope, to the Honorable

Robert H. Bork, United States Solicitor General, United

States Department of Justice, Washington, D. C.

24.

APPENDIX "A"

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 75-3623

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

ROBERTO VASQUEZ and

ERNESTO CHAVEZ-CORTINAS,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas

July 9, 1976

Before THORNBERRY and AINSWORTH,

Circuit Judges, and

HOFFMAN*, District Judge

THORNBERRY, Circuit Judge:

Appellants Roberto Vasquez and Ermesto Chavez-

Cortinas challenge their convictions for conspiracy

to possess marijuana with intent to distribute and

for possession of marijuana with intent to distribute.

See 21 U.S.C. ar 841(a) (1), 846. Appellant Vasquez

*District Judge of the Eastern District of Virginia,

Sitting by designation.

25.

contends that his confession following his arrest,

which was introduced against him in the court below,

was inadmissible on two grounds: first, the confession

was the fruit ot an illegal arrest and detention, and

second, the confession lacked the requisite degree

of voluntariness. Appellant Vasquez contends also

that certain testimony given in the trial court viol-

ated his rights under Bruton v. United States, 391

U.S. 123, 88 S.Ct. 1620, 20 L Ed. 2d 476 (1968).

With the discussion that follows, we reject these

arguments and affirm the convictions of appellant

Vasquez. Appellant Chavez-Cortinas, on the other

hand, concedes the propriety of his conviction under

section 841(a) (1) for possession of marijuana, but

he argues that the Government introduced insuffi-

cient evidence to link him as a participant in a

conspiracy chargeable under section 846. A com

monsense review of the evidence introduced by the

Government convinces us, however, that sufficient

evidence was before the jury to sustain its verdict

against appellant Chavez-Cortinas on the conspiracy

count. Accordingly, we affirm also his convictions

under sections 84l(a) (1) and 846.

In the early morning hours of February 26, 1976,

Customs Patrol officers Gary Epps and Kenneth Wright

were on still watch in the Balluco Arroyo area west

of Esperanza, Texas. The area is a known entrance and

exit point across the Rio Grande River, the intera-

tional boundary between the United States and Mexico.

At approximately 1:30 a.m., the officers observed

automobile headlights approach their position from

the direction of the river, then move up the west

access road of Balluco Arroyo, and finally turn onto

Farm Road 192 in a westward direction. With their

automobile headlights turned off, but riding under

a full moon, the officers commenced to follow the

interloper along Farm Road 192 at a distance sufficient

to prevent detection. After travelling three or four

miles in this manner, the officers rounded a curve

in the road. At this time, Epps and Wright, who

hed been decreasing steadily the distance between

themselves and the interloper, were able to identify

the latter as a green and white Ford van. Officer

26.

Epps testified also that, as he and his partner

rounded the curve into Esperanza, the Ford van

“appeared to meet" two other vehicles, a green Dodge

van and gold Oldsmobile Toronado, both of which

stopped in the middle of the road to make a U-turn

and follow the Ford van in its westward direction.

As they came around the curve, it was necessary for the

officers to switch on their automobile headlights,

swing wide around the Toronado and the Dodge van

both stationary in the middle of the road, and con-

tinue their pursuit of the Ford van, which had al-

ready passed the Toronado and the Dodge van. Alert-

ed to the presence of an unknown automobile, the

Ford van accelerated rapidly, and a high-speed chase

ensued between the Ford van and the officers. The

Ford van failed to negotiate a curve leading up to

Interstate 10, the highway to El Paso, and rolled

over an indeterminate number of times. As the

officers came upon the scene of the crash, they ob-

served a large amount of marijuana scattered over the

road and one Subject - a young male with long black

hair and wearing a green fatigue jacket - running

into the brush eway from the demolished van. The

fleeing subject turned out to be appellant Chavez-

Cortinas, who was apprehended several hours later in

the desert. A second occupant of the Ford van was

killed in the crash. The Dodge van and the Toronado

came upon the accident scene shortly after officers

Epps and Wright stopped their Customs Patrol car.

Officer Epps stepped into the road where, in full

uniform he was illuminated by the headlights of the

overturned van. The rotating red light and other

emergency lights on the Customs Patrol car were

switched on, and Epps, with flashlight in hand, at-

tempted to wave the two vehicles to a halt to as-

certain what they were doing in the area. The first

vehicle to pass was the Dodge van. It was necessary

for Epps to move out of the road to avoid being struck

by this vehicle. He was able, however, to record

the license plate number of the Dodge van. Epps's

encounter with the second vehicle, the gold Toronado,

was somewhat more harrowing. Epps testified that as

the Toronado approached the accident scene, it ac-

celerated and swerved toward him. Epps jumped from the

27.

path of the Toronado. Recovering his feet, Epps

Saw both vehicles head west on Interstate 10 to

ward El Paso. He immediately radioed this informa-

tion including the license plate number of the

Dodge van, to his Cammmications Sector, which in

turn relayed the information to all available law

enforcement authorities.

At 2:30 a.m., one hour after officers Epps and

Wright spotted the headlights coming from the river

in the Balluco Arroyo, the Dodge van, identified by

description and license plate number, was stopped by

officers of the El Paso Police Department some sixty

miles from the crash site. Appellant Vasquez, his

girl friend who testified later for the Government,

and two male suspects were taken from the van. All,

except the girl friend, were placed face down on the

ground. Approximately one hour later, between 3:30

and 4:00 a.m., Special Agent Fuentes with the Drug

Enforcement Administration arrived on the scene. The

three suspects were allowed to stand at this time for

questioning by Agent Fuentes. One of the suspects,

Pablo Aguilar, was questioned separately by Agent

Fuentes and stated, among other things that the only

person who could provide details to the authorities

was appellant Vasquez. Somewhat later, at the El

Paso Sheriff's Department Booking Room, Agent Fuentes

had his first opportunity to question appellant

Vasquez. After being fully informed of his rights,

appellant Vasquez stated that he was willing to c-

_ Operate with the authorities, but that he preferred

to speak with officer Jose Contreras, an El] Paso

police detective attached to the DEA Task Force.

Officer Contreras was notified and arrived at the

County Jail arround 7:00 a.m. Appellant Vasquez was

again advised of his rights, this time by officer

Contreras, and confessed in full about his participa-

tion in the smuggling conspiracy. In enviable detail,

appellant Vasquez stated to officer Contreras that he

had been the "money man" for the transaction, that

he and the others had been waiting at a local motel

for the marijuana to be brought across the border,

that they had received word from an unidentified

source in Mexico that "someone had put the finger on

28.

the deal," and that they had gone out onto the

highway to warn the other participants not to bring

the marijuana across the border. As fate would

have it, appellant Vasquez and the others were too

late to salvage the illicit scheme. At 10:00 a.m.,

the same morning, appellant Vasquez was taken before

a magistrate.

We turn first to the argument that the officers

of the El Paso Police Department who stopped the

Dodge van at 2:30 a.m. lacked the requisite probable

cause to arrest and detain appellant Vasquez and the

other suspects. In reviewing probable cause decisions

made by law enforcement officers in the field, we

look to the totality of the circumstances revealed

by the record. See Beck v. Ohio, 379 U.S. 89, 91,

85 S.Ct. 223, 13 L.Ed.2d 142 (1964). If the ar-

resting and detaining officers are acting on informa-

tion relayed by police transmission facilities, then

the Government must demonstrate that the information

so provided “itself had a reasonable foundation."

United States v. Impson, 482 F.2d 197, 199 (5 Cir.),

cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.ED.2d

246 (1973); see Whiteley v. Warden, 401 U.S. 560,

91 S.Ct. 1031, 28 LED 2d 306 (1971). And where,

as here, there is at least minimal communication be-

tweer the different arms of the law, we look to the

“collective knowledge" of che law enforcement authorities

in question. See United States v. Nieto, 510 F.2d

1118, 1120 (5 Cir. 1975); United States v. Trabucco,

424 F.2d 1311, 1315 (5 Cir.), cert. denied, 399 U.S.

918, 90 S.Ct. 2224, 26 L.Ed.2d 785 (1970); Moreno-

Vallejo v. United States, 414 F.2d 901, 904 (5 Cir.

1969), cert. denied, 400 U.S. 841, 91 S.Ct 82, 27 L

Ed.2d 76 (1970). Thus, if Customs Patrol officers

Epps and Wright possessed sufficient factual informa-

tion to support a determination of probable cause

to arrest and detain, then the actual arrest and

detention one hour later by El Paso police officers

acting on the informaticn relayed by Communications

Sector was supported similarly by probable cause.

There can be no question but that law enforcement

29.

authorities nad probable cause to arrest and detain

appellant Vasquez. When officers Epps and Wright

first observed the Dodge van in which appellant Vasquez

was riding, the hour was late. See United States v.

Pearson, 448 F.2d 1207, 1212 (5 Cir. 1971). More-

over, the area around Farm Road 192 is sparsely pop-

ulated. See United States v. Maslanka, 501 F.2d 208,

212 (5 Cir. 1974). Officer Epps testified that it

was highly unusual to see any traffic on Farm Road

192 in the early morning hours. Both Epps and Wright

had worked in the area for over a year, and neither

recognized the Ford van, the Dodge van, or the gold

Toronado as local in origin. The events that trans-

pired after the crash of the Ford van, of course,

provided the weightiest support for the decision to

arrest and detain appellant Vasquez. While flight from

a law enforcement officer cannot support alone a deter

mination of probable cause, flight can provide in

appropriate circumstances the key ingredient justify-

ing the decision of a law enforcement officer to take

action. See United States v. Jacquillon, 469 F.2d 380,

385 (5 Cir. 1972); Jtohnson v. Middlebrooks, 383 F.2d

386 (5 Cir. 1967). We consider the events transpir-

ing on Farm Road 192 appropriate to the application of

this principle.! We hold that the arrest and detention

of appellant Vasquez was supported by probable cause;

there was no illegal taint on appellant's subsequent

confession to officer Contreras.

1

We do not find it necessary to rely upon the

testimony of officer Epps that the Ford van “appeared

to meet" the Dodge van and the gold Toronado. Officer

Epps was unable upon cross-examination to point to a

Single objective fact to support his testimony. See

Appendix at 191. A decision to arrest and detain

must, Of course, rest on more than mere suspicion See

United States v. Watson, U.S. , 96 S.Ct.820,

824-25, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S.

103, 113, 95 S.Ct. 854, 43 L.Ed.2d 54 5); Ker v.

California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.

Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307

79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v.

McCann, 465 F.2d 147, 157-58(5 Cir. 1972), cert. denied,

412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154 (1973);

Dood v. Beto, 435 F.2d 868 (5 Cir. 1968).

30.

V Zz s, in the alternative,

that a deen ccmeadien fon hela arrest and detention

destroyed the voluntariness of his confession to

officer Contreras. The district court held the re-

quired evidentiary hearing on the issue of voluntari-

ness and found against appellant Vasquez. See Jackson v.

Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L. Bd. 2d 908

(1964). The standard that we apply in reviewing the

district court's finding of voluntariness is that of

clear error, see, e. g., United States v. Maxwell, 484

F.2d 1350, 1352-53 (5 Cir. 1973), and on the instant i.

record, we are unable to say that the finding of voluntari

ness was clearly erroneous. See Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973),

The time between appellant Vasquez's arrest and confession

was approximately six hours, a not excessive period

of pre-confession detention given the late hour at at

which the Dodge van was stopped by El Paso police fe)

icers. Moreover, appellant Vasquez delivered his con

fession to an E] Paso police detective wham he had

requested by name, and the confession was preceded

by at least two separate readings to appellant of his

Miranda rights. The trial court, as was its prerogative

in the role of trier of fact, rejected as incredible

testimony that appellant Vasquez was subjected to bru-

tality when he was initially arrested and detained by

El Paso police officers. The burden was on the Govern-

ment to show voluntariness by a preponderance of the

evidence, see Lego v. Twomey, 404 U.S. 477, 92 S.Ct.

619, 30 L.Ed.2d 618 (1972), and we are of the decided

opinion that the Government discharged properly its

burden in this case. The confession of appellant

Vasquez was admissible to show guilt.

As a final point, appellant Vasquez challenges the

introduction below of certain ong Eo ena fn be

violative of Bruton v. United States, -S. P

88 S.Ct. 1620, 20 ge gig oo See unites States

v. Gray, 462 F.2d 164 (5 Cir. ; Posey v.

States, 416 F.2d 545 (5 Cir. 1969). After the Dodge

van had been stopped by El Paso police officers, DEA agent

Fuentes questioned one of the occupants of the van,

Paublo Aguilar. At trial, agent Fuentes testified that

31.

during this questioning, Aguilar stated that appellant

Vasquez had picked him up on the nignt of February 25,

1976, and that he (Aguilar)

went down there to assist in the transportation

of marijuana. They followed a certain route -

I can't recall the exact details, samething to the

effect that they turned their lights on and off

that he did not known who was going to bring

the marijuana across and that all he was going

to do was assist in the transportation of the

marijuana.

(Aguilar) just made the comment that it was

all a big mistake, and that he was real dis-

appointed about everything.

Appendix at 280, 284.

Assuming, without deciding, that the testimony

of agent Fuentes was a technical violation of Bruton,

the introduction of the testimony was, in our view,

harmless error beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1966). The evidence introduced by the

Government against appellant Vasquez, other than the

challenged portion of agent Fuentes’ testimony, was

overwnelming. See Harri v. California, 395

U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

In particular, the Government introduced the detailed

confession by appellant Vasquez to officer Contreras,

which we have held to be fully voluntary and untainted

by an alleged illegal arrest and detention. We reject

appellant Vasquez's Bruton argument, in addition to

the others proffered by appellant, and we affirm his

convictions under sections 841l(a) (1) and 846 accord-

ingly.

As indicated above, appellant Chavez-Cortinas

concedes in effect that propriety of his conviction

under section 841(a) (1) for possession of marijuana

with intent to distribute; he argues, however, that the

32.

Government did not introduce sufficient evidence to

sustain the jury'sverdict of guilty on the conspiracy

charged under section 846.2 We disagree. Aside from

the evidence introduced by the Government that estab-

lished clearly appellant's possession of the marijuana

carried in the Ford van, the following items of evidence,

in our view, supported the jury's finding that appell-

ant was a participant in the conspiracy: The flight

of the Dodge van and the Toronado away from the site

on Farm Road 192 where the Ford van crashed suggests

strongly that the three vehicles were more than coin-

cidently on the road together. ~Indeed, appellant

Vasquez confessed to officer Contreras that he and the

others had gone out onto the highway to warn the van

not to bring the marijuana across. Officer Contreras

testified that Vasquez told him that two unidentified

individuals would transport the marijuana across the

border and guard it pending inspection by the buyers.

The jury was justified in concluding the Chavez-

Cortinas and Moreno, who was killed in the crash of

the Ford van, were the two individuals designated,

except by name, in the confession to officer Contreras.

Finally, the other occupant of the Ford van, Moreno,

was identified by appellant Vasquez's girl friend,

who testified for the Government, as being present

in a motel room with the other conspirators. Exa-

mining all the evidence in a commonsense manner, and

in the light most favorable to the Government, we

conclude that the jury's finding of guilty on the

conspiracy count was fully support by the evidence.

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

457, 86 L.Ed 680 (1942). A conspiracy by its very

nature is clandestine, and the Government can rely

on circumstantial evidence to establish the exis-

tence of the conspiracy and the identity of its members.

2

Appellant argues also that double jeopardy and

common law merger principles bar a simultaneous pro-

secution for conspiracy and the underlying substantive

offense. The argument is without merit. See Matthews

v. United States, 407 F.2d 1371 (5 cir. 1969). cert.

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

(1970). .

33.

APPENDIX “B"

Anited States Court of Appeals

FIFTH CIRCUIT

see Blumenthal v. United States, 332 U.S. 539, 68

THE Cc

S.Ct. 248, 92 L.Ed. 154 (1947). In the instant a pene ag: em mew omtawe, tA. 7018

case, the Government's circumstantial evidence was .

adequate to the task. Mr. Dan W. Benedict, Clerk

U. S. District Court ,

The convictions of appellants Vasquez and ++ a 1

Chavez-Cortinas are in all respects

No. 75-3623 - U.S.A. v. Roberto Vasquez & Ernesto

AFFIRMED e . Chavez-Cortinas

(District Court No. EP-75-CR-281)

Dear Sir:

(X) Enclosed is a certified copy of the judgment of this Court in the above case

issued as and for the mandate.

( ) Enclosed is a certified copy of the Rule 21 Decision in the above case issued as

and for the mandate.

( ) Having received from the Clerk of the Supreme Court a copy of the order of

that court denying certiorari, I enclose a certified copy of the judgment of this Court in

the above case, issued as and for the mandate.

( ) We have received a certified copy of an order of the Supreme Court denying

certiorari in the above cause. This court’s judgment as mandate having already been

issued to your office, no further order will be forthcoming.

= aclosed herewith are the following additional documents:

(X) Copy of the Court's opinion.

(X) Original record on appeal or review. (2 volumes)

( ) Original exhibits.

( ) Bill of Costs approved by this Court.

Very truly yours,

EpWwarD W. WaDswortTHs, Clerk

° By - Pes GN: enol” ae

. Deputy Clerk

° . enc. (LETTER ONLY) A

cc: Mr. Joseph A, Celamia Mr. Sam Dwyer and

Mr. Charles M. Mallin Ms. Alice Dwyer

Mr. William Hardie, dp —11s.10-00-c000

35.

34.

ON

APPENDIX "Cc"

ch. 13 DRUG ABUSE—PREVENTION, CONTROL 21 § 841

PART D.—OFFENSES AND PENALTIES

§ 841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with in-

tent to manufacture, distribute, or dispense, a controlled sub-

stance; or

( 2) to create, distribute, or dispense, or possess with intent to

distribute or dispen-e, a counterfeit substance.

Penalties

(b) Except as other. :e provided in section 845 of this title, any

person who violates subsection (a) of this section shall be sentenced as

follows:

(1) (A) In the case of a controlled substance in schedule I or II

which is a narcotic drug, such person shall be sentenced to a term of

imprisonment of not more than 15 years, a fine of not more than

$25,000, or both. If any person commits such a violation after one or

more prior convictions of him for an offense punishable under this

paragraph, or for a felony under any other provision of this subchap-

ter or subchapter II of this chapter or other law of the United States

relating to narcotic drugs, marihuana, or depressant or stimulant sub-

stances, have become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years, a fine of not more than

$50,000, or both. Any sentence imposing a term of imprisonment un-

der this paragraph shall, in the absence of such a prior conviction, im-

pose a special parole term of at least 3 years in addition to such term

of imprisonment and shall, if there was such a prior conviction, im-

pose a special parole term of at least 6 years in addition to such term

of imprisonment. .

. (B) In the case of a controlled substance in schedule I or I] which

is not a narcotic drug or in the case of any controlled substance in

schedule III, such person shall be sentenced to a term of imprisonment

of not more than 5 years, a fine of not more than $15,000, or both. If

any person commits such a violation after one or more prior convic-

tions of him for an offense punishable under this paragraph, or fora

felony under any other provision of this subchapter or subchapter .

I of this chapter or other law of the United States relating to narcot-

ic drugs, marihuana, or depressant or stimulant substances, have be-

come final, such person shall be sentenced to a term of imprisonment

of not more than 10 years, a fine of not more than $30,000, or both.

Any sentence imposing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction, impose a special pa-

75

21 § 841 FOOD AND DRUGS Ch. 13

role term of at least 2 years in addition to such term of imprisonmeng’

and shall, if there was such a prior conviction, impose a special] pg.

role term of at least 4 years in addition to such term of imprisonment

(2) In the case of a controlled substance in schedule IV, such pep,

son shall be sentenced to a term of imprisonment of not more than g

years, a fine of not more than $10,000, or both. If any person com.

mits such a violation after one or more prior convictions of him for a,

offense punishable under this paragraph, or for a felony under any

other provision of this subchapter or subchapter II of this chapter op

other law of the United States relating to narcotic drugs, marihuang

or depressant or stimulant substances, have become final, such persog

shall be sentenced to a term of imprisonment of not more than ¢

years, a fine of not more than $20,000, or both. Any sentence impos.

ing a term of imprisonment under this paragraph shall, in the absence

of such a prior conviction, impose a special parole term of at least one

year in addition to such term of imprisonment and shall, if there wag

such a prior conviction, impose a special parole term of at least 2

years in addition to such term of imprisonment.

(3) In the case of a controlled substance in schedule V, such person

shall be sentenced to a term of imprisonment of not more than one

year, a fine of not more than $5,000, or both. If any person commits

such a violation after one or more convictions of him for an offense

punishable under this paragraph, or for a crime under any other pro-

vision of this subchapter or subchapter II of this chapter or other law

of the United States relating to narcotic drugs, marihuana, or depres-

sant or stimulant substances, have become final, such person shall be

sentenced to a term of imprisonment of not more than 2 years, a fine

of not more than $10,000, or both.

(4) Notwithstanding paragraph (1) (B) of this subsection, any

person who violates subsection (a) of this section by distributing a

small amount of marihuana for no remuneration shall be treated as

provided in subsections (a) and (b) of section 844 of this title.

Special parole term

(c) A special parole term imposed under this section or section 845

of this title may be revoked if its terms and conditions are violated.

In such circumstances the original term of imprisonment shall be in-

creased by the period of the special parole term and the resulting new

term of imprisonment shall not be diminished by the time which was

spent on special parole. A person whose special parole term has been

revoked may be required to serve all or part of the remainder of the

new term of imprisonment. A special parole term provided for in this

section or section 845 of this title shall be in addition to, and not in

lieu of, any other parole provided for by law.

Pub.L. 91-513, Title II, § 401, Oct. 27, 1970, 84 Stat. 1260.

76

37

§ 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense de-

fined in this subchapter is punishable by imprisonment or fine or both

which may not exceed the maximum punishment prescribed for the of.

fense, the commission of which was the object of the attempt or con.

spiracy.

Pub.L. 91-513, Title II, § 406, Oct. 27, 1970, 84 Stat. 1265.