Petition — Villarreal v. United States

Supreme Court, ¥. 4.

™ FILED

APR 12 1977

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 197

NO. 76-1409

REYNALDO VILLARREAL, AKA PANC HO

PETITIONER

VS

UNITED STATES OF AMERICA

PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jacob G. Hornberger

Jacob G. Hornberger, Jr.

915 Victoria Street

Laredo, Texas 78040

Attorneysfor Petitioner

TABLE OF CONTENTS

Page

CTITATIO(tcsssʒ. 1

OPINIONS BELàZONMMMMMMMMM◻ . |

JURISDICTIbt k ũ³̃ öl 2

QUESTIONS PRESENTEUUUPUPñbPBDbr 2

STATEMENT OF THE CASE 43

STATEMENT OF FAT SSS. . 4

REASON FOR GRANTING WRIT ......+-.+ 7

ARGU MENT

I. THE COURT SHOULD HAVE

GRANTED APPELLANT'S

MOTION FOR JUDGMENT OF

ACQUITTAL.,

A. THE GOVERNMENT FAILED

TO PROVE BY EVIDENCE

INDEPENDENT OF HEARSAY

STATEMENTS THE EXISTENCE

OF A CONSPIRACY AND

APPELLANT'S KNOWING

PARTICIPATION IN THAT

CONSPIRACY T TTT... 77

B. THE OBJECT OF THE CONS-

PIRACY CANNOT BE ESTA-

BLISHED WITHOUT THE

HEARSAY EVIDENCE Eg.

C. THERE IS INSUFFICIENT

EVIDENCE TO ESTABLISH

THAT APPELLANT WAS ACT-

ING IN CONCERT WITH THE

SELLER RATHER THAN THE

Un... ..

D. THE GOVERNMENT FAILED

TO PROVE THAT AN OVERT

ACT WAS COMMITTED IN

FURTHERANCE OF THE

. 16

Con err... — . 17

II. THE COURT SHOULD HAVE

STRICKEN OVERT ACTS 10 THRU 15

OF THE INDICTMENT AND TESTI-

MONY RELATING TO SUCH OVERT

CON LUS dN ...... 0

Annen eee 52

(Opinion of the United States

Court of Appeals)

for Rehearing by Court of Appeals)

IN THE

. SUPREME COURT OF THE UNITED STATES

CITATIONS

a Page TERM, 197

Hamner v U. S., 134 F2d 592 „ ——

(Sth Cir, tt) PPT Terre PP eee 18

Lambert v U. S., 101 F2d 960 ° NO

r eee 47

v. S. » Apollo, 476 F2d 156

n CEE. eee dee, I RE VYNAL DO VILLARREAL, aka Pancho

U. S v Arias-Diaz, 497 F2d 165, 168 —

(Sth Cir. „ $0 Gus 6 60bbd< 10

Vs

U. S. v Goodwin, 492 F2d1141

(5th Cir, bi, VY OPEPET CT eee e eee 20 UNITED STATES OF AMERICA

U. S. v Mendez, 496 F2d 1281

(5th Cir. cg... eee eee e e een rie 8,9

PETITION FORA WRIT OF CERTIORARI

9. as Oliva, 497 F2d 130 0 TO THE UNITED STATES COURT OF

(Sth Cis, 107000. . .. . „ „%%% eee re , : APPEALS FOR THE FIFTH CIRCUIT

U. S. » Tyler, 520 F2d 1329 OPINIONS BELOW

(5th Cir. SW Sie o'o6 645 S0.cuses Kc ieee 15

The opinion of the Court of Appeals for the Fifth

Circuit, which appears at Appendix A , pages 1

thru 8 , has been reported. A notice dated

March 17, 1977, advising counsel for all parties

that an order denying Petitioner's Petition for Re-

hearing en Banc was entered on said date, appears

at Appendix B page l.

ole

JURISDICTION

The pdgment of the Court of Appeals for

the Fifth Circuit (App. A pp. 1 thru 8 ), was *

entered on February 9, 1977. A timely Petition

for Rehearing en Banc was denied on March 17, 1977

The jurisdiction of this Court is invoked under

28 USC Section 1254 (1).

QUESTIONS PRESENTED

Did the government prove by evidence inde-

pendent of hearsay statements the existence of

a conspiracy and appellant's knowing participa-

tion in that conspiracy?

Did the government prove that an overt act

was committed in furtherance of the conspiracy?

Should the Court have stricken Overt Acts

No, 10 thru 15 of the Indictment and testimony

relating to those overt acts?

a .

STATEMENT OF THE CASE

Appellant and co-defendants (Trevino, Arriaga

and Acuna) were indicted by the Grand Jury of the

United States District Court, Western District of

Texas, San Antonio Division. The indictment:

charged all defendants with conspiracy to dis-

tribute heroin.

Trevino pled guilty to the conspiracy count.

Acuna's case was severed. On April 5, 1976

appellant and Arriaga pled not guilty and were

tried by jury. On April 8, 1976 both appellant

and Arriaga were found guilty of conspiracy to

distribute heroin.

On April 8, 1976 appellant's bond was revoked

and he was remanded to custody. On May 18, 1976

appellant was sentenced to serve fifteen (15)

years with a special parole term of twenty (20)

years,

STATEMENT OF FACTS

On June 6, 1975 Russell Reina, an agent of

the Drug Enforcement Administration, began

negotiations with co-defendant Trevino for the

purchase and sale of a quantity of heroin. During

these negotiations Trevino made reference to his

source in Laredo, Texas.

Long distance telephone records show that

calls were made from Treviite's telephone to

telephone number 722-4788 in Laredo, Texas.

These calls were made during the negotiations

between Trevino and Agent Reina. The number

722-4788 was issued to Daniel Villarreal who

resides at 1504 Market Street in Laredo, Texas.

Residing with him were Mrs. Daniel Villarreal,

the appellant, and another son,

On June 13, 1975 Trevino drove to Laredo,

Texas. He went to the house at 1504 Market St.

Later that night Trevino, appellant and two un-

identified males drove to the Pizza Hut in Laredo.

-4-

Trevino sat at a table with the government agents

and co-defendant Arriaga. Arriaga was an em-

ployee at the Pizza Hut and was on duty that night.

Appellant and the two unjentified males sat at a

separate table about twenty-five feet away from

Trevino's table.

Negotiations took place between the agents,

Trevino, and Arriaga. Arriaga counted money

which had been brought by the agents. But

Arriaga did not have any heroin. Trevino

approached appellant's table and conversed with

Appellant. Appellant approached Arriaga and told

Artaga ''to tell him what time the man could be

ready'' or words to that effect. Agent Reina

testified that he ''didn't know that they were talk-

ing about a delivery time. After further dis-

cussions between Trevino, Arriaga and the agents,

the negotiations were terminated.

Reina later contacted Arriaga to inquire about

the heroin. Arriaga repeatedly told him that he

still was unable to furnish him any heroin.

-5-

On June 14, 1975, Reina and Arriaga met

at the Laredo Civic Center where Arriaga

informed Reina that he was unable to furnish

the heroin. Neither appellant nor Arriaga

ever furnished any heroin to Trevino or the

government agents.

On August 22, 1975, Trevino purchased

a quantity of heroin from Hector Acuna in San

Antonio, Texas. Appellant and Arriaga had

nothing to do with that transaction. Overt Acts

10 through 15 of the indictment concern the

transactions between Trevino and Acuna,

During the trial appellant moved the court

to strike Overt Acts 10 through 15 of the indict-

ment. This motion was denied. At the close of the

government's case appellant moved the court

to strike all testimony relating to Overt Acts

10 through 15 and this motion was denied.

REASON FOR GRANTING WRIT

This case involves a question of exceptional

importance: the sufficiency of non-hearsay

evidence to establish a conspiracy conviction

and a Defendant's Sixth Amendment right to con-

front the witnesses against him,

ARGUMENT

L. The Court should have granted appellant's

motion for judgment of acquittal. :

A. The government failed to prove by evidere

independent of hearsay statements the existence

of a conspiracy and appellant's knowing partici-

pation inthat conspiracy.

The government must introduce sufficient

independent evidence of the existence of a conspi-

racy and of the appellant's participation therein

before the judge may allow declarations of a co-

conspirator to go before the jury. U, S. vs

Apollo, 476 F2d 156, 159 (5th Cir. 1973).

27

, Mere association with the conspiracy is not enough

The standard in determining the sufficiency

to establish participation in the conspiracy.

of the evidence other than hearsay is: whether .

Mendez, supra at 130.

the government by evidence independent of the

The government presented six witnesses. The

hearsay declaration of a co-conspirator, has

crucial testimony was that of Officers Reina and

established a prima facie case of the existence

Alonzo. Virtually the entire testimony of Rena

of a conspiracy and of the appellant's participa-

and Alonzo consisted of out-of-court statements

tion therein; that is, whether the other evidence

made by co-defendants Trevino and Arriaga.

aliunde the hearsay would be sufficient to support

The recorded conversations between Officer

a finding by the jury that the appellant was him-

Reina ani Trevino are hearsay. (See Trial Court's

self a conspirator, U. S. vs Oliva, 497 F2d

remarks at Record 33, Record 42). Trevino's

130, 132, 133 (Sth Cir. 1974).

responses to Officer Reina and Officer Alanzo are

Mere knowledge, acquiescence or approval

— hearsay.

without cooperation, or agreement to cooperate,

The recorded conversations between Officer

is not enough to constitute one a party to a cons-

Reina and Arriaga are hearsay to appellant.

piracy. U. S. vs Mendez, 496 F2d 128, 130

Arriaga's statements to Officer Reina and Officer

(5th Cir. 1974). In order to fasten guilt on one

Alonzo are hearsay to appellant. It cannot be

accused of being a co-conspirator it is necessary :

over-emphasized that neither Trevino nor Arriaga nor

to prove that he actively participated in the cons-

any other co-defendant testified for the government.

piracy charged. Mendez, supra at 130.

Appellant rested his case without presenting

-8-

. any testimony. Arriaga took the stand in his own

-9-

behalf. Arriaga's testimony cannot be used

against appellant. U. S. vs Arias-Diaz, 497

F2d 165, 168 (5th Cir. 1974) cert. denied at

420 US 1003 (1975).

So, the out-of-court statements by Trevino and

Arriaga cannot be used against appellant. A review of

the record will show that almost all of Officer Reina's

and Officer Alonzo's testimony is based on these

statements.

A third government witness was William Jonas,

Jr. Jonas was an employee of Southwestern Bell

Telephone Co. His testimony related to business

records of Southwestern Bell. These records

reveal, that phone calls were placed from Trevino's

phone to Villarreal's phone. These records are

hearsay. They are admissible under the Business

Records Exception. As hearsay, however, they

cannot be used to establish the conspiracy or

appellant's participation in it.

-10-

There is no evidence that Trevino even spoke

to appellant on the telephone, It is equally possible

that someone other than Trevino spoke to one of the

other three persons who resided at 1504 Market

Street.

Government witness Wendling testified that he

kept the defendant's under surveillance. He

observed the defendants commit certain acts. The

acts committed by appellant's co-defendants would

be hearsay as to appellant,i.e. Arriaga's act of

counting the money at the Pizza Hut; Arriaga's act

of stopping at the King Cole Service Station; Arriag

act of meeting with Officer Reina.

Rule 801 of the Federal Rules of Evidence

reads in part as follows:

(a) Statement. A'statement" is (1) an oral

or written assertion or (2) nonverbal conduct of a

person, if it is intended by him as an assertion.

(b) Declarant. A "declarant" is a person

who makes a statement.

-l]]-

(c) Hearsay. ''Hearsay'' is a statement

other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to

prove the truth of the matter asserted. (Emphasis

added).

The final two witnesses were government agents.

They never spoke or met with the Defendant prior

to their arrest.

Strip the record of all the hearsay as to appellant

that is:

1. The hearsay responses of Arriaga and

Trevino which form virtually the entire basis for

testimony of Officers Reina and Alonzo,

2. The telephone records from Trevino's

phone to appellant's phone.

3. Act committed by co-conspirators,

Once the record is shorn of the hearsay evidence,

the independent non-hearsay evidence which remains

is:

1. Trevino's presence at appellant's residence;

2. That appellant went with Trevinoto the Pizza

Hut; » ide

3. The presence of appellant at the Pizza

Hut while the negotiations were taking place but

at a table about twenty-five feet away from the

negotiations;

4. Appellant's statement to Arriaga at the

Pizza Hut: to tell him what time the man could

be ready,'' or words to that effect.

In U. S. vs Oliva, 497 F2d 130 (5th Cir, 1974),

the Court was faced with almost the identical factual

situation. There, the government showed that

several telephone calls were placed b etween Oliva's

and the seller's residences immediately prior to

the attempted sale of cocaine, that Oliva was

present in the parking lot at the time of the

attempted sale, and that Oliva was aware of the sellers

interest in selling cocaine. The Court held these

facts insufficient to establish a conspiracy,

There is absolutely nothing to show any active

participation on appellant's part, nor did the evidence

-13-

show concerted action for the accomplishment

of a common purpose. There was no evidence that

appellant even knew that the negotiations were

taking place. Appellant was seated twenty-five feet

away from Trevino's table,

There is no showing that appellant ever

discussed the sale of heroin,that appellant ever agreed

to supply anyone with heroin, or that appellant

ever had any heroin in his possession, See Oliva,

supra at 134.

The government places heavy reliance on

appellant's statement to Arriaga concerning a time.

But that statement, taken independent of the hearsay

evidence of what was occurring during the negotiations

at the Pizza Hut, in no way establishes a conspiracy.

Conjecture and suspicion would indicate that appellant

was referring to the heroin transaction. But it

is equally possible that he was referring to some-

thing else; i.e., he was demanding to know when

214

his food was going to be ready. Even the govern-

ment qert who had parti cpated in the entire

negotiations did not know what was meant by the

appellant's statement to Arriaga. There is no

evidence appellant was familiar with the street

meaning of the term the man“. It is not

difficult to see the danger of upholding a conviction on

so slight amount of evidence.

The evidence in this case at most shows appel-

lant's association with Trevino and Arriaga and know-

ledge of their activities. Without the benefit of the

hearsay, the evidence is insufficient and the

government's conspiracy charge in this case must

fall. See U. S. vs Tyler, 520 F2d 1329 (5th Cir,

1975); Mendez, supra.

Boiled down to the essentials, the Courts will

now sustain a conviction based on the following

testimony:

-15-

''We are government agents. We never met

with the Defendant. We never spoke to the

Defendant. We saw the Defendant meet with other

people. We met with these other people.

We told these people that we were interested

in purchasing heroin. [The responses of these

people are excluded as hearsay, |

B. The object of the conspiracy cannot

be established without the hearsay evidence,

Statements by government witnesses fi told them

that I wanted to purchase heroin'') do not establish

that Defendant agreed to distribute herbin. The

hearsay responses are needed to establish that

the appellant agreed to distribute heroin as compare)

to any other substance, Without the hearsay

evidence the object of the conspiracy, if any,

is unknown,

C. There is insufficient evidence to establish

that appellant was acting in concert with the seller

-l6-

rather than the buyers. The telephone calls to

appellant's residence were placed by Trevino.

Trevino stayed at appellant's home. They arrived

together at the Pizza Hut. There is nothing in the

government's case in chief to indicate that appel-

lant even knew Arriaga. If the statement concerning

a time referred to the heroin transaction, it was

apparently an attempt to assist Trevino in securing

the heroin. Proof under charges of a conspiracy to

distribute that onevas acting with the buyer to effect

a purchase, is not proof that he was acting with the

sellers to effect a sale. Lambert vs U. 8, 101

F2d 960 (Sth Cir. 1939). Every fact and circum-

stance in the government's case points to appellant

as acting in concert with Trevino to purchase

heroin. Not a single one points to him acting in

concert with Arriaga. See Lambert, supra at 963.

D. The government failed to prove that an

overt act was committed in furtherance of the

conspirac y.

217

Although the gist of a charge of ''conspiracy"

under the Criminal Code is the agreement to commit

an offense against the U. S., an overt act must be

done pursuant to the agreement before the

crime is complete. Hamner vs U. S., 134 F2d

592 (5th Cir. 1943).

The non-hearsay evidence established that the

agreement, if any, occurred at the Pizza Hut.

Whether the negotiations which occurred at that med-

ing constituted an agreement is questionable. Never-

theless, neither Arriaga nor Trevino nor appellant

ever committed an overt act in pursuance and further-

ance of that conspiracy.

Arriaga was telephoned numerous times by

the government agent. Each time Arriaga in-

formed him that Arriaga was unable to furnish narco-

tics. Even this evidence was hearsay. There is

nothing in the government's case to indicate, then,

that an overt act was committed in furtherance

of the agreement, if any, made at the Pizza Hut.

-18-

The Fifth Circuit Court of Appeals stated that

certain meetings and telephone calls established

the overt acts in furtherance of the conspiracy.

Of course, a conspiracy must exist prior to the

time overt acts are committed in furtherance

of the conspiracy. Once the overt acts are

eliminated, there is no evidence establishing

the conspiracy. By necessity, the same

evidence is being used to establish the conspiracy

and the overt acts in furtherance of it.

IL The Court should have stricken Overt Acts

10 through 15 of the indictment and testimony

relating to such overt acts.

The legai ground here is relevance. Neither

appellant nor Arriaga ever delivered any heroin.

The delivery of heroin in San Antonio took place

two months after the negotiations in Laredo, Texas

had terminated. Appellant and Arriaga had absolute-

ly no involvement in that transaction. The evidence

which related to that transaction (the testimony as

well as the chemist's report) had no probative

-19-

value whatsoever in this case,

Any probative value thatdid exist was far

outweighed by the prejudicial effect such evidence

had onthe jury. It is fairly obvious that such testi-

mony had the natural and probable effect of con-

fusing the jury with collateral matters. The

jury may very well have based appellant's convic-

tion on the erroneous belief that appellant was some-

how legally responsible for the San Antonio delivery.

See U. S. vs Goodwin, 492 F2d 1141 (5th Cir, 1974).

Appellee stated in the Court below that appellant

waived his right to complain by not objecting to the

admissibility of the evidence. The proben, however,

is that when the evidence was offered, the evidence

was relevant to the overt acts of the indictment.

Therefore, an objection would have been groundless.

Appellant initially moved the Court to strike

Overt Acts 10 through 15 so that any such testimony

would not be relevant to the charges against

appellant. The Court denied the motion. At that

-20-

point the testimony in question was relevant to

the indictment. When the evidence was finally con-

cluded, it was then clear that such evidence did not

relate to appellant and co-appellant Arriaga. The

motion to strike the testimony should then have

been granted.

Separate conspiracies can be charged in one

indictment. But the evidence in a case must at least

relate to the persons being tried. If Trevino

or Acuna had also stood trial, then the evidence

would have related to their activities. But to allow

such evidence to be used in this case served no

other purpose than to imply that appellant and

Arriaga were somehow responsible for that

transaction. The evidence shows that the Laredo

negotiations had terminated long before the San

Antonio transaction took place.

CONCLUSION

There is insufficient evidence independent

of the hearsay statements to establish a cons-

piracy and appellant's knowing participation in

-21-

t hat conspiracy. For these reasons, appellant

contends that this case should be reversed and

rendered. Alternatively, the court was in

error in allowing testimony relating to Overt

Acts 10 through 15 of the indictment. This

error was obviously prejudicial and, therefore,

the case should be reversed and remanded for

new trial.

WHEREFORE, Petitioner prays that the

Writ of Certiorari be granted upon hearing

and the judgment of the Court of Appeals and

Trial Court be reversed and this cause be

remanded for new trial.

Respectfully submitted,

Jacob G. Hornberger

Jacob G. Hornberger, Jr.

915 Victoria Street

Laredo, Texas 78040

Attpryeys for Petitioner

—— a]

by — *

Jadob G. Horndppgef. Jr.

CERTIFICATE OF SERVICE

I hereby certify that on the 1] lth day of

April, 1977, two copies of Petitioner's Petitioner

for a Writ of Certiorari were by me mailed to

the United States Attorney for the Western District

of Texas, 655 E. Durango Blvd., San Antonio,

Texas 78205, and three copies were on said date

mailed to the Solicitor General of the United

States, Department of Justice, Washington, D.C.

20530.

; / /

“3 4. J 2

. 10 — i Al

-23-

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

VS

REYNALDO VILLARREAL, aka Pancho

and Joe Arriaga,

DEFENDANTS-APPELLANTS

NO, 76-2623

Summary Calendar*

United States Court of Appeals

Fifth Circuit

Feb. 9, 1977

Defendants were convicted in the District

Court for the Western District of Texas, John H.

Wood, Jr., J., of conspiracy to distribute

heroin and they appealed. The Court of Appeals

held that evidence was sufficient to show the

existence of a conspiracy and defendants' partici-

pation therein; that evidence was sufficient to show

overt acts in furtherance of the conspiracy; and

that fact that the planned sale of heroin was not

consummated because of defendants’ inability

to obtain heroin did not preclude their convictions

for conspiracy.

Affirmed.

App. A- 1

1. Criminal Law - 1144. 1302), 1159. 2(8)

In determining whether the Government

adequately proved the existence of a conspiracy

and defendants' participation therein, court reviews

the evidence in the light most favorable to the

Government and accepts all reasonable inferences

and credibility choices which support the verdict.

2. Conspiracy-47 (3)

Testimony by undercover agents concerning

conversations between defendants and other co-

conspirators which they personally heard

and evidence adduced from surveillance operations

was sufficient to make prima facie showing of exis-

tence of a conspiracy and defendants' participation

therein, independent of any hearsay statements

by coconspirators,

3. Conspiracy 47 (12)

Evidence of telephone conversations and various

meetings to discuss and arrange sale of heroin

was sufficient to establish overt acts committed

App. A-2

by defendants in connection with conspiracy

to distribute heroin. Comprehensive Drug

Abuse Prevention and Control Act of 1970,

§§40l(a)(1), 406,21 U. S. C. A. §§841(a)(1), 846.

4. Conspiracy

Success is not an eesential element for

a conspiracy conviction,

5. Conspiracy 28(3)

Fact that, because of their inability to

obtain heroin, defendants were unable to consum-

mate planned sale of heroin did not preclude their

conviction for conspiracy to distribute heroin.

Comprehensive Drug Abuse Prevention and Control

Act of 1970, §§401(a)(1), 406,21 U. S. C. A. §§841(a)

(1), 846.

6. Conspiracy 47(12)

Even if testimony concerning the fact that

two coconspirators other than defendants sold

heroin to an undercover agent subsequent to the

aborted transaction in which defendants participated

did relate to the existence of a second conspiracy

App. A-3

defendants' conviction forthe first conspiracy

would still stand as theywere proved guilty of

participation in one conspiracy. Comprehensive

Drug Abuse Prevention and Cortrol Act of 1970,

§§401(a)(1),406, 21 U. S. C. A. §§ 841(a)(1), 846.

Appeals from the United States District

Court for the Western District of Texas,

Before COLEMAN, GOLDBERG and

GEE, Circuit Judges.

PERCURIAM:

Reynaldo Villarreal and Joe Arriaga appeal

their convictions for conspiracy to distribute heroin

in violation of 21 U. S. C. §841](a)(1) and 846, Villarreal

and Arriaga, together with co-indictees Ronald ‘

Trevino and Hector Acuna, were accused of cons-

piring to sell heroin to an undercover Drug Enforce-

ment Administration Agent, Officer Russell Rema.

Trevino pleaded guilty, and Acuna died before trial.

Appellants Villarreal and Arriaga, convicted

in a joint jury trial, urge identical points of error:

App. A-4

(1) the government failed to establish the

existence of a conspiracy with evidence

other than hearsay statements of alleged

co-conspirators; (2) the government failed to

establish appellants' knowing participation in

the alleged conspiracy; (3) the government

failed to prove the commission of anyovert

acts in furtherance of the conspiracy; and (4)

the court improperly refused to strike from the

indictment several allegations of overt acts and

to exclude trial testimony relating to those acts.

[1-5] In determining whether the government

adequately proved the existence of a conspiracy

and appellants' participation, we view the evidence

in the light most favorable to the government,

Glasser » United States, 315 U. S. , 60, 62 S. Ct.

457, 80 L. Ed. 680 (1942), and accept all rea son-

able inferences and credibility choices which

support the jury verdict, United States v Prout,

526 F2d 380 (5 Cir. 1976); United States v

Black, 497 F2d 1039 (5 Cir. 1974). Inthe

App. A-5

instant case, undercover ayents Reina and

Alonzo had occasion personally to hear and

observe appellants and the other co-conspira-

tors. The testimony of these agents about

their first-hand observations of the conspira-

tors, as well as evidence adduced from surveil-

lance operations, was sufficient to make a

prima facie showing of the existence of a cons-

piracy and the appellants' willing participation

therein independent of any hearsay statements

by co-conspirators, The evidence at trial also

established numerous overt acts committed

by the various conspirators in furtherance of

their plan to distribute heroin to Officer Rena,

including several telephone conversations and

various meetings to discuss and arrange the

sale. Because of their inability to obtain heroin

the conspirators were unable to consummate

the planned transaction. Success, however, is

not an essential element for a conspiracy convic-

App. A-6

tion, United States v Jacobs, 451 F2d 530 (5 Cir.

1971), cert. denied, 405 U. S. 955, 92 S. Ct.

1170, 31 L. Ed2d 231 (1972); and the govern-

ment's proof of conspiracy and appellants'

participation was clearly sufficient in the

instant case,

[6] Appellants' final point of error challenges

the trial court's failure to strke portions

of the indictment and testimony at trial relating

to the actions of co-conspirators Trevino and

Acuna in meeting with Officer Rema and selling

heroin to him subsequent to the aborted trans-

action in which appellants had participated.

Although the legal bases of appellants' attack

is not clearly specified,they apparently object

that these allegations and proofs related to a

later, separate conspiracy in which they were

not involved. Most likely, the subsequent

successful distribution by Trevino and Acuna

was simply the consummation of the conspirators'

original agreement to sell heroin to Officer Rem.

App. A-7

See United States v Perez, 489 F2d 51 (5 Cir. 1973)

cert. denied, 417 U.S. 945, 94 S. Ct. 3007, 41

L. Ed. 2d 654 (1974), for distinctions between

single and multiple conspiracies. However,

even if the evidence es& blished more than one

conspiracy, the law is well settled that appellants’

convictions may stand because they were proved

guilty of participation in at least one of the

conspiracies. United States vs Wayman, 510

F2d1020 (5 Cir.), cert. denied, 423 U. S. 846,

96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); Robinson

v United States, 333 F2d 950 (5 Cir. 1964);

Jolley v United States, 232 F2d 83 (5 Cir. 1960).

Finding all of appellants' claims of error

without merit, we affirm their convictions,

**

App. A-8

o*?

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth Tel. 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

March 17, 1977

TO ALL PARTIES LISTED BELOW:

No. 76-2623-USA v. Reynaldo Villarreal, etc.

and Joe Arriaga

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition () for rehearing, * and

no member of the panel nor Judge in regular active

service on the Court having requested that the Court

be polied on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth Cicuit

Rule 12) the petition () for rehearing en banc

has also been denied. *

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W WADSWORTH, CLERK

by /s/ Susan M, Gravois

Deputy Clerk

/smeg

ec: Mr. J. G. Hornberger

Mr. Lazaro Garza-Gongora, Jr.

Mr. LeRoy Morgan Jahn

* on behalf of Villarreal

App. B—1