# Petition — Villarreal v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1532%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 917

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1532%3A1. Public record. Not legal advice.