Petition — Sanchez v. United States

In THE

Supreme Comt of the United

HO, nececcorsoven

OCTOBER TERM, 1976 76° 1497

GERARDO SANCHEZ,

Petitioner,

aginst.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

JERRY SLATER

O’ROURKE, McGOVERN & DEGEN

Attorneys for Petitioner

233 Broadway

New York, N.Y. 10007

(212) BA 7-4530

Cee ee UU EEEEEEENEIEEEEEEEEEEE

Dick Bailey Printers, 200 Richmond Ave., Staten Island, N.Y. 10302

Tel.. (212) 447-6368

TABLE OF CONTENTS

Page

SEE occcaccicrnscetonddsvewevidadedude 1

PED. wasps ncecesecdticdcdvetderivedtvucn 2

Questions Presented ............ccceeeeeeeeeeuues 2

Constitutional Provisions, Statutes and Rules Involved 2

tt | PPSTTETITELILET ITT eee 4

Reasons for Allowing the Writ ..........6600 cece 5

GD c cuaucdeccbesdbenichel Sesdscoscsesued 15

Appendix A—Opinion of the United States District

Court for the Southern District ................. la

Appendix B—Judgment of the United States Court of

Appeals for the Second Circuit .............565. 27a

TABLE OF AUTHORITIES

Cases Page

Abbate v. United States, 359 U.S. 187 (1959) ........ 14

Ashe v. Swenson, 397 U.S. 436 (1970) oo. cee 14

Barker v. Wingo, 407 U.S. 514 (1972)... 6. cece 10

Bartkus v. Illinois, 359 U.S. 204 (1989)... 6. eee 14

Benton v. Maryland, 395 U.S. 784 (1969) ........... 14

Blackledge v. Perry, 417 U.S. 21 (1974) «00... 5 60045. 6

Dillingham v. United States, 423 U.S. 64 (1975) ...... 9

Elkins v. United States, 364 U.S. 206 (1960) ......... 14

Pay V. Mate, S72 U.S. FO (IGSS) nc vccccccnccvevoces 7

Gravitt v. United States, 523 F.2d 1211 (Sth Cir. 1975),

rehearing and rehearing en banc denied, 526 F. 2d

SE Uuen cbUdawaks dibecbcee ne scennecess 10

Green v. United States, 355 U.S. 184 (1957) ......... 7

Menna v. New York, 423 U.S. 61 (1975) ........405. 8

Murphy v. Waterfront Commission, 378 U.S. 52 (1964) ”

People v. Blakely, 34 N.Y. 2d 311, 314 (1974) ........ 7

People v. Chirieleison, 3 N.Y. 2d 170, 174(1957) ..... 7

People v. White, 32 N.Y. 2d 393, 399-400 (1973) ..... 7

Schneckloth v. Bustamonte, 412 U.S. 218, 238 (1973) . 7

United States v. Bommarita, 524 F.2d 140 [2d Cir.

Deeb deaveseechsdvcdhhe iba eentessaee 14

United States v. Brookins, 383 F. Supp. 1212 (D. N.J.

1974), aff'd 524 F.2d 1404 (3d Cir. 1975) ........ 15

United States v. Cabral, 475 F.2d 715 [ist Cir. 1973] .. 10

United States v. Castro, 401 F. Supp. 120 (N.D. Ill.

SP Uaalens Wedelbwhes 66-4600 6denuatoceesnd 14

iii

United States v. Doyle, 348 F.2d 715, (2d Cir.], cert.

GO TES We DOPED ccc cicccccccesesceess 6

United States v. Duke, 527 F.2d 386 [Sth Cir. 1976] ... 10

United States v. Furey, 514 F.2d 1098 [2d Cir. 1975] .. 18

United States v. Hobbs, 392 F. Supp. 444 (D. Mass.

aL cpincks Geld sine OdeeeUbekeds ee ev bast 15

DUE. us eW a Wn'te Cs kee ma eG) 0 oeeekded bodnscias 10

United States v. Mallah, S03 F.2d 971, [2d Cir. 1974]

cert. den. 420 U.S. 99S (1975S)... cece eee eee 14

United States v. Mann, 451 F.2d 347 [2d Cir. 1971] ... 6

United States v. Marion, 404°U.S, 307, (1971) ....... 9

United States v. Papa, 533 F.2d 815 (2d Cir. 1976] .... 14

United States v. Roberts, 515 F.2d 642 [2d Cir. 1975] . 11

Waller v. Florida, 397 U.S. 387 (1970) «0... cece eee 14

CONSTITUTIONAL PROVISIONS

Constitution of the United States

Pee POMMIGTE oc ccc ccccccccccccccvvevccvece 2

EL ET Ey TO ee aiie) ae

FEDERAL RULES OF CRIMINAL PROCEDURE

ED neil ee i ee ete ebhed ek hhh eee 8

iv

STATUTES

18 U.S.C. §420S(a) 0.0... cece reer reer eeeenee z

21 U.S.C. §173 on. ccreeeeeeeereeveveveeeveees .

21 U.S.C. $174 ccc cece cece reece renee eereeeeens >

26 U.S.C. S4731 wn ccc cece cece eee e eens eenereees 1

26 U.S.C. §7237(a) once cece cece eee e eee eeeeenees 4

28 U.S.C. §12S4(1) wc cece cere renee eee eee e ee eees 2

Art 195, Federal Penal Code of Mexico .......++++++ 13

MISCELLANEOUS

Second Circuit Rules Regarding Prompt Disposition of

Criminal Cases, Rule4 1... . cece eee eee e ene 3

Single Convention on Narcotic Drugs, 1961 .......... 14

Southern District of New York Plan for Achieving

Prompt Disposition of Criminal Cases, Rule4 .... 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

GERARDO SANCHEZ,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT.

Gerardo Sanchez petitions for a writ of certiorari to

review a judgment of the United States Court of Appeals

for the Second Circuit, which affirmed a judgment of

conviction of the United States District Court for the

Southern District of New York.

OPINION BELOW

The opinions and rulings of the United States District

Court for the Southern District of New York are

unreported.

The District Court’s opinion on petitioner's motion to

dismiss on speedy trial and double jeopardy grounds, dated

July 16, 1976, is printed as Appendix A.

The Court of Appeals affirmed the judgment of con-

viction without opinion (see Appendix B) on March 29,

1977.

_—_ = one a

idee

JURISDICTION

The judgment of the Court of Appeals was dated and

entered on March 29, 1977. Jurisdiction is conferred upon

this Court by 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether petitioner waived his claims that the

prosecution was barred by the speedy trial, due process and

double jeopardy provisions of the Constitution by sub-

sequently pleading guilty and stating during the plea

colloquy that he waived the same.

2. Whether petitioner’s arrest in Mexico in 1970 ren-

dered him an “accused,” so that the subsequent delay of

almost six years denied petitioner his right to a speedy trial

under the Sixth Amendment and the Due Process Clause of

the Fifth Amendment.

3. Whether the prosecution in the court below was

barred by the double jeopardy clause of the Fifth Amend-

ment.

4. Whether cocaine has been misclassified as a narcotic

drug.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

Constitution of the United States

Amendment V:

“Double Jeopardy

“No person shall . . . be twice put in jeopardy of

life or limb. .. .”

Amendment V: -

“Due Process

“No person shall . . . be deprived of life, liberty

’?

or property, without due process of law. .. .

Amendment VI:

“Jury Trial for Crimes, and Procedural Rights

‘In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial. . . .”

Federal Rules of Criminal Procedure

Rule 48(b)

** Dismissal

‘(b) By Court: If there is unnecessary delay in

presenting the charge to a grand jury or in filing an

information against a defendant who has been held

to answer to the district court, or if there is un-

necessary delay in bringing a defendant to trial, the

court may dismiss the indictment, information or

complaint.”

Second Circuit Rules ation Prompt Disposition of

Criminal Cases

Rule 4

‘In all cases the government must be ready for

trial within six months from the date of the arrest,

service of summons, detention, or the filing of a

complaint or of a formal charge upon which the

defendant is to be tried (other than a sealed in-

dictment), whichever is earliest. If the government

is not ready for trial within such time, or within the

periods as extended by the district court for good

cause, then, upon application of the defendant or

upon motion of the district court, after opportunity

for argument, the charge shall be dismissed.”

Southern District of New York Plan for Achieving Prompt

Disposition of Criminal Cases

Rule 4

‘In all cases the government must be ready for

trial within six months from the date of the arrest,

service of summons, detention, or the filing of a

complaint or of a formal charge upon which the

defendant is to be tried (other than a sealed in-

dictment), whichever is earliest. If the government

is not ready for trial within such time, and if the

defendant is charged only with non-capital of-

fenses, the defendant may move in writing, on at

least ten days’ notice to the government, for

dismissal of the indictment. Any such motion shall

be decided with utmost promptness. If it should

appear that sufficient grounds existed for tolling

any portion of the six-months period under oue or

more of the exceptions in Rule 5, the motion shall

be denied, whether or not the government has

previously requested a continuance. Otherwise the

court shall enter an order dismissing the in-

dictment with prejudice unless the court finds that

the government’s neglect is excusable, in which

event the dismissal shall not be effective if the

government is ready to proceed to trial within ten

days.”

STATEMENT OF THE CASE

Petitioner was indicted with three others and charged

with a conspiracy to violate former 21 U.S.C. §§173 and

174. On November 9, 1976 he pleaded guilty to a super-

seding information accusing him of violating 26 U.S.C.

§7237(a). He was sentenced to five years imprisonment

pursuant to 18 U.S.C. §4205(a).

On March 9, 1976 petitioner filed a motion to dismiss

the indictment on the ground that the pre-indictment delay

of almost five years violated his right to a speedy trial and

represented a denial of due process. On March 22, 1976,

Hector Echeverria—a co-defendant—sought to dismiss the

indictment because it abridged his right not to be twice

5

placed in jeopardy. Petitioner joined in this motion. The

Honorable Henry F. Werker denied both motions in an

opinion dated July 16, 1976 (Appendix A).

Petitioner sought dismissal of the indictment in papers

submitted July 2, 1976 on speedy trial grounds emanating

from post-indictment delay. This application was likewise

denied. The request was renewed on November 3, 1976 and

denied, without opinion, from the bench on the date the

guilty plea herein was entered.

Petitioner filed a petition for a writ of mandamus on

November 1, 1976 with the United States Court of Appeals

for the Second Circuit seeking to bar prosecution for the

speedy trial and double jeopardy reasons previously ad-

vanced in the District Court. That motion was denied on

November 12, 1976.

On April 5, 1976 the co-defendant Echeverria raised the

issue that cocaine has been misclassified as a narcotic drug.

Petitioner joined in this motion which was rejected.

The charges herein stem from a narcotics conspiracy

which took pt between December Ist and 30th, 1970.

The investigation consisted of a joint effort by the United

States and Mexico. It resulted in petitioner's arrest in

Mexico on December 16, 1970. Sometime thereafter the

American and Mexican authorities decided that the latter

would prosecute. Petitioner was tried, convicted, acquitted

on appeal and released after spending thirteen months in

jail ir. Mexico. He promptly returned to the United States.

REASONS FOR ALLOWING THE WRIT

1. The Waiver Question.

Prior to his guilty plea petitioner raised all the issues

presented on appeal both in the District Court and in a writ

of mandamus in the Court of Appeals. Not until every

remedy had been exhausted did petitioner enter his plea—

the only possible means left, other than a trial, for him to

be in a position to assert before a higher court that his

— were trespassed by the prosecution in the lower

court.

Nevertheless, the Government contended in the Court of

Appeals that petitioner waived his right to appeal by en-

tering a Plea of guilty and by expressly and intentionally

waiving it on the record.

Petitioner suggests that important questions heretofore

not settled are present, to wit, the effect of a guilty plea

upon a previously raised speedy trial claim and the

er of conditioning a plea upon a waiver of appellate

rights.

With respect to the former, the Second Circuit rule is

that a guilty plea waives most issues, including any speedy

trial contentions (United States v. Mann, 451 F.2d 347 [2d

Cir. 1971]; United States v. Doyle, 348 F.2d 715 [2d Cir.],

cert. den. 382 U.S. 843 [1965]). However, this Court’s

recent rulings cast down upon the continuing validity of

that holding (Menna v. New York, 423 U.S. 61 [1975});

Blackledge v. Perry (417 U.S. 21 [1974]). It is urged that

the constitutional issues raised herein do not go to guilt and

therefore survive a guilty plea, where they have been duly

asserted and rejected.

. As to the alleged waiver herein, it is true that petitioner

waived” his right to appeal*. However, any waiver was

* During the plea proceeding the following colloquy took place:

“The Court: Is there any question you Id li

PRE you would like to ask the Court

Defendant Sanchez: Frankly, yes.

The Court: What is it?

ges op rrome Well, | am responsible—I honestly think that I

gu ut estly think my constitutional rights were vi

and in my mind they were. “i ee

The Court: I understand, but that has been resolved agai

the Court's decision. rene

Defendant Sanchez: That is the only—

hardly an intentional relinquishment (Schneckioth v.

Bustamonte, 412 U.S. 218, 238 [1973]; see Fay v. Nota.

372 U.S. 391, 398-399 [1963]; Green v. United States, 355

U.S. 184, 191-192 [1957]). Rather, it was improperly

exacted from him and coercively obtained. Petitioner

wanted to retain his right to appeal. It was conceded by the

Government in their brief to the Court of Appeals that

petitioner's counsel asked whether the prosecution would

consent to the preservation of petitioner’s appellate rights

relating to the indictment. The response was no, unless he

pleaded to the indictment, rather than to a superseding

information. It was only after petitioner informed the

District Court during the course of his plea, that in spite of

his factual guilt, he believed that antecedent constitutional

violations permeated the proceedings, that he was forced to

waive that claim. “Here the prosecutor attempted, in

effect, to deprive the defendant of his right to appeal the

adverse determination of his speedy trial claim, by con-

fronting him with a possibly unfair trial (because so tardy)

on the one hand, and on the other offering him a reduced

plea only if he would relinquish the speedy trial claim”

(People v. Blakely, 34 N.Y. 2d 311, 314 [1974]; accord.

People v. White, 32 N.Y. 2d 393, 399-400 [1973]; People v.

Chirieleison. 3 N.Y. 2d 170, 174 [1957]). In conclusion,

The Court: You are talking about your speedy trial.

Defendant Sanchez: And my double jeopardy.

The Court: But those were both resolved against you by the Court's

decision.

Defendant Sanchez: That was my only comment.

The Court: Yes.

Mr. Marmaro [Assistant United States Attorney]: Your Honor, it

should be clear that the defendant is giving up all these rights by

pleading to the superseding information, and that he will not take any

further action with respect to those rights.

The Court: You have no right to appeal.

Defendant Sanchez: I am waiving it.

The Court: Yes; you understand that.

Defendant Sanchez: Yes.”

even if petitioner “waived” his right to appeal, the waiver

was involuntary, ineffective and a denial of due process.

This case gives the Court the opportunity to resolve the

propriety of allowing the Government to condition a plea

upon such a waiver.

2. The Speedy Trial Question

Petitioner urges this Court to find a denial of his righ

a speedy trial based upon the passing of five ti. as

eleven months from the date of his arrest in Mexico until

the date of his plea. The arrest took place on December 16

1970. The filing of the indictment and the re-arrest of

petitioner transpired on November 12, 1975. A Notice of

rte uy was filed by the Government on March 1, 1976.

otions by petitioner and those indi i

decided on July 16, 1976. © Mae ay

Pursuant to telegrams issued by the trial court

petitioner and counsel appeared on September 9, 1976 and

answered ready for trial. The proceedings on the date

reflect that the Government also announced it was ready to

proceed. However, its actual state of readiness appears

dubious. A new Assistant United States Attorney had been

assigned to the case and was not in court (subsequently, yet

another Assistant would appear as counsel on ‘the

November trial date). Furthermore, the Government had

not yet complied with a previously issued court order that it

obtain certain documents for a co-defendant. In fact

Honorable Henry F. Werker stated, “Mr. Flannery [the

Assistant assigned to the case] is not prepared to start

ne apy is the Court."’ The case was set

wn for trial on November 8, 1976. iti

guilty on November 9, 1976. iit! a

} It is undisputed that American agents participated in the

Investigation, arrest, prosecution and detention of

petitioner in Mexico. They separately fingerprinted and

questioned him during his confinement. Thereafter, the

decision to prosecute in Mexico with American assistance

was made pursuant to the Single Convention on Narcotic

Drugs. When petitioner was finally released in Mexico, the

United States request to be notified thereof was honored.

Based upon the foregoing, petitioner submits that he

became an “accused” for speedy trial purposes when he

was arrested in Mexico on December 16, 1970. In rejecting

this concept, the District Court stated that it is “not bound

by the actions of the Mexican court irrespective of the fact

that American agents may have participated in the arrests

or provided information which led to them."’ Petitioner,

however, does not urge that “the actions of the Mexican

court” control for speedy trial purposes, but only that

American involvement, including the Mexican-American

arrest, does. How far American authorities can go without

rendering someone an ‘“‘accused”’ for speedy trial purposes

has not yet been settled by this Court.

This Court discussed the issue in Dillingham v. United

States (423 U.S. 64 [1975]), where it noted that the

Government constituted petitioner an ‘accused’ when it

arrested him and thereby commenced its prosecution of

him” (423 U.S. at 65). The opinion went on to reaffirm the

determination in United States v. Marion (404 U.S. 307,

320-321 [1971]) that:

“To legally arrest and detain, the Government

must assert probable cause to believe the arrestee

has committed a crime. Arrest is a public act that

may seriously interfere with the defendant's

liberty, whether he is free on bail or not, and that

may disrupt his employment, drain his financial

resources, curtail his associations, subject him to

public obloquy, and create anxiety in him, his

family and his friends’’ (423 U.S. at 6S).

Petitioner was arrested and detained for the same tran-

saction which constitutes the subject matter of these

10

proceedings. It cannot be doubted that he suffered all the

hardships and ignomies of arrest during his thirteen

months in Mexican jails.

In United States v. Cabral (475 F.2d 715 [ist Cir. 1973]

— a pre-Dillingham case— the court held the right to a

speedy trial on a weapons charge in federal court attached

at the time of the defendant's arrest by state authorities for

other crimes, because the weapon seized at that arrest was

turned over to the federal authorities three days later. The

Cabral court rejected the notion that the date of the filing

of the indictment controlled. Unlike the present situation,

there the Government neither instigated nor participated in

any way in the completely unrelated prosecution by a

separate state sovereign.

The Fourth Circuit in United States v. MacDonald (531

F.2d 19%, 204 [4th Cir. 1976]) followed the spirit of

Dillingham and held that a military arrest activated the

speedy trial guarantee of the Sixth Amendment, rather

than a subsequent civilian arrest for the same acts. The

tribunal thought that the Government had acted in its

capacity as a ‘‘single sovereign’’—a situation not unlike the

present one which involves American control at all levels.

In the Fifth Circuit, too, an arrest by one sovereign may

commence the running of speedy trial rights in another

sovereignty and may require a hearing to determine the

basis for the arrest (Gravitt v. United States, 523 F. 2d

1211, 1215S [Sth Cir. 1975], rehearing and rehearing en

banc denied, 526 F.2d 378, 379 [1976]; see United States v.

Duke 527 F.2d 386, 388 n. 1 [Sth Cir. 1976}).

Thus, the issue of when one becomes an “‘accused"’ has

not been definitively set forth and presents an issue worthy

of consideration by this Court.

With this background in mind, petitioner asks this Court

to consider the factors it found controlling in Barker v.

Wingo (407 U.S. 514 [1972]}).

11

A. Length of the delay

The indictment was filed one month prior to the ex-

piration of the Statute of Limitations. Another year passed

before the scheduled trial date.

B. Reason for the delay

The delay up until November 12, 1975 is solely attributed

to negligence on the part of the Government. The case file

was in Florida and while working on an unrelated matter

involving a co-defendant, the Government stumbled upon

it. Considering petitioner's continuous availability, the

undeniable knowledge of the American authorities, as

revealed in the District Court's opinion (Appendix A, p.

20a) and the possession of the case file by an arm of the

Government itself, this lack of due diligence is inexcusable.

Following petitioner's arraignment, an untested notice of

readiness was filed almost four months later on March 1,

1976. After the lower court's rulings on these motions on

July 16, 1976, the case was first scheduled on September 9,

1976 to be tried on November 8, 1976. Even without the

benefit of a hearing, except for the period between March

ist, and July 16th, none of the delay can be even remotely

attributed to petitioner. During the pendency of these

motions, petitioner, too, was ready, subject to the

government's response and the court's decision.

C. Assertion of right

Petitioner could not demand a trial until he learned of

the existence of a prosecution in November 1975. As in-

dicated above, petitioner raised the issue in the courts. Of

course, even silence on his part would not constitute a

waiver of his right to a speedy trial (Barker v. Wingo, supra

at 526-527; United States v. Roberts, 51S F. 2d 642, 647

[2d Cir. 1975}). Nevertheless, petitioner appeared and

answered ready on all dates after March 1, 1976, including

September 9, 1976 after the pretrial motions had been

decided.

12

D. Prejudice

Petitioner suffered thirteen months incarceration in

Mexico before his conviction, flowing from the same

transaction which forms the basis for the indictment

herein, was reversed.

The anxiety, concern and financial loss to petitioner and

his family were incurred from December, 1970 through

January, 1972 and’ then renewed during the one-year

pendency of the indictment. The travel restrictions im-

posed as a bail condition have prevented his participation

in various educational programs, conferences and seminars

related to his study of criminology. The extensive time and

energy petitioner devoted to research and preparation for

trial left no time for him to complete his thesis in criminal

justice.

Petitioner was sentenced in the Southern District Court

in Florida in 1972 and following his incarceration was on

parole until June, 1976. The delay in prosecution deprived

him of the opportunity of receiving a concurrent sentence

with that term as well as with the Mexican sentence. Also,

when sentenced in Florida, the Mexican arrest was part of

the background in the pre-sentence report and, un-

doubtedly, prejudiced him then.

The public, too, is prejudiced, for imprisonment of the

petitioner—a rehabilitated man following his parole and

resumption of a respected role in the community—could

perhaps have had a deterrent effect six years ago and now

removes from society a useful and contributing citizen.

Petitioner's work as a volunteer with drug abusers and his

prior non-involvement in criminal enterprises attest to the

harm, rather than benefit, this prosecution has produced.

The reach of the Due Process Clause also is at issue here

(see Blackledge v. Perry, supra at 30-31).

In considering this claim, petitioner asks this Court to

study the unique factual pattern outlined above, the merit

13

of the speedy trial arguments heretofore advanced and the

similarities between this prosecution and the Mexican

prosecution discussed again under Heading 3, infra. Also

relevant are Rule 48(b) of the Federal Rules of Criminal

Procedure, Rule 4 of the Second Circuit Rules Regarding

Prompt Disposition of Criminal Cases (approved January

5, 1971, effective July 5, 1971) and Rule 4 of the Southern

District of New York Plan for Achieving Prompt

Disposition of Criminal Cases (approved February 28,

1973, effective April 1, 1973).

Rule 48(b) of the Federal Rules of Criminal Procedure

provides an important speedy trial remedy with standards

less strict than those imposed by the Sixth Amendment.

Both the intent and spirit of this provision were violated.

The 1971 Second Circuit Rule and the Southern District

Plan Rule in effect during the pendency of this case (see

United States v. Furey, 514 F.2d 1098 [2d Cir. 1975]) use

similar language and were not followed. An application

seeking dismissal based upon them, as well as Rule 48(b),

was denied in the District Court.

When these various factors are viewed together,

petitioner submits that the basic unfairness of the

prosecution herein surfaces and the due process clause

compels dismissal of all charges.

3. The Double Jeopardy Question.

Although petitioner does not pose a typical double

jeopardy claim, all the interests sought to be protected by

that provision are present.

The prosecutions in Mexico and the United States of

necessity rest upon different statutes.* Nevertheless, the

* The appellant was charged in the Federal District Court of Hermosillo,

Sonora, Mexico with a violation of Article 195 of the Federal Penal Code,

dealing with violations or Crimes Against Health: “Whoever elaborates, deals

with, transports, possesses, buys, steals, supplies even gratis, or in general

commits any act of acquisition, supply, transportation or traffic of narcotics

without complying with the requirements set forth by the Laws, Agreements or

International Treaties and other Sanitary dispositions as those mentioned in

Art. 193."

14

relevant laws are aimed at the same evils and here are

based upon the identical transaction.

Petitioner recognizes the dual sovereignty theory an-

nounced in Abbate v. United States (359 U.S. 187 [1959})

and Bartkus v. Illinois (359 U.S. 204 [1959]). However,

subsequent cases have watered down the concept leaving its

future viability in doubt (Ashe v. Swenson, 397 U.S. 436

11970]; Waller v. Florida, 397 U.S. 387 [1970]; Benton v.

Maryland, 395 U.S. 784 [1964]; Murphy v. Waterfront

Commission, 378 U.S. 52 [1964]; Elkins v. United States,

364 U.S. 206 (1960). This case presents an opportunity for

this Court to reconsider those decisions.

Finally, in view of the language utilized in Ashe v.

Swenson (397 U.S. 436, 448 [1970] [Brennan J., con-

curring]), United States v. Papa (533 F.2d 815, 820 [2d

Cir. 1976]), United States v. Bommarita (524 F.2d 140, 146

|2d Cir. 1975]) and United States v. Mallah (SO3 F.2d 971,

98S [2d Cir. 1974], cert. den. 420 U.S. 995 [1975)}),

petitioner maintains that the better and fairer standard in

assessing double jeopardy claims involving conspiracy

charges is the “same transaction test.”

4. The Misclassification of Cocaine Question.

This Court has not decided whether the classification of

cocaine as a narcotic drug constitutes a denial of due

process and equal protection and subjects a defendant to

cruel and unusual punishment. Appellant was indicted

under the 1954 Internal Revenue Code, which became 26

U.S.C. §4731 and was repealed in 1970, effective May 1,

1971.

Assuming this Court finds no waiver of this claim by the

plea of guilty, petitioner asks this Court to consider this

issue on the merits or to remand for a hearing. Medical and

scientific opinion exists to the effect that cocaine is actually

a stimulant and not addictive (see United States v. Castro,

15

401 F. Supp. 120 [N.D. Ill. 1975]; United States v. Hobbs.

392 F. Supp. 444 [D. Mass. 1975]; United States v.

Brookins, 383 F. Supp. 1212 [D. N.J. 1974], aff'd 524 F.

2d 1404 [3d Cir. 1975]). By grouping heroin and cocaine

together, the statute ignores the different impact these

drugs have on the health of the user and on society as a

whole. The non-addictive nature of cocaine permits the

cocaine user to stop taking the drug without feeling the

effects of withdrawal created by a dependence upon a drug.

Thus. it does not lead to crimes of violence by those addicts

needing money to support an overpowering craving. This

factor alone casts doubt on the constitutional validity of the

classification as it now stands.

CONCLUSION

Certiorari should be granted and the judgment below

reversed. ;'

Respectfully submitted,

JERRY SLATER

O'ROURKE, McGOVERN & DEGEN

Attorneys for Petitioner

THOMAS H. O’ROURKE

RONALD D. DEGAN

Of Counsel

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APPENDIX A

OPINION OF THE UNITED STATES

DISTRICT COURT FOR

THE SOUTHERN DISTRICT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

-V-

GERARDO SANCHEZ, a/k/a “George Scott,”

a/k/a ‘‘Monguin,”’ and HECTOR ECHEVERRIA,

a/k/a “*Liborio Morales,”’

Defendants.

HENRY F. WERKER, D.J.

The defendants in this action are charged with con-

spiracy to violate 2! U.S.C. §§173 and 174. The indictment

charges that the defendants conspired to bring narcotic

drugs into the United States through Mexico and other

countries unknown to the grand jury.

Motions have been filed on behalf of Gerardo Sanchez

and Hector Echeverria to dismiss the indictment on several

grounds. The court will consider each motion separately

and where necessary will give the facts relevant to that

particular motion.

Hector Echeverria has moved to dismiss the indictment

on the grounds of former jeopardy, res judicata, collateral

estoppel and comity. Mr. Echeverria has supplied the court

with copies of seven federal indictments in which he has

been named. However, for the purposes of this motion, it is

necessary to review in some detail only three of them. !

2a

Indictment 75 Cr. 1095

The instant indictment charges that on or about

December 2, 1970, Gerardo Sanchez met with Luis Reyes

and Julio Fuentes in Florida at which time it was arranged

that Fuentes would go to Mexico to receive a cocaine

shipment. On or about December 7, 1970, in Mexico City,

Sanchez gave Fuentes an attache case containing ap-

proximately 6'2 kilograms of cocaine. Sanchez told

Fuentes to take the attache case to Hermosillo, Mexico and

leave it in a hotel room. Fuentes was then to travel to San

Diego, California, meet with Reyes and Roniel Medina, an

unindicted co-conspirator, and return with them to

Hermosillo to pick up the cocaine which was to be delivered

to New York City.

Reyes and Medina flew from New York to Los Angeles

and while en route, Reyes told Medina that the cocaine

belonged to Echeverria. The two flew from Los Angeles to

San Diego where they met Fuentes, Reyes, having noticed

an agent of the BNDD following him, returned to New

York and Fuentes and Medina travelled by car to Phoenix,

Arizona, from which they had several telephone con-

versations with Sanchez who was then in New York.

On or about December 16, 1970, Sanchez, travelling

under the name George Scott, and Echeverria, travelling

under the name Liborio Morales went from New York to

Tucson to Hermosillo. On that day, they went to the Hotel

San Alberto where the cocaine had been concealed by

Fuentes. Sanchez and Echeverria were arrested in Mexico

and were charged by the Mexican authorities with unlawful

possession of narcotics.

Indictment 72 Cr. 209

A judgment of conviction was entered against Echeverria

on April 4, 1972. The indictment charged this defendant

3a

and Ruben Pena and Carlos Fernandez with conspiring

from October 1, 1970 to April 30, 1971 to sell narcotics in

violation of 21 U.S.C. §§470S(a), 7237(b).

The evidence at trial showed that Pena had a connection

in Chile with a supplier of cocaine, Francesco Guinart.

Pena offered to sell this cocaine to Echeverria who stated

that he would take all the cocaine Pena received. In June or

July of 1970 a Chilean courier sent by Guinart gave Pena a

suitcase containing about 8 kilograms of cocaine. Pena in

turn gave the suitcase to Echeverria.

In August 1970, the same courier gave Pena a key to a

locker in the Pennsylvania Railroad Station in New York

and told him the locker contained approximately 4

kilograms of cocaine. Pena gave the key to Echeverria who

paid for the cocaine.

In October, 1970, Pena was contacted by a different

courier from Chile, Jaime Segura, who was in fact a

government informer. Segura had obtained the cocaine

from Guinart in Chile and gave it to BNDD agents there.

The agents took the cocaine to New York where they had it

chemically tested and put it under guard in a room in the

Commodore Hotel. On October 22, 1970, Agent Pohl put

one of the packages of cocaine from the Commodore Hotel

into a locker in Grand Central Station. He then returned to

the hotel and gave the key to Segura. Segura called Pena

who came to the hotel and got the key. From there, Pena

went to a restaurant where he gave the key to Echeverria.

Later that night Echeverria retrieved the package from the

locker.

The next day, virtually the same operation was repeated.

The two remaining packages of cocaine were placed in a

locker in Grand Central and the key was given to Segura.

Later that night, Echeverria and a co-defendant, Carlos

Fernandez, were seen entering the station. Fernandez took

the package of cocaine from the locker and left the station

with Echeverria.

4a

Indictment 74 Cr. 18

On January 9, 1974, Echeverria and Luis Reyes, a co-

defendant in the instant case, were indicted with twenty

other defendants for violations of the federal narcotics

laws. All of the defendants were charged with conspiracy to

traffic in narcotics in violation of 21 U.S.C. §§173, 174. In

addition, Reyes and Echeverria were each charged with a

substantive offense. Echeverria was acquitted and Reyes

was convicted on the conspiracy charge only.

The facts developed at trial related to the distribution of

heroin in New York and New Jersey which had been

shipped directly from South America. The heroin was

smuggled into the United States from South America by

Hovsep Caramian. It remained in the trunk of a car at John

F. Kennedy International Airport until Roberto Arenas

and Segundo Coronel agreed to take possession of it.

Manuel Noa and Caramian went to the airport where Noa

picked up the heroin and brought it to two apartments in

Manhattan he had leased for keeping narcotics. After

testing it and selling S kilograms, Noa, suspecting that he

was being followed, gave the remaining 55 kilograms to

Arenas. Coronel told Arenas that Raul Ortega, one of the

indicted co-conspirators, would take the entire remaining

shipment. Ortega, who lived in Florida, came to New York

in mid or late February and picked up the heroin at

Arenas’ apartment on Audobon Avenue between 187th and

188th Streets. Ortega told Arenas he was taking the drugs

to his sister’s apartment in New Jersey. Subsequently,

Caramian asked Arenas to return 20 kilograms. Ortega

brought 20 kilograms back to Arenas’ apartment, but

Caramian only took 10 and Ortega left the apartment with

the other 10 in a suitcase.

On March 11, 1970, in Miami, Florida, Ortega asked

Gonzalez to assist him in distributing the 45 kilograms. He

gave Gonzalez money to buy a heat sealer to seal plastic

5a

bags and for his plane fare. During the plane ride to

Newark Airport, Ortega told Gonzalez that 3 kilograms

had already been sold to Jorge Infiesta, another defendant.

The next morning, Ortega introduced Gonzalez to his

sister and brother-in-law, Francesca and Ciro Calana, in

whose apartment Ortega was storing 20 kilograms of the

heroin.

Ortega and two co-conspirators, Gonzalez and Miguel

Rodriguez, visited various Cuban bars and restaurants in

upper Manhattan to find buyers for the heroin. The heroin

was cut at the residences of two co-conspirators, Ciro

Calana and Infiesta. Deliveries and subsequent payments

were made in various locations in New York, including a

gas station in Manhattan owned by Joaquin R. Prada, The

distribution ran from about March 12, 1970 through May

1970, and the last payments were made in September 1970.

Most of the cutting, mixing, and rebagging of the heroin

was done in the Calana’s home. On one occasion it was

done in Infiesta’s Manhattan apartment with Infiesta and

Reyes, who were partners, assisting. Reyes was in Infiesta’s

apartment on other occasions while the heroin was bagged

for distribution, and on one occasion, Reyes left the

apartment with 2'2 kilograms of heroin supplied by Or-

tega.

The Second Circuit has recently reviewed the law

regarding double jeopardy claims arising out of multiple

narcotics conspiracy prosecutions. In United States v.

Papa, Civ. No. 75-267 (2d Cir., April 2, 1976), the court

adhered to the traditional rule that the defendant bears the

initial burden of going forward to show that the

prosecutions are actually for the same offense in law and in

fact. See United States v. Mallah, 503 F.2d 971 (2d Cir.

1974), cert. denied, 420 U.S. 995 (1975); United States v.

McCall, 489 F.2d 359 (2d Cir. 1973), cert. denied, 419

U.S. 849 (1974). The offenses prosecuted in each in-

dictment will be considered the same only if the evidence

6a

required to support a conviction

on one j

— to Sustain a conviction on the hey -

ates v. Pacelli, 470 F.2d 67, 72 (2d Cir 1972) ae,

A comparison of the activiti

comp: Ctivities all

and in indictment 72 Cr. 209 jm thea

August and October 1970 j

; in the Pe i

—— Railroad Stations. The pam ee towne

irectly from Chile by a courier from Francesco pa etang

Ta

Echeverria himself was to have smuggled the narcotics into

the United States in the present indictment while in the

conspiracy charged in 72 Cr. 209 he had no contact with

the drugs until they had arrived in New York City. Fur-

thermore, the present indictment charges that the con-

spiracy began on December 2, 1970, more than a month

after the 72 Cr. 209 conspiracy had ended. Neither of these

conspiracies can be compared in size and scope to the one

described by the court in United States v. Ortega-Alvarez,

506 F.2d 455 (2d Cir. 1974), cert. denied, 421 U.S. 910

(1975). Each of these two conspiracies had completely

different personnel with the exception of Echeverria; the

principal activities in each took place on two opposite sides

of the United States. Thus it is the court’s conclusion that

the defendant has failed to come forward with any evidence

to show that these conspiracies are in fact the same entity.

The court comes to the same conclusion with respect to

the 74 Cr. 1095 indictment. Echeverria was acquitted on

charges of conspiracy and substantive offenses. The trial

indicated a large conspiracy to import and distribute

heroin directly from South America. There is no indication

that the government introduced any evidence to indicate

that Echeverria occupied a pivotal position in that con-

spiracy. The court finds it significant that although both

Reyes and Echeverria were alleged to be participants in

both conspiracies, the principals, the method of operation,

the locations of the important activities, and the majority of

the participants are entirely different.

Echeverria asks the court to conclude that since both

indictments charge violations of the same statute, they

must refer to the same conspiracy. This begs the question.

It is undoubtedly true that New York is large enough to

support two independent but simultaneous drug con-

spiracies. United States v. Mallah, supra at 983. It is to be

expected that the indictments for participation in two such

ventures will charge the defendants named therein with

violations of the same criminal statute. Surely th

, at is

sufficient to give rise to a claim of double aaa ase

The court cannot conclude that there is -

spiracy from the fact that the two adobe ng ont a

common goal and two members. In fact the goals were

different. In the instant case, the defendants allegedly

sought to distribute a comparatively small shipment of

cocaine of which they took possession in Mexico. In the

prior indictments, twenty-two defendants were alleged to

have taken part in the complex organization which

distributed a large shipment of heroin imported from

South America. The defendants used bases of operation in

New York and New Jersey. Neither Echeverria nor Reyes

were alleged to have had a pivotal role. The defendant has

ee ys showing from which the court could infer that the

prosecution is merely a part of the lar

described above. Thus with liens to Seaousints cht

relating to prior federal prosecutions, th

motion must be denied. greeny haan

Mexican Prosecution

Defendants Echeverria and Sanchez2

dismissal of this indictment based on a ne Macon hag

Mexico. As was noted above in the discussion of the instant

indictment, they were arrested in Mexico for possession of

cocaine and convicted by a trial court, but the Mexico

Court of Appeals reversed the conviction and dismissed the

indictment in an opinion and on grounds not put before the

court. For the reasons set out i

ee below, the court denies this

First, there is substantial doubt that the crim

' e ch

in Mexico is the same crime as that charged in the es

States. Although the record of the Mexican proceedings

has not been made available to the court, the Government

contends that the Mexican prosecution charged possession

of cocaine while the instant indictment charges con-

spiracy.3 Even if the first prosecution had been in a United

States federal district court, the double jeopardy clause

does not bar the prosecution of conspiracy to distribute or

sell narcotics and the substantive offense of possession of

those drugs in separate indictments. United States v.

Ortega-Alvarez, S06 F.2d at 457. This is true even where

the evidence to convict on one charge is similar to that

required for the second provided that the elements of the

crime are substantially different. United States v. Nathan,

476 F.2d 456 (2d Cir.), cert. denied, 414 U.S. 823 (1973).

Echeverria argues that where the evidence presented in the

first trial includes almost every fact alleged in the second

indictment double jeopardy prevents the second trial.

However, as the Court of Appeals for the District of

Columbia held, “[t]he issue ... does not turn on the

identity of evidence actually produced but on whether the

same evidence is required to prove the two offenses.”

United States v. Boyle, 482 F.2d 755 (D.C. Cir.), cert.

denied, 414 U.S. 1076 (1973) (emphasis in original). The

defendants cannot reasonably contend that the evidence

required to prove conspiracy to distribute narcotics is

identical to that required to prove possession.

Second, the court concludes that the prohibition against

dsouble jeopardy would not bar the trial of this offense even

if the defendants were indicted for the same crime with

which they are charged here. The Supreme Court has held

consistently that the double jeopardy clause does not

prohibit successive prosecutions by separate sovereigns for

the same criminal act. Waller v. Florida, 397 U.S. 387

(1970); Abbate v. United States, 359 U.S. 187 (1959);

Bartkus v. Illinois, 359 U.S. 121 (1959).

The defendant cites United States v. Furlong, 5 Wheat.

(18 U.S.) 184 (1820) as authority for the proposition that

an acquittal in a foreign country bars a retrial in this

country. However, for several reasons this case does not

10a

help the defendants’ position. The authority of this case is

severely undermined by the opinions in Abbare and

Bartkus. In Abbate the Supreme Court noted that Justice

Johnson had recognized the potential double jeopardy issue

that arose when the courts of another country entered a

judgment of acquittal against a defendant being charged

for the same crime in this country. The Court viewed that

situation as related to the problem it faced—whether a

prior state prosecution barred a subsequent federal one.

The Court resolved the question contrary to the way

defendants propose. Nowhere in the opinion does the Court

suggest that if the issue were to arise between the United

States and a foreign country, the Court would view that

problem any differently than it did the question of con-

secutive state and federal prosecutions. This conclusion is

further supported by Bartkus in which the Supreme Court

declined to rely on certain “dubious” English precedents

concerning the effect of foreign criminal judgments on the

ability of English courts to prosecute defendants on charges

arising from the same conduct. Bartkus, supra at 128 n.9.

In view of the Court's decision that the double jeopardy

clause does not prevent a state from prosecuting a

defendant after a federal prosecution for crimes arising out

of the same conduct, this court refuses to find a con-

stitutional bar to a trial on these charges.

This court agrees with the principles expressed by Chief

Justice Taft in United States v. Lanza, 260 U.S. 377, 382

(1922) and finds them equally applicable to the case at bar.

‘Each government in determining what shall be an

offense against its peace and dignity is exercising

its own sovereignty, not that of the other.”

To hold otherwise would unnecessarily hinder federal law

enforcement. It would be an intolerable burden to the

federal judiciary to require it to analyze criminal

prosecutions in foreign countries to determine to what

extent, if any, such prosecutions are coterminus with a

lla

pending federal action. This would require reliance upon

the records of foreign countries which as has been

demonstrated in this case are frequently difficult to obtain.

it would impinge upon the sovereignty of the United States

to hold that its authority to proceed against a criminal

defendant depends upon the absence of similar

proceedings in a foreign country.

Echeverria also .urges the doctrines of collaterial

estoppel, res judicata and comity as further grounds for

dismissing this indictment citing the reversal and acquittal

by the Mexican Court of Appeals. The court concludes that

these contentions are without merit. First, it should be

~ noted that an acquittal on a charge of possession does not

necessarily require an acquittal on a charge of conspiracy

since the elements of the crimes are different. Second, it is

clearly the law of the United States that the reversal of a

conviction by a Court of Appeals, even on the grounds that

the evidence presented to the. jury was legally insufficient,

does ont bar a retrial of those same charges. Green v.

United States, 355 U.S. 184 (1957). Where a defendant is

convicted of a charge in a trial court and that judgment is

reversed on an appeal which the defendant himself

initiated, he may be retried on any of those charges. Jones

v. Breed, 497 F.2d 1160 (9th Cir. 1974), vacated on other

grounds. 421 U.S. 519 (1975). Thus, even if the charges

were the same, the court finds no bar to the trial of these

charges. The reversal by the Mexican Court of Appeals has

in no way resulted in a conclusive determination of the

issues before this court.

Collateral estoppel, a component of the constitutional

guarantee against double jeopardy is equally unavailing.

The Supreme Court held in Ashe v. Swenson, 397 U.S.

436, 444 (1970), that collateral estoppel applies to criminal

proceedings and

‘‘fw|here a previous judgment of acquittal was

tased on a general verdict [the court must]

12a

‘examine the record of a prior proceeding, taking

into account the pleadings, evidence, charge, and

other relevant matter, and conclude whether a

rational jury could have grounded its verdict upon

an issue other than that which the defendant seeks

to foreclose from consideration.’ " (footnote

omitted).

Thus the doctrine of collateral estoppel “precludes

prosecution when an issue of ultimate fact has been

determined in a defendant's favor by a valid and final

judgment in a prior proceeding between the same par-

ties. . . . The defendant has the burden of establishing that

the issue he seeks to foreclose from the second litigation

was ‘necessarily’ resolved in his favor by the first verdict.’

United States v. Seijo, Civ. No. 75-1377 (2d Cir., June 24,

1976) at 4390 (citations omitted). It should be clear from

the above formulations why the court is not constrained to

dismiss this indictment on collateral estoppel grounds:

first, this is not a litigation between the same parties that

were before the court in the Mexican prosecution; second,

the trial court did not resolve any issue in the defendants’

favor; third, the defendant has not even tried to sustain the

burden of proof that any such issue was necessarily resolved

in his favor in the Mexican proceeding. No details of the

Mexican prosecution have been supplied; rather, the

defendant has merely reiterated repeatedly conclusory

statements about the similarity of the proceedings. Any one

of these reasons is fufficient to reject a bar to retrial under

the doctrine of collateral estoppel; the combination of the

three makes this conclusion inescapable.

The defendant urges the court to dismiss the indictment

on the ground of comity. However, comity is a doctrine of

discretion under which a court may enforce the laws of

another country where they are not contrary to its own

public policy or prejudicial to its interests. The doctrine

does not require this court to dismiss an indictment

13a

charging the commission of criminal acts in this country on

the basis that the defendant's conviction for related

criminal acts within Mexico was reversed by the appellate

court of that country. There has been no proof on the

subject of the foreign law on this subject, and there is no

authority which suggests that the court’s refusal to exercise

its discretion violates the public policy or the principles of

law of the United States. The motion is therefore denied.

As part of Echeverria’s motion on former jeopardy, he

asks this court for an order pursuant to Rule 17 of the

Federal Rules of Criminal Procedure requesting the

Mexican government to produce defendants’ trial record in

Mexico. Rule 17e(2) provides that a subpoena directed to a

witness in a foreign country shall be pursuant to the

provisions of 28 U.S.C. §1783. Section 1783, which relates

to the subpoena of a person in a foreign country, refers only

to nationals or residents of the United States who live in a

foreign country, and courts have held specifically that

aliens cannot be compelled to respond to a subpoena when

they are, at the time of issuance, inhabitants of a foreign

country. United States v. Haim, 218 F. Supp. 922

(S.D.N.Y. 1963); United States v. Best, 76 F. Supp. 138

(D. Mass. 1948), aff'd, 184 F.2d 131 (1st Cir. 1950), cert.

denied. 340 U.S. 939 (1951). Thus, the court must deny

this request as being beyond the scope of its authority.

Echeverria has also moved for an order directing the

United Stats Government to indicate and produce any

evidence and information v-hich it supplied to the Mexican

authorities in the investigation of this case. This is an

attempt to get indirectly what the defendant may not have

directly. Rule 16(a)(2) excludes from the scope of proper

discovery “reports, memoranda, or other internal

governmental documents made by the attorney for the

government or other government agents in connection with

the investigation or prosecution of the case."" Furthermore,

in response to an earlier motion by this defendant the court

l4a

has examined in camera the government's file with respect

to this case and found nothing which is relevant to the

preparation of the defense. The motion for an order

requiring the Government to produce the evidence, if any,

penn it made available to the Mexican authorities is

enied.

Echeverria has also moved for an order granting him the

right to inspect the grand jury minutes with respect to seven

specific indictments.4 However, pre-trial disclosure of the

contents of grand jury minutes is permitted only where

there is some showing of particularized need. Dennis v.

United States, 384 U.S. 855 (1966); United States v.

Ruggiero, 472 F. 2d 599 (2d Cir.), cert. denied, 412 U.S.

939 (1973); United States v. Youngblood, 379 F.2d 365 (2d

Cir. 1967). As the above discussion of the former jeopardy

issue indicates, the court is satisfied that the indictments to

which this defendant refers charge separate and distinct

conspiracies.

Echeverria has failed to do more than make conclusory

allegations about the relationship of these enterprises. The

court concludes that the defendant has failed to meet the

heavy burden which is required to violate the secrecy of the

grand jury. Campbell v. Eastland, 307 F.2d 478, 487 (Sth

Cir. 1962); cert. denied, 371 U.S. 955 (1963).

With respect to the motion to dismiss the indictment on

the ground that the defendant was singled out for

prosecution in violation of the Department of Justice policy

on double jeopardy, the defendant's papers are devoid of

any allegations which even remotely suggest the accuracy of

the statement. The motion is utterly frivolous and con-

sequently is denied.

Furthermore, the court found above that the record

Shows on its face that the conspiracies with which this

defendant has been charged are as a maiier of law distinct.

Therefore, the motion for a hearing on the issue and for an

15a

order permitting the defendant to present the question to

the jury is denied. Short v. United States, 91 F.2d 614 (4th

Cir. 1937).

Defendant Sanchez has moved this court for dismissal of

the indictment on the ground that this prosecution subjects

the defendant to double jeopardy in that this indictment

charges the same conspiracy as the one charged in in-

dictment 72 Cr. 735 upon which a judgment of conviction

was entered in the Southern District of Florida. The

defendant must sustain the initial burden of going forward

with respect to this claim. United States v. Mallah, supra.

There is an absolute failure of proof with respect to this

motion. The defendant has provided no memorandum, no

affidavit, not even a copy of the Florida indictment in

question. Furthermore, the minutes of a hearing on this

indictment held on February 26, 1973 indicate that the

charges involve a conspiracy to impede the Internal

Revenue Service in its audit of and collection of taxes from

two corporations and two individuals. These charges are

clearly different from those charged in the instant in-

dictment. Consequently the motion is denied.

Both Echeverria and Sanchez move to dismiss the in-

dictment on the ground that it is barred by Article 36,

para. 2(a)(i) of the Single Convention on Narcotic Drugs of

1961 to which Mexico and the United States are both

signatories. For the reasons stated below, the court denies

the motion. The thrust of the defendants’ argument is that

the treaty gives countries jurisdiction over criminal acts

over which they would not ordinarily have jurisdiction.

Thus where several acts in different countries are all part of

one criminal enterprise, the country in which the principal

acts were committed has jurisdiction to prosecute the

defendant for all of the acts committed in furtherance of

the offense irrespective of the actual location in which they

were performed. The court agrees that this is one of the

principle objectives of Article 36 of the Convention.

16a

The general commentary to Article 36 provides that:

“6. .. . [A]rticle 36 . . . tries to ensure that [for]

all activities of the illicit traffic and all forms of

participation in such activities not only the

principal offenders|,| but also their accomplices,

will be prosecuted, that activities of the illicit

traffic will be subject to penal sanctions even fi they

have not been completed (preparatory acts,

conspiracy and attempts) [and] that criminals will

not escape prosecution and punishment on the

technical ground of lack of local jurisdiction in the

country in which they are found. ... ”

However, the purposes of Article 36 are not limited to

achieving only these objectives. On the contrary the

commentary makes it clear that the purpose is to create

and expand jurisdiction over drug-related offenses without

offending national law. Thus paragraph 2(a)(i) provides,

“Subject to the constitutional limitations of a Party, its

legal system and domestic law, (a)(i). Each of the offences

enumerated in paragraph 1, if committed in different

countries, shall be considered as a distinct offence.”

Thus as the commentary states explicitly, “If the above-

mentioned acts are committed in different countries and

are consequently considered as distinct offences, each of

these countries would have jurisdiction, on the basis of the

universally accepted principle of territoriality, over those

acts which were committed on their respective territories.”

(footnote omitted). The Convention, as it makes clear by its

reference to the domestic law of each Party, intends its

principles to become law only to the extent that they do not

violate a particular Party’s law of double jeopardy. Subject

only to that limitation,

“2. ... The purpose of clause (i) is to give the

courts of a country the necessary territorial

jurisdiction in cases where they might not

17a

otherwise possess it, and in particular to ensure

that a country shall have territorial jurisdiction

over accessory acts even though the principal acts

were not committed in its territory and even though

it in general assigns jurisdiction over accessory acts

to the courts in whose districts the principal acts

were committed’’ (footnote omitted). Com-

mentary, Single Convention on Narcotic Drugs,

1961, Art. 36, para. 2(a)(i).

As was made clear above, the instant prosecution does

not violate the principles of double jeopardy as applied by

the United States. It would be a perversion of the treaty’s

intent to find that it imposes a stricter rule of double

jeopardy to the offenses to which the treaty applies than the

United States would ordinarily apply in cases of successive

prosecutions. As the commentary to paragraph 2(a)(ii)

indicates, the drafters were primarily concerned with those

jurisdictions in which “‘preparatory acts” are not a general

category of punishable behavior or in which conspiracy

may be prosecuted only as part of the substantive offense.

The Convention encourages those Parties to view narcotic

offenses as such grave acts as to warrant the separate

prosecution of preparatory acts, provided that such

prosecution would not violate that country’s law of double

jeopardy. Defendant’s motion with respect to the Single

Convention is denied.

Defendants Sanchez and Echeverria have also moved for

dismissal of the indictment as violating their rights under

the sixth amendment, Rule 48(b) of the Federal Rules of

Criminal Procedure, and the due process clause of the fifth

amendment. This court believes that the holding of United

States v. Marion, 404 U.S. 307 (1971) dictates a denial of

these motions. :

The defendants, recognizing that there is little if any

authority for dismissal of an indictment solely on the

ground of pre-indictment delay.» suggest that the court

18a

consider their arrests and trial in Mexico as constituting

them as “‘accuseds’’ pursuant to Dillingham v. United

States, 44 U.S.L.W. 3327 (U.S., Dec. 1, 1975), thus af-

fording them the protection of the sixth amendment and

Rule 48(b). However, as was discussed above the court is

not bound by the actions of the Mexican court irrespective

of the fact that American agents may have participated in

the arrests or provided information which lead to them.

In Marion the defendants’ company had been subject to

a Federal Trade Commission cease-and-desist order and a

series of newspaper articles had named the company as one

engaging in fraudulent practices employed by home im-

provement firms. The article also quoted the United States

Attorney for the District of Colombia, describing the

activities of such companies and predicting forthcoming

indictments. The United States Attorneys office asked the

company to produce its records for inspection and in-

terviewed Marion. Yet it was not until two years later that

an indictment was handed down, three years after the

alleged occurrence of the criminal acts. Nonetheless, the

Court held that the defendants had not become “‘accuseds”’

until the indictment was filed. The defendants had been

subjected to adverse publicity in their own district and were

definitely aware that their activities were being investigated

by the United States Attorney, yet, the Court refused to

find that these burdens were sufficient to constitute the

defendants as accuseds.

: Here, the defendants were arrested, convicted and

discharged in a foreign country. There was no continuing

investigation by the United States Attorney with respect to

this particular enterprise, until October of 1975. The

United States government did not formally charge these

defendants or take any other action which would result in

these defendants becoming ‘‘accuseds.” In United States v.

Ewell, 383 U.S. 116, 120 (1966), the Court recognized that

the purpose of the sixth amendment was “‘to prevent undue

19a

and oppressive incarceration prior to trial, to minimize

anxiety and concern accompanying public accusation and

to limit the possibilities that long delay will impair the

ability of the accused to defend himself.” Except perhaps

to the last® these principles have not been violated. The

defendants have not suffered substantial incarceration or

lengthy public accusation and obloquy. Thus the court

finds that the rule stated in Marion, which limits the

guarantees of the sixth amendment to those who have been

accused of a crime, should apply in the instant case.

The same rule applies to Federal Rule of Criminal

Procedure 48(b) which by its terms applies to defendants

“who halve] been held to answer to the district court.”

“The rule clearly is limited to post-arrest situations.”

United States v. Marion, supra at 319 and cases cited

therein.

The defendants assert that their defenses have been

severely prejudiced by the ‘delay in filing the indictment.

They argue that even if the court denies the motion under

the sixth amendment and Rule 48(b) the motion should

nonetheless be granted pursuant to the dictates of the due

process clause. As the Supreme Court held in Marion, if

the defendants succeed in showing at trial that the pre-

indictment delay has caused substantial prejudice to their

rights to a fair trial and that the delay itself was an in-

tentional device used by the Government to gain a tactical

advantage over the accused, the court must at that time

dismiss the indictment as violative of the due process clause

of the fifth amendment. The court must await the

Government's proof at trial and the defense’s showing of

prejudice to determine the extent, if any, of the actual

prejudice to the defendant caused directly by the delay. In

doing so the court will keep in mind the Supreme Court's

admonition that every delay-caused detriment to a

defendant's case does not necessarily require the dismissal

of a criminal prosecution. Hoffa v. United States, 385 U.S.

293 (1966).

20a

Echeverria also asserts that his right to a speedy trial has

been violated by the eight-month delay since his indictment

and urges the court to dismiss the indictment on that

ground. This the Court will not do. In Barker v. Wingo,

407 U.S. 514 (1972), the Supreme Court explained the

balancing process which the court must conduct to

determine whether a defendant's right to a speedy trial has

been violated. The four factors which the Court identified

as important were the length of the delay, the reason for the

delay, the defendant's assertion of his right, and the

prejudice to the defendant. As this court has indicated

previously, Sanchez and Echeverria have filed numerous

and untimely pre-trial motions and Echeverria has failed to

comply with directives of this Court. These defendants were

indicted eight months ago; they have been released on bail

for all but one week of that time. The Government filed a

notice of readiness for trial as of March 1, 1976, four

months after the filing of the indictment. The remaining

four months have been consumed with defendants’

motions.’ Under these circumstances the court finds no

denial of defendants’ right to a speedy trial.

Defendant Sanchez moved for dismissal of the in-

dictment on the ground that in exchange for a plea of nolo

contendere the Government agreed not to prosecute him

for charges known to it at the time of the plea. The court

finds that the Government did know of this offense at that

time and agrees that if the United States Attorney for the

Southern District of Florida had made such an agreement,

the United States Attorney in this district would be bound

by that agreement. However, the minutes of a hearing held

on February 26, 1973 and those of the sentencing on March

1, 1973 do not support the contention that the prosecutor

agreed that Sanchez would be immune from further

prosecution. Both hearings include extensive discussions

regarding the contents of the agreement. Twice Sanchez

acknowledged that the terms, as stated, were correct and

2la

that no additional promises were made. The court denies

the motion.

There are a few remaining miscellaneous requests in

these motion papers which have already been resolved by

this court during hearings on this matter. The court will

merely reiterate those holdings for purposes of the record.

As to Echeverria’s motion, filed February 2, 1976, the

court has granted and the Government has complied with

defendant's request for an order directing the Government

to furnish copies of the exhibits introduced at a pre-

indictment delay hearing before the Honorable Judge

McMahon. In all other respects the February 2, 1976

motion has been denied.

As to Sanchez’s motion filed March 9, 1976, the court

will hold a suppression hearing just prior to the com-

mencment of the trial with respect to Items V and VI. With

respect to Items VIII and IX, the court entered an order on

May 28, 1976. In open court, Item XIV was granted. In all

other respects, the motion is denied.

The effect of this decision is to deny entirely the motions

filed by Echeverria on March 22, 1976 and April 28, 1976.

With respect to requests for additional time to move

against the indictment, the defendants may at any time

during the trial move against the indictment. However, the

time for such pre-trial motions has long since passed. Such

requests are, therefore, denied.

SO ORDERED.

DATED: New York, New York

July 16, 1976.

s/ Henry F. Werker

ike % Gis

22a

UNITED STATES v. SANCHEZ and ECHEVERRIA, 75

Civ. 1095 (HFW)

NOTES

1. Orders of nolle prosequi were filed on 4/14/72 with

respect to 71 Cr. 1344 and 72 Cr. 179. 72 Cr. 1115 does not

name Echeverria as an indicted co-conspirator. 73 Cr. 950

was superseded by 74 Cr. 18.

2. With the exception of a notice of motion, a brief

recitation of the facts surrounding the defendant’s arrest in

Mexico and a translation of the Mexican statute under

which he was charged, Sanchez has not submitted any

affidavits or a memorandum of law with respect to his

motion to dismiss the indictment on the grounds that it is

barred by double jeopardy, collateral estoppel and res

judicata because of the Mexican prosecution. Thus the

defense’s contentions to which the court refers are those of

defendant Echeverria. However, the court will consider the

arguments as if Sanchez had advanced them also.

3. Echeverria concedes that Mexico does not have the

crime of conspiracy but urges the court to consider the

possession charge as its functional equivalent.

4. Defendant Sanchez has made a similar motion with

respect to the Grand Jury Minutes for this indictment and

for 72 Cr. 73S again without any supporting material. The

court will again treat Mr. Echeverria’s motion as though it

had been made on behalf of both defendants.

S. See United States v. Marion, 404 U.S. at 315 & nn.

7&8.

6.See discussion regarding deprivation of due process,

infra.

7. For the record, the following is a list of the motions

which have been filed to date:

23a

FOR SANCHEZ

1. motion filed December 16, 1975 seeking

return of all personal property; |

2. motion without supporting affidavit filed

January 5, 1976 (refiled on March 11 after com-

pliance with local rule 3) seeking (1) to dismiss

indictment on the ground of double jeopardy, (2)

to dismiss indictment on the grounds of double

jeopardy, res judicata, and collateral estoppel, (3)

to dismiss the indictment for denial of speedy trial

based on pre-indictment delay, (4) to prohibit use

of evidence as fruit of an illegal search and seizure

or electronic surveillance, (5S) to prohibit use of

evidence obtained in violation of fifth and sixth

amendments, (6) to permit defendant to inspect

grand jury minutes, (7) to permit defendant to

travel to every place, among others, where overt act

committed, (8) bill of particulars, (9) discovery and

inspection, (10) to dismiss indictment for

repugnancy, (11-13) severance on several grounds,

(14) to permit defendant to join in motions of co-

defendants;

3. motion filed May 24, 1976 to dismiss in-

dictment on the ground that the Government had

agreed not to prosecute defendant for these

charges; :

4. motion filed July 2, 1976 to dismiss for denial

of speedy trial based on post-indictment delay.

FOR ECHEVERRIA

1. motion filed December 16, 1975 to proceed

pro se;

2. motion filed December 16, 1975 for return of

personal property and to suppress all evidence

obtained at time of arrest;

24a

3. motion filed January 5, 1976 for more time to

make motions;

4. motion filed January 6, 1976, returned for

failure to comply with Local Rule 3;

S. motion filed February 2, 1976 seeking (1) to

dismiss indictment for denial of speedy trial based

on pre-indictment delay, (2) to obtain copies of

Government exhibits in former proceedings, (3) to

obtain documents, internal memoranda and 3500

material;

6. motion filed March 9, 1976 to suppress

evidence unlawfully seized;

7. motion filed March 9, 1976 seeking (1) to

suppress statements taken in violation of fifth and

sixth amendments, (2-4) severance on several

grounds, (S) a Government paid, defense-chosen

expert assistant, (6) to join in all motions of co-

defendants, (7) a hearing on factual issues raised in

motion, (8) to dismiss the indictment for

repugnancy, (9) additional time to move against

the indictment;

8. motion filed on March 22, 1976 seeking (1) to

dismiss indictment on grounds of former jeopardy,

res judicata, coilateral estoppel, and comity, (2) an

order requesting information from Mexican

Government, (3) an order directing Government to

produce certain information and evidence, (4-5) to

dismiss the indictment on the ground of double

jeopardy, (6) to permit defendant to inspect grand

jury minutes, (7) to dismiss indictment because

defendant was singled out for prosecution in

violation of Department of Justice policy on double

jeopardy, (8) for a hearing on factual issues raised

by motion, (9) to permit defendant to submit

former jeopardy issue to jury;

25a

9. motion filed March 29, 1976 to direct

Government to stop illegal and unethical conduct;

10. motion filed April 5, 1976 to dismiss the

indictment because cocaine has been misclassified

as a narcotic drug;

11. motion filed April 5, 1976 for appointment

of Martin Sostre as trial interpreter;

12. motion filed April 13, 1976 for prompt

disposition of the case;

13. motion filed April 17, 1976 for court to

disregard prosecutor’s statements;

14. motion filed April 21, 1976 to dismiss in-

dictment based on additional actual prejudices;

15. motion filed April 23, 1976 to dismiss in-

dictment for failure to allege violation of statutes

on which indictment is based;

16. motion filed April 23, 1976 seeking (1) to

dismiss indictment for pre-indictment delay, (2)

permission to travel to Mexico, (3) travel expenses;

17. motion filed April 28, 1976 to require

Government to produce files from archives;

18. motion filed April 28, 1976 to dismiss in-

dictment pursuant to Single Convention on

Narcotic Drugs;

19. order to show cause filed May 27, 1976 to

obtain exhibit;

20. motion filed June 2, 1976 to dismiss in-

dictment for denial of speedy trial based on post-

indictment delay;

21. order to show cause filed June 30, 1976 to

obtain facts and documents;

22. motion filed July 1, 1976 seeking (1) a bill of

_ particulars, (2) discovery and inspection, (3) in-

oe a

26a

formation regarding Government informer, (4)

additional time to move against indictment.

FOR REYES

1. motion filed June 7, 1976 seeking (1) to

dismiss the indictment pursuant to the Con-

stitution and the Federal Rules of Criminal

Procedure, (2) additional discovery, (3) to join in

motions of all other defendants.

27a

APPENDIX B

JUDGMENT OF T iE UNITED STATES

COURT OF APPEALS FOR THE

SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Cour-

thouse in the City of New York, on the twenty-ninth day of

March one thousand nine hundred and seventy-seven.

Present: HON. WALTER R. MANSFIELD

HON. MURRAY I. GURFEIN

Circuit Judges

HON. JON O. NEWMAN

District Judge

United States of America,

Plaintiff-Appellee

Vv.

Gerardo Sanchez,

Defendant-Appellant.

77-1020

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel.

28a

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed.

A. DANIEL FUSARO

Clerk

by

Arthur Heller

Deputy Clerk