Petition — Gorthy v. United States

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

YCTOBER TERM, 1976

76-1808

NO.

UNITED STATES OF AMERICA,

Respondent

Vv.

JOHN PAUL GORTHY,

Petitioner

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Fritoux & Woo.LF

C. ANTHONY FRILOUX, JR.

GERALD A. WOOLF

806 Main Street, Suite 900

Houston, Texas 77002

713/237-8404

Attorneys for Petitioner

John Paul Gorthy

_———— OS

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

SUBJECT INDEX

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LIST OF AUTHORITIES

CASES Page

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

State v. Rice, 235 N.E.2d 732 (Ohio 1968) ............

Trigg v. Mosley, 433 F.2d 364 (10th Cir. 1970) ........

U.S. v. Baumgarten, 517 F.2d 1020 (8th Cir. 1975) .....

US. v. Colitto, 319 F.Supp. 1077 (E.D. N.Y. 1970) ...

U.S. v. Dallago, 311 F.Supp. 227 (E.D. N.Y. 1970) ...

U.S. v. Dyson, 469 F.2d 735 (Sth Cir. 1972) ...........

We i Me, Ge es OO CUED oc ceccccccsacceccess

U.S. v. Geller, 481 F.2d 275 (9th Cir. 1973) ...........

US. v. Lasker, 481 F.2d 229, 237 (2nd Cir. 1973) ......

U.S. v. Mark II Electronics of Louisiana, Inc., 309 F.Supp.

Se a, OEE 0b 6n65000664000600 20 cud bee ces

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STATUTES

Rule 48(b) Federal Rules of Criminal Procedure ........ 5,6, 10, 11

Rule 50(b) Federal Rules of Criminal Procedure ......... 5,10, 11

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CONSTITUTION

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO.

UNITED STATES OF AMERICA,

Respondent

Vv.

JOHN PAUL GORTHY,

Petitioner

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, John Paul Gorthy, prays that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit rendered

in the above case.

OPINIONS BELOW

Petitioner, John Paul Gorthy, was indicted on March

26, 1976, in cause number 76-C-52 in the United States

District Court for the Southern District of Texas, Corpus

Christi Division, on one count of unlawful possession of

marijuana, with intent to distribute a controlled substance

2

under Schedule I of the Controlled Substance Act of

1970, to-wit: approximately four hundred twenty seven

(427) pounds of marijuana, in violation of Title 21,

United States Code, Section 841(a)(1).

Petitioner entered a plea of “Not Guilty” and waived

his right of a jury trial and was tried before the Court

in Corpus Christi, Texas. On July 15, 1976, prior to

commencement of the trial, the Court heard evidence on

Petitioner’s Motion to Dismiss Indictment for Denial of

a Speedy Trial and thereafter overruled the Motion

and proceeded to trial. On July 23, 1976 the trial court

issued its order denying Petitioner’s Motion to Dismiss

Indictment for Denial of a Speedy Trial and finding

Petitioner guilty beyond a reasonable doubt of the crime

charged by the indictment. A copy of that Memorandum

and Order is printed as Appendix “A” to this petition.

After receiving sentence, Petitioner timely filed Notice

of Appeal with the United States Court of Appeals for the

Fifth Circuit. The opinion of the United States Court of

Appeals for the Fifth Circuit was rendered on April 15,

1977 and is as yet unpublished. A copy of that Opinion

is printed as Appendix “B” to this petition. The order of

the Court of Appeals below denying Petitioner’s Petition

for Rehearing was entered on May 19, 1977, and is

printed as Appendix “C” to this petition.

JURISDICTION

The judgment sought to be reviewed from the United

States Court of Appeals for the Fifth Circuit was origin-

ally entered on April 15, 1977. Appellant’s request for

Rehearing was denied without opinion on May 19, 1977.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. Section 1254(1).

3

QUESTIONS PRESENTED

How much delay between arrest and trial must expire

before a defendant is denied his right to a speedy trial?

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, 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, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel

for his defense.”

STATEMENT OF THE CASE

In a Memorandum and Order filed on July 23, 1976,

the Court explained its reasons for overruling the Motion

to Dismiss the Indictment for lack of Speedy Trial and

made fact findings. The following is quoted from the

Order of July 22, 1976:

“The facts as the Court found them, and upon

which the Court based its finding of Defendant

Gorthy’s guilt, are that on or about the Ilth day

of November, 1974, Ed Gerusa, a United States

Border Patrol Officer, was working the permanent

alien checkpoint below Sarita, Texas, when a Dodge

motorhome, driven by Defendant Gorthy, stopped

4

at the point. There was nothing suspicious about

the vehicle or its passengers prior to the time it

stopped. Border Patrol Officer Gerusa, who was on

the point, testified that he questioned the Defendart

and a female passenger in the cab of the vehicle. as

to their citizenship. Gerusa then testified he noticed

the silhouette of a third person located in the motor-

home living quarters. He further narrated that he

asked Defendant Gorthy if he, Gerusa, could open

the side door to the living quarters of the motorhome

and question the third person as to his citizenship.

The officer then stated that he opened the door, and

still standing on the ground, leaned into the living

area so as to better see and question said third

person. In doing this, Officer Gerusa stated that he

detected a strong odor of marijuana emanating

from within the living quarters. The door of a nearby

closet was opened by Officer Gerusa, who found

there burlap bags of marijuana. A subsequent search

of the vehicle revealed approximately 428 pounds of

marijuana inside the vehicle.”

After the search and arrest, Petitioner was placed in

Nueces County Jail and bond was set at Ten Thousand

Dollars ($10,000.00), 10% deposit. On November 21,

1974 Appellant deposited One Thousand Dollars

($1,000.00) with the United States District Clerk and was

released on bond and allowed to return home to Key

Largy, Florida, pending further disposition of his case.

At the time of his arrest at the Sarita checkpoint,

Petitioner was the owner/driver of a 1973 Dodge Hunts-

man motorhome valued at approximately Ten Thousand

Dollars ($10,000.00). After the search of the Dodge

Huntsman motorhome and the arrest of Petitioner, the

motorhome was seized by the Border Patrol and Drug

Enforcement Agency and has remained in the possession

5

of the United States Government since the date of Pe-

titioner’s arrest.

On October 16, 1975, eleven months after the arrest,

counsel for Petitioner contacted United States Magistrate

Phillip A. Schraub and requested a speedy disposition of

Petitioner's pending complaint. Shortly thereafter, Peti-

tioner filed a Motion to Quash the Complaint and Re-

turn Security Deposited as Bond and on March 9, 1976,

Petitioner filed a Supplemental Motion to Quash the Com-

plaint and Return Security Deposited as Bond and therein

set out specifically the number of Grand Juries which

had been convened since the date of his arrest and a num-

ber of other indictments returned by Corpus Christi Di-

vision Grand Juries during the intervening seventeen

months. Two weeks later on March 26, 1976, Petitioner

was indicted.

REASONS FOR GRANTING THE WRIT

Petitioner claims that the Trial Court committed error

when it did not dismiss the indictment because of failure

by the Government to comply with the Southern District

of Texas’ Speedy Trial Plan for the prompt disposition

of criminal cases adopted under the mandate of Rule

50(b), Federal Rules of Criminal Procedure, and 18

U.S.C. Section 3164, a denial of the right to a speedy

trial as guaranteed by the Sixth Amendment, an unneces-

sary delay in bringing the Petitioner to trial in violation

of Rule 48(b), Federal Rules of Criminal Procedure.

Rule 48(b) provides:

“If there is unnecessary delay in presenting the

charge to a grand jury or in filing an information

6

against a defendant who has been held to answer

to the district court, or if there is unnecessary delay

in bringing the defendant to trial, the court may

dismiss the indictment, information, or complaint.”

The Sixth Amendment provides in pertinent part that:

“In all criminal prosecutions, the accused shall enjoy

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

While Rule 48(b) is a statutory enactment of the Sixth

Amendment right to a speedy trial, the Rule contemplates

more:

“It is a restatement of the inherent power of the

court to dismiss a case for want of prosecution, and

that power of the court is not circumscribed by the

Sixth Amendment.” U.S. v. Dallago, 311 F. Supp.

227 (E.D.N.Y., 1970). 3 Wright, Federal Practice

& Procedure, Section 814 at 309, 310.

Petitioner was arrested on November 19, 1974, for

possession with intent to distribute marijuana and placed

in Nueces County Jail and bail was set at Ten Thousand

Dollars ($10,000.00), ten per cent (10%) deposit. Two

days later Petitioner posted bond and was released. Seven-

teen (17) months thereafter, on March 26, 1976, Pe-

titioner was indicted and trial began on July 15, 1976,

over twenty-one (21) months after his arrest.

In considering whether a defendant has been denied

his Sixth Amendment Constitutional right for a speedy

trial, this Court in Barker v. Wingo, 407 U.S. 514 (1972)

has delineated the criteria by which such claims are to be

judged. This case established a balancing test, in which

the conduct of both the prosecution and defendant are

7

weighed and identified four factors which are of prime

importance: length of delay, a reason for the delay, the

defendant’s assertion of his right, and prejudice to the

defendant. These factors are not to be treated independ-

ently as separate prerequisites to the Sixth Amendment

mandate for a speedy trial, but rather they are inter-

related factors and must be considered together with such

other considerations as may be relevant to the particular

case. See e.g., United States v. Baumgarten, 517 F.2d

1020 (8th Cir. 1975); United States v. Geller, 481 F.2d

275 (9th Cir. 1973); United States v. Lasker, 481 F.2d

229, 237 (2nd Cir. 1973).

(a) Length of Delay

Turning to an examination of the factors as they relate

to this case the threshold question of the length of delay

of over twenty-one (21) months appears to be long

enough delay to trigger the considerations of the other

balancing factors. Barker v. Wingo, supra, 407 U.S. at

530-31.

(b) Reason for the Delay

The government has not come forward with any expla-

nation for the twenty-one (21) month delay in the prose-

cution of the Petitioner, and therefore, any assumption

made by the Petitioner for the delay would be mere

speculation. However, since the date of the arrest on

November 19, 1974, the government had all the investi-

gation it needed to go to trial. This was not a complex

conspiracy case with numerous witnesses and surveillance,

and all the government’s witnesses and evidence had been

at the government’s fingertips since the date of the arrest.

Therefore, any delay or negligence in bringing this case

8

to trial was solely on behalf of the Office of the United

States Attorney.

The United States Court of Appeals for the Fifth Cir-

cuit held that the government has a duty to press criminal

cases to trial, to give them any necessary priority and to

prevent whenever possible, even the suggestion of stale-

ness. United States v. Mark II Electronics of Louisiana,

Inc., 305 F.Supp. 1280 (E.D. La. 1969). Additionally,

the Petitioner points out that he never requested any

continuance or extension of time. Any delay in the prose-

cution of Petitioner was not of his making. Therefore, a

twenty-one (21) month delay, in light of the simple

nature of this case and without justification, violates the

expeditiousness requirement of the Sixth Amendment.

(c) Prejudice to Defendant

Many courts have held that this aspect of the right to

a speedy trial is the most important factor to be con-

sidered, e.g. United States v. Mark II Electronics of Lou-

isiana, Inc., supra; Trigg v. Mosley, 433 F.2d 364 (10th

Cir. 1970); State v. Rice, 235 N.E.2d 732 (Ohio 1968).

Our Constitution presumes prejudice from the fact of trial

other than speedy. Otherwise, the constitutional guarantee

has no purpose. This Court has stated generally that the

right to a speedy trial exists, “. . . . to prevent undue and

oppressive incarceration prior to trial, to minimize anxiety

and concern . . . . and to limit the poss?bility that long

delay will impair the ability of an accused to defend him-

self.” United States v. Ewell, 383 U.S. 116 at 120 (1966).

In the present case, the delay of seventeen (17) months

before the prosecution was even begun and twenty-one

(21) months until the trial was both unnecessary and of

9

substantial length, and it therefore follows that Petitioner’s

Sixth Amendment right to be free of the needless personal

hardship and anxiety attendant to an unnecessary delay

in prosecution has been significantly invaded. United

States v. Colitto, 319 F.Supp. 1077 (E.D. N.Y. 1970).

Additionally, Petitioner testified regarding his economic

difficulties during the period of the government’s inaction

and has established a prima facie case of prejudice. United

States v. Dyson, 469 F.2d 735 (Sth Cir. 1972).

(d) Petitioner’s Assertion of His Right to a Speedy

Trial

Petitioner has diligently asserted his right and attempted

to obtain a speedy trial. On October 16, 1975, Petitioner

filed a letter with United States Magistrate Phillip A.

Schraub requesting that his case be presented to a grand

jury or be dismissed. When he received no action on this

request for a speedy presentation of his case to a grand

jury, Petitioner filed a Motion to Quash Complaint and

Return the Security Deposit as Bond setting out in detail

the reasons why his complaint should be quashed, those

reasons being based on the fact that although he was

arrested almost seventeen (17) months ago his case has

still not been presented to a grand jury and he had not

been indicted.

In a further effort to obtain a speedy trial and in sup-

port of his Motion to Quash the Complaint and Return

Security Deposited as Bond, Petitioner filed a Supple-

mental Motion to Quash the Indictment on the 9th day

of March, 1976, wherein he set out the specific number

of grand juries that had convened since November 19,

1974, and totaled the number of indictments which were

10

returned by the Corpus Christi Division grand juries since

November 19, 1974.’

Petitioner attempted in every way known to him to

obtain a speedy indictment and speedy trial. Under the

existing law it is not his duty, but rather the government's

duty to seek prosecution. It is commonly understood that

a defense attorney will hesitate to disturb the hushed

inaction by which dormant cases have been known to

expire.

It seems to be apparent that the United States Govern-

ment is attempting to do prior to the indictment of Peti-

tioner, that which it would prohibited from doing by the

Sixth Amendment, Rule 48(b), Rule 50(b), and “The

Plan” after Petitioner had been indicted.

This Court has sanctioned the promulgation, by courts

or legislatures, of stringent non-constitutional quantitative

tests for determining if there had been a violation of the

accused’s right to a speedy trial. Just such a test was

created by “The Plan” prepared by the District Courts

of the Southern District of Texas pursuant to the com-

1. These figures are as follows:

October 20, 1975 2 Indictments;

October 24, 1975

December 15, 1975

16 Indictments;

35 Indictments;

1. February 11, 1975 31 Indictments;

2. March 28, 1975 12 Indictments;

3. May 12, 1975 1 Indictment;

4. June 2, 1975 6 Indictments;

5. June 18, 1975 5 Indictments:

6. September 19, 1975 15 Indictments;

7.

8.

9.

10. December 19, 1975 45 Indictments.

In 1975 a total of One Hundred Sixty Eight (168) Indictments

were returned by Corpus Christi Grand Juries.

In 1976, the Grand Jury convened one (1) time prior to this

indictment on February 19, 1976, and returned fourteen (14) in-

dictments.

smee ee

ii

mand of Rule 50(b). “The Plan” merely flushes out the

skeleton of Rule 48(b), by giving content of the sweeping

phrase, “unnecessary delay”; “The Plan” places affirmative

duty on the Government to bring defendants to trial. Be-

cause defendants have no burden under “The Plan”, neither

lack of prejudice nor lack of demand on the part of the

defendants will justify non-compliance by the Government

or the courts.

Granted “The Plan” was also written to be effective

only after a defendant has been indicted. However, one

must look, if possible, into the minds and intentions of

the judges in the Southern District of Texas who created

“The Plan” and ask if the actions of the United States

Government in this case, does not violate the very essence

of why implementation of such a plan became necessary.

The purpose of “The Plan” is to minimize undue delay

and to further the prompt disposition of criminal cases

and to protect a defendant’s constitutional right to a

speedy trial.

Petitioner John Paul Gorthy had no way to assert his

right to a speedy trial prior to indictment, and, under

the law and “The Plan” it was not his duty, but rather

the Government had such duty. In any event, Petitioner’s

assertion or failure to assert his right to a speedy trial is

just one of the many factors to be considered in the bal-

ancing test inquiry into the depreciation of his constitu-

tional rights. The length of delay, the reason for delay,

and the prejudice to the defendant, outweigh, by far, the

defense counsel’s understandable reluctance to secure his

client’s constitutional rights to a speedy trial. However,

here as noted in the opinion of the United States Court

of Appeals for the Fifth Circuit, Petitioner had asserted

his right and did attempt to obtain a speedy trial.

12

The Government has not offered any explanation for

this unreasonable delay other than to rely on statistics

compiled by Petitioner showing that more than one hun-

dred seventy two (172) indictments have been returned

by eleven (11) grand juries convened in the Corpus

Christi Division of the Southern District of Texas. This

obviously is not sufficient for such undue delay in light

of Petitioner’s repeated requests for a speedy trial.

CONCLUSION

Petitioner respectfully concludes to the Court that the

unreasonable delay of more than twenty-one (21) months

from the time of his arrest to the date of trial was a denial

of his right to a speedy trial and therefore his indictment

should be dismissed. For the reasons stated above the

conviction should be reversed and the cause remanded to

the trial court with directions to dismiss the indictment.

Respectfully submitted,

Fritoux & WooLF

806 Main Street, Suite 900

Houston, Texas 77002

713/237-8404

C. ANTHONY FRILOUX, JR.

GERALD A. WOOLF

Attorneys for Petitioner

John Paul Gorthy

eee

eee

13

CERTIFICATE OF SERVICE

This is to certify that copies of the foregoing Petition

for Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit were mailed to Mr. Edward

McDonough, United States Attorney, attorney for Re-

spondent, Federal Building, 515 Rusk, Houston, Texas

77002, on the day of June, 1977, by depositing

same in the United States Mail properly stamped and

addressed.

GERALD A. WOOLF

15

APPENDIX “A”

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CR. NO. 76-C-52

UNITED STATES OF AMERICA

Vv.

JOHN PAUL GORTHY and

WILLIAM SHAWN BOLTON

(Filed July 23, 1976)

MEMORANDUM AND ORDER

Defendants John Paui Gorthy and William Shawn

Bolton were charged in a one-count indictment with

possession with intent to distribute approximately 427

pounds of marijuana, a controlled substance under Sec-

tion 812(c)(10) of the Controlled Substances Act of

1970, in violation of 21 U.S.C. §841(a)(1). The Court

called the case for trial on July 15, 1976. The jury had

been previously selected. The Defendant Bolton, through

his attorney, requested a delay because he was hospitalized

and unable to proceed with the trial at this time. The

Defendant Gorthy, not wanting the delay, agreed to waive

a trial by jury if his trial could proceed before the Court

without delay. Consequently, the Court severed the case

against Defendant Gorthy and the jury trial of Defendant

Bolton was reset for the 22nd day of July, 1976. The case

against Defendant Gorthy, after he had executed a waiver

of jury trial, proceeded to trial before the Court. This

16

memorandum and order is concerned only with the trial

of John Paul Gorthy.

The first matter the Court considered was Defendant

Gorthy’s motion to dismiss the indictment against him

because of the delay from arrest to indictment of 18

months, in contravention of 18 U.S.C. §3161(b) and (f),

the Speedy Trial Act. Such motion, after the Court heard

the evidence presented, was denied. The nature of the

evidence presented and the basis of the Court’s denial of

such motion will be discussed later on in this Memoran-

dum and Order.

Before the government proceeded with its case in chief,

the Court announced that Defendant’s motion to suppress,

which had been timely filed, was to be carried along

and that, at the conclusion of the government’s case, the

Defendant would have an opportunity to put on evidence

for the limited purpose of the motion to suppress.

Since this case is a so-called checkpoint case and in-

volves the stopping of a Dodge motorhome at the Sarita,

Texas, checkpoint, the Court then took judicial notice of

the location, justification and other physical aspects of

said Sarita checkpoint, and it signed an order putting

into the record as evidence Court’s Exhibits “A” and “B,”

being orders of this Court filed on July 30 and September

12, 1974, in United States of America v. J. > Asencion

Garcia, Cr. No. 72-C-62, in the ©. .ict <.omrt for the

Southern District of Texas, Corpus Christi Livision. These

orders made detailed findings of fact concerning said

Sarita, Texas, checkpoint.

At the conclusion of the government’s case, the De-

fendant took the stand and testified on his motion to

suppress. He attacked the validity of the stop of the

17

vehicle involved and the manner in which it was searched

and the seizure of the marijuana was made. Thereafter,

the Court orally and in open court denied the motion

to suppress. The Defendant then rested and closed.

The Court found the Defendant guilty of the offense

charged in the indictment. In doing so, the Court briefly

stated certain essential findings of fact and conclusions

of law into the record. It then announced that a written

memorandum would be filed enlarging its findings and

its conclusions. To carry out such announcement is the

purpose of this rather extensive memorandum.

In cases of this kind, where marijuana has been seized

in large quantities by virtue of a search of a vehicle at a

checkpoint, the crux of the matter is the motion to sup-

press. There is no doubt that the law was violated in this

case. But, the query is, was the seized contraband ad-

missible in evidence? If not, the government’s case col-

lapses. So, the Court, having heard the testimony of the

government’s witness, and the testimony of Defendant

Gorthy which was offered solely on the motion to sup-

press, had to make findings in this regard.

The facts as the Court found them, and upon which

the Court based its finding of Defendant Gorthy’s guilt,

are that on or about the 11th day of November, 1974,

Ed Gerusa, a United States Border Patrol officer, was

working the permanent alien checkpoint below Sarita,

Texas, when a Dodge motorhome, driven by Defendant

Gorthy, stopped at the point. There was nothing suspi-

cious about the vehicle or its passengers prior to the time

it stopped. Border Patrol Officer Gerusa, who was on

the point, testified that he questioned the Defendant and

a female passenger in the cab of the vehicle, as to their

18

citizenship. Gerusa then testified he noticed the silhouette

of a third person located in the motorhome living quarters.

He further narrated that he asked Defendant Gorthy if

he, Gerusa, could open the side door to the living quarters

of the motorhome and question the third person as to

his citizenship. The officer then stated that he opened the

door and, still standing on the ground, leaned into the

living area so as to better see and question said third

person. In doing this, Officer Gerusa stated that he de-

tected a strong odor of marijuana emanating from within

the living quarters. The door of a nearby closet was

opened by Officer Gerusa, who found there burlap bags

of marijuana. A subsequent search of the vehicle revealed

approximately 428 pounds of marijuana inside the vehicle.

The Defendant Gorthy, testifying on the motion to

suppress, contradicted Officer Gerusa’s testimony by stat-

ing that the third person, who was in the rear of the

living quarters, could not have been seen from where

Officer Gerusa initially stood, that the officer was not

given permission to open the door to the living area of

the vehicle and that he was inside the vehicle before

he saw the third person or smelled the marijuana. De-

fendant Gorthy’s testimony was not convicing and the

Court chose to believe the officer’s story. However, even

if the contradicting facts had been found by the Court

to be accurate, this Court does not believe the Defendant’s

Fourth Amendment rights were violated by the search

and seizure of the marijuana here involved under the

recent United States Supreme Court decision in United

States v. Martinez-Fuerte, No. 74-1560, and its companion

case, Sifuentes v. United States, 75-5387, July 6, 1976.

Consequently, at the conclusion of the government's

case and after Defendant Gorthy had testified on his

19

motion to suppress, the Court concluded, and now re-

iterates such conclusion, that the Defendant’s Fourth

Amendment right to be free from unreasonable searches

and seizures was not violated by the actions of Border

Patrol Officer Gerusa. So-called checkpoint cases have

been before this Court time and again as a result of

marijuana seizures at the point south of Sarita, Texas,

and at the point south of Falfurrias, Texas. There present-

ly appears to be no doubt that the border patrolman who

worked the point below Sarita had, in this case, the legal

right to stop the vehicle driven by the Defendant Gorthy

and to inquire as to his citizenship and as to the citizen-

ship of the woman passenger in the cab of the vehicle.

Martinez-Fuerte and Sifuentes, supra.

There is another justification for sustaining the validity

of the search made by the Border Patrol agent in this

case besides the above-cited recent United States Supreme

Court decision. On numerous prior occasions, and as it

has done heretofore in this case, the Court has taken

judicial notice of the location, justification and other

physical aspects of the Sarita checkpoint and has con-

cluded such facts do establish that the permanent alien

checkpoint near Sarita, Texas, where this Defendant was

stopped, constitutes a functional equivalent of the border.

While a determination of the validity of such conclusion

may no longer be needed in the light of Martinez-Fuerte

and Sifuentes, supra, we discuss the matter briefly. We

wish to point out that there are similar checkpoints near

Sierra Blanca, Texas, and near La Gloria, Texas, each

of which has been held to be a functional equivalent of

the border. United States v. Hart, 506 F.2d 887, 895-

897 (Sth Cir.), vacated and remanded, 422 U.S. 1053,

affirmed 525 F.2d 1199 (Sth Cir. 1976); United States

20

v. Fuentes, 379 F.Supp. 1145 (S.D. Tex. 1974), affirmed

517 F.2d 1401 (Sth Cir. 1975); and United States v.

Santibanez, 517 F.2d 922 (Sth Cir. 1975); United States

v. Gonzales-Alvarez, 528 F.2d 1056 (Sth Cir. 1976, No.

75-3537, Summary Calendar). So, we are convinced that

a “non-probable cause search” made at a point that is

the functional equivalent of the border can be a “valid

border search which [meets] the Fourth Amendment re-

quirement of reasonableness.” See Hart, supra. However,

to urge this point now seems academic.

In Martinez-Fuerte, a driver and two passengers were

in a vehicle that was stopped for questiuning at a perma-

nent checkpoint being operated in the State of California.

The passengers proved to be illegal aliens, and the driver

was charged with two counts of illegally transporting

aliens. The same Sarita, Texas, checkpoint as is here

involved was also at issue in Sifuentes. In that case, the

Defendant Sifuentes was the driver of a car containing

four passengers. He was stopped at the checkpoint and

inquiry as to citizenship was made. All four passengers

were illegal aliens, and Sifuentes was charged with four

counts of illegally transporting aliens. The rationale of

the United States Supreme Court in holding that stops

at these checkpoints for the purpose of inquiry as to

citizenship revolved around a balancing test of rights

under the Fourth Amendment versus the government

interest in preventing illegal alien entry. The Court stated:

“[w]hile the need to make routine checkpoint stops is

great, the consequent intrusion on Fourth Amendment

interest is quite limited.” Martinez-Fuerte, supra, at 14.

“[Wle hold that stops for brief questioning routinely con-

ducted at permanent checkpoints are consistent with the

Fourth Amendment and need not be authorized by war-

21

rant.” /d. at 22. Therefore, the stop of Gorthy’s motor-

home in this case was not an unreasonable action for-

bidden by the Fourth Amendment.

The Border Patrol agent being legally authorized to

stop the Dodge motorhome and to interrogate the front-

seat occupants as to their citizenship, the defensive re-

liance which Defendant Gorthy placed upon the manner

by which the officer entered the living quarters of the ve-

hicle seems misplaced. Even if Defendant Gorthy in-

sisted, correctly, that Officer Gerusa could not have seen

Bolton, the third person in the vehicle, until he was

actually inside its living quarters, we see no problem.

The language of Martinez-Fuerte and Sifuentes, supra,

does not indicate any intent to preclude a border patrol-

man from determining, by looking inside a vehicle the

size of this one to find out, how many occupants there

may be in it.

However, in support of the Court’s interpretation just

stated of the Martinez-Fuerte decision, further discussion

is necessary. Defendant Gorthy was driving a Dodge

motorhome, about 22 feet in length and perhaps 8 feet

in width. The vehicle consisted of a cab unit where De-

fendant, being the driver, and a female passenger were

sitting and clearly visible to Border Patrol Agent Gerusa.

The third passenger was in the rear section of the vehicle,

that is, the living quarters or “home” section. The agent

testified that he detected the silhouette or shadow of this

third individual by “skylighting” the vehicle, that is, by

use of the daylight he was able to see the shadow of the

person. But, suppose he didn’t. This Court does not be-

lieve such change in the fact situation would in any way

affect the validity of the search and seizure here. Be-

22

cause Martinez-Fuerte and Sifuentes clearly permit an

officer to question all occupants in a vehicle as to their

citizenship, it follows that the officer has the right to

make some effort to determine how many passengers are

in the vehicle and proceed to question all such indi-

viduals. It is not reasonable to say otherwise. We cannot

accept any premise that says Martinez-Fuerte and Si-

fuentes intended to allow a Border Patrol officer to stop

a vehicle and then only permit him to interrogate the

persons in plain view. The officer must have the au-

thority to look through any vehicle in order to determine

the number of occupants in it. Otherwise, a lone driver in

such a vehicle, with curtains drawn, could be stopped and

interrogated and passed on with a load of aliens stacked

in the living quarters of the mobilhome undetected.

So, we find no fault with the officer’s entry into the

living quarters of the motorhome and his interrogation

of the third passenger, whether Officer Gerusa had seen

before he entered the vehicle or not. It then follows that

in the course or following this procedure, when the of-

ficer noticed the odor of marijuana, he had probable

cause to open the closet door and searce for contraband.

United States v. Santibanez, 517 F.2d 922 (Sth Cir.

1975); United States v. Coffey, 520 F.2d 1103 (Sth

Cir. 1975).

While the Border Patrol agent may not have had the

authority to search the contents of the bags under the

immigration laws of the United States, he was empowered

under the circumstances to search the burlap bags in

the trailer closet pursuant to the authority of the cus-

toms laws. The Fifth Circuit has discussed this dual role

of Border Patrol agents in United States v. McDaniel,

23

463 F.2d 129 (1972). “It appears that Border Patrol

agents wear two hats, one as an immigration officer and

the other as a customs officer.” McDaniel, supra, at 134.

United States v. Bird, 456 F.2d 1023 (Sth Cir. 1972);

and United States v. Maggard, 451 F.2d 502 (Sth Cir.

1971). This being the case, the agent, as long as he had

adequate grounds for suspecting the presence of mari-

juana, could don his customs hat and search for contra-

band. Here, Officer Gerusa smelled marijuana, opened

a closet door, saw burlap bags with Mexican markings

on them, and when he opened the bags he found mari-

juana. Probable cause certainly existed once the smell

of marijuana was apparent to Border Patrol Officer Ger-

usa. Under all the circumstances, the search of the ve-

hicle was reasonable under the customs and immigration

laws and within the otherwise stricter confines of the

Fourth Amendment.

The Court, as earlier stated, denied the Defendant’s

motion to dismiss the indictment. At this point, a fur-

ther discussion of the basis for the Court’s action seems

advisable. We recognize that the Sixth Amendment right

to a speedy trial is activated whenever a defendant be-

comes accused, either through arrest or otherwise. Dil-

lingham v. United States, 423 U.S. 64 (1975); United

States v. Duke, 527 F.2d 386 (Sth Cir. 1976). Defen-

dant, however, has not made allegations sufficient to suc-

ceed in the balancing test of Barker v. Wingo, 407 U.S.

514 (1972). The record in this case reveals that De-

fendant was arrested on November 11, 1974, and the

indictment was returned against him and filed on March

26, 1976. The record shows that during this period of

time several grand juries were convened in the Southern

District of Texas, and in the Corpus Christi Division in

24

particular. Defendant argues that this delay directly

violates the time limits contained in the Speedy Trial Act,

18 U.S.C. §§3161(b) and (f). But, this Court con-

cluded that this Defendant Gorthy has not made the

requisite showing to demonstrate a violation of his right

to a speedy trial.

In his motion to dismiss, Defendant Gorthy alleged

various matters of prejudice suffered by him. However,

testimony given on the motion to quash the indictment

showed no lost witnesses or faulty memories. Neither did

he allege or show any deliberate attempt on the part of

the government to delay the trial in order to hamper the

defense. Most of his evidence related to the fact that he

built custom furniture and was a crawfish fisherman in

Florida. He charged, by a number of general self-serv-

ing statements, that the outstanding charges against him

interfered with his business activity and that he failed

to enter a business partnership there because of a desire

to conceal his criminal indictment in Texas. His testi-

mony was certainly not convincing.

In October, 1975, Defendant’s counsel did send a

letter to the U.S. Magistrate, stating his intent to file a

motion to dismiss the complaint if an indictment was

not had in thirty days. On January 27, 1976, the mo-

tion to dismiss was filed. However, no assertion of De-

fendant’s right to a speedy trial was made prior to that.

Defendant has failed to allege or prove “oppressive pre-

trial incarceration,” “anxiety and concern,” or “impair-

ment of his defense.” Barker v. Wingo, supra. The

Court concluded that Defendant’s constitutional right to

a speedy trial was not violated, and the motion to dis-

miss was therefore denied.

oe

25

Further, we are not concerned with a claimed viola-

tion of the Plan for the United States District Court for

the Southern District of Texas for Achieving Prompt

Disposition of Criminal Cases, adopted pursuant to Rule

50(b), because the Plan does not contain any time

limit applicable to this post-arrest, pre-indictment period

that Defendant complains about. This further supports

the Court’s denial of said motion to dismiss.

There is one further element of the offense charged by

indictment in this case. The charge is that this Defen-

dant possessed the marijuana with intent to distribute

it. So, we point out that the testimony of the govern-

ment’s expert witness, Mr. Ed Albers, established the

material seized to be marijuana and that the amount in-

volved was 428 pounds. These facts warranted the Court

in finding the Defendant possessed this quantity of mari-

juana with intent to distribute it, and the Court so found.

Based on the evidence in this case, the Court found

the Defendant guilty, beyond a reasonable doubt, of the

offense charged in the indictment.

The Defendant Gorthy is ordered to appear before

this Court for sentencing on the 30th day of August,

1976, at 2:00 p.m. The Court has ordered a pre-sentence

investigation as to this Defendant.

The bail of Defendant will continue in effect until

the date for sentencing above sct by this Court.

SIGNED this 22nd day of July, 1976.

OWEN D. COX

United States District Judge

26

APPENDIX “B”

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

JOHN PAUL GORTHY,

Defendant-A ppellant.

NO. 76-3538

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

April 15, 1977.

Defendant was convicted in the United States District

Court for the Southern District of Texas, at Corpus

Christi, Owen D. Cox, J., of possession of marijuana

with intent to distribute, and he appealed. The Court of

Appeals, Clark, Circuit Judge, held that a border patrol

officer had probable cause sufficient to support a search

of the vehicle in which defendant was riding and that

defendant had not been denied a speedy trial.

Affirmed.

Appeal from the United States District Court for the

Southern District of Texas.

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

Co. of N.Y. et al., § Cir., 1970, 413 F.2d 409, Part I.

27

Before GOLDBERG, CLARK and FAY, Circuit

Judges.

CLARK, Circuit Judge.

John Paul Gorthy, defendant, appeals from a judgment

of conviction under 21 U.S.C. § 841(a)(1) for possession

of marijuana with intent to distribute and subsequent

sentence entered September 1, 1976. We affirm.

[1] Gorthy argues that the seizure of marijuana from

his 1973 Dodge Huntsman Motor Home by Border

Patrol Officer Gerusa at the Sarita checkpoint was with-

out probable cause and violates his Fourth Amendment

rights. As Gorthy was approaching and stopping his

motor home at the Sarita checkpoint on November 19,

1974, Officer Gerusa saw Gorthy, who was driving, a

female who was sitting on the vehicle’s right front seat,

and the silhouette of a third person in the rear of the

vehicle. Gerusa stepped up to the open window on the

passenger side and asked Gorthy and the female if they

were United States citizens. After receiving affirmative

answers, Gerusa asked permission to open the side door

of the motor home in order to speak to the person in the

rear of the motor home. Gorthy replied that it would be

“alright to open the door.” Upon opening the side door,

Gerusa leaned into the motor home so that he could see

and question the third person. In doing so, Gerusa testified

that he detected a strong odor of marijuana from within

the living quarters of the motor home. Gerusa stepped

into the motor home, opened a nearby closet, and found

several burlap bags of marijuana. All three persons were

arrested, and a search of the entire vehicle revealed ap-

proximately 427 pounds of marijuana. The district court’s

finding, on the motion to suppress, that Gerusa detected

28

the smell of marijuana when he opened the side door

of the vehicle is not clearly erroneous and constitutes

probable cause sufficient to support Gerusa’s subsequent

search.”

[2] Gorthy also argues that the 17-month delay be-

tween his November 19, 1974 arrest and July 15, 1976

non-jury trial violates his statutory rights under the 1976

Speedy Trial Act, 18 U.S.C. § 3164, the Rule 50(b)

Plan for the United States District Court for the Southern

District of Texas, and Federal Rule Criminal Procedure

48(b) and his constitutional rights under the Sixth A-

mendment speedy trial clause.” After Gorthy’s arrest, he

was placed in the Neuces County Jail, and his bond was

set at $10,000, with a 10% deposit. Gorthy deposited

$1,000 with the United States District Clerk on Novem-

ber 20, 1974, was released on bond that same day, and

permitted to return to his home in Key Largo, Florida,

1. E. g., United States v. Garza, 547 F.2d 1234 (Sth Cir. 1977);

United States v. Leal, 547 F.2d 1221 (Sth Cir. 1977); United States

v. Mendoza, 547 F.2d 962 (Sth Cir. 1977); United States v. Duncan,

547 F.2d 903 (Sth Cir. 1977); United States v. Bazan-Molina, 544

F.2d 193 (Sth Cir. 1976); United States v. McCrary, 543 F2d

554 (Sth Cir. 1976); United States v. Diaz, 541 F.2d 1165

(Sth Cir. 1976); United States v. Vallejo, 541 F.2d 1164 (Sth Cir.

1976); United States v. Kidd, 540 F.2d 210 (Sth Cir. 1976); United

States v. Garza, 539 F.2d 391 (Sth Cir. 1976); United States v.

Rojas, 538 F.2d 670 (Sth Cir. 1976); United States v. Torres, 537

F.2d 1299 (Sth Cir. 1976); United States v. Coffey, 520 F.2d 1103

(Sth Cir. 1975); United States v. Cantu, 504 F.2d 387 (Sth Cir.

1974).

2. The district court’s opinion notes that Gorthy’s arrest took

place on November 11, 1974. The docket sheet, entries in the record,

such as the United States Grand Jury’s Indictment, and Gorthy’s

Motion to Dismiss Indictment for Denial of a Speedy Trial, all note,

however, that the arrest took place on November 18 or 19 of 1974.

The disparity between dates does not affect this court’s disposition

of Gorthy’s speedy trial arguments.

29

pending further disposition of his case. On October 16,

1975, Gorthy’s attorney wrote a letter to the United

States Magistrate informing him that, as Gorthy’s at-

torney, he had contacted the United States District At-

torney’s office in charge of the case several times, that

he had not been informed of the reasons for post-arrest

delay, and that, if he did not hear from the United States

District Attorney within 30 days, he would move to dis-

miss the complaint filed against Gorthy. Gorthy’s attorney

filed a motion to quash the complaint on January 16,

1976, which was set for submission under the district

court’s local rule 16 on January 26, 1976. A supple-

mental motion to quash the complaint was filed on March

9, 1976; it set forth the number of Corpus Christi Di-

vision grand juries which had convened and the number of

indictments returned by them since the date of Gorthy’s

arrest, 17 months earlier.

A grand jury indicted Gorthy and William Shawn

Bolton, the passenger in the rear of the motor home

vehicle, for violating 21 U.S.C. § 841(a)(1), on March

26, 1976. They were arraigned on April 19, 1976; both

pled not guilty, and docket call was set for May 10, 1976.

Gorthy then moved to dismiss the indictment for denial

of a speedy trial on May 6, 1976. At the docket call on

May 10, 1976, Gorthy’s attorney, who up to that time

had represented both Gorthy and Bolton, advised the

district court that a conflict of interest existed between

the two defendants and that he was unable to represent

Bolton. The district court appointed a public defender

to represent Bolton and set the jury selection date for

June 14, 1976. The jury was selected on that date. After

a hearing on Gorthy’s motion to dismiss the indictment

on July 15, 1976, the motion was denied, and the case

30

was called for trial. The public defender representing

Bolton requested a delay, however, because Bolton was

hospitalized and unable to proceed with the trial at that

time. Gorthy waived a jury trial; the district court severed

his case and proceeded to hear it that same day.

Since Gorthy was arrested prior to July 1, 1975, the

Speedy Trial Act of 1974 does not apply to his case.

18 U.S.C. §§ 3161(b), 3163(a)(1); see United States

v. Garza, 547 F.2d 1234 (Sth Cir. 1977). The initial

Rule 50(b) Plan for the United States District Court

for the Southern District of Texas became effective on

September 29, 1975. Its specified time intervals did not

cover the period between arrest and information or in-

dictment. Thus Gorthy’s rights under that plan did not

arise until March 26, 1976, when he and Bolton were

indicted. Gorthy was subsequently arraigned, tried, and

sentenced within that plan’s applicable time limits. /d.

qq2(a), (b), (c). The Southern District adopted an

amended Speedy Trial Plan to comply with the require-

ments of 18 U.S.C. § 3165(c). This plan became effective

July 1, 1976, a date prior to the commencement of Gor-

thy’s trial. Gorthy is not entitled to relief under this

amended plan because he was arraigned, tried, and sen-

tenced within its applicable time provisions also. Speedv

Trial Plan 994(a)(4), 5(a)(1), 7(a). Additionally, our

disposition of Gorthy’s Sixth Amendment claim renders

it unnecessary for us to treat his argument that the district

court erred in not exercising its authority under Federal

Rule Criminal Procedure 48(b). See United States v.

Clendening, 526 F.2d 842, 844 n. 2 (Sth Cir. 1976);

United States v. Palmer, 502 F.2d 1233, 1234 n. 3 (Sth

Cir. 1974), rev’d and remanded on other grounds sub

nom., United States v. Dillingham, 423 U.S. 64, 96 S.Ct.

31

303, 46 L.Ed.2d 205 (1975), aff'd, United States v.

Palmer, 537 F.2d 1287 (Sth Cir. 1976).

Gorthy’s Sixth Amendment claim must be adjudged

under the four-pronged test of Barker v. Wingo, 407 U.S.

514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101

(1972): “length of the delay, the reasons for the delay,

the defendant’s assertion of his right, and prejudice to the

defendant.” See United States v. Avalos, 541 F.2d 1100

(Sth Cir. 1976). See generally Hansen & Reed, The

Speedy Trial Act of 1974 in Constitutional Perspective,

47 Miss. L.J. 365, 374-77 (1976). For the purposes of

computing the length of the delay, Dillingham v. United

States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205

(1975), requires us to begin with the date of Gorthy’s

arrest. Accord, United States v. Garza, 547 F.2d 1234

(5th Cir. 1977); Fagan v. United States, 545 F.2d 1005

(5th Cir. 1977). The length of delay between the date of

Gorthy’s arrest and his indictment is 17 months and

between the date of arrest and his trial is 21 months.

This court has found that a 22-month delay between

arrest and indictment is insufficient in itself to require

a dismissal of an indictment, United States v. Palmer,

537 F.2d 1287 (Sth Cir. 1976); followed, United States

v. Garza, 047 F.2d 1234 (Sth Cir. 1977). A fortiori,

the delay in Gorthy’s case is insufficient standing alone

to find a violation of Gorthy’s Sixth Amendment right

to a speedy trial.

Secondly, the government has proffered no explanation

for the 17-month delay between arrest and indictment

other than pointing to Gorthy’s own statistics which show

that 11 United States Grand Juries convened during this

period and returned 172 indictments and arguing that

these figures show that a crushing burden rested on the

32

sole prosecutor in that division of the Southern District

of Texas. These statistics are not sufficient to support

the government’s attempted justification. Standing alone

they amount to little more than “a ‘neutral’ factor that

may tend to favor” Gorthy. United States v. Garza, 547

F.2d 1234, 1235 (Sth Cir. 1977). Nonetheless, Gorthy

has neither alleged nor shown that this period of delay

on the government’s part was deliberate. See United States

v. Avalos, 541 F.2d at 1111-12.

Thirdly, Gorthy presented no formal Sixth Amendment

speedy trial motion to the district court until January 27,

1976, a total of 14 months from the date of his arrest.

Moreover, 1 month of the 6-month period between the

date of Gorthy’s indictment and trial was attributable to

the actions of Gorthy’s attorney in resolving his conflict

of interest. These factors are not commensurate with the

vigorous assertion of Gorthy’s speedy trial right that is

now pressed upon the Court. United States v. Avalos,

541 F.2d at 1115; see United States v. Garza, 547 F.2d

1234 (Sth Cir. 1977).

Finally, in determining whether Gorthy was prejudiced.

as a result of the delay, we note at the outset that he has

been incarcerated for only 2 days. His conclusory asser-

tions of anxiety and concern experienced during this

period are insufficient to amount to actual prejudice.

More significantly, testimony at the hearing on the motion

to quash the indictment showed no loss of witnesses or

faulty memories or other impairment of Gorthy’s ability

to prepare his defense. See United States v. Avalos, 541

F.2d at 1115-17. In sum, Gorthy has not established a

violation of his Sixth Amendment speedy trial right.

AFFIRMED.

33

APPENDIX “C”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-3538

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN PAUL GORTHY,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(MAY 19, 1977)

Before GOLDBERG, CLARK and FAY, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

/s/ CHARLES CLARK

United States Circuit Judge