Petition — Martinez v. United States

Supreme Court brief1977

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FILED

SEP 19 1977

MICHAEL 25... —_—

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NO.

_W7- 437 4

Supreme Court of the United States

OCTOBER TERM, 1977

ROGELIO MARTINEZ,

RICHARD MARTINEZ and

ROGER MARTINEZ,

Petitioners

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

HAYNES & FULLENWEIDER

Ray A. Bass, Ill

2701 Fannin

Houston, Texas 77002

(713) 4659-2436"

Attorneys for Petitioners

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

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Constitutional and Statutory Provisions Involved .........

ED CD bu ove c cducunnsesssceeévedsedeees

Reasons for Granting the Writ ............. Se eee

1. The evidence is insufficient to support the petitioners’

convictions under the conspiracy count (Count I) of

the indictment for two reasons: First, the evidence,

independent of the extra-judicial declarations of alleged

co-conspirator Hector Martinez, is insufficient to sup-

port a finding by the jury that the petitioners became

aware of the plan to distribute heroin, and thereafter

agreed to, or knowingly assisted, the accomplishment

of that plan. Secondly, the evidence, considered in its

entirety, is circumstantial and is insufficient to exclude

the reasonable hypothesis, supported by the evidence,

that the petitioners were used as a shield to protect

the identity of the real source of the heroin. ......

. In circumstances such as those of the instant case,

where there is no question that the conspiracy in

which the petitioners allegedly participated resulted

in the commission of the substantive crimes charged;

where the evidence linking the petitioners to the con-

spiracy was necessarily found inconclusive by the jury;

where the rationale supporting the approval of incon-

sistent jury verdicts does not apply; and where there

is extreme likelihood that the guilty verdict on the

conspiracy count was influenced by a prejudicial hear-

say statement; the conviction should be reversed. .

. The trial court’s denial of petitioners’ motion to trans-

fer the case to the Houston Division of the Southern

District of Texas for trial constituted reversible error.

. The trial court should have granted petitioners’ motion

for mistrial after a Drug Enforcement Administration

(DEA) agent testified that alleged co-conspirator Hec-

tor Martinez told him that petitioner Rogelio Martinez

had been in the narcotics business since 1945. .....

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Page

NE, hc uoc iv adesdenéndbebesan bdeesecoesteces 44

Appendix A— Opinion of the Court Below ............. 45

Appendix B — Judgment of the Court Below ........... 49

Appendix C — Order of the Court Below Denying Petition

Me BE doce ce dnnccctesvesecccscessscescasees $1

CITATIONS

CASES Page

Boyle v. United States, 22 F.2d 547 (8th Cir. 1927) ...... 33

Cuthbert v. United States, 278 F.2d 220 (Sth Cir. 1960) .. 25

Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct.

1265, 87 L.Ed. 1674 (1943) ......ccecceeeeeeeeeeees 22

Dunn v. United States, 284 U.S. 390 (1932) ...........-. 34, 35

DuPoint v. United States, 388 F.2d 39 (Sth Cir. 1967) ... 36,37

Evans v. United States, 257 F.2d 121 (9th Cir. 1958) .... 33

Frisna v. United States, 49 F.2d 733 (8th Cir. 1931) ..... 33

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.

ee 5 (kod PE ee re See 18, 19

Gutierrez v. United States, 314 F.2d 334 (Sth Cir. 1963) .. 21

Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93

rey Fr neheser panes ae 40, 43

Montford v. United States, 200 F.2d 759 (Sth Cir. 1952) .. 19

Murphy v. United States, 18 F.2d 509 (8th Cir. 1927) .... 33

Ong Way Jong v. United States, 245 F.2d 329 (9th Cir.

a 5 Se Chee 29

Panci v. United States, 256 F.2d 308 (Sth Cir. 1958) .... 21,34

Peru v. United States, 4 F.2d 881 (8th Cir. 1925) ........ 33

Rosenthal v. United States, 276 F. 714 (9th Cir. 1921) ... 33

Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92

aS 8 RN er er ee 32, 34, 35

Speiller v. United States, 31 F.2d 682 (3rd Cir. 1929) .... 33

United States v. Apollo, 476 F.2d 156 (Sth Cir. 1973) ... 19,22

United States v. Arroyave, 477 F.2d 157 (Sth Cir. 1973) .. 34

United States v. Blake, 484 F.2d 50 (8th Cir. 1973) ...... 33

United States v. Broadway, 477 F.2d 991 (Sth Cir. 1973) 42

United States v. Cianchetti, 315 F.2d 584 (2nd Cir. 1963) 23,24

United States v. Cook, 461 F.2d 906 (Sth Cir. 1972) .... 22

United States v. Cox, 536 F.2d 65 (Sth Cir. 1976) ...... 43

United States v. Ford, 324 F.2d 950 (7th Cir. 1963) .... 22

III

CASES . Page

United States v. Maybury, 274 F.2d 899 (2nd Cir. 1959) 35

United States v. Morrow, 537 F.2d 120 (Sth Cir. 1976) .. 34

United States v. Murray, 527 F.2d 401 (Sth Cir. 1976) .. 34

United States v. Oliva, 497 F.2d 130 (Sth Cir. 1974) .... 19,25

United States v. Peterson, 488 F.2d 645 (Sth Cir. 1974) ..30, 31, 32

United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) .... 42

United States v. Rodriguez, 509 F.2d 1342 (Sth Cir. 1975) 19

United States v. Spanos, 462 F.2d 1012 (9th Cir. 1972) ..23, 24,25

United States v. Stephens, 492 F.2d 1367 (6th Cir. 1974) .. 43

United States v. Tyler, 505 F.2d 1329 (Sth Cir. 1975) ... 19,34

United States v. Urdiales, 523 F.2d 1245 (Sth Cir. 1975) .. 42

United States v. Valdez, 431 F.2d 622 (8th Cir. 1975) .... 33

United States v. Varelli, 407 F.2d 735 (7th Cin. 1969) .... 22

Williams v. United States, 179 F.2d 644 (Sth Cir. 1951),

re ee Oe eden Sie ie Cn ebesh-ceusedeeeeeee 32

Wingate v. Wainwright, 464 F.2d 209 (Sth Cir. 1972) ... 32

Yawn v. United States, 244 F.2d 235 (Sth Cir. 1957) .... 32

UNITED STATES CONSTITUTION

ST es Ne ede eee eons ee oan

UNITED STATES STATUTES

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Se EE MEIER cco cceccceccccczeessececeess 2

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FEDERAL RULES OF CRIMINAL PROCEDURE

(Sy oes a ay a 3, 4, 36, 37, 38, 39

RE Re aaa a en 36

FEDERAL RULES OF EVIDENCE

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NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

ROGELIO MARTINEZ,

RICHARD MARTINEZ and

ROGER MARTINEZ,

Petitioners

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ or writs of certiorari

issue to review the judgment of the United States Court

of Appeals for the Fifth Circuit entered in this case on

July 13, 1977, affirming the judgment of the United

States District Court for the Southern District of Texas

entered on November 15, 1976.

OPINION BELOW

The opinion of the Court of Appeals is not yet offici-

ally reported. It affirmed a judgment of conviction of

Petitioners for conspiracy to possess with the intent to

distribute, and to distribute, heroin in violation of Title

21, United States Code, § 841(a)(1). Petitioners were

tried in the District Court by a jury and there is no

opinion of that Court.

JURISDICTION

The judgment of the Court of Appeals was entered

on July 13, 1977. A Petition for Rehearing was denied

on August 11, 1977. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the evidence presented by the government,

independent of the extra-judicial declarations of an al-

leged co-conspirator, was sufficient to support a finding

that the Defendants-Petitioners participated in the alleged

conspiracy?

2. Whether a verdict of guilty of a conspiracy count

of an indictment can stand where the same jury, after

receiving an “aiding or abetting” charge and a charge

on the criminal liability of a conspirator for the criminal

acts of co-conspirators, acquits the Defendants-Petitioners

of all substantive offenses allegedly committed by co-

conspirators as a part of and pursuant to the alleged

conspiracy?

3. Whether the trial court erred in denying Defend-

ants-Petitioners’ Motion To Transfer The Case To The

Houston Division of The Southern District of Texas

For Trial?

4. Whether the trial court erred in permitting a

government agent to testify that an alleged co-conspirator

told the agent that Defendant-Petitioner Rogelio Martinez

had been in the narcotics business since 1945?

CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S.C.A. Censt. Amend. V provides in part:

. nor be deprived of life, liberty, or property,

without due process of law... .

Fed. Rule Cr. Proc. Rule 18, 18 U.S.C.A.

Except as otherwise permitted by statute or by _

these rules, the prosecution shall be had in a district

in which the offense was committed. The Court shall

fix the place of trial within the district with due

regard to the convenience of the defendant and the

witnesses.

Fed. Rule Evid. Rule 404(b), 28 U.S.C.A.

Evidence of other crimes, wrongs, or acts is not ad-

missible to prove the character of a person in order

to show that he acted in conformity therewith. It

may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, prepa-

ration, plan, knowledge, identity, or absence of

mistake or accident.

Fed. Rules Evid. Rule 802, 28 U.S.C.A.

Hearsay is not admissible except as provided by

these rules or by other rules prescribed by the Su-

preme Court pursuant to statutory authority or by

Act of Congress.

STATEMENT OF THE CASE

Petitioners were indicted in 1976 for conspiracy to

possess with the intent to distribute, and to distribute,

heroin in violation of 21 U.S.C. § 841(a)(1) (Count

1); for three counts of possession with intent to distribute

a controlled substance in violation of 21 U.S.C. § 841

(a)(1) and 18 U.S.C. § 2 (Counts II, IV, and VI); and

for three counts of distribution of a controlled substance

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2. The case was set for trial in the Laredo Division of

the Southern District of Texas, the Honorable Robert

O’Conor, Jr., presiding. The record showed that (1) the

indictment against the Petitioners was returned by a

federal grand jury sitting in Houston, Texas; (2) of the

35 overt acts listed under the conspiracy count, 18 were

alleged to have occurred in Houston (including all eight

overt acts allegedly committed by any of the Petitioners),

and only nine overt acts were alleged to have been com-

mitted in Laredo; (3) of the six substantive counts al-

leged in the indictment, four were allegedly committed

in Houston and only one in Laredo; (4) that each of the

Petitioners was a resident of Houston and had been for

at least 29 years; (5) that a trial in Laredo would disrupt

the management of Defendant’s business; (6) that Pe-

titioners’ lawyer lived and maintained his office in Hous-

ton; and (7) that the government prosecutor worked out

of the Houston office of the United States Attorney for

the Southern District of Texas.

On June 1, 1976, Petitioners filed a motion, pursuant

to Fed. Rules Cr. Proc. Rule 18, 18 U.S.C., to transfer

the case to Houston for trial; a memorandum of law in

support of this motion was also filed on that date. On

June 30, 1976, the government filed a memorandum

in opposition to Petitioners’ Motion to Transfer, request-

ing the court to take into consideration convenience of the

government, and also the facts that co-defendants Carlos

Jesus Alvorado and Gerardo Garza were residerits of

Laredo and that their attorneys’ offices were in Laredo.

On July 6, 1976, the trial court denied Appellants’

motion to transfer the case to Houston. On August 23,

1976, prior to the commencement of trial, appellants

renewed their motion to transfer when it was discovered

that co-defendants Alvorado and Garza had pled guilty

to Count I of the indxtment and would testify for the

government. The motion again was denied.

Trial commenced as to the Petitioners only on Mon-

day, August 23, 1976. After the government rested its

case, Petitioners moved for a judgment of acquittal

which was denied by the trial court (R. 540, 549).

Thereafter, no evidence was presented by the defense.

On three separate occasions the trial court, in its

charge to the jury, gave an instruction on the law of

principals with reference to the substantive counts of the

indictment (R. 598, 602, 619). In addition, the trial

court specifically instructed the jury that there was

“another alternative basis” upon which the Petitioners

would be guilty under the substantive counts of the

indictment even if Petitioners “did not otherwise person-

ally participate in the acts constituting that (substantive)

offense or did not have knowledge of them” (R. 620-

621). Under this alternative theory, said the trial court,

the Petitioners would be guilty if they were members of

the conspiracy and the substantive offense was committed

by any other members of the conspiracy as a reasonably

foreseeable part thereof (R. 620-621).

Notwithstanding the above instructions, on August 27,

1977, the jury returned verdicts of “not guilty” as to

each Petitioner on the substantive counts (II-VII), and

verdicts of “guilty” as to each Petitioner on Count I.

Each substantive offense had been submitted as an overt

act under the conspiracy count (i.e. overt acts 11, 12,

and 31). The remaining overt acts outlined the circum-

stances surrounding commission of the alleged substantive

offense.

After the verdicts Petitioners moved for judgment of

acquittal on Count I notwithstanding the jury’s verdict;

the motion was denied by the trial court.

Thereafter, on November 15, 1976, Petitioner Rogelio

Martinez was sentenced to fifteen (15) years imprison-

ment, a twenty-five thousand dollar ($25,000.00) fine,

with a special parole term of fifteen (15) years. Petitioner

Richard Martinez was sentenced to ten (10) years imprison-

ment, a fifteen thousand dollar ($15,000.00) fine and a

special parole term of ten (10) years. Petitioner Roger Mar-

tinez was sentenced to seven (7) years imprisonment, a ten

thousand dollar ($10,000.00) fine and a special parole

term of five (5) years. A joint Notice of Appeal was

filed by the Petitioners on November 15, 1976.

Summary Of The Evidence

Evidence was introduced to show that on November

6, 1975, Drug Enforcement Administration (DEA) agent

Albert Castro from San Antonio was introduced to an

informant, Willie Quintana (hereafter called Informant),

by D.E.A. Agent Max Pooley in Laredo (R. 123). The

Informant told Agent Castro that Ramon Quintana

had a pound of heroin or cocaine to sell and was looking

for a customer, (R. 125). Agent Castro, with the aid of

the Informant, contacted Ramon Quintana and arranged

a sale. The deal fell through, however, when Ramon

Quintana informed Agent Castro that his source had

already sold the heroin (R. 126-27).

On November 18, 1975, Agent Castro was again

informed by the Informant that he had been contacted

by Ramon Quintana about a possible sale of heroin.

Arrangements were made for Ramon Quintana to travel

to San Antonio to deliver the heroin to Agent Castro

(R. 85, 127). On November 19, Ramon contacted

Agent Castro and told him that the heroin was not in

San Antonio, but was in Houston, and that a trip

would be made to Houston to get the drugs (R. 86).

Thereafter Hector Martinez, Gerardo Garza, and In-

formant left San Antonio (Hector, Garza, Informant,

Carlos Alvorado and Ramon Quintana had all travelled

to San Antonio for the deal) for Houston. At approxi-

mately 5:30 p.m., they were observed by DEA surveil-

lance officers entering the city limits of Houston, driving

a blue Pontiac station wagon’ (R. 344). They appeared

to be lost because they drove aimlessly around the city

for some time (R. 345), but shortly before 8:00 p.m.

they arrived at 1109 Moody Street in Houston, the

residence of Petitioner Rogelio Martinez (R. 280, 345).

Although Rogelio was not at home, his two sons, Richard

Martinez and Roger Martinez, arrived shortly thereafter

at their father’s residence. Roger and Richard then had

a short conversation with Hector, their uncie. Although

no trial witness overheard the conversation which took

place in the driveway, Gerardo Garza at the trial testified

that when Hector came back to the car he stated that

1. They were driving a blue-colored Pontiac station wagon,

Texas License Number FUZ 486. This vehicle was later shown to

have been registered to Pablo Vasquez of Laredo, Texas (S. 237).

“his nephews told him that they didn’t have the heroin

just yet but could get it” and that “they only had four

ounces of heroin but could get some more for him”

(R. 283). Shortly thereafter, Hector Martinez, Informant

and Gerardo Garza departed for San Antonio (R. 283).

Later that evening Agent Castro received a telephone call

from Hector Martinez who explained that the heroin

could not be delivered because “he had missed his

brother who was en route to Laredo and then on to

Monterrey to acquire five pounds of heroin” (R. 87).

Hector ended the conversation with an assurance that

something would be arranged for Castro to get the

quality of heroin for which he was asking (R. 87).

Agent Pooley testified that on November 22, 1975,

he had been contacted by Informant, who had attended

a meeting of Hector Martinez, Ramon Quintana, Carlos

Alvorado, Gerardo Garza, an unidentified Latin male,

and an unidentified Latin female. According to In-

formant, the unidentified male and female departed for

Houston with five pounds of heroin in their possession

(R. 234-35). San Antonio Police Officer Russell Reyna

received a report from Agent Pooley that the couple was

to deliver the heroin to Rogelio Martinez (R. 219).

On November 24, 1975, Ramon Quintana contacted

Agent Castro to arrange the sale of five pounds of heroin

for $100,000.00. The plan was for Castro to meet In-

formant in San Antonio and then travel to Houston

where the exchange would take place (R. 88, 142, 158).

At approximately 11:30 a.m. on that date Agent Castro

and San Antonio police officer Russell Reyna picked up

Willie Quintana in San Antonio, where he had earlier

been dropped off by Hector Martinez, Carlos Alvorado

and Gerado Garza (R. 54, 88, 193, 286). Willie in-

formed the agents that upon his arrival in Houston

he was to contact Hector Martinez at telephone number

688-3273 (R. 89, 90). Before leaving San Antonio for

Houston, officer Reyna was told by Agent Max Pooley

that this telephone number was subscribed to by Roger

Martinez at 5802 DeMilo in Houston (R. 196).

At 2:30 p.m. on the 24th, Hector Martinez, accom-

panied by Garza and Alvorado, arrived in Houston

(R. 54, 443). They drove to the residence at 1109

Moody, and Hector Martinez went inside the home while

Garza and Alvorado remained in the car (R. 24, 25,

469-470). Shortly thereafter, Petitioner Rogelio Martinez

arrived, and he also went inside the house (R. 25, 471,

505). A few minutes later Hector Martinez returned to

his travel companions, and they went to a Dairy Queen

a few blocks away (R. 25, 441, 471, 505). At 3:30

p.m. they returned to 1109 Moody and Hector Martinez

entered the residence (R. 26, 444, 505).

At 4:00 p.m. Agent Castro, Officer Reyna and In-

formant arrived in Houston, and at approximately 5:00

p.m. they checked into Room 138 at the Ramada Inn

on Interstate 45 (R. 91, 160).

The testimony concerning the events which occurred

at 1109 Moody after Hector Martinez and his friends

returned to that location from the Dairy Queen is in

conflict. Both Garza and Alvorado testified that they

eventually left Moody Street to take Hector to the Ra-

mada Inn to meet Informant (R. 27-28, 289). Both testi-

fied that prior to this departure Petitioners Richard and

Roger Martinez arrived in a “black car” and remained

in the front yard talking with Hector Martinez and

Petitioner Rogelio Martinez (R. 26-28, 287-288). Garza

testified that after a short while the four men (Petitioners

and Hector Martinez) went into the house and in a few

minutes Hector came out claiming that he had an ounce

of heroin and an ounce of “something else” and stating

that they were “going to the Ramada Inn to look for

Willie” (R. 287-289). Alvorado testified that while the

Petitioners and Hector Martinez were standing in the

front yard one of the “two boys (i.e. Richard and Roger

Martinez) . . . gave a package to the other and he gave

it to Hector Martinez”? (R. 27). Then, according to

Alvorado, he and Garza departed with Hector Martinez

for the Ramada Inn (R. 27-28).

On the other hand, the testimony of D.E.A. surveil-

lance officers concerning the events at 1109 Moody after

Hector’s return from the Dairy Queen indicates the

following;’

1. After returning from the Dairy: po Hector

Martinez and his companions parked their station

wagon in front of the house and Hector exited

the vehicle and entered the house (R. 452, 505).

2. Shortly before 4:50 p.m. Rogelio Martinez came

out of the house, entered his vehicle. (a blue

2. It is from this testimony that the government would seek

draw an inference that Petitioners delivered to Hector Martinez

heroin and cocaine samples which were sold to Agent Castro,

Hector Martinez, at approximately 7:30 p.m. at the Ramada

Inn

3. The surveillance officers made notes during their surveillance

and later filed written reports based on those notes. Their memories

at trial were refreshed by reading those reports. None of the sur-

veillance officers, at why one of whom had an unobscured view of

what occurred in front of the house, (R. 449) observed a meeting

in t

pick-up) and drove to 5802 DeMilo, the residence

of Roger Martinez (R. 505-506). He arrived at

this location at 4:50 p.m. (R. 394) and did not

leave until 6:15 p.m. at which time he, followed

by the black Grand Prix of Roger Martinez

which had been parked at the DeMilo address

since at least 3:00 p.m. (R. 394), drove to the

residence of Richard Martinez where he remained

until 6:40 p.m. (R. 398). He then drove to the

Northline Mall Shopping Center where he was

under constant surveillance until approximately

7:45 p.m. (R. 398-399, 400, 510).

3. Meanwhile at 5:00 p.m. the station wagon with

Hector Martinez and his friends departed 1109

Moody and was followed to the Ramada Inn on

Interstate 45 (R. 454).

4. Between approximately 5:30 p.m. and 8:00 p.m.,

the surveillance officer with an unobscured view

of the front of the house noticed:nothing occurring

at 1109 Moody (R. 449, 455).*

At 5:45 p.m. Informant, who was now at the Ramada

Inn with Agent Castro and Officer Reyna, placed a tele-

phone call to the 688-3273 number and asked to speak

to Hector Martinez (R. 91, 162). According to Officer

Reyna,’ Informant discovered that Hector was not at the

4. In view of this testimony of the surveillance officers, the

validity of the testimony of Garza and Alvorado concerning the

meeting between all Petitioners and Hector Martinez and con-

cerning the package exchange is extremely questionable. Note that

the “black car” belonging to Roger Martinez was under constant

observation from 3:00 p.m. to 6:40 p.m. According to surveillance

officers, it had not arrived at 1109 Moody as late as 8:00 p.m.

Between 5:00 p.m. and 8:00 p.m. Hector and his companions cer-

tainly were not at 1109 Moody, nor was Rogelio Martinez. Prior

to 5:00 p.m. not one surveillance officer saw this meeting between

Petitioners and Hector.

5. Informant was not present and did not testify at the trial.

12 .

location of the phone number so Informant gave his

name and location to whomever he was speaking and

requested this information be given to Hector® (R. 162).

At 6:45 p.m. Hector Martinez phoned Room 138 of the

Ramada Inn and “instructed Willie to be in front of the

motel at 7:00 p.m.” (R. 91, 92, 163). He followed this

instruction, and at 7:10 p.m. he returned to the motel

room accompanied by Hector Martinez (R. 92, 163).

During this visit Hector delivered a sample of heroin’

and a gift sample of cocaine to Agent Castro (R. 92).

After being shown the $100,000.00 “flash roll” Hector

demanded and received $1,400.00 for the heroin sample

(R. 94, 166). The payment, reasoned Hector, was to

demonstrate to his brother that the purchasers were acting

in good faith (R. 94, 166). At 7:30 p.m. Hector Marti-

nez departed the motel room, stating that he would return

at 11:30 p.m. with the five pounds of heroin (R. 94,

167).

At approximately 7:35 p.m. surveillance officers ob-

served Hector Martinez walking across the parking lot

of the Northline Mall Shopping Center which is located

near the Ramada Inn*® (R. 399, 400, 510). There he

was seen to meet with Richard and Roger Martinez who

were occupants of a black Grand Prix’ and Rogelio

6. Note that this is forty-five minutes after Hector had already

been followed to the Ramada Inn by a surveillance officer.

7. A D.E.A. chemist testified that this sample contained 25.4

grams of 15.2% heroin (R. 259).

8. One of the surveillance officers testified that the shopping

center is about six blocks from the Ramada Inn (R. 507), another

said approximately one block (R. 398, 399).

9. This car was later shown to be registered to Petitioner Roger

Martinez and was actually a Catalina,

Martinez who was in his pick-up (R. 399, 400, 508-

510). Hector walked over to the Grand Prix, entered the

vehicle and it departed the mall area’® (R. 400).

At approximately 11:15 p.m. Alvorado and Garza

returned to 1109 Moody to pick up Hector Martinez’'

(R. 79). At this time, Alvorado over-heard a conversation

between the Petitioners and Hector Martinez which was

“all about that they didn’t want to let the powder go

until we brought all of the money.’*” (R. 32-33).

At 11:55 p.m. Hector Martinez returned to Room

138 at the Ramada Inn at which time he informed his

10. If Alvorado’s testimony is believed this meeting at the

Northline Mall never occurred. He testified that he and Garza

took Hector to the Ramada Inn about 7:00 p.m. and waited out-

side while he went into the motel. Hector then came out and said

he had sold the package, and the trio returned to Rogelio’s house.

About 45 minutes later they went to have dinner (R. 27-31). They

returned at 11:15 p.m. to pick up Hector Martinez (R. 32, 79).

11. See footnote 10, supra.

12. In view of the testimony of surveillance officers, the validity

of this testimony is highly questionable. Consider the following

(1) According to Agent Scott, after leaving the Northline Mall at

about 7:35 p.m., the black Grand Prix occupied by Petitioners

Richard and Roger Martinez was seen again at about 8:00 p.m.

at 1109 Moody, but it departed that address at 8:10 p.m., drove to

the residence of Richard Martinez where it remained until at least

11:20 p.m. (R. 400, 430, 440); (2) Agent Mike Conway resumed

surveillance at 1109 Moody at about 10:30 p.m. At 11:40 the black

Grand Prix arrived occupied by Richard and Roger Martinez, both

of whom got out and went into the house (R. 472). Conway testified

that he did not know where Hector Martinez was at this time (R.

499). He made no mention of seeing the station wagon. At about

11:45, Rogelio Martinez and Richard Martinez exited the house and

drove to 2804 Morrison Street, parked the Grand Prix and left in

Rogelio’s pick-up (R. 472); (4) Hector returned to Castro’s motel

room at 11:55 p.m. where he remained until 12:05 a.m. (R. 95,

168, 169); and (5) Garza testified that, after seeing the Petitioners

at 1109 Moody just prior to taking Hector to the Ramada Inn for

the first time, he never saw them again (R. 320-322).

customers (Castro and Reyna) that his brother wanted

the money “out front” (R. 168). When the customers

insisted that the heroin be delivered to the motel or in a

public place, Hector stated that he would try to convince

his brother to make delivery at the motel (R. 95, 169).

Hector and Informant left the room at 12:05 a.m. (R.

95, 169). According to Alvorado he and Garza then

drove Hector and Informant to the home of Rogelio

Martinez (R. 34). No one was there except Rogelio

and after Hector talked with him, Alvorado and Garza

took Hector and Informant back to the Ramada Inn”

(R. 34). Hector and Informant returned to Room 138

at 12:35 a.m., and this time Hector told Agent Castro

that his brother would allow one of the customers to come

to his house to observe the heroin provided he brought

the money with him (R. 169). This the agent refused to

do because “it was not safe to drive around with $100,-

000.00 in a strange town” (R. 169). Then Hector de-

cided that he would call his brother. He picked up the

phone, dialed a number and was heard to say “Hello,

Rogelio. I am here with my clients” (R. 97). There

followed a brief conversation with Hector explaining

to the other party that the clients wanted to meet in a

public place (R. 171). Hector then handed the phone

to Castro and suggested that he speak with the person

on the phone (R. 97). Over objection, Agent Castro

described the telephone conversation that he then had in

the following manner (R. 99):

13. Agent Gospodarek testified that at midnight, he picked

surveillance on the station wagon driven by Hector and be cter-

panions. According to him, the station wagon “drove around and

around and around the hotel area, back over towards Moody Street

and just aimlessly drove around” for about half an hour. He did

not see the station wagon stop at the 1109 M Street address

(R. 511, 535-536).

“I said — my first word was “Rogelio?”. And he

said “What’s happening?” I said “Well, I understand

that you want me to go to your house and my

position is I want you to come to the motel. I have

got a $100,000.00 here and I don’t know whether

you have the heroin or not.” To which he replied

that he had the heroin, and that it was just as good

as the sample that he had sent to the motel and

that the way it was going to be is I would go to

his house and do it that way or not to do it at

all, at which time he requested for me to get Hector

back on the phone and I handed the phone back to

Hector Martinez.”

After the above described conversation, Officer Reyna

began to express dissatisfaction with the progress of

negotiations. Hector responded that he would again talk

to his brother and try to arrange something (R. 172).

At 1:10 a.m. Hector and Informant left the room

(R. 230). Later Willie returned and informed the agents

that Hector could set up a deal at an all-night service

station (R. 230). During the period of time between

Hector and Informant’s departure from the room and

Willie’s subsequent return, Alvorado and Garza, accord-

ing to Alvorado’s testimony, drove Hector and Informant

to the residence of Rogelio Martinez (R. 35). Only

Rogelio was there and “they (Informant and Hector)

talked to him—just about the money and the powder

and they mentioned the fact that the clients would come

two blocks away from the house” (R. 35).

At 1:20 a.m. Agent Castro received a telephone call

from Hector Martinez. At this time Hector stated that

“the deal would go in the morning in the daylight hours”

(R. 103). Accordingly, at 9:15 a.m. Castro and Reyna

met with Hector Martinez at a Denny’s Restaurant

where they discussed several alternative methods of de-

livery (R. 104, 173, 174). This time agent Castro com-

plained about progress of the negotiations and Hector

requested one more chance to try to convince his brother

to deal with them (R. 105). At 10:00 a.m. Hector

left Denny’s and was dropped off at 1109 Moody by

Alvorado and Garza (R. 36, 350). A few minutes later,

Hector was picked up by his companions as he was walk-

ing on the street “in the vicinity of the Moody Street

address” (R. 350). At this juncture, Hector informed

his companions that Rogelio did not want to go through

with the deal because he was suspicious of the buyers

(R. 295). Then Hector was taken to a lounge owned by

Rogelio Martinez. He walked over to Rogelio’s pick-up

and appeared to engage in conversation with him (R.

350). He then returned to the station wagon where he

informed his companions that Rogelio had said he didn’t

want to see Hector again, and had admonished Hector

not to call him again (R. 352). However, at 10:55

a.m. Hector Martinez returned to the Ramada Inn and

told Agent Castro that his brother had agreed that de-

livery could take place at a restaurant close to Regelio’s

house (R. 105). Castro agreed to this plan and Hector

Martinez left the room, but at 11:30 a.m. he called and

asked to speak to Informant (R. 105-106). Informant

then left to meet Hector in front of the motel, but at

12:15 p.m. Informant called and stated that negotiations

were terminated (R. 106). Shortly thereafter, Hector,

Informant, Alvorado and Garza departed Houston and

returned to Laredo (R. 37, 296).

On December 2, 1975, Agent Castro received a tele-

phone call from Ramon Quintana, who stated that “his

source” now had five pounds of heroin and that it was

selling for $19,200.00 per pound (R. 107, 108). Later

that day, Agent Castro and Officer Reyna met with

Gerardo Garza and Informant at the Laredo Airport in

Laradeo, Texas (R. 108). Informant immediately in-

quired as to whether or not Castro had the money, and

when Castro replied affirmatively, Informant placed a

telephone call to Ramon Quintana (R. 109). About

an hour later, Ramon arrived with Carlos Alvorado and

a person introduced to Castro as Carlos, but who Castro

later learned was Felix Alba (R. 110). Carlos (Felix

Alba) told Castro that the heroin belonged to him, and

he insisted that the transaction take place either at the

home of Carlos Alvorado or the home of Ramon Quin-

tana (R. 110). This Castro refused to do, and after

further discussions it was agrdeed that a sample of heroin

would be delivered to Castro at the airport (R. 111).

Alvorado, Informant and Carlos (Felix Alba) left and

later returned in a blue Plymouth,’* a sample of heroin’’

was delivered to Agent Castro by Gerardo Garza (R.

112). At this point, Carlos (Felix Alba) insisted that

the transaction take place at his home (R. 113). Castro

and Reyna again insisted that delivery be made at the

airport or some other public place (R. 113). It was then

agreed that Alvorado and Garza would attempt to per-

suade Carlos to make delivery in a public place, but it

was later determined that they “could not convince

Carlos to release the heroin” (R. 113). At about 11:00

. p.m., Castro and Reyna decided to terminate the negotia-

tions (R. 114).

14. It was later shown that this automobile was registered to a

Willard Enard of La Marque, Texas, which is “almost in the back-

yard of Houston, Texas” (R. 238).

15. This sample was identified by a D.E.A. chemist as 24

grams of 15.3 per cent heroin (R. 276).

On January 5, 1976, Castro again talked with Ramon

Quintana (R. 114). Quintana stated that he had nine

ounces of heroin that he would sell for $1,700.00 per

ounce (R. 115). Later, arrangements were made for

Castro to meet Quintana at a specified location in San

Antonio, Texas, on January 7, 1976, to deliver the

heroin. At the designated location they observed Ramon

Quintana sitting behind the wheel of a van, with an

unidentified woman in the back seat (R. 118). At this

time, Ramon Quintana and the woman, later identified

as Maria Salivas Saenz, were arrested and twelve ounces

of heroin were seized from the van (R. 119-120).

REASONS FOR GRANTING THE WRIT

1. Petitioners submit that the evidence is insufficient

to support their convictions under Count I of the indict-

ment for two reasons: First, the evidence, independent of

the extra-judicial declartions of Hector Martinez, is in-

sufficient to support a finding by the jury that Petitioners

became aware of the plan to distribute heroin and, there-

after agreed to, or knowingly assisted, the accomplish-

ment of that plan. Secondly, the evidence, considered in

its entirety, is circumstantial and is insufficient to exclude

the reasonable hypothesis, supported by the evidence, that

Petitioners were used as a shield to protect the identity

of the real source of the heroin.

a. It has long been the rule that the extra-judicial

declarations of an alleged co-conspirator are not admis-

sible against the defendant on trial unless the government

has established by independent evidence the existence of

a conspiracy and the defendants’ participation therein.

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86

—— — >

———-—__—_ ~~ -

L.Ed. 680 (1942); United States v. Rodriguez, 509 F.2d

1342 (Sth Cir. 1975); United States v. Apollo, 476 F.2d

156 (Sth Cir. 1973); Montford v. United States, 200

F.2d 759 (Sth Cir. 1952). The test for determining the

sufficiency of the independent evidence is whether or not

it would be sufficient to support a finding by the jury

(1) that a conspiracy existed and (2) that the defendant

knowingly participated in that conspiracy. United States

v. Rodriquez, supra; United States v. Tyler, 505 F.2d

1329 (Sth Cir. 1975); United States v. Oliva, 497 F.2d

130 (5 Cir. 1974).

Count I of the indictment in this case charged a con-

spiracy (1) to possess heroin with intent to distribute

and (2) to distribute heroin. The government’s theory

obviously was that the unlawful plan to possess and then

distribute heroin to D.E.A. Agent Albert Castro was

initiated by and between Ramon Quintana, Hector Mar-

tinez, Carlos Alvorado and Gerardo Garza, and that,

thereafter, Petitioners knowingly, willfully and intention-

ally, participated in the unlawful scheme. In order for

each Petitioner’s conviction on Count I to be sustained

the evidence, independent of the extra judicial declarations

of alleged co-conspirators, must, at least, be sufficient to

support a finding by the jury that he became aware of

the plan to distribute heroin to someone outside of the

conspiracy and, thereafter, agreed to, or knowingly as-

sisted, the accomplishment of that plan.

Viewed in the light most favorable to the government,

the independent evidence shows the following:

(1) On November 19, 1975, Petitioners Richard and

Roger Martinez met with their uncle, Hector Mar-

tinez, at the home of their father, Rogelio Mar-

tinez.

(2) On November 24, 1975, all three Petitioners met

twice with Hector Martinez at the home of Rogelio

Martinez. At the first meeting a package was de-

livered to Hector. At the second meeting there

was some conversation, over-heard and vaguely

recalled by Carlos Alvorado, “all about that they

didn’t want to let the powder go until we brought

the money.”

(3) On November 24, 1975, all three Petitioners met

with Hector Marintez at the Northline Mall Center.

(4) On November 25, 1975, there were two additional

meetings between Hector Martinez and Petitioner

Rogelio Martinez. Petitioners Richard and Roger

Martinez were not present. The first meeting oc-

curred about 1:00 a.m. at Rogelio’s home. In-

formant was also present and Carlos Alvorado

vaguely recalled over-hearing some conversation

which was “just about the money and the powder

and they (Informant and Hector) mentioned the

fact that the clients would come two blocks away

from the house.” The second meeting was at about

10:30 a.m. and Hector and Rogelio appeared to

argue. |

(5) On November 24, 1975 at about 5:45 p.m. In-

formant unsuccessfully attempted to contact Hector

Martinez by dialing a telephone number shown to

be listed to Roger Martinez.

(6) On November 25, 1975, at 12:50 a.m. Agent

Albert Castro had a telephone conversation with

a person who had been called by Hector Martinez

and who (1) claimed that he had sent the heroin

sample to Castro, (2) said that he had the remain-

ing heroin and (3) insisted that the transaction

take place at his home.

Several observations about the above recited evidence

should be noted. First, Informant’s attempt to contact

Hector Martinez at a phone number listed to Roger

Martinez suggests nothing more than the fact that Hector

knew his nephew’s phone number and might be at his

home. Second, apart from the hearsay declaration of

Hector Martinez, Agent Castro’s telephone conversation

with a person unknown to him at 12:50 a.m. on the 25th

has no significance in terms of the Petitioner’s criminal

liability. Third, there is no showing that the package

allegedly delivered to Hector Martinez contained heroin

or any other contraband. Of course, the government

would seek to draw an inference that it contained the

heroin and cocaine samples delivered to Agent Castro

at the Ramada Inn. The Fifth Circuit, however, has con-

sistently refused to draw such inferences under similar,

if not identical situations.'* See, Panci v. United States,

256 F.2d 308 (Sth Cir. 1958); Gutierrez v. United

States, 314 F.2d 334 (Sth Cir. 1963).

Petitioners Richard and Roger Martinez

Richard and Roger Martinez were not present during

the conversation where it was mentioned “that the clients

would come two blocks from the house.” Thus, there is

nothing to suggest that they knew of Hector’s plan to

distribute heroin. The most that could be inferred is a

conditional acquiescene in Hector’s desire to obtain heroin

for whatever reason, perhaps personal use, provided he

had the purchase price. Assuming there was an attempted

sales agreement with Hector, it was never consummated.

Even had it been, it is clear, that absent some prior or

16. The jury, in light of its verdicts on Counts II through V,

obviously rejected this evidence (shown to be extremely question-

able, see Footnote 4, supra) and the inference favored by the

government,

contemporaneous understanding beyond a mere sales

agreement, the relationship of buyer and seller does not

establish a conspiracy. United States v. Cook, 461 F.2d

906 (Sth Cir. 1972); United States v. Ford, 324 F.2d

950 (7th Cir. 1963); United States v. Varelli, 407 F.2d

735 (7th Cir. 1969). In such a relationship there is no

common goal or objective because, “the buyer’s purpose

is to buy; the seller’s purpose is to sell.” United States

v. Ford, supra. This case falls squarely within the caveat

issued by the Supreme Court in Direct Sales Co. v. United

States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674

(1943):

“There may be circumstances in which the evidence

of knowledge is clear, yet the further step of finding

the required intent cannot be taken. Concededly,

not every instance of sale of restricted goods, harm-

ful as are opiates, in which the seller knows the buyer

intends to use them unlawfully, will support a charge

of conspiracy.” 319 U.S. 703, 712.

The Court added an explanatory footnote to the above

caveat:

“This may be true for instance, of single or casual

transactions, not amounting to a course of business,

regular, sustained, and prolonged, and involving

nothing more on the seller’s part than indifference

to the buyer’s illegal purpose and passive acquiesence

in his desire to purchase, for whatever end.” 319

U.S. 703, F.N. 8.

Compared to the independent evidence characterized

in Apollo v. United States, 476 F.2d 156 (Sth Cir. 1973)

as “skimpy” and “marginally sufficient”, the independent

evidence here, as to Richard and Roger Martinez, is

) eee

flimsy and clearly insufficient. The evidence in Apollo

was much stronger. In summary, it showed four meetings

between Apollo and the declarant co-conspirator (Coc-

roft) over a two week period of time, at least one of

which occurred immediately after a large shipment of

marijuana was received by Cocroft. At this latter meeting

Apollo entered the bedroom where the marijuana was

stored, and returned with a plastic sack containing what

appeared to be compressed bricks of marijuana. There

were also two conversations between Apollo and Cocroft

in the presence of a third party, who testified and clearly

related the details of the conversations, which clearly

demonstrated “that Apollo was aware of Cocroft’s in-

volvement with one or more other parties in a large-scale

operation to illicitly import and distribute marijuana”

and which clearly “indicated that Apollo was fully aware

that he was the product out-let and the source of cash

inflow that enabled the unlawful plan to operate.” 476

F.2d 156, 162. The Court also noted that there was

proof of a continuing relationship between Apollo and

Cocroft.

Finally, as to Petitioners Richard and Roger Martinez,

even if it be assumed that they became aware of Hector’s

plan to distribute heroin, there is nothing to suggest that

they, thereafter, agreed to, or knowingly assisted, that

plan. Indeed, the evidence is to the contrary. Whatever

their motives may have been, they refused to comply

with Hector’s wishes to obtain heroin. Cases such as

United States v. Cianchetti, 315 F.2d 584 (2nd Cir.

1963) and United States v. Spanos, 462 F.2d 1012 (9th

Cir. 1972), make it clear that refusal to further the suc-

cess of the unlawful enterprise, regardless of reason

therefore, prohibits a finding of participation in the con-

spiracy.

Petitioner Rogelio Martinez

As to Rogelio Martinez, the independent evidence is

strikingly similar to that held insufficient in United States

v. Spanos, 462 F.2d 1012 (9th Cir. 1972). The con-

spiratorial theory in Spanos was that Godwin, a testify-

ing co-conspirator, was to find buyers, then obtain the

stimulant pills from Spanos and deliver them to the

buyers. The independent evidence showed that Godwin

on one occasion actually bought 50,000 amphetamine

tablets from Spanos which were sold by Godwin to under-

cover agents. On two subsequent occasions Spanos agreed

to sell large quantities of pills to Godwin, but later re-

fused because “he knew he was being followed.” On one

of these subsequent occasions Spanos actually met with

“the people” (intended purchaser’s from Godwin), one

of whom expressed satisfaction with “the merchandise

we had gotten before.” Spanos’ reply to this potential

buyer was “he didn’t want to do business at that time

because he knew he was being followed.” (Emphasis

added). The Court noted that the independent evidence

showed that Godwin sold the 50,000 pills that he initially

obtained from Spanos to Herring, a government agent,

But, said the Court, “there is no evidence that Spanos

had agreed with Godwin that Godwin was to resell to

Herring or anyone else.” 462 F.2d 1012, 1015. In

closing the Court also noted that in selling these 50,000

pills, Spanos “presumably (knew) that Godwin would

resell” but “Spanos refused to make further sales, when

for the first time (so far as the evidence shows) he

learned the extent of Godwin’s sales and to whom he was

selling.” 462 F.2d 1012, 1017. Finally, the Court observed

that Spanos’ “motives . . . were not laudable, but as

Cianchetti holds, that is immaterial.” 462 F.2d 1012,

1017.

If anything, the independent evidence as to Rogelio

Martinez is weaker than that held insufficient in Spanos.

Unlike Spanos, there is no direct testimony here that

Rogelio actually sold or delivered drugs to Hector. Nor

is there any evidence of positive agreements to sell drugs

to Hector followed by a change of mind. From all that

appears from the independent evidence, Hector attempted

to obtain drugs from Rogelio who, regardless of his mo-

tive, continuously refused to comply. The evidence simply

will not support a finding that Rogelio Martinez knowing-

ly participated in Hector’s plan to distribute heroin.

b. The evidence presented by the government against

these Petitioners when considered in its entirety is, at

best, circumstantial. The test for determining the suf-

ficiency of the evidence in such cases is whether or not

reasonable minds could conclude that the evidence is

inconsistent with the hypothesis of the accused’s in-

nocence.” United States v. Olivia, 497 F.2d 130 (Sth

Cir. 1971); Cuthbert v. United States, 278 F.2d 220 (Sth

Cir. 1960). Petitioners submit that the evidence should be

considered in the light most favorable to the Petitioners,

because they prevailed on six of the seven counts; and

the jury, therefore, obviously rejected certain inferences

which might have been drawn from the evidence. But,

even if the evidence is considered in the light most favor-

able to the government, it is insufficient to eliminate the

reasonable hypothesis, clearly raised by the evidence,

that Hector Martinez used his association with the Peti-

tioners to conceal the identity of his real source of heroin.

When Hector Martinez delivered his sample ounce of

heroin to Agent Castro and Officer Reyna, and the terms

of the exchange were agreed upon, Hector arranged to

deliver the five pounds four hours later, at 11:30 p.m.

It stands to reason that this delay was necessary for

Hector to obtain the heroin, since later negotiations

proved that Hector had no qualms about making the ex-

change at any hour. This is substantiated by Garza’s

testimony that, upon returning to the car from the 7:30

meeting, Hector told Alvorado and Garza that “we are

going to have to wait until later in the evening to receive

the quantity that we were supposed to get.” (R. 291)

Yet, Hector Martinez was not even under surveillance

from 8:00 p.m. to 11:00 p.m. (when the surveillance of-

ficers returned to their homes, apparently to watch the

Houston Oilers—Pittsburgh Steelers football game) (R.

511, 532-535).

The trial testimony revealed so many contradictions

among the government witnesses,*' and there were so

17. E.g.: (1) Alvorado testified that the sample ounce of No-

vember 24, was delivered by Richard and Roger to Hector while

they were in front of the house at 1109 Moody Street (R. 27).

However, the agents testified that when he arrived at 1109 Moody,

Hector got out of the car and went into the house (R. 452, 505).

Garza’s testimony discloses no heroin transfer, but merely that

Hector told them on the way to the motel that he had an ounce

of heroin and a half-ounce of something else. (2) Alvorado and

Garza both testified that they returned Hector to 1109 Moody

after the 7:30 meeting (R. 28, 290); the agents testified that

Hector met Petitioners at Northline Mall and departed in the

black car (R. 399, 400, 508-510). (3) Alvorado testified that he

over-heard a conversation in the yard at 1109 Moody at about

11:15 p.m. between all three Petitioners and Hector, which was

“all about that they didn’t want to let the powder go until we

brought all of the money.” (R. 32-33). Garza testified that he

never saw any of the Petitioners again after 5:30 or 6:00 p.m.

Agent Mike Conway testified that he resumed surveillance at 1109

Moody at 10:00 p.m.; that Roger and Richard arrived at 11:40

p.m., and went into the house; that Rogelio and Richard left

the house at 11:45 p.m.; and that he didn’t know where Hector

vas at this time and couldn’t recall seeing him at 1109 Moody (R.

472, 499).

many persons absent whose testimony might have been

crucial (e.g.: Hector Martinez, Willie Quintana, Ramon

Quintana, Felix Alba), that it is obvious why the jury

acquitted the Petitioners of the substantive counts: they

knew that the truth had not been disclosed. There were

just too many inconsistencies, contradictions, and gaps in

the evidence.

It is clear that during the period of time when Agent

Castro was attempting to purchase heroin, i.e., Novem-

ber 5, 1975 through January 7, 1975, Hector Martinez

was associated with a number of persons, one of whom,

Ramon Quintana, was the apparent motivating force in

the alleged conspiracy. Ramon, in turn, had at least

several apparent sources of heroin, one of whom was

clearly identified as Felix Alba, who was allegedly the

source of the heroin sample delivered to Agent Castro

at the Laredo airport on December 2, 1975 (R. 110). The

similarities between the heroin sample delivered at that time

(24 grams of 15.3% heroin; R. 276) and the heroin

sample delivered to Age: : Castro at the Ramada Inn in

Houston on November 24th (25.4 grams of 15.2%

heroin; R. 259) is at least consistent with the hypothesis

that both samples emanated from the same source. It is

also significant that Felix Alba (Carlos Doe) was driving

an automobile registered to Willard Enard of La Marque,

Texas which is “almost in the backyard of Houston,

Texas” (R. 238).

The mysterious absence of Ramon Quintana during

the negotiations in Houston on the 24th and 25th of

November is, likewise, very curious. Or, does the record

in fact reveal a very real possibility that Ramon was in

Houston at that time? The original sworn statement of

Carlos Alvorado stated that on the 24th of November,

Ramon Quintana accompanied Alvorado and his com-

panions to Houston (R. 66-69). Overt act number eight

under Count I states that on November 24, 1975,

“ . . . Ramon Quintana, Hector Martinez, Gerardo

Garza and Carios Alvorado left San Antonio, Texas

for Houston, Texas where they were to meet with

narcotic law enforcement personnel acting in an

undercover capacity.” (Emphasis Added).

The relationship between Hector Martinez and Infor-

mant, Ramon’s half-brother, is a significant point. It is

apparent that every time there was an argument between

Hector and Castro about how the “deal would go down”,

Informant would leave the room with Hector, who would

later return with another plan (R. 230).

There was also testimony, developed on cross-examina-

tion by the defense, that on November 22, 1975, Ramon

Quintana, Informant, Hector Martinez, Carlos Alvorado

and Gerardo Garza met at a bar in Laredo, Texas with

an “unidentified Latin male and unidentified Latin fe-

male” who had five pounds of heroin in their possession

and who left for Houston with that heroin (R. 234-235).

Finally, and perhaps most significant of all, is Hector’s

actions after his last meeting with Petitioner Rogelio Marti-

nez. At 10:30 a.m. on the 25th, Hector was told by his

brother, Rogelio Martinez, “not to call him again, not to

make any phone calls to him again and not to see him

again” (R. 295). And yet, twenty-five minutes later

Hector arrived at the Ramada Inn and stated that his

brother had agreed to deliver the heroin at a small cafe

and suggested that agents Castro and Reyna, who had

never seen Rogelio, go to that location with the $100,-

000.00 (R. 152-153, 175).**

Appellants would invite this Court’s attention to the

case of Ong Way Jong v. United States, 245 F.2d 329

(9th Cir. 1957). The conviction there, on facts remark-

ably similar to the case at bar, was reversed on grounds

of insufficient evidence. In over turning the conviction

the Ninth Circuit Court noted that “It is conceivable that

Wee (the person from whom agents purchased narcotics)

was using his association with Ong as a blind to hide his

real ‘connections.’ ” 245 F.2d 392, 396. The evidence in

this case is even more suggesitve of such an hypothesis

than was tthe evidence in Ong Way Jong. There it was

noted that during the period of time in question Wee

“associated with no one” other than Ong Way Jong. 245

F.2d 392, 393. As demonstrated, such is clearly not the

case at bar. Moreover, in Ong Way Jong, the only sug-

gestion that Wee may have obtained, from another source,

the heroin which allegedly came from Ong was the

government's stipulation that the heroin received from

Wee by undercover agents on one occasion was not sup-

plied by Ong, 245 F.2d 392, 394, and Wee’s claims dur-

ing negotiations that he had many sources. 245 F.2d

392, 393. Although the government did not stipulate to

it, the jury, by its verdicts on Counts.II through VII, ob-

viously found that Petitioners did mot supply the heroin

samples delivered to Castro on November 24th and De-

cember 2, nor were they connected with the heroin

seized from Ramon Quintana on January 7, 1976.

18. Note also the curious activities beginning about midnight

on the 24th when Hector claimed he was trying to convince his

brother to make delivery at the motel or at a public place. See

appropriate section of Summary Of The Evidence, including foot-

note 13, supra,

Unlike Ong Way Jong, there is specific evidence in

this case, as already suggested above, which clearly raises

the hypothesis that Petitioners were being used as a shield

to protect the identity of the real source. This case clearly

demands application of the often stated rule that circum-

stantial evidence, to be sufficient for conviction, must

eliminate every reasonable hypothesis of guilt. If that

rule has meaning, it should be applied here.

2. In circumstances such as those of the instant case,

where there is no question that the conspiracy in which

the Petitioners allegedly participated resulted in the com-

mission of the substantive crimes charged; where the

evidence linking the Petitioners to the conspiracy was

necessarily found inconclusive by the jury; where the

rationale supporting the approval of inconsistent jury

verdicts does not apply; and where there is extreme likli-

hood that the guilty verdict on the conspiracy count was

influenced by a prejudicial hearsay statement; the con-

viction should be reversed.

In United States v. Peterson, 488 F.2d 645 (Sth Cir.

1974), the United States Court of Appeals for the Fifth

Circuit reversed a conviction for conspiracy where the

defencant had been acquitted by the same jury on all

substi ative counts of the indictment, the elements of

which closely approximated the overt acts alleged under

the conspiracy count. In doing so the Court stated:

“Concedely, a conspiracy to commit a crime is a

separate and distinct crime from the substantive of-

fense. But this distinction may become tenuous

where after receiving a ‘aiding or abetting’ charge,

a jury exonerates a defendant on the substantive

counts the elements of which closely approximate,

if not parallel, the overt acts alleged in the con-

spiracy charge . . . [BJased on the unique facts

presented by the record, it is difficult to conceive of

how the jury could exculpate Dr. Peterson as an

aider or abettor but yet inculpate him as a confed-

erate.” 488 F.2d 645, 651 (Emphasis Added).

In light of the pleadings, the evidence presented at

trial and the prosecutorial theory’® advanced and clearly

articulated in the Court’s charge, the jury’s verdicts of

acquittal on the substantive counts in the case at bar

are even more significant than the acquittals in Peterson.

The theoretical distinction between the substantive crime

and the conspiracy to commit it certainly becomes tenuous

where the jury, after receiving not only an “aiding or

abetting” charge, but also a charge on the substantive

criminal liability of co-conspirators, acquits the defendant

on all substantive offenses, the evidentiary proof of which

closely approximates, if not precisely parallels, the overt

acts alleged in the conspiracy count. It is impossible to

conceive of how the jury could exonerate Petitioners on

Counts II through V, involving delivery of the heroin

and cocaine samples allegedly obtained from the Peti-

tioners and delivered to Agent Castro as a part of the

alleged conspiratorial scheme to sell him five pounds of

heroin, and yet properly convict Petitioners on the al-

19. The government’s theory at trial was that since Petitioners

were members of the conspiracy they were criminally liable for

every criminal act committed by other members of the conspiracy

as a part thereof (R. 544). The charge on principals was also

submitted obviously on the proposition that the alleged conduct of

Petitioners in furtherance of the attempt to sell heroin to Agent

Castro on the 24th, conduct which made Petitioner’s co-conspirators,

was conduct which resulted in Petitioners aiding and abetting the

substantive offenses.

‘32

leged conspiracy.*” Had the Petitioners on this same

record, been first tried and acquitted on the substantive

counts, a conviction on the conspiracy count at a sub-

sequent trial clearly could not stand. Sealfon v. United

States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948).

The same result would follow had the present jury, al-

though acquitting on the substantive offense, been un-

able to reach a verdict on the conspiracy count. Williams

v. United States, 179 F.2d 644 (Sth Cir. 1951), affd

341 U.S. 70. This Court’s holding in Peterson makes it

clear that these Petitioners cannot be penalized simply

because economy, judicial and otherwise, results in the

trial of conspiracy and related substantive counts to a

single jury.

The concept that evidence once rejected by a jury

should not again be considered against the accused in

support of a closely related, but separate and distinct,

offense has long been accepted by the Fifth Circuit. See,

e.g. Yawn v. United States, 244 F.2d 235 (Sth Cir.

1957); Wingate v. Wainwright, 464 F.2d 209 (Sth Cir.

1972). Although Yawn and Wingate both deal with the

exclusion of evidence rejected by a previous jury, this

Court’s opinion in United States v. Peterson, 488 F.2d

645 (1974) clearly suggests that the same concept ap-

20. The probable explanation for this patent inconsistency is

the prejudicial effect of admitting the hearsay declaration of

Hector Martinez that his brother, Petitioner Rogelio Martinez, had

been in the narcotics business since 1945. (See reason number

four). Such prejudicial testimony in a narcotics case, coupled with

nothing more than a showing of mere association with a person

(Hector Martinez) who, at the time, is actively engaged in a

scheme to sell five pounds of heroin, would probably compel most

American juries to take the position that the Petitioners on trial

ought to be found guilty of something. A conspiracy allegation is

tailored to accommodate such prejudicial reasoning.

ee ee ee

plies with reference to evidence obviously rejected by

the same jury. Early Circuit Court opinions, indeed,

held that a conviction under a multi-count indictment

could not be sustained unless the evidence, independent

of that rejected by an acquittal on separate counts under

the same indictment, was sufficient to sustain the con-

viction. Rosenthal v. United States, 276 F. 714; Peru v.

United States, 4 F.2d 881; Murphy v. United States, 18

F.2d 509; Boyle v. United States, 22 F.2d 547; Speiller

v. United States, 31 F.2d 682; Frisna v. United States,

49 F.2d 733. This view is consistent with the long estab-

lished principle that on appeal, the evidence must be

viewed in the light most favorable to the jury’s verdict.

Evans v. United States, 257 F.2d 121 (9th Cir. 1958);

» United States v. Blake, 484 F.2d 50 (8th Cir. 1973);

United States v. Valdez, 431 F.2d 622 (8th Cir. 1970).

Those cases holding that on appeal. the evidence must

be viewed in the light most favorable to the government

merely state an expression of the same rule where the

government has prevailed below. Such is not the case

under a multi-count indictment where the government

has prevailed as to one count, the defense as to six.

The jury obviously rejected at least the following three

portions of evidence, since the acceptance of any one of

these portions would have provided a direct link to the

conspiracy and the substantive crimes perpetuated in the

furtherance thereof. The testimony of Carlos Alvorado

concerning the exchang of the sample ounce, and concern-

ing the overheard 11:15 p.m. conversation between Hector

Martinez and the Petitioners “all about the money and

the powder and that they didn’t want to let the powder

go until we brought the money” was undoubtedly rejected.

(See Footnotes 4, 12, and 17, supra). Finally, the jury

must have rejected the extra-judicial declarations of Hector

Martinez which identified Petitioners as his source, other-

wise they surely would have found Petitioners guilty (at

least as aiders and abettors) under Counts II through V.

Stripped of the evidence obviously rejected by the

jury, the government’s case for a conspiracy reduces to

nothing more than a showing of two meetings between a

father, his sons and their uncle, one at the father’s home

and one at a public shopping center; and two additional

meetings between the father and his brother, Uncle Hec-

tor. In short, a showing of mere association with Hector

Martinez, an alleged co-conspirator. The Fifth Circuit

has repeatedly held that such evidence is not sufficient

to support a finding of conspiracy. United States v.

Morrow, 537 F.2d 120 (Sth Cir. 1976); United States

v. Murray, 527 F.2d 401 (Sth Cir. 1976); United States

v. Tyler, 505 F.2d 1329 (Sth Cir. 1975); United States

v. Arroyave, 477 F.2d 157 (Sth Cir. 1973); Panci v.

United States, 256 F.2d 308.

Since Justice Holmes delivered his last opinion in

Dunn v. United States, 284 U.S. 390 (1932), federal

courts have been reluctant to question inconsistent jury

verdicts. Dunn takes a two-pronged approach in allowing

inconsistent jury verdicts. The first approach reasons that

inconsistent verdicts are justified because, if separate

indictments had been presented against the defendant

and had been separately tried, the same evidence being

offered in support of each, an acquittal on one could not

be pleaded as res judicata of the other. Clearly, this

reasoning is no longer valid where determination of the

same issue or fact is crucial to each indictment. Sealfon

vy. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed.

180 (1948). The Sealfon Court recognized that res judi-

cata may be a defense in a second prosecution, dependent

upon whether the jury’s verdict in the first (conspiracy)

trial was a determination of the facts essential to convic-

tion of the second (substantive offense) trial, as decided

by the facts adduced at each trial and the instructions

under which the jury arrived at its verdict at the first

trial. 332 U.S. at 578-79.

The second consideration in support of the Dunn hold-

ing is that the jury’s acquittal on one count was erroneous

—an “assumption of power which they had no right to

exercise, but to which they were disposed through lenity.”

284 U.S. at 393. Succeeding federal court decisions have

recognized other conditions which serve to excuse in-

consistent jury verdicts, as in cases where inconsistency

is necessary to achieve unanimity or where there are con-

fusing and narrow distinctions amount to counts in multi-

count indictments. (e.g., see United States v. Maybury,

274 F.2d 899 (2nd Cir. 1959) ). However, in Petitioners’

case, it is very doubtful that the jury was disposed

toward lenity. The alleged criminal conduct, dealing in

hard drugs, has been condemned by society as a whole

for many years. Additionally, the hearsay evidence that

Petitioner Rogelio Martinez had been in the business since

1945 would serve to increase the enmity felt for heroin

traffickers. Here there was no mistake-inducing standard,

and no complex or razor-thin difference between the

conspiracy count and the substantive counts. In fact, if

a mistake were made, it is likely that it was made in

consideration of the conspiracy count, since the jury

requested supplemental instructions on that issue after

having begun deliberations. The obvious truth is that

there was a conspiracy which sold heroin to government

agents, and that the jury found that the Petitioners were

not guilty of the substantive charges because they were

not members of the conspiracy.

3. The trial court’s denial of Petitioner’s Motion to

Transfer the Case to the Houston Division of the Southern

District of Texas for Trial constituted reversible error.

The affirmation of this denial by the Fifth Circuit is in

direct conflict with that court’s opinion in DuPoint v.

U.S., 388 F.2d 39 (Sth Cir. 1967). Although under

Rule 18, F. R. Cr. P. the trial court in a multi-division

district has discretion to fix the place of trial within the

district, that discretion is abused and reversal of the

conviction is required when the offense with which the

defendant is charged allegedly occurred in the division

where he resides, but he is required to stand trial in a

foreign division without due regard to the resultant in-

convenience to him. Under Rule 18, convenience to the

government is not a factor. Such is precisely the situa-

tion in the case at bar.

In DuPoint the Fifth Circuit reversed a conviction for

possession of an unregistered distillery because the de-

fendant had been required to stand trial, over objection,

in a division which was approximately forty-two miles

from the boundaries of the division in which he resided

and within which his alleged criminal conduct occurred.

Unlike the Petitioners in the case at bar, DuPoint did not

object on grounds that trial in the foreign division was

inconvenient but, instead, erroneously relied upon former

Rule 18 which required trials in a multi-division district

to be in the division where the offense ocurred. Neverthe-

less, the Fifth Circuit held that the trial court’s failure

to give due regard to the convenience of the defendant

was “plain error” under Rule 52(b) which required a

reversal. In response to the government’s argument that

DuPoint had failed to allege any particular inconvenience

and, thus, no prejudice had been shown, the court made

the following observations:

“That a defendant should be tried in the division

in which the offense was committed, especially when

he resides there, is not lightly to be evaded. The

real effect of Rule 18 is that it is not to be done

except with due regard for the defendant’s conveni-

ence and that of the witnesses. The convenience of

the government is not a factor. As evidenced by

the constitutional requirement that none shall be

prosecuted outside the district in which the offense

is committed, it is the public policy of this country

that one must not arbitrarily be sent, without his

consent, into a strange locality to defend himself

against the powerful prosecutorial resources of the

Government.” 388 F.2d 39, 44 (Emphasis Added).

To hold that this case can be distinguished from Du-

Point on the tenuous proposition that some of the overt

acts alleged in the indictment occurred in Laredo and,

thus, the offense was partially committed in Laredo,

would be to ignore the spirit of Rule 18. The criminal

conduct allegedly engaged in by these Petitioners, ac-

cording to the government’s witnesses, literally occurred

in their own backyard, some four hundred miles from the

place in which they were required to defend themselves.

Moreover, the critical inquiry under Rule 18, clearly

articulated by the court in DuPoint, is not the locality

of the offense but convenience to the deefndant and to

the witnesses. Locality of the offense has relevance only

insofar as it is a barometer of convenience. Under Rule

18, not a single factor should be weighed for the govern-

ment convenience.

Against the background of the policy underlying Rule

18, it is clear that the trial court abused its discretion

in requiring these Petitioners to stand trial four hundred

miles away from the locality of their residence and the

locality of their alleged wrong doing. The inconvenience

and the prejudice to these Petitioners of a one week trial

in a foreign locale four hundred miles away is obvious.

The travel, lodging and eating expenses alone for the

three Petitioners and their attorney cannot be ignored.

The loss of the indispensible ability to demonstrate,

through in-trial investigation, the inaccuracies of testi-

mony concerning various persons, places and things sur-

rounding the locality where the defendant allegedly en-

gaged in criminal conduct, is a loss which every trial

lawyer knows is a serious disadvantage for his client.

Moreover, the subtle prejudice which a local jury may

have against a foreign resident accused of criminal con-

duct by “home town boys” (Alvorado and Garza) is

surely a factor which is entitled to some weight under

Rule 18. Although Petitioners’ Motion To Transfer was

not accompanied by affidavits from defense witnesses who

could have testified for these Petitioners had trial been

notice -. a serious handicap to the defense that is present

in all criminal cases, to wit: details of the alleged criminal

activity such as exact date, time and place, cannot be

discovered by the defense prior to trial. Those details

are learned only as the government’s testimony begins

to unfold. Access to potential witnesses once those details

are learned is non-existent when the trial is conducted

four hundred miles away from where the criminal activity

allegedly took place.

a Le I A A NN LS A NO A EL A OR LAL OL ee

eh Ome

It is likewise apparent that convenience to the witnesses

was not a factor which weighed in favor of a trial in

Laredo as opposed to Houston. Of the fourteen witnesses

presented by the government, five were from Houston

(four hundred miles away), two were from San Antonio

(approximately one hundred and fifty miles from Laredo

and two hundred miles from Houston), and two were

from Dallas, (approximately six hundred miles from

Laredo and two hundred miles from Houston). It is

apparent that a trial in Houston would have been more

convenient for all concerned.

Petitioners submit that if Rule 18 is ever to be any-

thing more than mere technical verbage which, under

the guise of an exercise of discretion, can always be ig-

nored by the trial court, then their convictions on

Count I of the indictment must be reversed.

4. The trial court should have granted Petitioners’

Motion for Mistrial after D.E.A. Agent Albert Castro

testified that Hector Martinez told him that Petitioner

Rogelio Martinez had been in the narcotics business since

1945. During negotiations between D.E.A. Agent Albert

Castro and alleged co-conspirator Hector Martinez on

November 24, 1975 at the Ramada Inn at Houston,

Texas, Castro insisted that the contemplated delivery of

five pounds of heroin take place in his motel room or

some convenient public place. At this point in the testi-

mony the following exchange occurred between the gov-

ernment’s attorney and the witness, Albert Castro (R.

100):

“Q. Did you have any further conversation with

Hector Martinez in the room?

A. Yes, sir. He said he was going to try to con-

vince his brother (Rogelio Martinez) to do it.

Q. Was there any further conversations about his

brother in the room?

A. Okay. During the conversation with me after he

(Hector Martinez) hung up the phone, he stated

that his brother was a hard man to convince,

and that he had been in this business for some

time, since 1945—

Mr. Bass (Defense Counsel): Excuse me, your

Honor. May we approach the bench?

At this point counsel for Petitioners renewed his “con-

tinuing objection to the hearsay features of that conversa-

tion with Hector Martinez” and also objected on grounds

that the witness’ response injected into the trial, at a time

when no issue had been affirmatively contested, an extra-

neous offense (R. 100-101). Counsel also moved for a

mistrial (R. 101). The trial court overruled the objection

and denied the Motion for Mistrial (R. 102).

It is a rule of universal acceptance that the accused

in a criminal case is to be tried on the merits of the

specific allegations charged in the indictment and not

for being a “criminal generally”. Evidence of the defend-

ant’s evil character or that he has engaged in specific

acts of misconduct other than that alleged in the indict-

ment generally must be excluded, not because it is with-

out probative value but, on the contrary, because “it is

said to weigh too much with the jury and to so over-

persuade them as to prejudge one with a bad general

record and deny him a fair opportunity to defend against

a particular charge.” Michelson v. United States, 335

US. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Indeed,

nD PE te A ee

the evil sought to be prevented is clearly demonstrated

in the case at bar. The jury, obviously not truly convinced

beyond a reasonable doubt that Petitioners were “aiders

and abettors” or members of the alleged conspiracy as

witnessed by their verdicts on Counts II through VII,

nevertheless could not bring themselves to completely

exonerate the Petitioners, most likely because of the

prejudicial effect of the complained of “bad man evi-

dence.”

A number of exceptions to the general rule excluding

evidence of extraneous acts of misconduct have evolved.

Those exceptions which are narrowly limited, involve

situations where the extraneous transaction has a high

degree of probative value on a contested and material

issue in the case and where the need for such evidence,

coupled with its high degree of probative value, clearly

outweighs the prejudicial effect it may have to the

accused. The case law establishes the following pre-

requisites to the admissibility of evidence of extraneous

misconduct: (1) the proffered evidence must plainly,

clearly and convincingly establish that the defendant

engaged in conduct similar to that for which he is being

tried; (2) a finding that, if the defendant did engage

in such conduct, such fact logically tends to prove an

element of the offense charged; (3) a finding that the

specific issue upon which the evidence of misconduct

is Offered is one which has been affirmatively contested

by the accused; (4) a finding that the alleged misconduct

did not occur at a place in time which is remote; (5) a

finding that under the circumstances the government

would be prejudiced by exclusion of the evidence, and

(6) a finding that under the circumstances the probative

value of the evidence outweighs its prejudicial effect.

See, United States v. Urdiales, 523 F.2d 1245 (Sth Cir.

1975); United States v. Ring, 513 F.2d 1001 (6th Cir.

1975); United States v. Broadway, 477 F.2d 991 (Sth

Cir. 1973). If the evidence is admitted the Court must

issue a cautionary instruction to the jury about the

proper purposes for which said evidence may be con-

sidered. United States v. Ring, supra.

The objected-to evidence in this case clearly fails to

meet the standards of admissibility. It certainly cannot

be argued that it was plain, clear and convincing evidence

of misconduct. What specific misdeed is the Petitioner

alleged to have done? When did it occur? Where did

it occur? How can it be defended against? Certainly no

alibi is possible. This is further compounded by the

hearsay nature of the evidence. A vague assertion from a

live witness that the defendant on trial is evil is certainly

prejudicial. But a vague assertion from an unsworn

ghost of questionable reliability and not subject to cross-

examination, suggesting that the defendant has been

“dealing dope” for thirty years is undefensible. That it

allegedly came from the defendant’s own brother is

devastating.

That the evidence is remote is an understatement.

Evidence that the accused, at a time fairly recent to the

events currently in question, engaged in specific conduct

similar to that with which he is charged may have some

probative value. But to extend the rule to include con-

duct occurring thirty, twenty, or even ten years preceed-

ing the indictment in the name of relevance is absurd.

Upon what element of the offense was such evidence

offered and how was that element contested? To say

that a “not guilty” plea affirmatively contests all the

Fe ee re

Or ~w

Nees i ee Re ee: EPS ate Ne aS an. + Cate Peet Bese ee te me ee

elements of the offense to the extent that extraneous

offenses become admissible is to say that every person

who assets his innocence may have to answer for every

misdeed in his life. That cannot be the law.

At trial, the only justification for admissibility that

was Offered by the government was that the statement

was made by a co-conspirator in furtherance of the con-

spiracy. If that is justification for admitting such pre-

judicial evidence, then every person accused of conspiracy

must come to court prepared to defend against alleged

misdeeds, the atrocity of which are limited only by the

imagination of his absent and unsworn accusor or by

the imagination of government witnesses. That cannot be

the law. In this regard, the Fifth Circuit recently sug-

gested that evidence which qualifies as an exception to

the hearsay rule is not necessarily admissible over an

objection that the same evidence improperly refers to

specific misdeeds of the defendant. United States v. Cox,

536 F.2d 65 (Sth Cir. 1976).

The case of United States v. Stephens, 492 F.2d 1367

(6th Cir. 1974) is almost identical to the case at bar.

There a conviction for conspiracy to transport stolen

merchandise was reversed because, over objection, a gov-

ernment witness was permitted to testify that the defend-

ant had been introduced to him by an alleged co-

conspirator as “a buyer of stolen merchandise.” The

Court rejected the government’s argument that the testi-

mony was admissible because it was the statement of a

co-conspirator made in the presence of the accused and

in furtherance of the conspiracy, holding that the evi-

dence came within no exception to the Michelson rule

which excludes evidence of other crimes.

Nor can it be denied that the evidence herein referred

to was also prejudicial to the Petitioners Richard and

Roger Martinez. Evidence that their father, a man with

whom they are jointly accused and tried, had been in-

volved in the narcotics business for thirty years surely

was calculated to prejudice them in the eyes of the

jury. The trial court should have immediately declared

a mistrial.

CONCLUSION

For the reasons stated it is respectfully submitted that

the Petition for a Writ of Certiorari should be granted.

Key A La

Ray A. Bass, III

HAYNES & FULLENWEIDER

2701 Fannin

Houston, Texas 77002

(713) 659-8989

Attorneys for Petitioners

September 1977

Oe ty ee ree Die. ee A on .

APPENDIX A

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Rogelio MARTINEZ, Richard Martinez,

and Roger Martinez,

Defendants-Appellants.

NO. 76-4445

Summary Calendar

UNITED STATES COURT OF APPEALS

Fifth Circuit

July 13, 1977

Appeal from the United States District Court for the

Southern District of Texas.

Before GOLDBERG, CLARK and FAY, Circuit

Judges.

PER CURIAM:

Appellants are a father and two of his sons, who have

been convicted by a jury of conspiring to possess heroin

with the intent to distribute, and of conspiring to distribute

heroin.

On appeal, they allege that (1) there was insufficient

indpendent evidence of the existence of a conspiracy;

(2) that the extrajudicial statements of one of the co-

conspirators should not have been allowed in evidence;

(3) that the trial venue was improper; (4) that the trial

should have been continued because of the absence of a

necessary witness; and (5) that a DEA agent testified

about a telephone call between himself and someone a

co-conspirator told him was one of the appellants.

[1] However, after a review of the record in this case,

we find that there was ample evidence of the existence

of a conspiracy to possess and distribute heroin, and of

the membership of these appellants in that conspiracy

and their participation in the furtherance of its ends.

On two occasions the co-conspirators went to Houston

to obtain heroin. On both occasions they went directly

to the home of Rogelio Martinez, where they met with

Rogelio and his sons, Richard and Roger. Following each

meeting with the alleged buyers, the co-conspirators would

either go to Rogelio’s home or meet with Rogelio and his

sons. No heroin transaction was completed in Houston

only because Rogelio insisted that the deal be closed at

his house and he broke off negotiations after he detected

the surveillance of his home.

This Court must view the evidence presented by the

government in the light most favorable to the government.

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86

L.Ed. 680 (1942). Whether the evidence is direct or

circumstantial, the question of the defendant’s guilt is

for the jury to decide unless the trial judge, viewing the

evidence in the light most favorable to the government,

concludes that the jury would necessarily have to have

a reasonable doubt. United States v. Reynolds, 5 Cir.

1975, 511 F.2d 603; United States v. James, 5 Cir. 1975,

510 F.2d 546, cert. denied sub nom. Vasquez v. United

States, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81

(1975). All reasonable inferences and credibility choices

ae eRe eters | mes. oe kee

must be made in favor of the jury verdict. United States

v. Black, 5 Cir. 1974, 497 F.2d 1039, 1041. We have

recently held that we must sustain a jury verdict where

there is substantial evidence under the Glasser test to sup-

port that verdict, as there is here.

[2] At trial, both government undercover agents testi-

fied to extrajudicial statements made by Hector Martinez

during the term of this conspiracy which implicated the

appellants. Such statements were crucial to the govern-

ment’s case, and the agents were subjected to extensive

cross-examination. Such statements did not violate appel-

lant’s Sixth Amendment rights to confrontation. Park v.

Huff, 5 Cir. 1975, 506 F.2d 849, cert. denied 423 U.S.

824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975).

(3, 4] Although appellants are from Houston, and

several of the overt acts involving appellants occurred

in Houston, this conspiracy was formed, and at least

nine of the overt acts in this conspiracy occurred in

Laredo; therefore, trial in the Laredo Division of the

Southern District of Texas was proper. A conspiracy may

be prosecuted in the district where it was formed or in

the district in which an overt act was committed in

furtherance of its objects. United States v. Strickland,

5 Cir. 1974, 493 F.2d 182, cert. denied 419 U.S. 801,

95 S.Ct. 9, 42 L.Ed.2d 32 (1974). —

[5] Appellants requested a continuance because of

the absence of Hector Martinez, one of the indicted co-

conspirators. The judge did not abuse his discretion in

refusing this continuance because Hector was at that time

incarcerated in Nuevo Laredo, Mexico, outside of our

federal jurisdiction, his release date was unknown, and

there were no assurances that he would testify if called.

[6] Appellant’s final assertion of error concerns the

admission into evidence of a telephone conversation be- _

tween DEA Agent Castro and Rogelio Martinez, the

alleged source of the heroin for which the agents had

gone to Houston. Castro had never met Rogelio, and did

not know the sound of his voice. However, there was

sufficient circumstantial evidence surrounding the call

that the jury could reasonably have concluded that the

party being spoken to was indeed Rogelio. Grogan v.

United States, 5 Cir. 1967, 394 F.2d 287, cert. denied

393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1967).

The judge did not abuse his discretion in allowing the

evidence of this call to go to the jury. United States v.

John, 7 Cir. 1975, 518 F.2d 705; United States v. Biondo,

8 Cir. 1974, 483 F.2d 635, cert. denied 415 U.S. 947,

94 S.Ct. 1468, 39 L.Ed.2d 563 (1974).

The other issues raised by appellants are likewise with-

out merit.

The judgment of the district court is AFFIRMED.

APPENDIX B

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

No. 76-4445

Summary Calendar

D. C. Docket No. CR-76-L-81

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO MARTINEZ, RICHARD MARTINEZ

and ROGER MARTINEZ,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Texas

Before GOLDBERG, CLARK and FAY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Texas, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed.

July 13, 1977

Issued as Mandate:

ne ae m sau %

APPENDIX C

IN THE

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

NO. 76-4445

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO MARTINEZ, RICHARD MARTINEZ

and ROGER MARTINEZ,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(August 11, 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/ PETER T. FAY

United States Circuit Judge

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