Petition — Cantu v. United States

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NOV 2 1977

Supreme Court, U.

FILED

MICHAEL RODAK, JR., CLERK

een.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 27-641

MAURO CANTU,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETER TORRES, JR.

1014 San Pedro Avenue

San Antonio, Texas 78212

Counsel! for Petitioner

SCOFIELDS’ QUALITY PRINTERS. P O. BOX 53096. N 0. LA 70153 . 604/822-1611

Page

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SE Sk cd cdenned sebaunhséeeteseedénkeeciaces 27

See GE NOE nck cccccccadccctccebiccescess 28

APPENDIX A — JUDGMENT OF AUGUST

Se CET no caccacconsansacksnaecsnastbadds beoene la

APPENDIX B — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT OF AUGUST 22, 1977 ......... 2a

APPENDIX C — DENIAL OF PETITION FOR

REHEARING IN THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH

CIRCUIT OF OCTOBER 3, 1977 ............... 12a

APPENDIX D — STAY OF MANDATE AND

ORDER IN THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

Se GO Oy BOE. vececcescvcncesccse cuces 13a

TABLE OF AUTHORITIES

CASES

Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723,

ee es ED cicccccicddccdsvesesess 2,3,16,.26

Almeida-Sanchez v. United States, 413 U.S.

37, _.._ L.Ed.2d : Oe 18

Amos v. United States, 255 U.S. 313, ___ L. Ed.

th ce ciccadnenceseeens keoas< 18

TABLE OF AUTHORITIES (Continued)

Page

Coolidge v. New Hampshire, 403 U.S. 443, ___

L.Ed.2¢d . cies EN” Sécvsccucvcess 17

Giordenello v. United States, 357 U.S. 480, 2

L.Ed.2d 1503, 78 S.Ct. 1245 (1958) ...........05.. 16

Illinois Migrant Council v. Pilliod, 540 F.2d

SE FE GE SED vc asbvcccvceseccvccacece tes 17,24

Ingram v. United States, 360 U.S. 672, 3

L.Ed.2d 1503, 79 S.Ct. 1314 (1959) ............646. 25

Oyler v. Boles, 368 U.S. 448, 7 L.Ed.2d 446, 82

BE, Be GED Coed cccndcnccddvneedcaccecncccens 10

Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88

ee, GED a voccubdnena case svetveduse ves 17,18

United States v. Bradley, 455 F.2d 1181 (1st

Cir. 1972), cert. denied _... U.S. —.. ...............

United States v. Brignoni-Ponce, 422 U.S. 513,

—_—. _L.Ed.2d —__, 95 S.Ct. 2582 (1976) ... 15,17,18,24

United States v. Craig, 522 F.2d 29 (6th Cir.

SEE CdGaceocesddddnseeabeesentans ctenhinee<aweus 25

United States v. Crockett, 534 F.2d 589 (5th

ee, SE vn ccbuliucsddvebanensbcenenelas évackeds 25

United States v. Crowthers, 456 F.2d 1072 (4th

Se, EY ecccaceadeatsddeaedhracddtuscseke 646 2,8,13

United States v. Evans, 333 U.S. 483, ____ L.Ed.

—— i § | _eare rere 19,21

United States v. Falcone, 311 U.S. 205, 85 L.Ed.

is a ila a ae ea a 25

United States v. Falk, 479 F.2d 616 (7th Cir.

PRE Sees vcaccdedécutenédssshostciousedes 2,7,8,11,13

iii

TABLE OF AUTHORITIES (Continued)

Page

United States v. Harris, 403 U.S. 573, 29

L.Ed.2d 723, 91 S.Ct. 2075 (1971) ............005. 14

United States v. Hernandez-Carreras, 451

Pe PE, SEED S.duéceccabubeedddecesves 25

United States v. Houlton, 525 F.2d 943 (5th Cir.

tid Ride elthieiaddenhdedeeeheednneenecees ss 17

United States v. Karathanos, 531 F.2d 26 (2d

Cir. 1976) cert. denied, 428 U.S. 910, 47

L.Ed.2d 831, 96 S.Ct. 1566 (1976) ... 3,13,14,15,24,26

United States v. Lopez, 521 F.2d 437 (2d Cir.

Ey ch GG 660d 6nd Obs ase EWE SER Caro CO Cece s 22

United States v. McNally, 473 F.2d 934 (3d Cir.

EE ddd cdddoddenhkedeneuddeswensieess oe er 14

United States v. Mallides, 473 F.2d 859 (9th

ER Se ee ee 15,24

United States v. Martinez-Fuerte, 428 U.S. 543,

49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976) ............ 17

United States v. Sutton, 463 F.2d 1066 (2d Cir.

DE dabvcabs veeddude le sbudes dé eeuetWenddeosecéos 15

United States v. Steele, 461 F.2d 1148 (9th Cir.

SE dG ab abb6b6 Nee Ohne cece t6éedsecuest 2,8,9,10,13

United States v. Vilhotti, 452 F.2d 1186 (2d Cir.

Di aidtie Dead at eed dnabaeaedad okabeedeteucece se: 25

United States v. Williams, 503 F.2d 50 (6th Cir.

Deh inhh heGhedudednees bee ebeuduer cedesesodso< 25

United States v. Zuideweld, 316 F.2d 873 (7th

EE ied ee Cous e oeeh edb ebeedeeececeee 25

TABLE OF AUTHORITIES (Continued)

Page

Wong Sun v. United States, 371 U.S. 471, 9

L.Bd.80 461, GB G.Cb. 427 .nccccccccccccccesescces 27

Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220,

STATUTES

8 U.G.C.A. § 116B (AIT)... cccccccccccsccsccccceses 26

8 U.B.C.A. § 18GB (BD) ..ccccccccccscccccsccsccvccess 26

8 U.S.C.A. § 1324 (a)(3) ......... 3,4,5,14,19,20,21,22,23

19 U.B.C. COTE ..ccccccccccdccccseseccesosecsesgenns 5

UNITED STATES CONSTITUTIONAL

AMENDMENTS

a Fa 3,24

POUT .nccccccccccccccecsessneeenneenenneeneee 3,24

POURTEEINTES oc ccccccccccessccceccsnesceuanunee 3,24

MISCELLANEOUS

Genate Report 1515 .....cccccccvccscccccccvccss 22,23

Genate Resolution 197 ....ccccccccccccsccceccosses 21

“Searching for Illegal Aliens”, 13 San Diego

L. Rev. GB. .ccccocescovecscccscencuneeeneean 19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

MAURO CANTU,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Honorable, the Chief Justice and Associate

Justices of the United States:

Mauro Cantu, the petitioner herein, prays that a writ

of certiorari issue to review the judgment of the Unit-

ed States Court of Appeals for the Fifth Circuit entered

in the above entitled case on October 3, 1977.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at ___ F.2d___, andis

printed in the appendix hereto, infra, page 2a. The

judgment of the United States District Court for the

Western District of Texas is not’printed.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit (Appendix A, infra, page 1a) was

entered on August 22, 1977. A timely petition for

rehearing was denied on October 3, 1977 (Appendix C

infra, page 12a). The jurisdiction of the Supreme Court

is invoked under 28 U.S.C.A. §1254.

QUESTIONS PRESENTED

(ONE)

The question of selective, discriminatory prosecu-

tion is a question that has appeared in cases involv-

ing Selective Service Boards. United States v. Falk,

479 F.2d 616 (7th Cir. 1973), peace demonstrations,

United States v. Crowthers, 456 F.2d 1074 (4th Cir.

1972), the census bureau, United States v. Steele, 461

F.2d 1148 (9th Cir. 1972), and in the instant the Im-

migration & Naturalization Service, United States v.

Cantu, ___ F.2d ___ (5th Cir. 1977). The requisites and

decisions of the Fourth, Seventh, and Ninth Circuits

are distinct from that of the Fifth in the instant, where

this question was presented. This creates a conflict

between the decisions of the various aforementioned

circuits. Said conflict creates a controversy in need of

amelioration and determination by this Honorable

Court.

(TWO)

In conjunction with the above-mentioned conflict

between those jurisdictions mentioned is the matter of

the validity of the search warrant which is supported,

allegedly, by an affidavit whose content equals

neither the requisites of the two-pronged test of

Aguilar v. Texas, 378 U.S. 108, 12 L.ed. 2d 723, 84 S.Ct.

1509 (1964) nor the requisites and test as set out by a re-

cent case coming from the Second Circuit, United

States v. Karathanos, 531 F.2d 26 (2d Cir. 1976) cert. de-

nied, 428 U.S. 910, 47 L.Ed.2d 831, 96 S.Ct. 1566 (1976).

Along with this is the question emanating from the

decision in the case of United States v. Brignoni-

Ponce, in which roving search patrols in border areas

could stop vehicles only if there existed specific ar-

ticulable facts together with inferences therefrom that

reasonably warranted suspicion that the vehicle con-

tained aliens illegally in the country. The question

emanating then is whether the absence of founded

suspicion based on specific articulable facts test ren-

ders unconstitutional INS Area Control Operations at

non-border points.

(THREE)

Whether, in light of Senate Report 1515, the basis for

the 1952 Immigration and Nationality Act, suggest-

ing that the statute here involved (8 U.S.C.A. § 1324)

confines itself to activities which are part of the smug-

gling process, a correct interpretation has been ren-

dered. This involves an important question of federal

law which has not been but should be settled by this

court.

(FOUR)

The holding of the Fifth Circuit below, is tantamount

to an erosion of Petitioner’s First, Fourth and Four-

teenth Amendment Rights. Due process was denied by

a finding of guilt where the prosecution failed to estab-

lish a legal nexus between the alleged violation of the

statute and the actions of the petitioner.

STATUTE INVOLVED

8 U.S.C.A. § 1324

(a) Any person, including the owner, operator,

pilot, master, commanding officer, agent, or con-

signee of any means of transportation who —

(1) brings into or lands in the United

States, by any means of transportation or

otherwise, or attempts, by himself or through

ancther, to bring into or land in the United

States, by any means of transportation or

otherwise.

(2) knowing that he is in the United States

in violation of law, and knowing or having

reasonable grounds to believe that his last en-

try into the United States occurred less than

three years prior thereto, transports or moves,

or attempts to transport or move, in

furtherance of such violation of law;

(3) willfully or knowingly conceals, har-

bors, or shields from detection, or attempts to

conceal, harbor, or shield from detection, in

any place, including any building or any

means of transportation; or

(4) willfully or knowingly encourages or

induces, or attempts to encourage or induce,

either directly or indirectly, the entry into the

United States of — any alien, including an

alien crewman, not duly admitted by an im-

migration officer or not lawfully entitled to

enter or reside within the United States under

the terms of this chapter or any other law

relating to the immigration or expulsion of

aliens, shall be guilty of a felony, and upon

conviction thereof shall be punished by a fine

not exceeding $2,000.00 or by imprisonment

for a term not exceeding five years, or both, for

each alien in respect to whom any violation of

this subsection occurs: Provided, however,

That for the purposes of this section, employ-

ment (including the usual and normal prac-

tices incident to employment) shall not be

deemed to constitute harboring.

(b) No officer or person shall have authority to

make any arrest for a violation of any provision ofthis

section except officers and employees of the Service

designated by the Attorney General, either individual-

ly or as a member of a class, and all other officers

whose duty it is to enforce criminal laws.

STATEMENT OF THE CASE

Petitioner MAURO CANTU, Appellant below, was

charged by indictment with conspiracy to attempt to

shield illegal aliens from detection and with two

counts of cttempt to shield illegal aliens from detec-

tion in violation of Title 18 United States Code, Section

371 and Title 8 United States Code, Section 1324 (a) (3).

Appellant below, was tried before a jury and found

guilty of all three counts of the indictment as charged.

The Court sentenced Appellant to a five (5) year

probated sentence and assessed a fine of $3,000.00.

Mauro Cantu properly and timely gave notice of

appeal to the United States Court of Appeals for the

Fifth Circuit.

The holding of the trial court was affirmed by the

Fifth Circuit on August 22, 1977. The opinion rendered

is printed in Appendix B hereto.

Petitioner, Mauro Cantu, timely filed a Petition for

Rehearing, and for En Banc.

On October 3, 1977, the Fifth Circuit entered an order

denying the Petition for Rehearing En Banc. (Appen-

dix C, infra, page 12a).

Within the statutory time limits, Petitioner Mauro

Cantu filed a Motion to Stay Issuance of Mandate with

the Fifth Circuit, as a prerequisite to the filing of the

instant Petition for Writ of Certiorari. Said Stay was

granted allowing Petitioner to Petition for Writ of Cer-

tiorari.

REASONS FOR GRANTING WRIT

The question posed is important to not only the

Defendant but to every citizen concerned with human

rights as well as with the rights of every citizen.

Today’s awareness of human rights, compels a

decisive opinion by this Supreme Court by which in-

dividuals may safety gauge their activities in human

rights endeavors.

The lower courts, trial and appellate, have found the

Petitioner guilty of activities which the evidence

presented did not substantiate. When in a Democracy,

individuals are subjected to laws so broad and vague

as to encompass non-criminal conduct, as in the in-

stant, it becomes necessary for this Court of last resort

to secure for the Petitioner the egalitarian tenets it has

historically interpreted and preserved.

Question One

If it please the court, among his numerous legal

assertions and substantiating authorities the

Petitioner, has cited to the case of United States v.

Falk, 479 F. 2d 616 (7th Cir. 1973).

The political climate serving as background for the

case of Falk, was one in which existing laws allowed

for selective, discriminatory prosecution, that is to

say that those individuals of conviction contrary to

conscription found themselves susceptible to

political suppression, and persecution. This persecu-

tion of the ordinary resulted from the involvement of

those individuals such as Falk in activist

organizations. Falk was among those critical of the

conflict in Viet Nam, and particularly to the conscrip-

tion which involuntarily sought to make him a party

thereto. Consequently, even though many others

likewise criticized the foreign policy of the pene \

States at that time, Falk because of his activi

endeavors was singled out for prosecution.

As has been pointed out repeatedly, Selective

prosecution while a viable weapon for vendetta is

nonetheless an accepted part of our judicial system.

Oyler v. Boles, 368 U.S. 448, 456, 7 L.Ed.2d 446, 82 S.Ct.

501 (1962). However, the United States Court of

Appeals for the Seventh Circuit found as have the

Fourth and Ninth that it is impermissible, where

provable, to prosecute for what is tantamount to

prosecution for the assertion of cherished First

Amendment Rights. United States v. Falk, (Supra);

United States v. Crowthers, (Supra); United States v.

Steele, (Supra).

Falk was an active member of a draft counseling

organization The Chicago Area Draft Resisters. In his

pretrial motion and again in his offer of proof Falk

asserted that the prosecution against him for viola-

tion of the statute was brought not because he had

violated the statute but to punish him for and stifle his

and other’s participation in protected First Amend-

ment activities in opposition to the draft and the con-

flict in Viet Nam.

The Seventh Circuit in the case of Falk, stated:

... just as discrimination on the basis of

religion or race is forbidden by the Constitu-

tion so is discrimination on the basis of the ex-

ercise of protected First Amendment ac-

tivities, whether done as an individual or as in

this case, as a member of a group unpopular

with the government. (Id. at 620).

Another like case being that of United States v.

Steele, 461 F. 2d 1148 (9th Cir. 1972), involved a situa-

tion in which the defendant argued that he had been

deliberately selected for prosecution because of his

participation in a census resistance movement.

Appellant Steele in his cause of United States v.

Steele, (supra), Was convicted for (purportedly)

violating a statute by refusing to answer questions on

a census form. More honestly, it turns out Steele was

convicted for being a vocal participant in a census

resistance movement.

Among other vocal undertakings by Steele were, a

press conference, a protest march, and the distribution

of pamphlets. The Regional Technician for the Census

in Hawaii described Steele and three other resistors as

“hard core resisters’ and had background dossiers

completed on them.

Steele attempted to prove that many others had

acted similarly except as to the vocal resistance, and

there had been no prosecution. Steele then endeavored

to learn how many others though not vocal had

Similarly withheld requested information. The

government proved most uncooperative, replying

that such information was not available. That

Appellant located six other persons who had refused

to complete the census form, but had not been vocal in

their resistance. None of those was recommended for

prosecution. Such actions or inactions establish the

principle that equal protection of the law is denied

when a valid statute is enforced discriminatorily.

The even handed application of the law was apparent-

ly abandoned, there as it was in the instant. An

analogous situation existed in the case at bar. Persons

were located by Appellant to substantiate selective

discriminatory prosecution.

Petitioner Cantu, is a known vocal activist in the

Chicano movement. Cantu is equally well known for

his work with the organization T.U. C.A.S.A., an

organization which lends aid to undocumented

workers. Cantu has been vocally critical of the Im-

rnigration and Naturalization Service and as such was

apparently singled out for persecution. Cantu at the

trial of his cause raised the allegation that others,

named, had acted as he had and gone further in dealing

with illegal aliens, but were not vocally critical and

had not been prosecuted. (SF 316-317) (SF 23).

As in the case of Steele, the government in the in-

stant offered no explanation other than prosecutorial

discretion, for its selection of defendant Cantu. Suf-

ficient evidence which created a strong inference of

discriminatory prosecution was raised, the govern-

ment was required to explain it away, if possible, by

showing that the selection process actually rested

upon some valid ground — this was not done.

The Falk Court reasoned that the particular cir-

cumstances of that case compelling the government to

accept the burden of proving nondiscriminatory en-

forcement of the law were several. As examples that

Court points out that Falk was actively involved in ad-

vising others on methods of legally avoiding military

service and in protesting American actions in Viet

Nam. Those same two particular circumstances ex-

isted in the case of Mauro Cantu, that is he advised

undocumented workers and was involved in protests

against the INS. Although purportedly in Falk and

Steele the burden shifted to the government to prove

nondiscriminatory enforcement of the law, there were

some factors which aided those two Appellants in

their efforts.

In the case of Falk, it became known that the Assis-

tant United States Attorney knew of Falk's draft

counseling activities.

Appellant, Steele, in his case, single-handedly

gathered the necessary proof to substantiate his

allegations of selective discriminatory prosecution.

Petitioner Cantu did not have those tangible factors,

besides witnesses there was no tangible proof to pre-

sent, but a lack of tangible elements should not dis-

tinguish this case where witnesses substantiated Can-

tu’s assertions. Steele was able to prove on his own

that the only people being prosecuted, four (4), were all

known, vocal, dissenters; participants in the census

resistance movement. The Ninth Circuit citing the

case of Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6

S.Ct. 1064 (1886) stated that the case of Yick Wo

established the principle that equal protection of the

law is denied when state officials enforce a valid

statute in a discriminatory fashion. See Steele at 1151.

Mauro Cantu sought to present the necessary

evidence to support his allegations of selective dis-

criminatory prosecution. Those efforts were thwarted,

however, by the lower courts, by denial of the pretrial

conference. However, he, Mauro Cantu, did present

witnesses to substantiate assertions made.

The Petitioner sought tirelessly to obtain evidence

substantiating his selective, discriminatory

allegations, through a number of Discovery Motions,

all denied (R-Vol. 1, p. 106) (R-Vol. 1, p. 70,97 overruled

at p. 138, 139).

Appellant-Petitioner then sought to raise the issue

of selective discriminatory prosecution by means of a

Pre-trial Conference, this too was denied. The best ef-

forts of the Petitioner to present evidence of selective,

discriminatory prosecution were swept aside by both

the trial court, and the Appellate Court. United States

v. Mauro Cantu, ___ F.2d ___., opinion at 5413.

In the written opinion by the Appellate Court forthe

Fifth Circuit, with regard to the pretrial conference it

was stated:

“The citation to Falk is inapposite, since in

that case the remand was for evidentiary hear-

ing on Falk’s allegation of discriminatory

prosecution.” (at 5413, ___ F.2d —____ (5th Cir.

1977) (Appendix B, infra, page 10a).

The Petitioner did file a Motion for a Pretrial Con-

ference. The Order denying said conference referred to

this request as one for a pretrial hearing (R. —__).

Whatever name be affixed or applied to the Motion

which Appellant requested the purpose is one with

the request for a hearing granted to Falk (supra at 623)

at which to develop the facts to support his allegations

of selective, discriminatory prosecution.

Appellant Cantu asserts to this Honorable Supreme

Court as he did to the lower courts, that he, complied

with the requirements set in Falk. Those requirements

are (1) Appellant must allege intentional, purposeful

discrimination, and ‘2) presents facts sufficient to

raise a reasonable doubt, about prosecutorial purpose.

The allegations were made and facts were presented

(Tr. 314).

Jurisdictions other than the Fifth Circuit have ruled

that in situations similar to that of Cantu, in the in-

stant, that sufficient facts had been presented to merit

a pretrial conference, or hearing.

Fourth Circuit — United States v. Crowthers, 456 F. 2d

1074 (4th Cir. 1972);

Seventh Circuit — United States v. Falk, 479 F. 2d 616

(7th Cir. 1973);

Ninth Circuit — United States v. Steele, 461 F. 2d 1148

(9th Cir. 1972).

Question Two

The Second Circuit, rules contrary to the holding in

the case at bar, in the case of United States v. Kara-

thanos, 531 F. 2d 26 (2d Cir. 1976).

The case of, Karathanos, involved a search of

Steve's Pier One Restaurant in Bayville, N.Y.

A search warrant was issued after an INS in-

vestigator swore in an affidavit that he had reason to

believe illegal aliens were on the restaurant's

premises. As in the instant case the two-pronged test

of Aguilar, was not met. That test is that (1) the facts

are sufficient to satisfy a reasonably prudent detached

and neutral person that acrime is being committed or

evidence of it kept on the premises to be searched aad

(2) that the informants information has been obtained

by him in a reasonably reliable way. Assuming that

the alleged illegal aliens were at the restaurant, that

fact would not comport with the first requirement. The

Statute (8 USCA 1324 (a) (3) ) specifically excludes

employment, the mere presence of aliens .. neither a

crime nor conclusive proof of illegal entry into the

United States. (Id. at 30).

In the instant the affidavit never establishes how the

informant obtained his information, aside from the

broad assertion, that numerous complaints were

received. The affidavit’s statement that during the

past 6 years illegal aliens arrested were employed or

claimed employment at Petitioner's Restaurant would

not remedy its failure to establish how the informant

obtained his information. (Id. at 31); United States v.

Harris, 403 U.S. 573, 29 L. Ed. 723,91S. Ct. 2075 (1971).

The addition of a recital of past criminal activity

does not serve as an acceptable substitute for probable

cause standards that have not been met. United States

v. McNally, 473 F. 2d 934, 938-939 (3d Cir. 1973). The Se-

cond Circuit Court in Karathanos, clearly reasoned

that if such recital could remedy the deficiency any

tip, no matter how unreliably obtained would suffice

to allow a search provided the owner of the premises

had a record of prior similar criminal offenses (Id. at

32).

In the case of Karathanos, the aliens resided in the

basement ofthe restaurant (Id. at 29). In the instant, the

alleged aliens were alleged only to be in the employ of

Appellant Petitioner, Cantu. (Tr. 75).

Warrant in hand INS agents searched the restaurant

and arrested sever illegal aliens on the premises in

the case of Karathanos, (Id. at 29).

In its reasoning the Court in Karathanos stated that

statements to the informant by other aliens that they

were illegally in the United States would have sufficed

to support a holding that the information was reliably

obtained (Id. at 30), e.g., United States v. Sutton, 463

F. 2d 1066, 1068 (2d Cir. 1972). However, the Court went

on, while co-workers bunkmates may exchange

considerable amounts of information, it can hardly be

assumed that living in fear of arrest and deportation,

illegal aliens would have revealed their alleged status

to a stranger ...”’ (Id. at 30).

It was further held, that there is no necessary con-

nection between a person’s physical, linguistic

characteristics... andthe legality of his status. . . (Id.

at 30). See United States v. Brignoni-Ponce, 422 U.S.

513, ___L.Ed.2d____, 95 S.Ct. 2582 (1976), United States

v. Mallides, 473 F. 2d 859, 860 (9th Cir. 1973).

Regarding the affidavit, the Karathanos Court

stated that supporting detail was lacking, in that

inter alia the affidavit, “furnishes no indication of

their nationality, of how they came into the country, or

indeed any statement about them other than their

number and the conclusion about their illegality.” (Id.

at 31).

The instant case presents the same missing factors

in the affidavit involved, under like circumstances the

Karathanos court held that the affidavit fails to state

facts sufficient to indicate probable cause to search.

(The search warrant was therefore improperly issued

— Id. at 32).

The Supreme Court has specifically ordered the ex-

clusion of evidence even when the unconstitutionality

of the search resulted only from what might be termed

a magistrate’s error of judgment in determining

probable cause (Id. at 33). See, Aguilar v. Texas,

(supra), Giordenello v. United States, 357 U.S. 480, 2

L. Ed. 2d 1503, 78 S. Ct. 1245 (1958).

The Affidavit was supported in Karathanos, by the

statement of an individual allegedly living with the

aliens. In the instant, nothing that concrete can be

presented to substantiate the affidavit. The cir-

cumstances are too similar, the issues too

close, the conclusions inexorable, if in Karathanos the

affidavit could not stand, it can stand much less in the

instant.

Further, if the actions of the INS agents were con-

stitutionally unlawful stops and interrogations of all

persons coming out of or going into the restaurant, a

major question for this Court is whether the evidence

thus obtained is admissible against Petitioner. The

Fifth Circuit glossed over the question of the con-

stitutionality of the government “area control

operations” which consist of physically surrounding

the “target” and questioning all persons attempting to

leave or enter the area, by observing only that “a park-

ing lot is a public place”. Mauro Cantu at 5413.

An examination of the facts of this case discloses

conclusively that the connection between the lawless

conduct of the INS and the discovery of the chal-

lenged evidence is so intertwined as to constitute

tainted evidence. United States v. Houlton, 525 F. 2d

943 (5th Cir. 1976). If so, then the holding of the

appellate court on this point is in conflict with that of

the Seventh Circuit in the case of Illinois Migrant

Council v. Pilliod, 540 F. 2d 1062 (7th Cir. 1976).

In that case, the Court held that “. . . a street stop is

justifiable here only when the INS agent has a‘reason-

able suspicion based on specific articulable facts that

such person is an alien (unlawfully) in the (United

States).”’ The Court further noted that United States v.

Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96S. Ct.

3074 (1976), which held that government agents did not

need reasonable suspicion to stop cars at permanent

border checkpoints for the purpose of asking oc-

cupants about their residence, did “not apply either to

searches of dwellings ... or street stops of in-

dividuals.” The “area control operations” of the INS,

such as were used in the instant case, are legally far

removed from the permanent border checkpoints con-

sidered in Martinez-Fuerte, and in fact constitute in-

trusions more aggravated than the roving patrols de-

clared unconstitutional in Brignoni-Ponce, or the or-

dinary street stops invalidated in Illinois Migrant

Council v. Pilliod.

The general rule on warrantless searches is that

they are per se unreasonable under the Fourth Amend-

ment, subject only to a few specifically delineated ex-

ceptions. Coolidge v. New Hampshire, 403 U.S. 443,

—_— L.Ed.2d S.Ct. ____ (1960).

Hot Pursuit cases, searches with consent, regulated

industry, and stop and frisk cases are among those ex-

ceptions to the general rule. The case of Terry v. Ohio,

392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968) held that

an exception to the warrant requirement was found

where the police officer had a reasonable belief that

the suspect was armed and dangerous.

The regulated industries exception is one with

which we are not here concerned.

A warrantless search may be made if done with the

person’s consent if the consent is voluntary. Amos v.

U.S., 255 U.S. 313, —— L.Ed. 2d ; =

(1921). Again, this exception is clearly inapplicable.

A search warrant is not a prerequisite to a valid

search at an international border. Almeida-Sanchez v.

United States, 413 U.S. 37, ____ L.Ed. 2d ; S.Ct.

_____ (1973). This certainly was not a case involving

any international border. Other exceptions to the

general rule are similarly inapplicable in the present

case.

Not falling within any of the recognized exceptions,

the actions of the INS in systematically stopping and

interrogating all persons entering or leaving the

“parking lot’ must be measured by the standards of

the general rule. Under Brignoni-Ponce, the Court

firmly established the Principle

“The two basic principles established in

Brignoni-Ponce have universal applicabilicy

to all situations where aliens or other persons

are to be temporarily ‘seized,’ interrogated,

and perhaps arrested. First, foreign

appearance alone will not justify a reasonable

belief that a person is an alien.”

“Searching for Illegal Aliens”, 13San Diego L.

Rev. 82, p. 106.

“Secondly, the Court firmly established the

principle that to merely stop and interrogate

one believed to be an alien constitutes a

seizure of the person within the meaning of the

fourth amendment, and therefore must be

predicated on reasonable suspicion.” Id. at p.

106.

“It would involve a strained logic, however,

to conclude that the Court meant to exclude the

“founded suspicion” test from interrogations

conducted at fixed checkpoints removed from

the border, or to suggest that the test was inap-

posite to urban immigration interrogations.”

Id. at p. 105.

Systematic stops and interrogations such as lead to

the prosecution of this case are clearly not based on

any “reasonable suspicion” regarding any individual]

stopped, and are thus patently unconstitutional.

Question Three

The United States Supreme Court, in U.S. v. Evans.

333 U.S. 483, ___ L.Ed. ____, 68 S.Ct. 634 (1948), con-

sidered whether 8 U.S.C.A. § 1324 proscribed only

those offenses which comprised the smuggling

process, or whether the harboring and concealing

provision was intended to be given a much broader

construction to which the language, if taken literally,

was arguably susceptible.

The Defendant in Evans had been charged under

§ 1324 with harboring and concealing aliens. He con-

tended successfully in the District Court that the

statute did not provide a penalty for that particular

offense, and the government appealed. The Suprerne

Court noted that the statute was clearly intended to

make harboring and concealing criminal, and that it

was their duty to uphold any reasonable penalty

provision:

... where Congress has exhibited clearly the

purpose to proscribe conduct within its power

to make criminal and has not altogether

omitted provision for penalty, every

reasonable presumption attaches. (p. 640).

However, the Court in Evans could not be sure that

Congress intended to add the same penalty to har-

boring as it had set out for the bringing in or landing of

aliens provision of 8 U.S.C.A. § 1324, as the gram-

matical construction of the statute permitted several

possible interpretations of the relationship between

the acts proscribed and the penalties set out.

Moreover, the Court could not even be sure whether

harboring was meant to encompass only those acts

when closely connected with bringing in or landing.

The Court found that the manner of applying the

penal provisions are to a large degree affected by the

acts intended to be proscribed by the statute. Some

applications of the penal provisions are harsher than

others, and might be the ones intended if the acts

proscribed are those which comprise the smuggling

process.

(The uncertainty) includes within varying

ranges at least possible, and we think substan-

tial, doubt over the section’s reach to bring in

very different acts which conceivably might

be held to be concealing or harboring. The

latter ambiguity affects the former and their

sum makes a task for us which at best could

only be guesswork.

Evans, at 640-641.

The Court did not need to rule on the scope of § 1324

in Evans, as that question was not before them, but it

did see the legislative history of the 1917 amendment

as some evidence that: “the addition of concealing or

harboring was meant to be limited to those acts only

when closely connected with bringing inorlandingso

as to make achain of offenses consisting of successive

stages in the smuggling process”, by noting that the

Senate Report accompanying the 1917 statute stated

that “such new provisions as are included are merely

to complete the definition of smuggling aliens into the

United States and related offenses’. (emphasis added).

Congress clarified and reiterated its intent to

proscribe the elements of the smuggling process inits

extensive re-examination and overhaul of the entire

Immigration and Naturalization system made subse-

quent to the decision in Evans. On July 26, 1947 the

Senate passed Senate Resolution 137 directing the

Senate Committee on the Judiciary to make a full and

complete investigation of the immigration system,

and the actua? investigations began July 7, 1948.

Voluminous data was compiled from the Immigration

and Naturalization Service, Department of State, and

other governmental and non-governmental

organizations interested in the immigration system.

The result of the investigation was Senate Report

1515, an 801 page document, which was the basic work-

ing document of the Congress forthe Immigration Act

of 1952. The section of the report dealing with § 1324

uses language which clearly shows that Congress

proceeded on the assumption that § 1324 encompassed

only the smuggling process. That section reads as

follows:

a. Illegally importing, landing, or harboring

aliens

(1) Smuggling and harboring

SMUGGLED aliens the most impor-

tant and the most used penal provi-

sion of the immigration laws relating

to the smuggling of aliens and the

harboring of SMUGGLED aliens is

section 8 of the Immigration and

Naturalization Act of 1917. This sec-

tion covers ALL PHASES OF

SMUGGLING and makes it a mis-

demeanor for any citizen or alien to

bring into... (emphasis added).

Thus, after the court in Evans expressed concern

over possible ambiguous interpretations of the har-

boring and concealing language in view of the evi-

dence indicating it was meant to apply only to acts in

the smuggling process, Congress reaffirmed its

assumption that under § 1324 concealing an alien is

proscribed only when it is part of the smuggling chain

of events.

It is true that in the case of United States v. Lopez,

521 F. 2d 437 (2d Cir.. 1975), the Court rejected the con-

tention that only acts which were part of the smug-

gling process were proscribed, stating that ...

members of Congress appear to have assumed that

one providing shelter with knowledge of the alien's il-

legal presence would violate the Act, and there was no

suggestion that only conduct forming part of the

smuggling process should be proscribed.” However,

this reasoning is directly contradicted by Senate

Report 1515 supra, which was apparently not brought

to the attention of the Court.

Congress, in the 1952 revision of the section, also

changed the crime from a misdemeanor to a felony, an

indication that the statute was aimed at serious crime

in keeping with the gravity of smuggling. That

reclassification similarly indicates that the lesser

conduct discussed in Evans was not included within

the reach of that section.

The only conclusion from all the evidence is that

prior to the 1952 revisions, § 1324 proscribed only acts

closely related to smuggling, and that in the 1952 revi-

sion Congress assumed a continuance of the scope of

the section. With a continuation of the basic statutory

language and legislative history reflecting a concern

with smuggling and defining penalties for the var-

ious phases of the smuggling process, it should not be

lightly inferred that the 1952 revision was intended to

expand § 1324 to encompass acts entirely discon-

nected from the smuggling process.

Petitioner urges, therefore, that the evidence in the

instant case being devoid of any acts on his part that

could possibly connote an activity or involvement —

directly or indirectly — in the smuggling process, his

conviction should be reversed forthis further reason.

The holding of the Fifth Circuit below is tan-

tamount to an erosion of Petitioner's First, Fourth, and

Fourteenth Amendment Rights, as well as those of

other citizens in that circuit.

Due process of the law has been denied to the

Petitioner in light of the fact that the legal nexus,

necessary to support a finding of guilt, was never es-

tablished between the alleged violations of the statute

and the proven actions of the Petitioner.

Assuming arguendo that Petitioner Cantu knew his

employees to be illegal aliens, that is not sufficient to

support a conviction. 8 U.S.C.A. § 1324 (a)(3); United

States v. Karathanos. Further the government's.

witness, Ignacio Perez, unequivocally stated that

there was no agreement (Tr. 178). The alleged

co-conspirators Perez and Morton agreed to provide

transportation to two individuals, not two aliens

(Appellees Brief, p. 45) (Tr. 177-178).

It cannot be assumed that the co-conspirators would

know of anyone's alleged illegal status merely

because they spoke only Spanish, though the govern-

ment and the Fifth Circuit apparently assumed so.

United States v. Brignoni-Ponce, (supra); United

States v. Mallides, 473 F. 2d 859 (9th Cir. 1973); Illinois

Migrant Council v. Pilliod, (supra); United States v.

Karathanos (supra).

Petitioner complains that the government sup-

pressed the grand jury testimony of Scott Jerome Mor-

ton and Billy T. Morton. Transcripts of their testimony

before the grand jury is in the record, (see Vol. IV,

Government Exhibits 2 and 8) and contravenes the

assertions by the government that there was an agree-

ment between Mr. Morton and Petitioner.

An overt act without proof of agreement among the

parties is not sufficient to establish a conspiracy.

United States v. Williams, 503 F. 2d 50, (6th Cir., 1974);

United States v. Craig, 522 F. 2d 29 (6th Cir., 1975);

United States v. Crockett, 534 F. 2d 589 (5th Cir., 1976);

United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85

L.Ed. 128; United States v. Zuideweld, 316 F. 2d 873 (7th

Cir., 1963); United States v. Hernandez-Carreras, 451

F. 2d 1315 (9th Cir., 1971).

The actors in a conspiracy must have the same in-

tent that would be required to support conviction of

the substantive offense, Ingram v. United States, 360

U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959) and United

States v. Vilhotti, 452 F. 2d 1186 (2nd Cir., 1971), and

proof of knowledge of the conspiracy’s illegal purpose

is an essential element of the offense. United States v.

Bradley, 455 F. 2d 1181, (ist Cir., 1972) cert. denied.

Thus, if neither of the alleged co-conspirators was

shown to have knowledge of an illegal purpose or that

the aliens — Lucio Emilio Martines-Hernandez and

Armando Bustamente-Hernandez — were in fact il-

legal aliens, then Petitioner could not be found guilty

under the conspiracy count and Petitioner submits

that the record before the court is devoid of the req-

uisite proof needed by the government to support the

conviction.

as intervening “act(s) of free will” of sufficient

independence “to purge the primary taint of

the unlawful invasion.” Wong Sun v. United

States, supra, 371 U.S. 471, 9 L.Ed.2d 441, 83

S.Ct. 417. The testimony is the not unpredic-

table result of the influence which the govern-

ment possessed over the aliens once they had

been arrested during the initial illegal search,

and if such reasonably foreseeable fruits of the

search were deemed admissible, it might help

induce similar future searches without

probable cause in the hope that they would un-

cover aliens who could be similarly prompt-

ed to testify. (Id. at 35).

Petitioner notes at this point that it would be a

strange course of action in shielding anyone to send

that person being shielded into the waiting arms of

those shielded against, as was done in the instant.

The evidence obtained as a result of the illegal

search cannot be used to support and lend credibility

to a search warrant whose supporting affidavit does

not meet the test of Aguilar (supra) or that of the Sec-

ond Circuit in Karathanos, under like circumstances.

Id. at 31.

A final note is to be found in the opinion of the Sec-

ond Circuit:

: CONCLUSION

‘In the present case, there is a close connec-

tion between the initial illegal search and the

testimony which the government seeks to use

at trial. The purpose of the search, as de-

scribed in the application for the warrant, was

to seize the illegal aliens; it is the same aliens

who are now the government's prospective

witnesses. Once the aliens were arrested, the

INS agents had obtained considerable

leverage over them, since it was within the

government's discretion to prosecute and

deport them, or to allow them to leave the Unit-

ed States voluntarily. See 8 U.S.C. § 1252(b). If

deported, the aliens would be permanently in-

eligible to receive visas to re-enter the coun-

try, see 8 U.S.C. § 1182(a)(17), while voluntary

departure at one’s own expense carries no

similar penalty of permanent exclusion... In

these circumstances, we think their decisions

to testify cannot accurately be characterized

For the foregoing reasons this petition for a writ of

certiorari should be granted.

Respectfully submitted,

Counsel for P titioner

1014 San Pedro Avenue

San Antonio, Texas

CERTIFICATE OF SERVICE

I, Peter Torres, Jr.. a member of the Bar of the

Supreme Court of the U.S. and counsel of record for

Mauro Cantu, Petitioner herein, hereby certify that on

November —___., 1977 pursuant to Rule 33, Rules of the

Supreme Court, I served three copies of the foregoing

Petition for Writ of Certiorari on each of the parties

herein, as follows:

On Ms. LeRoy Morgan Jahn, Assistant United

States Attorney for the Western District of Texas, by

depositing such copies in the U.S. Post Office, San An-

tonio, Texas, with first class postage prepaid, certified

properly addressed to the Post Office address of Ms.

LeRoy Morgan Jahn, Counsel of Record, at P.O. Box

1701. San Antonio, Texas, on the Solicitor General Mr.

Wade H. McCree, Department of Justice, Washington,

D.C. 20530.

All parties required to be served have been served.

Dated November —_. 1977.

PETER TORRES, JR.

1014 San Pedro Avenue

San Antonio, Texas 78212

223-1464 or 223-1708

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-4039

D.C. Docket No. SA-76-CR-100

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURO CANTU, JR., a/k/a Mario Cantu,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

Before THORNBERRY, AINSWORTH and RONEY,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Western District of Texas, and was argued by counsel];

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.

August 22, 1977

Issued as Mandate:

APPENDIX B

UNITED STATES v. CANTU

UNITED STATES of America,

Plaintiff-Appellee,

Mauro CANTU, Jr., a/k/a Mario

Cantu, Defendant-Appellant.

No. 76-4039.

United States Court of Appeals,

Fifth Cireuit.

Aug. 22, 1977.

The United States District Court for

the Western District of Texas, John HL.

Wood, Jr. J., convicted defendant of

conspiracy and of shielding illegal aliens

from detection, and defendant appealed.

The Court of Appeals, Ainsworth, Circuit

Judge, held that: (1) conspiracy charge

did not merge with substantive counts;

(2) the word “shield” as used in the in-

dictment was not overbroad; (3) defend-

ant failed to establish prima facie case

of discriminatory enforcement of statute

prohibiting shielding illegal aliens; (4)

trial court did not abuse its discretion in

overruling motion for bill of particulars;

(5) trial court did not err in denying

discovery of past jury questionaires; (6)

trial court properly denied request for

immigration files; (7) Government's fail-

ure to provide defendant with allegedly

exculpatory statement made by certain

witness did not warrant reversal; (8) tri-

al court did not err in denying motion to

suppress evidence; (9) trial court did not

abuse its discretion in refusing to grant

pretrial conference; (10) evidence was

sufficient to sustain conviction, and (11)

trial court did not err in omitting from

its charge the word “hide” as a synonym

for “shield from detection.”

Affirmed.

* § 1324(a\3);

1. Criminal Law 29

Test to determine whether two al-

leged offenses are in fact one is whether

each provision requires proof of a fact

which the other does not; it is enough if

there is one clement required to prove

the offense charged in one count which

is not required to prove the other.

2. Conspiracy C24, 28(2)

Essence of the crime of “conspiracy”

is the agreement rather than the com-

mission of the objective substantive

crime; conspiring to commit a cnme is

an offense separate and distinct from

the crime which may be the object of the

“conspiracy.” 18 U.S.C.A. § 371.

See publication Words and Phrases

for other judicial constructions and

definitions.

3. Conspiracy @ 37

In prosecution for shielding illegal

aliens from detection and for conspiracy,

in view of fact that conspiracy count

required proof of agreement while sub-

stantive counts did not, conspiracy count

did not merge with substantive counts.

18 U.S.C.A. § 371; Immigration and Na-

tionality Act, § 274(aX3), 8 U.S.C.A.

U.S.C.A.Const. Amend. 5.

4. Indictment and Information @71.-

4(1)

In prosecution for shielding illegal

aliens from detection, use of the word

“shield” in indictment did not render in-

dictment invalid as overbroad, in view of

fact that the word “shield” was taken

directly from statute defining offease

and in view of fact that statute did not

‘omit any essential element of the of-

fense. Immigration and Nationality Act,

§ 274, 8 U.S.C.A. § 1324.

UNITED STATES v. CANTU

5. Criminal Law @31

In prosecution for shielding illegal

aliens from detection, defendant failed

to establish prima facie case of discrimi-

natory enforcement of statute, despite

assertion that other employers employed

illegal aliens. Immigration and Nation-

ality Act, § 274, 8 US.C.A. § 1324.

6. Indictment and Information ¢121.-

1(1)

Purpose of bill of particulars is to

inform defendant of the charge against

him with sufficient precision to allow

him to prepare his defense, to minimize

surprise at trial, and to enable double

jeopardy to be pleaded in case of a later

prosecution.

7. Criminal Law #1149

Indictment and Information ¢121.-

1(3)

Whether to grant motion for bill of

particulars is within discretion of trial

judge, and this discretion will be over-

turned only upon a showing that the de-

fendant was actually surprised at trial or

was otherwise prejudiced, so that a clear

abuse of discretion by trial judge is

shown.

8. Indictment and Information @121.-

2(1)

In prosecution for shickling illegal

aliens from detection, tria] court did not

abuse its discretion in overruling defend-

ant’s motion for bill of particulars, in

view of fact that evidence consisted

mainly of reports by witnesses of conver-

sations in which defendant participated

and in view of fact that defendant was

fairly apprised of Government's theories

and particulars upon which each count of

the indictment was based. Immigration

and Nationality Act, § 274, 8 U.S.C.A.

§ 1324.

9. Criminal Law ©=627.6(2)

In prosecution for shielding illegal

aliens from detection, trial court did not

err in denying discovery of past jury

questionaires, in view of fact that trial

judge allowed defendant to investigate

records concerning persons making up

grand and petit juries in defendant's

case

10. Criminal Law @=627.6(2)

In prosecution for shielding illegal

aliens from detection, trial court proper-

ly exercised its discretion in denying de-

fendant bill of discovery for immigration

files. 5 U.S.C.A. § 552(b); Immigration

and Nationality Act, § 274, 8 U.S.C.A.

§ 1324.

11. Criminal Law ¢627.7(4)

Where witness’ statement to investi-

gator was not exculpatory as to defend-

ant but could have been useful to de-

fense only to impeach witness had he

been called, where witness was not

called to testify, and where Government

was aware that witness had repudiated

his prior testimony before Government

received defendant's request for Brady

material, Government's failure to pro-

vide statement of witness to defendant

did not reduce trial to one which did not

comport with standards of justice. Im-

migration and Nationality Act, § 274, 8

U.S.C.A. § 1324.

12. Criminal Law o=394.1(2)

In prosecution for shielding illegal

aliens from detection, trial court did not

err in denying defendant's motion to

suppress testimony of aliens detained in

defendant’s restaurant, in view of fact

that detention took place in defendant's

restaurant parking lot which was a

“public place.”

13. Arrest 66

For purpose of determining legality

of arrest of aliens in defendant's parking

lot, parking lot was a “public place.

yy? ~-y~ ~~ ion Words and Phrases

for judicial constructions and

definitions.

14. Criminal Law ©632

In prosecution for shielding illegal

aliens from detection, trial court did not

abuse its discretion in denying pretrial

conference.

15. Criminal Law <=632

Whether to grant a pretrial confer-

ence is in the discretion of the district

judge.

16. Conspiracy <=47(3)

In prosecution for conspiracy to hide

illegal aliens, evidence was sufficient to

sustain conviction. 18 U.S.C.A. § 371.

17. Aliens <=56

Under statute providing penalties

for any person who willfully or knowing-

ly attempts to conceal, harbor, or shield

from detection, in any place, any illegal

alien, fact that illegal aliens were arrest-

ed outside rather than inside defendant's

restaurant did not preclude prosecution

of defendant. Immigration and Nation-

ality Act, § 274, 8 US.C.A. § 1324.

18. Aliens 56

Under statute providing penalties

for any person who willfully or knowing-

ly attempts to conceal, harbor, or shield

from detection, in any place, any alien,

the words “in any place” were meant to

be broadly inclusive, not restrictive. Im-

migration and Nationality ct,

§ 274(aX3), 8 U.S.C.A. § 1324(a\3).

See publication Words and Phrases

for other judicial constructions and

definitions.

19. Aliens <=56

Statute prohibiting shielding illegal

aliens from detection does not prohibit

only smuggling-related activity, but also

activity tending substantially to facili-

tate alien’s remaining in the United

States illegally. Immigration and Na-

tionality Act, § 274, 8 U.S.C.A. § 1324.

UNITED STATES v. CANTU

20. Criminal Law <805(1)

In prosecution for shielding illegal

aliens from detection, trial judge did not

err in omitting from his charge the word

“hide” as a synonym for “shield from

detection.” Immigration and Nationali-

ty Act, § 274aX3), 8 USCA.

§ 1324(a)3). ;

Appeal from the United States Dis-

trict Court for the Western District of

Texas.

Before THORNBERRY, AINS-

WORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

Mauro Cantu, also known as Mario

Cantu, was convicted by a jury of con-

spiracy and of two substantive counts of

shielding illegal aliens from detection, vi-

olations of 18 U.S.C. § 371 and 8 U.S.C.

§ 1324. He was sentenced to a suspend-

ed prison term and a fine. Cantu ap-

peals a!leging numerous errors prior to

and during trial. We have considered

Cantu’s points on appeal and find them

to be without merit, and accordingly af-

firm the judgment of the district court.

In June of 1976 Cantu was proprietor

of Mario’s Restuarant in San Antonio,

Texas. On information that Cantu em-

ployed aliens illegally in the United

States at his restaurant, agents of the

Immigration and Naturalization Service

visited the restaurant on the morning of

June 18, 1976 to question the employees

about their residence status. Cantu re-

fused to admit the agents without a

search warrant. The agents remained

outside the restaurant to await the ar-

rival of a warrant.

One of the illegal aliens employed by

Cantu on June 18 was Lucio Hernandez.

Hernandez had worked for Cantu during

_a previous illegal visit to the United

5407 | 5408

States. When the INS agents arrived on

the morning of the 18th, Hernandez took

a seat in the dining room of the restau-

rant. ‘Cantu approached a patron, Billy *

Morton, and asked him to give a ride to

one of the employees. Morton agreed,

and Cantu then pointed Morton out to

Hernandez. Morton joined Hernandez,

but the two could not converse due to

the language barrier. A witness testi-

fied that Cantu made the arrangements

with Morton. As Morton prepared to

leave he indicated to Hernandez to join

Morton's sons in a group. They left by

the front door in single file. The agents

Hernandez in the restaurant

parking lot, ascertained his illegal status,

and arrested him.

Another illegal alien employed by Can-

tu on June 18 was Armando Busta-

mante-Hernandez (referred to herein as

Bustamante). Bustamante also had been

employed by Cantu during a previous il-

legal visit to the United States. When

the agents arrived on the 18th Busta-

mante changed from his waiter’s cos-

tume into street clothing, and attempted

to hide within the restaurant. Busta-

mante testified that Cantu told him not

to hide, but to take a seat in the restau-

rant dining room. Bustamante further

testified that Cantu then approached a

patron, Ignacio Perez, and asked Perez

to give Bustamante a ride into town.

Perez testified that he was aware of the

presence of the INS agents, aware that

Bustamante was Cantu’s employee, that

he was aware that Cantu was reputed to

employ illegals, and that it occurred to

him that Bustamante might be illegal.

Perez joined Bustamante and indicated

that Bustamante was to leave with him.

Bustamante testified that this was con-

firmed by a gesture from Cantu. As

Bustamante and Perez the cash-

ier’s booth Perez obtained a toothpick

which he gave to Bustamante, and Bus-

UNITED STATES v. CANTU

tamante put the toothpick in his mouth.

The two then left the restaurant togeth-

er. In the restaurant parking lot agents

approached Bustamante, ascertained his

illegal status, and arrested him.

A third illegal alien employed by Can-

tu successfully evaded the agents at the

restaurant by leaving with patrons. A

fourth was arrested while taking gar-

bage out a back door. A fifth was ar-

rested within the restaurant after the

search warrant arrived.

Cantu was indicted by a federal grand

jury for conspiracy to “wilfully and-

knowingly attempt to shield” Busta-

mante and Hernandez, illegal aliens, in

contravention of 18 U.S.C. § 371 and 8

U.S.C. § 1324(a)(3). Section 1324 pro-

vides in pertinent part:

(a) Any person, including the owner,

operator, pilot, master, commanding

officer, agent, or consignee of any

means of transportation who—

(3) willfully or knowingly

conceals, harbors, or shields from de-

tection, or attempts to conceal, har-

bor, or shield from detection, in any

place, including any building or any

means of transportation;

any alien, including an alien crewman,

not duly admitted by an immigration

officer or not lawfully entitled to en-

ter or reside within the United States

under the terms of this chapter or any

other law relating to the immigration

or expulsion of aliens, shall be guilty

of afelony . . .: Provided, how-

ever, That for the purposes of this sec-

tion, employment (including the usual

and normal practices incident to em-

ployment) shall not be deemed to con-

stitute harboring.

Billy Morton and John Doe (Ignacio Per-

ez) were named in the indictment as un-

indicted coconspirators, and were grant-

ed immunity from prosecution. The in-

dictment charged as a conspiracy that

Cantu held conversations with Morton

and Doe/Perez to plan to enable “certain

illegal aliens” to depart the restaurant

under the guise of customers. The two

substantive counts of the indictment

charged attempts to “shield from detec-

tion” Hernandez and Bustamante pursu-

ant to the charged conspiracy.

The cause was tried on September 7

and 8, 1976, and on September 9 the jury

returned verdicts of guilty against Cantu

on the conspiracy count and on both sub-

stantive counts. The district judge sen-

tenced Cantu to a total of four years’

imprisonment, suspended, five years’ su-

pervised probation, and a fine of $3,000,

on all counts. Cantu then appealed.

On appeal Cantu contends that the in-

dictment under which he was prosecuted

was faulty; that the trial judge erred in

denying various pretrial motions and in

quashing certain subpoena; that there

was insufficient evidence presented at

trial to sustain a conviction under the

indictment; and that the trial judge

charged the jury incorrectly. We have

examined each of Cantu’s points on ap-

peal and find them to be without merit.

{1-3] Adequacy of the indictment.

Cantu contends that the evidence re-

quired to prove the conspiracy count in

this case is the same as that required to

prove the substantive counts, and that

the fifth amendment forbids trial on sep-

arate counts for the same acts. The test

to determine whether two alleged of-

fenses are in fact one is whether each

provision requires proof of a fact which

the other does not. It is enough if there

is one element required to prove the of-

fense charged in one count which is not

U _.4D STATES v. CANTU

5409

required to prove the other. United

States v. Bruce, 5 Cir., 1973, 488 F.2d

1224, 1229-30. A conviction for conspir-

acy under the first count of the indict-

ment in this case requires an agreement

to conspire, 18 U.S.C. § 371. “The es-

sence of the crime of conspiracy is the

agreement rather than the commission

of the objective substantive crime. Con-

spiring to commit a crime is an offense

separate and distinct from the crime

which may be the object of the conspir-

acy.” United States v. Nims, 5 Cir.,

1975, 524 F.2d 123, 126, cert. denied, 426

U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385.

The required proof of agreement is an

element not required to be proved for

the substantive counts under 8 U.S.C.

§ 1324(a\(3). The conspiracy does not

merge, therefore, with the substantive

counts as argued by Cantu.

Denial of motion .to dismiss the indict-

ment. Cantu contends that the district

judge erred in refusing to grant Cantu’s

motion to dismiss the indictment. Cantu

asserts that the word “shield” in the in-

dictment is overbroad, that the grand

jury which returned the indictment was

illegally composed, and that the indict-

ment against Cantu resulted from dis-

criminatory enforcement of the immigra-

tion laws.

[4] Cantu asserts that “men of com-

mon knowledge would naturally have to

guess at the meaning of [shield] and

would differ as to its application as did

counsel for both sides and the trial judge

in the instant case.” We have held,

however, that indictments are valid

where they track the language of the

appropriate statute unless “the statute

omits an essential element of the of-

fense.” United States v. Thevis, é Cir.,

1973, 484 F.2d 1149, 1152, cert. denied,

419 U.S. 886, 95 S.Ct. 158, 42 L.Ed.2d 129

(1974). In this case, the word com-

5410

plained of, “shield,” is taken directly

from the statute and it does not appear

that the statute omits any essential ele-

ment of the offense. Therefore, the

choice of language in the indictment

does not render the indictment invalid.

Cantu asserts that the grand jury

which indicted him did not constitute a

fair and representative cross section of

the community. Cantu concedes in his

brief on appeal that he did not carry his

burden to make a prima facie case of

illegal jury composition but asserts that

although he “sought through discovery

to obtain the factual materials necessary

for proof and specifically asked that he

be permitted to inspect and copy the

jury questionnaire forms” his discovery

request was denied by the district judge.

Cantu asserts that this denial was error.

The record shows that in denying Can-

tu’s motion for discovery of the jury

questionnaire forms the district judge in-

formed Cantu in his order of August 16

that Cantu was “free without further

order of this Court to examine the rec-

ords which the United States District

Clerk keeps in the regular course of

business concerning the identity of those

persons making up both the present and

past Grand and Petit Juries.” Thus this

point of error is clearly without merit.

Cantu asserts that he has been the

target of discriminatory enforcement of

the laws in contravention of the four-

teenth amendment and that the district

judge erred both in overruling a motion

to dismiss without taking evidence on

this issue, and in granting the govern-

ment’s motion in limine precluding Can-

tu from presenting testimony on the is-

sue. In support of this argument Cantu

cites United States v. Falk, 7 Cir., 1973,

479 F.2d 616. In Falk relief was grant-

ed to the defendant by the court of ap

peals after a district court had convicted

UNITED STATES vy. CANTU

Falk of failing to possess a draft card.

The court found that there were “several

indications” that Falk had been singled

out for prosecution because of his active

involvement in advising others on meth-

ods of legally avoiding military service

and in protesting American actions in

Vietnam. This infringement on Falk’s

first amendment rights was found to be

“invidious discrimination which cannot

be reconciled with the principles of equal

prote_tion.” 479 F.2d at 624.

(5) Cantu asserts that other employ-

ers of illegal aliens are not being prose-

cuted under section 1324, and that in

effect his own prosecution is designed to

chill his first amendment rights as a

member af CASA, an organization assist-

ing illegal aliens in this country. In his

motion to dismiss Cantu identifies busi-

nesses which he alleges employ illegal

aliens, none of which has been charged

with “shielding.” Section 1324, however,

explicitly exempts employment of illegal

aliens from its strictures. An assertion

that other employers employ aliens is

therefore not equivalent to an assertion

that another “shields” aliens. Cantu

makes no assertion and offers no proof

that other employers shield aliens in the

manner of which he is accused or in any

other. Therefore, Cantu has made out

no prima facie case of discriminatory en-

forcement, and the trial judge did not

err in dismissing his motion.

[6,7] Denial of motion for a bill of

particulars. Cantu asserts that the trial

judge erred in overruling his motion for

a bill of particulars. The purpose of a

bill of particulars is to inform the de-

fendant of the charge against him with

sufficient precision to allow him to pre-

pare his defense and to minimize sur-

prise at trial, United States v. Sherriff, 5

Cir., 1977, 546 F.2d 604, 606; also, to

enable double jeopardy to t« pleaded in

| BEST COPY AVAILABLE

case of a later prosecution, United States

v. Mackey, 5 Cir., 1977, 551 F.2d 967, 970.

Whether to grant a motion for such a

bill is within the discretion of the trial

judge and this discretion will be over-

turned only upon a showing that the de-

fendant was actually surprised at trial,

Mackey, supra, 551 F.2d at 970, or was

otherwise prejudiced, United States v.

Bearden, 5 Cir., 1970, 423 F.2d 805, 809,

cert. denied, 400 U.S. 836, 91 S.Ct. 73, 27

L.Ed.2d 68 (1970), so that a clear abuse

of discretion by the trial judge is shown.

[8] In the present case the evidence

consisted mainly of reports by witnesses

of conversations in which Cantu partici-

pated, of activity in Cantu’s restaurant

which he witnessed and of the arrests in

the restaurant parking lot, which he also

witnessed. Thus Cantu “could hardly

have been surprised by the government’s

proof at trial.” United States v. Pena, 5

Cir., 1976, 542 F.2d 293, 294. Cantu does

not attempt to show surprise or other

prejudice resulting from the denial of

the bill. Accordingly, there was no

abuse of discretion, United States v.

Pena, supra, 542 F.2d at 294. The record

discloses that Cantu was fairly apprised

of the government's theories and partic-

ulars upon which each count of the in-

dictment was based. “He was entitled

to no more.” United States v. Bearden,

supra, 423 F.2d at 809.

[9] The motion for discovery. In

paragraph 23 of his motion for discovery

Cantu moved “for an order to examine

the questionnaires submitted by Grand

Jurors called for Grand Jury service in

the Western District of Texas for the

preceding five (5) years and similarly re-

quests that he be permitted to examine

and inspect and copy the lists of petit

jurors called for the instant case and

those called for the preceding four (4)

years.” Cantu asserted that this dis-

UNITED STATES v. CANTU

S411

_covery was necessary to allow him to

show that the grand jury which indicted

him did not represent a fair cross section

of the community. In his order of Au-

gust 16 in response to Cantu’s discovery

motion the district judge said that

the defendant is free without further

Order of this Court to examine the

records which the United States Dis-

trict Clerk keeps in the regular course

of business concerning the jdentity of

those persons making up both the

present and past Grand and Petit Ju-

ries. However, in the present posture

of the case, the Court does not recog-

nize any necessity for the defendant to

examine the Questionnaires submitted

by Grand Jurors called for Grand Jury

service in the Western District of Tex-

as for the preceding five years and the

similar request regarding thé Petit

Jurors for the. previous four years.

Cantu now asserts that his request for

discovery of jury information was denied

by the district judge, and that this denial

was error. That portion of the district

judge’s order quoted above shows that

he denied only Cantu’s request for ques-

tionnaires returned by juries in past

years. Cantu challenges only the juries

which considered his case. We agree

with the district judge that question-

naires returned by past juries are not

necessary in the present posture of this

case. To deny discovery of past jury

questionnaires was not error in the cir-

cumstances.

[10] The supplemental motion for

discovery. Cantu in a supplemental mo-

tion for discovery sought production of

the immigration files of Hernandez, Bus-

tamante and of “any and all aliens who

will testify against the defendant Mario

Cantu in this case.” In his motion Can-

tu offered only the bald assertion that

“this discovery is essential to the prepa-

5412

ration of their [sic] defense herein.” The

district judge properly exercised his dis-

cretion in denying Cantu a bill of dis-

covery for immigration files. See 5

U.S.C. § 552(b).

[11] Alleged Brady violation. Cantu

asserts that the government possessed

prior to trial an exculpatory statement

made by Morton, which was not revealed

to Cantu, thus violating the principles of

Brady v. Maryland, 373 U.S. 88, 88 S.Ct.

1194, 10 L.Ed.2d 215 (1963). In his origi-

nal discovery motion Cantu requested

production of “all statements made by

witnesses in this case se) ao

sponse to this. motion the district judge

ordered that “[a]ny materials requested

by the defendant in his Motion for dis-

covery which fall under the requirements

of the Jencks Act or Brady v. Maryland

shall be made available to the defendant

at the appropriate time.” Cantu asserts

that the Morton statement was never

made available to him, and that he was

thereby denied a fair trial.

The record contains a government file

memorandum reflecting a government

investigator’s interview with Morton.

The memo indicates that Morton told the

investigator that Hernandez himself

asked Morton for a ride to town, and

that Cantu did not make this request of

Morton. The transcript of Morton's tes-

timony before the federal grand jury

also appears in the record. Morton testi-

fied before the grand jury as follows:

And to get the record straight, I’m

under oath, Mr. Cantu, Mario, had

asked me if I would give one of his

men a ride to town.

Morton was not called as a witness by

either side during the trial, although the

record reflects that he was present and

available to be called.

Cantu made the alleged suppression of

Morton’s statement to the investigator a

UNITED STATES v. CANTU

basis of his motion for a new trial after

,the verdict was returned. This motion

_ was argued to the district judge on Sep-

tember 27, 1976. Morton was sworn as a

witness at this hearing. During the

hearing Morton testified in response to a

question from Cantu’s attorney, “Mr.

Cantu approached me and asked me if I

would be courteous or kind enough to

take one of his waiters to town.” Short-

ly after, asked about the statement

which he had given to the investigator,

Morton testified,

Secondly, he asked me if Mr. Cantu

asked me to take Emilio out of the

restaurant, and I said no, he did not.

That was a false statement of course.

It thus appears that Morton's statement

to the investigator was not exculpatory

as to Cantu, but could have been useful

to the defense only to impeach Morton

had he been called. The government

was aware that Morton had repudiated

his statement to the investigator in

sworn testimony before the grand jury,

before receiving Cantu’s request for Bra-

dy material, and therefore was aware

that the earlier statement was not excul-

patory as to Cantu. Morton has now

twice confirmed this repudiation under

oath. The government's failure to pro-

vide the statement to Cantu under these

circumstances did not reduce the trial to

one which did “not comport with stan-

dards of justice.” Brady v. Maryland,

supra, 373 U.S. at 87, 83 S.Ct. at 1197.

{12,13} Denial of the motion to sup-

press evidence. Cantu asserts that he

was arrested and charged on the basis of

illegally obtained evidence, and that the

trial court erred in denying his motion to

suppress the testimony of the aliens de-

tained at Cantu’s restaurant and “all

other fruits of illegal search.” The in-

dictment charging Cantu is hased upon

10a

UNITED STATES v. CANTU

the detention of aliens in Cantu's restau-

rant parking lot. A parking lot is a

public place. United States v. Sherriff,

supra, 546 F.2d at 607; see United

States v. Santana, 427 U.S. 38, 96 S.Ct.

2406, 49 L.Ed.2d 300 (1976). This assign-

ment of error is without merit.

{14,15} Denial of a pretrial confer-

ence. Cantu contends that the district

judge erred in not granting a pretrial

conference “to consider proper disposi-

tion of a panoply of motions which were

filed by Appellant” under Fed.R.Crim.P.

17.1. In support of this motion Cantu

cites United States v. Falk, supra. The

citation to Falk is inapposite, since in

that case the remand was for an eviden-

tiary hearing on Falk's allegation of dis-

criminatory prosecution. 479 F.2d at

623-24. Whether to grant a pretrial

conference is in the discretion of the dis-

trict judge. We find no abuse of this

discretion in the present record.

[16-18] Sufficiency of the evidence.

Cantu contends that there’ was insuffi-

cient evidence presented to support a

guilty verdict under the conspiracy or

substantive counts of the indictment.

Concerning the conspiracy count, the rec-

ord reflects sufficient evidence from

which the jury could correctly conclude

that Morton and Perez entered into

agreements with Cantu to perform acts

which they knew were illegal. As to the

substantive counts, Cantu asserts that

because he did not instruct his alien em-

ployees to “hide” and because they left

the restaurant by the main door in full

view of the INS agents, there was no

evidence of illegal shielding under the

statute. 8 U.S.C. § 1324 provides penal-

ties for any person who

willfully or knowingly . . . at-

tempts to conceal, harbor, or shield

from detection, in any place

any alien

Cantu argues that because Hernandez

and Bustamante were arrested outside

rather than inside the restaurant, that

the “in any place” requirement of the

statute is not fulfilled. We reject this

reading of the statute. Clearly the

words “in any place” are meant to be

broadly inclusive, not restrictive.

{19} Cantu further argues that Con-

gress in enacting section 1324 intended

to proscribe only activities which were

“part of the smuggling [of aliens) chain

of events.” This argument was recently

offered to the Second Circuit, which, af-

ter reviewing the statutory history of

section 1324, concluded that “there was

no suggestion that only conduct forming

part of the smuggling process should be

proscribed.” United States v. Lopez, 2

Cir., 1975, 521 F.2d 437, 440, cert. denied,

423 U.S. 995, 96 S.Ct. 421, 46 L.Ed.2d 368

(1976). We agree with the conclusion in

Lopez that section 1324 does not prohibit

only smuggling-related activity, but also

activity “tending substantially to facili-

tate an alien’s ‘remaining in the United

States illegally."” 521 F.2d at 441.

{20} Jury instruction as to meaning

of “shield.” Cantu requested that, in

charging the jury concerning the mean-

ing of “shield” as used in section 1324,

the district judge include as a synonym

the word “hide.” The judge declined to

include “hide,” and Cantu contends that

this refusal was error. Although

“shield” and “hide” may in some con-

texts be synonymous, in the context of

section 1324 they are not. Section 1324

forbids attempts “to conceal, harbor, or

shield from detection.” Were “shield

from detection” used synonymously with

“hide” then “conceal” would be redun-

dant. Therefore, the district judge did

not err in omitting from his

“hide” as a synonym for “shield from

detection.”

lia

5414

Other errors assigned. Cantu asserts

that the district judge erred in quashing

subpoena naming Richard M. Nixon and .

others as associates in bringing an illegal

alien into the United States; in denying

Cantu’s motions for continuance; and in

failing to recuse himself. We have con-

Adm. Office, U.S. Courts—West Public’

UNITED STATES v. CANTU

sidered these points and find them to be

swithout merit.

All of Cantu's points on appeal having

been considered and rejected, we affirm

the judgment of the district court.

AFFIRMED.

gz Company, Saint Paul, Minn.

12a

APPENDIX C

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

October 3, 1977

TO ALL PARTIES LISTED BELOW:

NO. 76-4039 — U.S.A. v. MAURO CANTU

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition for rehearing,** and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

Clerk

/s/ BRENDA M. HAUCK

Deputy Clerk

ec: Mr. Peter Torres, Jr.

Ms. LeRoy Morgan Jahn

** on behaif of appellant. Mauro Cantu, Jr.,

13a

APPENDIX D

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

October 12, 1977

Mr. Peter Torres, Jr.

Attorney

1014 San Pedro Ave.

San Antonio, TX 78212

No. 76-4039 — USA v. Mauro Cantu, Jr., etc.

MANDATE STAYED TO AND INCLUDING

November 2, 1977

(SEE ORDER ENCLOSED)

Dear Counsel:

The court has this day granted a stay of the issuance of

the mandate to the date as shown above. If during the

period of the stay there is filed with the clerk of this

court a notice from the clerk of the Supreme Court that

the party who has obtained the stay has filed a petition

for the writ in that court, the stay shall continue until

final disposition by the Supreme Court. Upon the fil-

ing of a copy of an order of the Supreme Court denying

the petition for writ of certiorari the mandate shall

issue immediately under Rule 41, FRAP.

ida

Under revised Rule 21(1) of the Supreme Court effec-

tive July 1, 1970, a record is no longer required in con-

nection with an application for writ of certiorari, and

therefore will not be routinely prepared by this office

(38LW 3502).

A copy of the opinion, judgment and denial of rehear-

ing are still required by the Supreme Court to be incor-

porated as an appendix to your petition. Enclosed are

copies of the said documents which have been entered

in this cause.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

/s/ SUSAN M. GRAVOIS

Deputy Clerk

enc.

cc: Ms. LeRoy Morgan Jahn

15a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-4039

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURO CANTHU, JR., a/k/a Mario Cantu,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

ORDER:

The motion of APPELLANT for stay of the issuance

of the mandate pending petition for writ of certiorariis

GRANTED to and including November 2, 1977, the

stay to continue in force until the final disposition of

the case by the Supreme Court, provided that within

the period above mentioned there shall be filed with

the Clerk of this Court the certificate of the Clerk of the

Supreme Court that the certiorari petition has been

filed. The Clerk shall issue the mandate upon the filing

16a

of acopy of an order of the Supreme Court denying the

writ, or upon the expiration of the stay granted herein,

unless the above mentioned certificate shall be filed

with the Clerk of this Court within that time.

/s/ ROBERT AINSWORTH

UNITED STATES CIRCUIT

JUDGE

[Filed: Oct. 12, 1977]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.