# Petition — Cantu v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1063

## Text

NOV 2 1977

Supreme Court, U.
FILED

MICHAEL RODAK, JR., CLERK

S.

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

of

Page
IEE op ch nudeehedeteees stncccdeds essbans 8
PE etic ch dechen 6andensnsaseessec<cecdsenés 2
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I vic waceueeeces dnevecescaseges 5
UOTE TOP CEPR THEES onc ccc ccccccccccccccces 6
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

ii
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

iv
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,
© B.Cb. 2006 (IGE) oc cccccccccccsesscnsusesuseens 11
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.

2
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.

3

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.

4
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

7

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

10

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.

11

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).

12

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.

13

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

14

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).

15

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.

16

(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-

17

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,

18

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

19
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.

20

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.

21

(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 —

24

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.

27
26

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

la
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:

2a
APPENDIX B

UNITED STATES v. CANTU

UNITED STATES of America,
Plaintiff-Appellee,

v.

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.

3a
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.

da
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

6a
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-

7a

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-

8a
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

Ya
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.

os
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]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0001%3A1. Public record. Not legal advice.