Petition — Amend v. United States

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| MI@HAFL Sennk JD CLERK

— ——-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

Case No.: eS 8) o7

CAROL AMEND

Petitioner,

=

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

RAY SANDSTROM ot

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale, FL 3330]

Telephone: (305) 467-6767

TABLE OF CONTENTS

| PAGE

: OPINION BELOW 2

3 JURISDICTION 2

QUESTIONS PRESENTED 2

j CONSTITUTIONAL PROVISIONS INVOLVED 3

| STATEMENT OF THE CASE 3-4

REASONS FOR GRANTING THE WRIT

1. The Petitioner, being charged with con- 5

spiracy to distribute and to possess with

the intent to distribute marijuana has

standing to challenge the validity of the

search of the vehicle whose contents

constituted that evidence which was the

subject of and essential to Petitioner's

conviction on that charge although she

was not present when the search occurred

and was found by the Court to have no

“interest” in the vehicle.

ty

. When there is no evidence introduced to 8

establish that the Petitioner ever entered

into an agreement or did any act to

knowingly further the objectives of a

conspiracy but it is shown to have been

generally present at the geographical

area where the offenses are said to have

occurred and may have possibly observed

some act or acts of the conspirators, the

evidence is insufficient to sustain the

conviction of the Petitioner.

CONCLUSION

APPENDIX

Cases:

1. Decision of the Court of Appeals,

Fifth Circuit

A-1 to A-3

2. Petition for Rehearing denial

filed with the Fifth Circuit

A-4 to A-5

3. Stay of Mandate

Issued by Fifth Circuit

A-6

TABLE OF AUTHORITIES

Brown vy. United States,

411 US 223 (1973)

Direct Sales Company, Inc. v. United States,

319 US 703 (1943)

Ingram v. United States,

360 US 672, 680 (1959)

Jones v. United States,

362 US 672 (1959)

Roberts v. United States,

416 Fed. 2d 1216 (Sth Cir. 1969)

Simmons v. United States,

390 US 377, 390 (1968)

Thomas v. United States,

398 Fed.2d 531

[ii]

PAGE

19

15

17

Table of Authorities Continued

United States v. Binetti,

547 Fed.2d 265 (5th Cir. 1977)

United States v. Carlton,

475 Fed.2d 104 (Sth Cir. 1973)

United States v. Diaz,

515 Fed.2d 892 (Sth Cir. 1975)

cert. den. 423 US. 1052.

United States v. Garza,

426 Fed.2d 949 (Sth Cir. 1970,

United States v. Harvey,

464 Fed.2d 1286 (Sth Cir. 1972):

cert. den. 410 US 938

United States v. Menichino,

497 Fed.2d 935 (Sth Cir. 1974)

[iii |

PAGE

14

17

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

CASE No:

CAROL AMEND,

Petitioner,

_vs—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioner. Carol Amend. seeks to have this Court issue its

Writ of Certiorari to the United States Court of Appeals. Fifth

Circuit, to review the decision of that Court affirming the con-

viction of Petitioner which occurred before the United States

District Court for the Southern District of Mississippi.

[1]

OPINION BELOW

The decision of the Court of Appeals, Fifth Circuit, which

affirmed Petitioner’s conviction was by virtue of a non-published

opinion which is contained in the Appendix to this Petition at

A.1-3. A timely Petition for Rehearing was denied on 21 August

1978, a copy which appears in the Appendix at A.4-5. A Stay

of Mandate has been ordered by the Appeals Court for and

during these certiorari proceedings, a copy of the stay is attached

and appears at A.6.

JURISDICTION

The judgment of the United States Court of Appeals, Fifth

Circuit, was entered on 6 July 1978. A timely Petition for

Rehearing was denied on 21 August 1978. The jurisdiction of

this Court to review the decision of the Court of Appeals is

invoked pursuant to Title 28 USC § 1254 (1).

QUESTIONS PRESENTED

1. WHERE THE PETITIONER IS CHARGED

WITH CONSPIRACY TO DISTRIBUTE

AND TO POSSESS WITH INTENT TO .

DISTRIBUTE MARIJUANA, DOES SHE

LACK STANDING TO CHALLENGE THE

SEARCH OF A VEHICLE WHOSE CON-

TENTS CONSTITUTE THAT EVIDENCE

WHICH IS THE SUBJECT OF AND

ESSENTIAL TO A CONVICTION ON

SAID CHARGE WHEN SAID PETITIONER

WAS NOT PRESENT AT THE TIME OF

THE SEARCH OR FOUND BY THE

COURT TO HAVE AN “INTEREST” IN

SAID VEHICLE YET SAID “INTEREST”

IS FOUND TO BE SUFFICIENT FOR A

CONSPIRACY CONVICTION?

to

WHERE NO EVIDENCE IS INTRODUCED

TO ESTABLISH THE PETITIONER EVER

ENTERED INTO AN AGREEMENT OR

4

DID ANY ACT TO KNOWINGLY FUR-

THER THE OBJECTIVES OF A CON-

SPIRACY, BUT IT IS SHOWN TO HAVE

BEEN GENERALLY PRESENT AT THE

GEOGRAPHICAL AREA WHERE THE

OFFENSES ARE SAID TO HAVE

OCCURRED AND POSSIBLY TO HAVE

OBSERVED SOME ACT OR ACTS OF

THE CONSPIRATORS, IS THAT EVI-

DENCE SUFFICIENT TO SUSTAIN THE

CONVICTION OF THE PETITIONER?

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT FOUR

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures, shall not be violated, and no warrant shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT FIVE

No person shall be held to answer for a capital. or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.

STATEMENT OF THE CASE

A. HISTORY

The Petitioner was indicted. along with sixteen (16) co-

3

defendants in a two (2) count Indictment, the first count

charging a conspiracy to import manjuana and the second count

charging a conspiracy to distribute and possess with intent to

distribute marijuana. Subsequently, the Petitioner entered a

plea of not guilty and filed a Motion to Adopt the Motion to

Suppress filed by co-defendant, Thomas Swann, Swann’s

Motion being to suppress the marijuana taken from a U-Haul

truck that Swann was operating. The Tria! Court granted the

detendant’s Motion and subsequently an Order denying the

Motion to Suppress was entered

The matter came on for trial before a jury, wherein the

Government offered three witnesses: a co-defendant and two

agents of the Mississippi Bureau of Narcotics. The jury returned

a verdict of guilty on both counts, her conviction was thereafter

appealed and affirmed.

B. FACTS

Petitioner was demonstrated by the evidence to have asked

co-defendant. Girtman, to accompany her and two other per-

sons with his boat and another boat to the gulf coast of Missis-

sipp! where the boats were to be used. Until arrival, the

Witnesses as well as the defendant were without knowledge of

the exact use of the boat to precisely what was to be done.

After arrival Girtman allegedly learned of the plans and joined

therein. Girtman did not testify that the Petitioner learned the

sume facts. Girtman testified that he and three other co-

defendants (the Petitioner not being one) used his boat to bring

bales of what he believed to be marijuana from a ship to the

gulf coast shore. No evidence was shown that the Petitioner did

anything to assist therein was adduced nor was evidence

adduced to show she learned that the charged conspiracy or

joined therein. At the time the above activities allegedly

occurred (relating to the conspiracy charged in count one of the

Indictment) the defendant was demonstrated to have been on

the gulf coast and may have been ina position to have been able

to partially see some of the activities of the co-defendants but

was never demonstrated to have entered any agreement at any

4

time charged or for any purposes charged.

As to the second count of the Indictment, the Petitioner

was not placed in or near the marijuana referred to nor shown

to have seen or even known of its existence and never was testi-

fied to as having agreed to anything touching thereon. Specifi-

cally, the testimony indicated that the Petitioner was last seen

many days before the date of the search of Swann’s vehicle on

the gulf coast and a great distance from the alleged marijuana

discovered in Wayne and Clark Counties, Mississippi.

The facts surrounding the actual search of Swann’s vehicle

are not herein presented, as the lower Appellate Court did not

reach the merits of Petitioner's Motion to Suppress.

The trial ended with Petitioner being found guilty by jury

verdict. Appeal and aftirmance of the conviction followed.

REASONS FOR GRANTING THE WRIT

|. The Petitioner, being charged with conspir-

acy to distribute and to possess with the

intent to distribute marijuana has standing

to challenge the validity of the search of

the vehicle whose contents constituted that

evidence which was the subject of an

essential to Petitioner’s conviction on that

charge although she was not present when

the search occurred and was found by the

Court to have no “interest” in the vehicle.

The lower Appellate Court, affirmatively found that

Petitioner had no standing to raise the Fourth Amendment

challenge to the search of the rented van from which the con-

traband being the subject of count two of the Indictment was

predicated. The Fifth Circuit Court of Appeals held:

“Defendant was not present when Swann’s van

was Searched, she had no legitimate interest in the

truck or its contents and was not charged with an

offense that includes. as an essential element,

possession of the seized evidence at the time of the

contested search and seizure.” (A.1-2)

-

x

Petitioner, however, contends that without fhat marijuana,

there was no marijuana at all that could have been offered in

the prosecution of count two of the Indictment.

So simply stated, the lower Appellate Court found that

Petitioner was in no way connected with the van or its con-

tents, but that van and its contents constituted that evidence

essential to convict her under count two, and no other such

evidence exists anywhere. As the Petitioner in count two, was

charged with conspiring to distribute and fo possess with the

intent to distribute that marijuana seized from the van driven

by Swann, the Court could not consistently find that Petitioner

was not connected with the marijuana to enable her to seek to

suppress it, but was nevertheless connected with it to the extent

that her conviction could be sustained in the same case.

The decision, sought to be reviewed, is in direct and patent

conflict with this Court’s decision in Jones v. United States, 362

U.S. 672 (1959). In that case, this Court stated:

“In cases where the Indictment itself charges

possession, the defendant in a very real sense is

revealed as a ‘person aggrieved by an unlawful

search and seizure’ upon a Motion to Suppress

evidence prior to trial.”

The lower Appellate Court relied on this Court’s decision

in Brown v. United States, 411 U.S. 223 (1973) in support of

its position that the Petitioner tacks standing to challenge the

Motion to Suppress. Said case is distinguishable from the instant

case in that the conspiracy charge therein was predicated upon

activities which occurred prior to the time of the search that

was challenged. In the instant case, without the purported

contraband seized from defendant Swann’s vehicle, there would

be no marijuana upon which count two of the Indictment could

be founded. At no time, was the Petitioner ever seen in posses-

sion of marijuana, and the fact that she was merely charged

with “conspiracy to pessess”” does not alter the fact that there

must be contraband upon which the charges founded. Petitioner

maintains that the instant case involves a question “where

possession at the time of the contested search and seizure is ‘an

6

essential element of the offense. . .charged’ Simmons vy. United

States, 390 U.S. 377, 390 (1968)". Brown v. United States, 411

U.S. at 229. In the instant case like Jones, the Government's

case depended upon some possession of the seized evidence at

the time of the contested search and seizure. To contend that

the defendant had to demonstrate a possessory interest in either

the vehicle or the contraband would place the Petitioner in an

untenable position. It has been held, that a criminal defendant

will be found not to have standing to contest a search and

seizure where the defendant:

“(A) Were not on the premises at the time of the con-

tested search and seizure; (B) alleged no proprietary or

possessory interest in the premises; and (c) were not

charged with an offense that includes as an essential

element of the offense charged, possession of the seized

evidence at the time of the contested search and

seizure.” Brown v. United States, 411 Us. » 229.

Instantly, the problem of allowing the Government to

allege possession as part of the crime charged yet deny that the

Petitioner had possession sufficient for standing purposes is

present. Had the defendant admitted a possessory interest in the

contraband, it would place the Government at an unfair advan-

tage for in order to gain standing, the defendant would have to

admit possession. Petitioner is aware that the “automatic”

standing as created in the Jones decision has been altered by

subsequent decisions of this Court. See: Simmons yv. United

States, supra. However, in the instant case such standing should

have been afforded the Petitioner for there was a definite risk to

the Petitioner of “either self-incrimination or prosecutorial

self-contradiction”. Brown v. United States, supra.

Additionally, Petitioner would point out to this Court,

that in upholding the sufficiency of the evidence upon which

her conviction was predicated, the Court found that the defen-

dant had a sufficient “interest” in vehicles in which marijuana

was not found, to sustain her conviction. It is difficult, to say

the least, to comprehend how the Court could find that the

Petitioner lacks standing to raise the validity of the search but

-

was then found to have had a sufficient interest upon which to

predicate the conviction.

Petitioner maintains that the lower Appellate Court, using

evidence unsupported by the record, nevertheless sustained the

Petitioner’s conviction for a conspiracy to possess marijuana

based upon “evidence” which the Court found the Petitioner

had no interest in. The Court apparently found the Petitioner

was not connected with that marijuana to enable her to seek to

suppress it but connected her to it with sufficient “evidence”

to sustain her conviction in the same case. The Court apparently

found facts against the defendant which are not supported by

the record and apparently found inconsistently that the defen-

dant was in no way connected with the marijuana seized in

Clark County, Mississippi (so that she had standing to move to

suppress) but was so connected with it to sustain a conviction

for conspiring to possess the same marijuana with intent to dis-

tribute the same. The evidence upon which the Motion to

Suppress was directed was that evidence essential for the

Petitioner’s conviction and thus standing should have been

+.

conferred. On this basis, the Petitioner maintains that review of

the lower Court decision is mandated for. if the only testimony

of marijuana was left to those vague references made by co-

detendant Girtman, the first witness for the Government who

specifically stated he carried bales of what he believed to be

marijuana, no Court could sincerely assert that conviction of

the Petitioner was assured. The spill-over effect of the only.

tangible asserted-marijuana, which should have been suppressed,

is patently obvious to show standing prejudicial to the rights of

the Petitioner as to a fair trial and due process of law as guaran-

teed by the Constitution. On this basis, Petitioner maintains

that review of the lower Appellate decision is mandated and a

reversal required.

>. When there is no evidence introduced to

establish that the Petitioner ever entered

into an agreement or did any act to know-

ingly further the objectives of a conspiracy

but it is shown to have been) generally

present at the geographical area where the

offenses are said to have occurred and

may have possibly observed some act or

acts of the conspirators, the evidence is

insufficient to sustain the conviction of

of the Petitioner.

The lower Appellate Court, in holding in the instant case

that the evidence was sufficient to sustain the conviction of the

Petitioner (A.1-2), asserted, that “...two of the vehicles em-

ployed to transport the marijuana also belonged to (the

Petitioner).”” However, Petitioner maintains that there was no

evidence to establish that any of her vehicles transported mari-

juana. The evidence established that they were operated by

persons charged in the conspiracy, however, no marijuana was

ever found within them. Moreover, the testimony indicated that

the Petitioner, and Fred Fillingham, owned the vehicles, but,

that legal title was in the name of the Petitioner. The vehicles

were observed, at all times material to the Indictment, to be

operated by others, and not the Defendant.

Petitioner further maintains that all of the evidence

showed that she did nothing to connect her with a conspiracy

to possess with the intent to distribute marijuana, even if, the

other count (conspiracy to import marijuana) was determined

to exist. The record, is totally devoid of all indication that the

Petitioner agreed or conspired to anything relating to possessing

or distributing the alleged marijuana. The gross inferences,

which the Court of Appeals apparently held to create the fact

is but sheer inference and cannot clearly, support the instant

conviction, for, it was not based upon evidence beyond and to

the exclusion of every reasonable doubt. Hence, a clear vio-

lation of the Petitioner’s due process rights has been established

requiring this Court to invoke its certiorari jurisdiction.

In the instant case, the evidence against the Petitioner

primarily was developed by Government witness, Charles

Girtman. Girtman was a co-defendant tn the case and pled

guilty to a lesser included (misdemeanor) offense. He testified

that he accompanied the Petitioner, bringing his boat with him

9

but did not know just what he was going to do or how he was

going to use the boat. While the witness was riding in the

company of one, Anita Prince, a named co-defendant. the

defendant was riding with another. The vehicles traveled

together part of one day and became separated meeting the

following day.

The witness stated that he had a conversation with Fred

Fiilingham (a known co-defendant); however, no one else was

present to hear the conversation which dealt with finding a

place to “unload a large quantity of marijuana with small

boats”). Girtman testified that he desired to remain isolated

from any others, and actually did not know what. if anything,

anyone else was to do; he was not sure he was going to enter

into and become a part of the endeavor as well. The only con-

versation that this witness had with Petitioner during the trip

from Florida to Mississippi was to learn the name of the motel

that they were to meet in and there they would learn what

“role” they might play and whatever had been planned. At this

point, Girtman stated he felt the Defendant and the others in

his entourage did not know what was to take place.

Subsequently, the witness. in Mississippi, talked with and

accompanied Fillingham in a search for a “place” to land the

boats. Thereafter, the “‘plan’’ was talked about between the

witness and Fillingham without others being allowed to hear the

same. Later that night, the witness and others went out to

search for a freighter.

On one occasion. the witness was taken to a house in

which Anita Prince was staying. The witness attributed the

remark to the defendant that the house was where they were to

bring in marijuana, store it Or move it from there; however. the

term “they” was never defined to either include or exclude the

defendant.

Subsequently. Girtman testified. that he and another went

in his boat to a freighter. loaded his boat. at which time the

other ooat was also at the freighter and being crewed by others

not the Petitioner. The witness later stated that he saw the

defendant on the dock when he unloaded, but never saw any

“cargo” being unloaded on the dock.

Over objection. Girtman was permitted to repeatedly

10

relate conversations had with persons other than the Petitioner,

this though it was never shown the Petitioner was a party,

directly or indirectly to those conversations in any way or even

knew they occurred or the content of the conversations.

Girtman testified that he left his boat with other co-

defendants after being paid Seven Thousand Five Hundred

($7,500.00) Dollars. Girtman testified that Petitioner was

“present” in the building but not that she heard or understood

or participated in that transaction in any way. The witness

further stated that prior to leaving Mississippi the Petitioner

called him and assertedly said “‘we might have something for

you to use your boat for” but did not further design the

circumstances.

On cross-examination, Girtman admitted that he had

negotiated a plea with a Government recommendation that he

would receive probation for a misdemeanor, and that in the

event the circumstances might affect his flying license, that the

Government would intercede favorably on his behalf. More-

over, it should be noted that the witness’s boat came back to

him. On cross-examination, the witness further stated that he

had known the Petitioner for some years (two years on direct

testimony - three or four years on cross); he knew that she was

in the aquarium business and needed to use a boat in connec-

tion therewith, acknowledged that he had made amorous ad-

vances toward her and was rejected by her, and was uncertain

if she was a friend though at one time she was, of course.

Girtman further stated that part of his negotiations included

that he would appear and testify against the Petitioner, Carol

Amend, at her trial.

The cross-examination further indicated that when the

Petitioner mentioned the using of the toat belonging to Girt-

man, she never stated to him for what purpose; he did not ask

the purpose and did not think the defendant knew the use -

purpose of the boat. They never discussed the reason or pur-

pose. Moreover, before arriving at the Mississippi gulf coast,

neither the witness nor the Petitioner knew exactly where

they were going.

All events that happened in Pascagoula, Mississippi, were

learned about by the witness from Fred Fillingham. On all

1]

“boat trips’ the Petitioner was not present.

The Government witness testified to more “inferences”

but had no definite activities of the Petitioner for which he

could testify to. While Girtman said he saw the Petitioner on

the dock where he unloaded the bales which he believed to be

marijuana. he further stated that she did nothing to or with

the bales. she only spoke with the witness.

The second Government witness to testify. Ronald E.

Johnson. an agent for the Mississippi Bureau of Narcotics.

stated that he saw the Petitioner at the Biloxi Small Craft

Harbor on 4 December 1975. on or about 3:30 P.M. He took

pictures of her which were. over objection. admitted into

evidence. One picture was taken as she left the Harbor

Masters office. another was “basically the same’ while a third

One was a picture of her as she was going up the steps into the

office. The remaining pictures were those of the co-defendants

and them repairing their boats. He testified that Petitioner

spoke with the co-defendants who were fueling the vessel and

to the Harbor Master: that was the only occasion he had seen

or talked to either co-defendant. Thereafter she drove on

Highway 90 to Biloxi. Mississippi.

This witness testified that subsequently (on 10 December

1976) he saw a Cigarette boat and found about an ounce of

“green vegetable looking material” and various items. Later

that day. he saw the vehicle the Petitioner had been driving. but

another female was operating it. He could not identify her. The

witness had obtained certified copies of the registration of the

vehicle which reflected the owners name as that of the

Petitioner. the registration of the boat reflected the same. and

these were introduced over the objection of Petitioner.

Upon cross-examination. the witness stated that the one

observation of defendant. on 4 December 1975. was his only

observation of her. He saw her do nothing more than the mat-

ters mentioned above: he admitted that he only concluded she

went to a certain hotel and did not even know that. He

admitted he had no way of knowing what the Petitioner may

have conversed about with the persons working on the boat.

The third and last Government witness to testify was Fred

iz

-

Lovett, who also worked forthe Mississippi Bureau of Narcotics.

As a result of a telephone conversation, the agent had gone

from Hattiesburg to Waynesboro, Mississippi. to look for two

vehicles, one a white four-door Cadillac and one a green over

yellow Torino. He located the white Cadillac in Waynesboro

some thirty to forty minutes later. After surveilling the Cadillac

for awhile, the agent left to eat and returned to find the green

Torino parked. The agent testified that the surveillance con-

tinued and that he was looking for Tom Swann (or Gilbert)

and Honorio: they were located in the downtown at Waynes-

boro. These co-defendants entered the Torino and met with a

GMC camper. The agent testified of the activities of the U-Haul

driven by Swann. and the GMC. A warrant was subsequently

obtained for the U-Haul (this “search” is the subject of Point

One) and stated that upon executing the search warrant he

found some “thirteen thousand some odd pounds” of “green

vegetable like substance’’ which “‘appeared to be marijuana’”’.

The Petitioner was not in the truck.

Upon cross-examination, the witness revealed that while in

Waynesboro he had been given a specific description of the

Petitioner. Carol Amend, although at first. he attempted to

deny this. He finally acknowledged such did occur and that he

was especially looking for the person of the Petitioner but he

never saw her in either Waynesboro or in any of the vehicles.

Moreover. the witness testified he never saw anyone who could

be confused with the Petitioner in connection with the vehicles

or the parties observed to be using them. He had never seen the

Petitioner until in Court in connection with the case.

The witness Girtman testified that Petitioner was living

with Fred Fillingham, who was acknowledged to be a

demanding person always giving orders to others. Although the

naked paper work reflected the Petitioner to be the registered

owner of the boat, the old white Cadillac and the GMC camper,

what interest was held by the man, Fred Fillingham, with whom

the Petitioner lived. is nowhere touched upon by the testimony

other than the testimony of the main Government witness

Girtman, who expressed his belief that both the vehicles and

boat belonged to both the Petitioner and Fillingham. At

another place in the record he referred to the boat as being

13

Fillingham’s.

The record is wholly devoid of any indication of who com-

municated with the Petitioner in order to cause her to go from

her home in Florida to Mississippi, ard it is equally wanting to

establish what, if anything, she was told of the marijuana con-

spiracy charged in the Indictment. Girtman specifically testified

that he did not know what he was going to do or how he was

going to use this boat and did not believe the Petitioner did

either. Clearly, there was no testimony to attribute to the

Petitioner any circumstances which reflect her to have been any

better informed than the witness Girtman. As a matter of fact,

the witness opined that the Petitioner did not know the use to

which the boats were to be put.

It was not until after Girtman arrived in Mississippi and

following a private conversation he had with Fillingham alone,

that he first learned what was going on and what part he would

play. Girtman never testified the Petitioner was present or

otherwise in such a position to learn of the agreement, the

conspiracy and to become part of it. No evidence was offered

of the Petitioner having done anything after she was in Missis-

sippi, even if it be assumed that she somehow learned of what

was afoot. No action on her part in advancing the “conspiracy”

or the like is included in the record. Petitioner was never

demonstrated to have agreed to do anything in connection with

the charged offenses.

It is well established, that with respect to conspiracy

offenses the statements of co-conspirators made during the

conspiracy and in furtherance thereof are admissible against all

the conspirators. However, before the same are admissible

against one on trial it need be first established that there was an

agreement and that the accused, the defendant, became a part

of that agreement. See: United States v. Menichino, 497 F.2d

935 (Sth Cir. 1974); United States v. Carlton, 475 F.2d 104

(Sth Cir. 1973). The defendant need not know every minute

detail of the plan or agreement, but must know enough of it to

know generally what unlawful activity is planned and then,

after knowing, must intentionally join into the conspiracy in

some manner. See: United States v. Harvey, 464 F.2d 1286

(Sth Cir. 1972); Cert. denied 410 U.S.938.

14

<2 ns ae eer eeey ae Omen ee

ee

Assuming arguendo the Petitioner knew no more than the

witness Girtman, while traveling to the gulf coast, she could not

then have been a member of any conspiracy for she did not

know what was to be done. who was to do it or how it was to

be accomplished. There is no evidence to establish anything

further than the foregoing assumption. It must be remembered

that it was only after Girtman conversed with Fillingham that

he was informed of enough to be able to determine a course of

action to join or not join in the conspiracy.

The Government only established in light of the testimony

most favorable to the Government, that the Petitioner was

present on the same dock where the witness Girtman unloaded

a number of bales of what he believed to be marijuana. Mere

presence at the scene is, however, not adequate proof to con-

vict, even if the Petitioner had knowledge of the crime as being

commmitted; the Court so charged the jury and that is the

correct statement of the law. See: Roberts v. United States,

416 F.2d 1216 (Sth Cir. 1969). Girtman specifically testified

Petitioner did nothing more there than to converse with him

but he did not state what the conversation related to and more

particularly said nothing to indicate their discussion touched

upon the subject matter of the alleged conspiracy so as to em-

brace the Petitioner. The testimony of second witness Johnson

holds little more for the Government to rest its case upon. He

could not know or hear the subject matter of the Petitioner's

conversation with the Harbor Master nor the two persons she

was seen speaking to. Other than his daylight observation on

4 December 1975, he never saw the Petitioner or knew of her

whereabouts. He could shed no further light upon the Petitioner

or her actions other than seeing her in the harbor.

The third witness’s testimony in a similar capsule, reveals

even less than the second witness. Although he had the specific

description of the Petitioner and was especially looking for her

he never saw her. No witness testified that the defendant was

ever in Waynesboro, Mississippi. Moreover, Lovett testified that

no expert ever testified that the “thirteen hundred some odd

pounds” of a green vegetable like substance” which “appeared

to be marijuana” was in fact the same as no expert ever testi-

fied to that.

1S

There was no effort by the Government to show that the

U-Haul truck or its contents came from a gulf coast or had any

connection with the episodes testified to by Girtman as having

occurred on or before 4 December 1975, on the coast. Such

must be wholly presumed. Moreover, there is nothing to indi-

cate that the Petitioner ever saw the contents of the truck or for

that matter had the slightest knowledge of their existence as

such was never introduced, including particularly any facts that

the Petitioner was ever a party to any agreement touching on

those contents. No other testimony is there to support the alle-

gations of count two. All that evidence does exhibit, is that an

old, white Cadillac which was registered in the name of the

Petitioner and driven by another co-defendant was found in

Waynesboro. The testimony indicated that the Petitioner was

never shown to have done anything with the vehicle. Addition-

ally, the GMC truck which was registered in her name and

driven by her or Sam Firestone from Miami to the gulf coast

was seen in Waynesboro. However, apparently from the time

the Petitioner arrived in Mississippi the truck was taken over by

another since she was never seen to drive it but rather another

and different vehicle which in turn was last seen in the posses-

sion of a yet unidentified female. Pointedly, the GMC truck was

seen to be used for nothing unlawful but transportation to

Waynesboro and was then driven by Fillingham only.

In short, the entire episode relating to Waynesboro and

thereafter, is without any connection with the Petitioner, and

nothing is in the evidence that can connect her with any con-

spiracy touching thereon. It is the only evidence in support of

Count II.

The “evidence’’ adduced to connect her with Count I fares

no better as pointed out hereinabove. The evidence demon-

strates no more than that the Petitioner took a Cigarette boat

registered to her to Fillingham at the gulf coast and through a

request by Girtman caused his boat to be towed by a vehicle

registered to her to the same place. This was done without the

knowledge of their intended use to allow Petitioner to have

conspired, in that the necessary knowledge of that unlawful

act was absent together with an intent to do that unlawful act.

16

a me ee at nen

ETS AS

See: U.S. v. Binetti, 547 Fed. 2d 265 (Sth Cir. 1977): US. vy.

Reynolds, 511 Fed. 2d 605 (5th Cir. 1975).

The meager circumstances testified to in surrounding the

Petitioner are so uncertain and indefinite that they fail to con-

stitute lawful circumstantial evidence. Compare: U.S. vy. Diaz,

$15 Fed. 2d 892 (Sth Cir. 1975), cert. den. 423 U.S. 1052.

Because there is nothing to negate the premise that the

Petitioner, upon learning of the proposed conspiracy, declined

to enter or withdrew, the conviction cannot stand. Absolutely

no act is attributed to her upon her arrival at the gulf coast to

support her entry into or attempt to further the objectives

of the conspiracies charged. |

The circumstances constituting the “circumstantial evi-

dence” of this case must be found to be so strong that in

effect it would not only be consistent with guilt but also

inconsistent with a reasonable hypothesis consistent with

innocence. U.S. v. Garza, 426 Fed. 2d 949 (Sth Cir. 1970).

The circumstances are not near so damning or reflec-

tive of guilt as the circumstances which resulted in reversal

of the Defendant in Thomas v. U.S., 398 Fed. 2d 531, or

Roberts v. U.S., supra, (Sth Cir. 1967).

The Petitioner duly and timely objected to statements of

the co-defendant, without first having demonstrated she was a

conspirator, but the court allowed these statements into evi-

dence on the premise of a connection of the Petitioner to the

defendants would subsequently be evidenced by the proofs.

Such never occurred. Charges of conspiracy are not permitted

to be established through pyramiding inierence upon infer-

ence. Direct Sales Company, Inc. v. U.S., 319 U.S. 703 (1943).

Further, to establish that intent is essential to a conviction for

conspiracy, the evidence of knowledge must be clear and not

equivocal for without that knowledge there can be no intent.

Ingram vy. U.S., 360 U.S. 672, 680 (1959).

In the instant case, Petitioner contends that her conviction

is predicated upon a piling of inferences in the favor of the

government and against the required presumption of innocence.

The fact is that the circumstances established by the record

simply reveal that Petitioner went from Miami to Mississippi

17

without being armed with adequate facts to have been in a

posture to join in any existing conspiracy. Upon arrival in

Mississippi she is never demonstrated to have been in cir-

cumstances adequate to have apprised her of the conspiracy:

no acis on her part thereafter were subject to any proof, thus

the evidence is wholly insufficient upon which her conviction

be based.

| CONCLUSION

WHEREFORE, in light of the foregoing circumstances and

authorities cited therein, the Petitioner respectfully requests the

judgment of the lower court be reversed and this Court issue a

Petition for Writ of Certiorari.

Respectfully submitted,

Seer Ce Cs Ge oe A: EE

RAY SANDSTROM of

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale, FL 33301

Telephone: (305) 467-6767

I HEREBY CERTIFY that a copy of the foregoing

Petition for Writ of Certiorari has been furnished by mail to

Honorable Wade H. McCree, Jr., Solicitor General, Department

of Justice, Washington, D.C., 20530, this 20 September 1978.

BY: | ee

' RAY SANDSTROM

i9

APPENDIX

. Decision of the Court of Appeals

Fifth Circuit

‘A-1 to A-3

. Petition for Rehearing denial

filed with the Fifth Circuit

A-4 to A-5

. Stay of Mandate

Issued by Fifth Circuit

A-6

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5773 D

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

CAROL AMEND,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

(July 6, 1978)

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.

PER CURIAM:

Defendant Carol Amend was convicted on one count of

conspiring to import, and One count of conspiring to distribute

and to possess with the intent to distribute marijuana. in

violation of 21 U.S.C. §§ 841 (a) (1), 952 (a) and 963. The

sentences on the two counts are to run concurrently. On appeal

defendant contends that evidence acquired during an illegal

search and seizure was improperly admitted, and that the evi-

dence was insufficient to establish her participation in the

conspiracy. We affirm.

We need not consider whether the search of Thomas

Swann’s rented van and seizure of the marijuana contained

therein was unlawful.! as we conclude that defendant has no

standing to raise a Fourth Amendment challenge. Defendant

[A.1]

was not present when Swann’s van was searched, she had no

legitimate interest in the truck or its contents, and was not

charged with an offense that includes, as an essential element,

possession of the seized evidence at the time of the contested

search and seizure. See: Brown v. United States, 411 U.S. 223,

229, 93 S.Ct. 1565, 1569 (1973): United States v. Archbold-

Newball, 5 Cir., 1977, 554 F. 2d 665, 678-79, cert. denied,

__ _U.S. ___ , 98 S.Ct. 644 (1977).

Defendant’s sufficiency of evidence claim is equally with-

out merit. The testimony of Charles Girtman, a co-defendant

who pled guilty to a lesser included offense, established that

defendant knew of the plan to import marijuana. and recruited

Girtman to participate in the conspiracy. Girtman’s testimony

also revealed that defendant was present on the dock where the

bales of marijuana were being unloaded. One of the motorboats

used in the unloading was owned by defendant, and two of the

vehicles employed to transport the marijuana also belonged to

her. Taking the evidence in the light most favorable to the

Government, see Glasser v. United States, 315 U.S. 60, 80, 62

S.Ct. 457, 469 (1942), it is apparent that there was sufficient

evidence to establish defendant’s participation in the con-

spiracy. See, e.g., United States v. Bolts, 5 Cir., 1977, 558 F.

2d 316, 325 cert. denied, Re ee Loe, Ws cee

(1978).

AFFIRMED.

[A.2]

Footnote

Sn . : :

RR 5 Cir: see Isbell Lite rprises, Ince. vv. Citizens Casualty ¢ ompaity

f New York, et al. 5 Cir., 1970, 431 F. 2d 409. Part I.

1 Thomas Swann, the driver of the van, has contested the [ gality of this

search and seizure in) United States v. Swann, 5 Cir. ._ F. 2d

INo. 77-5499, . 1978]. the decision of which is pending

}A.3|

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

COURT OF APPEALS

FILED

A

No. 77-5773 WARD = cadens

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

CAROL AMEND,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Mississippi

ON PETITION FOR REHEARING

(August 21, 1978)

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same is

hereby “‘denied”’.

ENTERED FOR THE COURT:

/s/ ROBERT A. AINSWORTH, JR.

United States Circuit Judge

Form 703-2

| A.4]

CLERK

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5773

Summary Calendar

D. C. Docket No. E76-(10R)

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

versus

CAROL AMEND.

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Mississippi

Before GOLDBERG. AINSWORTH and HILL. Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Southern

District of Mississippi. and was taken under submission by the

Court upon the record and briefs on file. pursuant to Rule 18:

ON CONSIDERATION WHEREOF. It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be. and the same is hereby. affirmed.

July 6. 1978

Issued As Mandate:

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

August 22, 1978

Mr. Ray Sandstrom

Attorney at Law

429 South Andrews Avenue

Fort Lauderdale, FL 33301

No. 77-5773 - U.S.A. vs. CAROL AMEND

MANDATE STAYED TO AND INCLUDING SEPTEMBER 21, 1978

(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 filing of a copy of an order of the Supreme Court denying the

oor - writ of certiorari the mandate shall issue immediately under

ule 41, FRAP.

Under revised Rule 21(1) of the Supreme Court effective July 1, 1970,

a record is no longer required in connection 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 rehearing are still required

by the Supreme Court to be incorporated 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

By

Deputy Clerk

enc.

cc Mr. James B. Tucker

[A.6]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT COURT OF APPEALS

FILED

No. 77-5773 AUG 22 1978

EDWARD W. WADSWORTH

UNITED STATES OF AMERICA. Clerk

Plaintiff-Appellee.

Versus

Defendant - Appellant.

Appeal trom the United States District Court for the

Southern District of Mississippi

ORDER:

( ) The motion of APPELLANT

for stay of the issuance of the mandate pending petition

lor writ of certiorari is DENIED. See Fifth Circuit Local

Rule 15. as amended January 11. 1972.

(xx) The motion of APPELLANI

for stay of the issuance of the mandate pending petition

for writ of certiorari) is GRANTED to and including

September 21. 1978. 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 of a copy 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.

The motion tor a further stay of the issuance of the

mandate is GRANTED to and including ,

under the same conditions us set forth in the preceding

paragraph.

Hl IS ORDERED that the motion tor a further stay of

the issuance of the mandate is DENTED.

~

—

s ROBERT A. AINSWORTHL Jr

LNITED STATES CIRCUIT JUDGI

A