Petition — Linares v. United States

Supreme Court brief1979

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Supreme Court, U. &-

E D

APR 4 1979

MICHABL RODAK, JR., CLERK

in the

Supreme Court

of the

United States

casENo: #8715 74

JOSE LUIS LINARES and

JOSE ANTONIO FERNANDEZ,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

5th CIRCUIT COURT OF APPEALS

ALVIN E. ENTIN, ESQ.

Attorney for Petitioners

2020 N.E. 163rd St., Suite 300

North Miami Beach, Florida 33162

Tel: (305) 944-9100

a —_

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............0..0.00005 ii

os... . os .00.. cs scenes. 2

EE ead clasades 3

QUESTIONS PRESENTED .............0.00000. 4

CONSTITUTIONAL PROVISIONS............-. 5

STATEMENT OF THE CASE AND FACTS ..... 6

STATEMENT OF THE FACTS............0.000. 7

REASONS FOR GRANTING WRIT.............. 21

EE 21

ose. chebeicaos sus 32

a 37

SD ae 40

ES 45

ee 49

CERTIFICATE OF SERVICE ..............0.005- 50

APPENDIX

TABLE OF AUTHORITIES

Page(s)

Bernard v. State,

275 So.2d 35 (Fla. 3 DCA 1973) ............... 37

Cannon v. U.S.,

BE Oe Oe 0 Cit. TOGBD. og oc cniviccccccccccccs 41

Causey v. U.S.,

352 F.2d 208 (5 Cir. 1965) ............ 22, 27, 28, 29

Gallego v. U.S.,

SPO oe OLS LO CEP. 19GD) nc ccccccccccccccss 37

Garza v. U.S.,

Se Cs BUUED dnnwcee dacs cvicccanccce 34

Glasser v. U.S.,

60 S.Ct. 457, 86 L.Ed 68 (1942) .............. 22, 35

Holland v. U.S.,

348 US 121, 75 S.Ct. 127,

EE cv cv bvsdaccesesbaestennteeas 21

Jencks v. U.S.,

353 US 657, 1 L.Ed.2d 1103,

yeh OV 8 rey ere rere err 41

Judson Martin Smith, Jr., et al., v. U.S.,

a iia Cusagudapieeeheads 35

Montoya v. U.S.,

ae kaa. ci adues sdb dbneabad bees 30

TABLE OF AUTHORITIES (Continued)

Page(s)

Portomene v. U.S.,

- EL fF LS | er eee 4]

Roviaro v. U.S.,

353 U.S. 53, 1 L.Ed.2d 639,

og Fo EB SS) ee ere ee 41, 42,

43, 44, 45

Sherman v. U.S.,

356 U.S. 269, 2 L.Ed.2d 848,

ee ee 44

Smith v. U.S.,

REECE, BUNED oa ck ccccccecvesesesss 34

State v. Anderson,

I I tn EE 6 vc cccccuccccevccecces 37

U.S. v. Amato,

Tee eo ds cee awen ae 29

U.S. v. Appollo,

ee Gs BPTED ccccccccccvcccccscces 48

U.S. v. Archbold-Newball,

564 F.2d 665 (5 Cir. 1974) .....ccccccccccccccns 47

U.S. v. Barrera,

dn cca ckceuventesseee 31, 32

iii

LL a

in the

Supreme Court

of the

| United States

CASE NO.:

JOSE LUIS LINARES and

JOSE ANTONIO FERNANDEZ,

Petitioners,

Us.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

5th CIRCUIT COURT OF APPEALS

Petitioner prays that a Writ of Certiorari be issued

to review the judgment of the 5th Circuit Court of Ap-

peals entered in the above styled case on January 26,

1979, re-hearing denied March 2, 1979. 7

OPINION BELOW JURISDICTION

The opinion of the Fifth Circuit Court of Appeals The judgment of the Fifth Circuit Court of Appeals

is reported at F.2d and is printed in the was entered on January 26, 1979. Hearing was denied on

Appendix. March 2, 1979. The jurisdiction of this court is invoked

under 28 U.S.C. 1254.

QUESTIONS PRESENTED

1. Whether the trial court erred in failing to grant

Petitioners’ Motions for Directed Verdicts of Acquittal

at the close of the case in the absence of sufficient

evidence of conspiracy?

2. Whether the trial court erred in failing to grant

Pétitioners’ Motions for Directed Verdict of Acquittal at

the close of the case in the absence of sufficient evidence

of possession with intent to distribute marijuana?

3. Whether the trial court erred in admitting into

evidence a tackle box found on “The Last One” where .

the chain of custody was defective and there was

evidence of deliberate tampering with the property

found on “The Last One’?

4. Whether the trial court erred in denying defen-

dant’s Motion for the Divulgence of a Confidential Infor-

mant where no claim of privilege had been made by the

United States or any representation that disclosure of

the confidential informant would endanger the govern-

ment’s interest?

5. Whether the trial court erred in making

prejudicial comments in its limiting instruction which

effectively denied Petitioners a fair trial?

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States. Con-

stitution provides that:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusations; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defense.

STATEMENT OF THE CASE AND FACTS

On April 12, 1977, an indictment was filed, charging

the Petitioners, LINARES and FERNANDEZ, with

conspiracy in violation of Title 21 of the USC, Section

841, all of Title 18 USC Section 2 and violation of Title

21 USC Section 846, as set forth in counts one and two of

the indictment. The Petitioners at arraignment plead

not guilty and requested ten (10) days for the purpose of

filing motions. Thereafter, Petitioners, LINARES and

FERNANDEZ, joined in a Motion for Severance,

prejudicial joinder and Motion for Limiting Instruc-

tions. These motions were not promulgated by these Ap-

pellants but were joined in on the motions made by

other counsel, there having been an agreement that all

motions made in this cause were joined in by all other

counsel as if made by these particular Petitioners and

that the ruling of the court affected all Petitioners in

this cause. All motions applied to all Petitioners in this

cause. On September 1, 1977, a jury trial of all

Petitioners was held before the Honorable Judge Sidney

Aronovitz, of the United States District Court for the

Southern District of Florida.

On September 15, Petitioners, LINARES and FER-

NANDEZ, were found guilty as to counts one and two.

On October 21, 1977, the Appellants were adjudged

guilty and sentenced to two (2) years in jail on each

count, said jail time to run concurrent with each other

and Petitioners to serve a special parole term of two (2)

years following the period of confinement.

Petitioners’ convictions and sentence were affirmed

by the Fifth Circuit Court of Appeals on January 26,

1979, rehearing denied March 2, 1979. This Petition for

Writ of Certiorari follows.

STATEMENT OF THE FACTS

The Government presented some preliminary wit-

nesses to establish the identity of certain materials in-

tended to be introduced into evidence at a later time for

the purpose of identifying same for introduction into

evidence, to wit: testimony of Roland Tebeau in the

preliminary discussion with the Court. There.was argu-

ment made as to the limiting instruction to be given by

the Court regarding the exception to the hearsay rule of

the Court relative to instructions to the exception to the

hearsay rule regarding the alleged co-conspirators was

joined by all parties requesting a modification of the

Court’s instructions, the Court stating it would give its

own instruction. (TR 33)

Prior to the Government commencing, it is stated

that there was a witness produced by the Government,

to wit: Gil Payett, who testified as to his boarding of a

boat, to wit: The Andrea. What, however, is significant

was his admission that there were other boats in that

area on the night in question, to wit: February 13, 1977,

when he did c’\serve other boats “In Southbay that

night”. (TR 42) The next witness called by the govern-

ment was Kevin Foley, whose testimony basically iden-

tified certain exhibits which had been identified by

Agent Foley. Factually, on cross-examination, Agent

Foley was questioned as to Exhibit one, by writing coun-

sel and he testified that the alleged contraband which

wrapped exhibit one was made of burlap and that the

burlap did in fact shed. (The significance of this will be

discussed at a later time.) (TR 96)

The following witness was George Donahue, em-

ployed by the United States Customs Patrol Division,

who identified exhibit Number 18, which was placed in

his possession by Officer Gil Payett, until he turned the

property over to Agent Foley. (TR 103) The next witness

called in the Government’s case was Gloria Maria

Orgaz, (TR 105), a photographer, to which we take no

exception. After introducing and marking various ex-

hibits, the government then called its first major

witness, Mr. Berckmans. (TR 119) After testifying to his

credentials, Mr. Berckmans testified that he had

various conversations with Mr. Mario Abascal, Mr.

Frank Medina, and Mr. Pedro Navarro, and that they

had first met these people at the Sambo’s Restaurant in

Coral Gables at or about the tenth day of January, 1977.

(TR 121) During the course of Mr. Berckmans’

testimony, a request was made for a “‘limiting”’ instruc-

tion relative to the exception to the hearsay rule, and the

court read the following instructions:

“‘Now, here is the Preliminary Instruction:

When it appears beyond a reasonable doubt

from the evidence in the case that a conspiracy

existed, and that a Defendant was one of the

members, then the statement thereafter

knowingly made and the act or acts knowingly

done by any persons likewise found to be a

member may be considered by the jury as

evidence in this case as to the other defendants

found to have been a member. . . I repeat, the

Government will have to show to the Court and

to the Jury that there has been independent

evidence, noi of a hearsay nature, evidence suf-

ficient to establish the particular defendant’s

connection with the conspiracy, and a deter-

mination will be made by the Court.” (TR 123-

125)

Motions for mistrial were made and joined in by all

defendants which motion was denied. (TR 127) Mr.

Berckmans presented some cards he had received from

Mr. Navarro containing the name of Mr. Abascal

‘together with his phone number. He further testified

that ‘““They” desired to bring in some material and that

they needed to put a member of the organization at the

beach area controlled for security by Wackenhut, and

that Abascal was to be placed as a Guard at the Turkey

Point area in which the parties were interested. (TR 132

& 133) There was further testimony that Mr. Berckmans

received Five Thousand ($5,000.00) Dollars in cash in

the men’s room, which Five Thousand ($5,000.00)

Dollars allegedly was delivered by Mr. Navarro. Subse-

quently, on January 11, 1977, the witness met with

Abascal wherein he allegedly was informed that Mr.

Abascal would be the guard at Turkey Point in order to

effectuate the ‘“‘plan’’. The testimony reveals that Mr.

Abascal never acted as a guard but that however,

Special Agent Foley of the DEA became the guard. (TR

151) Thereafter, the witness, together with Abascal and

Foley, met at the Westward Ho Restaurant where again,

allegedly, Abascal gave Foley Two Thousand ($2,000.00)

Dollars for his part in the alleged scheme. (TR 151 &

152) At or about that particular time, Abascal was

alleged to have taken Foley and the witness to the

Turkey Point area where the material was to have been

dropped. (TR 155) The witness assured Abascal that

Foley would be on post at the Turkey Point area and was

further advised by Abascal that the operation would

“Go either the following Sunday or Saturday, that they

should be ready”. (TR 157 & 158)

Thereafter, the witness made a statement in

response to a question that the organization which Mr.

Berckmans said Mr. Abascal spoke to him about at the

January sixth meeting was “‘A large organization having

headquarters in Atlanta and that he, Abascal, was in

charge of site selection.” At which time a Motion for

Mistria: was made by Mr. Max Kogen which was denied

by-the court. (TR 159) We specifically mentioned that,

as a matter of fact, it will be agreed between counsel and

the court that the Motions of one attorney was adopted

for all defendants without the necessity of each attorney

arguing and cluttering the record. (TR 140)

Another motion thereafter was made for severance

which was joined in by the writer specifically. (TR 172)

There were various arguments outside the presence of

the jury relative to the Government having indicated

that a second confidential informant was involved in

this cause (TR 172), whose name had not been given to

the attorneys after the government indicated that they

had no intention of calling him and the court did in-

dicate that its recollection was that the government had

only specified one confidential informant. (TR 175) The

government admitting that its unknown informant only

met Navarro and Medina and ‘‘Never had contact with

anyone in the trial here today.” (TR 176) The relevancy

of this we believe, will be made apparent at a later time.

On cross-examination, Mr. Berckmans testified that he

had not met any of the Appellants other than Abascal,

Navarro and Medina, who was not a Petitioner in this

cause. (TR 180) Also an examination of the testimony of

the witness will reveal also that during the course of Mr.

Berckmans’ cross-examination no names of any other

Appellants were raised or discussed by either Mr.

Abascal, Berckmans, Medina, or Navarro.

The testimony further revealed that the only

merchandise that Abascal, Medina or Navarro intended

to bring in were “lobsters, frozen lobster tails, and cof-

fee.’’ (TR 182) In fact, at no time was there any indica-

tion that “drugs” were to be brought into the country.

(TR 182) There was further testimony by the witness

referred to herein that any discussion related to a water

vehicle referred to was the singular rather than the

plural, and that the witness was uncertain as to whether

Abascal referred to a boat or boats. In fact, the witness

was shown a report by Agent Foley in which the word

boat was used as information given by the witness. (TR

226) On re-direct examination, the Government, in an

attempt to rehabilitate its witness, asked the witness

whether the conversation had involved drugs and the

witness admitted that it wasn’t drugs.

The next witness called by the Government was

Kevin Foley, again, who gave his qualifications and who

stated that he had conversations with Pedro Navarro:

that certain meetings had taken place with the Defen-

dant Abascal and that the only mention of a water vehi-

cle was in the singular, to wit: a boat. (TR 235) That

Foley was paid Three Thousand ($3,000.00) Dollars by

Abascal and that again, a Motion to Strike and

severance was requested by counsel, and that the court

denied said motions. (TR 247 & 248) The further

testimony on direct examination of Defendant Foley in-

dicated that all of his dealings were with Abascal or

Berckmans other than some meeting with Navarro and

Medina and that he had in fact received another One

Thousand ($1,000.00) Dollars. (TR 285) Mr. Foley

further testified that on the 13th day of February, 1977,

he met Abascal at Turkey Point (TR 301) and was re-

quested to unlock the gate so that certain trucks were to

come into the area in which the witness was located (TR

304) and that in fact a large white Ford Van did drive

into the complex. The witness then went to make his

rounds and the witness then saw a blue truck, a camper

truck, and was able to identify Felix Valdez, as being

the driver of a vehicle. He then stated he saw the motor

vehicle leaving the area at Turkey Point and followed

them in his vehicle. (TR 325) The witness also testified

that nothing in the nature of contraoand was found on

the boat, The Last One. (TR 329, 367) There was ad-

ditional testimony by DEA Agent Foley which at no

time involved Petitioners herein and did not in any way

relate the Petitioner LINARES or FERNANDEZ to any

conversation relative to the importation of contraband,

or that in fact their names were ever raised or made a

part of any discussions, or that DEA Agent Foley had

any knowledge of the existence of the two Petitioners

until they were arrested on the boat, ““The Last One’.

It is noteworthy to indicate that various objections

were made in which the Petitioners, LINARES and

FERNANDEZ, contended that there had been no show-

ing of any conspiracy to that point, knowledge of con-

spiracy, nor were they under suspicion for committing or

engaging in a conspiracy.

Further examination of the witness revealed that on

the 13 day of February, 1977, there were approximately

15 to 20 people on surveillance (TR 365) and that at no

time did any of these other witnesses, or the surveillance

witnesses, or this witness see any marijuana taken off

any boat. (TR 367) He further testified (still referring to

FOLEY) that to his knowledge and belief no contraband

of any kind was ever found on the vessel, ‘““The Last

One’”’, which vessel admittedly by all parties was oc-

cupied by Lorenzo Aday Lorenzo, JOSE LUIS

LINARES and JOSE A. FERNANDEZ. (TR 392-395)

The witness further admitted that upon information

and belief that there was found on the ‘““The Last One” a

tackle box, some beer and other minor personal

property. At this point, Agent Foley was discharged as a

witness and Fernandez was the next Government’s

witness.

His preliminary questioning really has no

significance in this writer’s opinion to the issues raised

in this Petition. However, he did state that sometime

between 7:30 AM and 9 PM, he heard noises which he

indicated were made by two boats. Mr. Fernandez

testified as to the directions which the boats were going

and that the sound, after this passing, ultimately

diminished. The only identification made of any boats

by the witness Avelino Fernandez was that he saw only

silhouettes. (TR 428)

The witness further testified that the boats, within

a short period of time, returned from where they had

gone and then went into open water. Ultimately, there

came a time when the sound of the engines were not

audible. (TR 430) The rest of his direct testimony is, in

this writer’s opinion, not really relevant other than the

fact that the witness tracked the small boat and in-

dicated the direction in which the boat went. While the

conversation and the questioning appear to be rather

confusing, it appears that Mr. Fernandez testified that

the “boat we presume meaning the small boat.” “The

Last One”’ came back into the area where the big boat

was and started to tow the big boat back. (TR 436) As a

result of an alleged defect of the big boat’s engine, it

could not start. On cross examination, the witness

testified that he conducted his surveillance from a tree

and admitted:

A. That he did not see or read the names or

the markings of the boat. (TR 438-439) |

B. Neither did he observe any contraband on

any of the boats. (TR 439)

He further admitted on cross examination that he never

saw either of the two boats in question unload any con-

traband or any other substances anywhere in the Turkey

Point area. (TR 439) He further testified on cross ex-

amination that he lost sight of the boat, ‘The Last One”’

for a period of time, and additionally, the witness ad-

mitted under cross examination that he could not really

tell if the sounds he heard were from an engine, two

engines, or anything thereof. (TR 433) It was further ob-

vious that about the best that Mr. Fernandez (TR 444)

could testify to was that he saw silhouettes of boats and

it must, therefore, be inferred that he could not identify

any boats directly. (TR 444)

And, he further admitted that he did not see.

anything unusual about the second boat (the second

boat being ‘“The Last One”), other than the antenna.

Mr. Fernandez stated that one of the boats ap-

peared to have trouble getting started and that he heard

a siren, like a bell ringing. (TR 446) He could not answer

whether or not in fact there was a distress signal in the

Navy or Coast Guard parlance or that it was clearly

audible to him. We direct this Honorable Court’s atten-

tion to (TR 450) wherein a Motion was made to strike

the testimony of Mr. Fernandez, which was denied.

What is significant, however, is that the Court was

aware of the necessity that a connection regarding the

exception to the hearsay rule be established, did bear in

mind an allowance for the renewal of the Motion.

(TR 450)

The next witness in this cause was one Michael

Landa, whose testimony is really not significant for the

purpose of this appeal other than the fact that he had

lent the boat known as ““The Last One” to Lorenzo Aday

Lorenzo for sport fishing (TR 453) and further testified

as to the known good character of Mr. Lorenzo Aday

Lorenzo.

The next witness called was one John T.

McKutcheon, Special Agent for the DEA, who testified

that he was working aboard a DEA vessel off Turkey

Point on February 13, 1977. He stated that he com-

menced the surveillance approximately 6 to 6:30 PM

and that the only boat that he saw at that time was one

little skiff. (TR 459) He, however, does admit that he

doesn’t recall seeing any boats other than the two boats

which entered into the bay following each other which is

in and around the Turkey Point area, to wit; Angel Fish

Creek. He did admit that the two boats he saw were, in

fact, fishing type vessels (TR 461) and stated that the

boats did run with their lights on from time to time. (TR

461) The boats then reappeared approximately an hour

later, at which time the witness, and the boat he was on,

were approximately three quarters of a mile from the

two boats in question and “‘One of them appeared to be

towing the other one ... We could only hear one

engine.” (TR 462)

Mr. McKutcheon stated that subsequently he went

aboard the larger boat (which is not the boat on which

the Petitioners were on) and that three individuals were

arrested. Mr. McKutcheon identified the three people

on the boat, none of them being either LINARES or

FERNANDEZ. On cross examination, a question arose

as to the time the witness arrived at the Turkey Point

area, the witness finally admitting that he was not sure

of the time but that he had arrived at the area just prior

to dark. (TR 467) Significantly, the witness admitted

that it was good maritime procedure to render

assistance to a boat in distress. (TR 473)

The next witness was one Gil Payett, agent for the

U.S. Custom Patrol, who testified as to having been in-

volved in the seizure of the boat, ‘“The Andrea’”’, that he

did see various lobster traps on the boat, that the sur-

face was slick and that he did find a residue in the bot-

tom portion of the vessel which was tested for marijuana

and found to be positive. (TR 427)

The following witness was one Robert J. O’Leary,

Special Agent, DEA, who testified that he was on

Biscayne Bay, just south of Pumpkin Key, an area adja-

cent to the area in which the occurrence previously

related allegedly took place. The witness admitted that

he observed several boats in that area including a cabin

_cruiser. (TR 510) The witness testified as to the move-

ment of two boats and then indicated that at or approx-

imately 10:50 to 11 PM the smaller of the two vessels ex-

ited the canal, turned back into the canal, and then ten

minutes later exited the canal towing a larger commer-

cial vessel. (TR 512) The witness testified that he then

boarded the smaller of the two vessels called ‘“‘The Last

One” and arrested three individuals on board. We

further direct this Court’s attention to the fact that

while there appears to be some identification, the par-

ties whom the witness identified are not identified for

the record.

The witness further testified that he discovered on

“The Last One” a small tackle box having tools, hooks,

lines and leaders, and a cooler of beer with some ice. (TR

514) The witness admitted that when the boat came out

of the canal the second time, it had its lights on. We now

specifically direct the Court’s attention to the testimony

of the same witness at page 514 wherein the witness

stated that a small tackle box was found to be on the

boat which had “reels and a few hooks and line and

leaders.’’ On cross examination, the witness admitted he

had made a thorough search of the boat and found

nothing remarkable as far as contraband was concerned,

found no residue of any narcotic substance, found

nothing which would indicate any strings that might

have come off a burlap bag. (TR 516 and 517) The

witness admitted that he knew what line fishing was and

explained to the jury as being “fishing without using

poles, using bait and hooks and lines.”’ After having ad-

mitted on two occasions that he found lines in the tackle

box (TR 517, 518), the witness stated; ‘I don’t think I

found lines.” He then reversed his testimony, saying; “‘I

remember hooks, some leader.’ (TR 518) The witness

further admitted that the lack of bait was not unusual

and that, in fact. he had friends who bought bait at the

point of their fishing destination. (TR 518, 519)

The next witness called by the Government was

Roland Tebeau who testified to nothing which related to

the Petitioners herein and, in fact, only related to land

surveillance and a blue and white camper, identifying

the driver of the camper who was neither of the

Petitioners. He did state that he never saw any bales

which were found in the truck.

The next witness was Nick Zapata, whose

testimony holds no significance in relation to Petitioners

herein.

The writer at this point will skip the testimony of

various agents who testified as to that which had taken

place in the Turkey Point area and had made certain

arrests and confiscated certain automobiles.

The next witness relevant to the Petitioners’ part of

this case was Fred Hodder who testified that he was an

employee of the United States Custom Service and had

at one time gone aboard the vessel ‘““The Last One’”’

when it was tied up behind the District Office. Mr. Hod-

der indicated that he had removed from ““The Last One”’

certain water skis, tools, tackle box and radio equipment

(TR 634) and the tackle box was moved in to evidence

over objection. The basis for the objection was that a

proper predicate and chain of custody had not been es-

tablished to bring it to the admission stage. There had

been a period of time when Mr. Hodder did not have

possession, dominion or control over the box; the con-

tents of which were on the boat ‘The Last One”’ at the

time it was seized. (TR 636-639)

Further on cross examination, Mr. Hodder in-

dicated he was not aware of any inventory by Special

Agent O’Leary, and was unaware of what had been in

the tackle box at the time Agent O’Leary looked in the

tackle box. He admitted that he did not know when the

boat had been seized or how long the boat was unat-

tended. (TR 642) Mr. Hodder further admitted that he

did not find the two six packs of beer which Agent

O’Leary testified was on the boat at the time he had it.

(TR 634) The witness admitted also that he was only

responsible for items that he removed from the boat at

the time the boat was turned over to him and would

have no knowledge of what had been removed

previously. (TR 646) A Motion was made again to

preclude the admission of the tackle box, and to strike

testimony which was denied. (TR 649-654) A Motion for

Mistrial was then made, which was also denied.

The Government then rested its case.

Counsel moved for a directed verdict of acquittal at

the end of the evidence. Motions as to LINARES and

FERNANDEZ, Petitioners herein, were denied. All

other motions made during the course of the trial were

renewed, and denied. The Court did not change any of

its rulings. A charge conference was then held. Mr.

Allen, chemist for the DEA, testified in part that the

marijuana found on the larger boat, ““The Andrea” (not

the boat on which FERNANDEZ and LINARES were

on) contained 1.75 grams of marijuana. (TR 686)

The Government then rested its case. Counsel

moved for a directed verdict of acquittal at the end of

the Government’s case, all of which were denied. (TR

785-789) All other motions made during the course of the

trial were renewed and denied. The Defendants, in-

dividually, then announced that they would exercise

their constitutional rights and not testify. The

Petitioners rested together with the other defendants.

Trial counsel’s renewal of motions for directed verdict

were then made, which the Court denied. (TR 815)

A request for jury instruction was made by the

Defendant Aday, which was denied. After due delibera-

tion, the jury found each defendant guilty of conspiracy

and possession with intent to distribute.

REASONS FOR GRANTING WRIT

THE TRIAL COURT ERRED IN FAILING

TO GRANT PETITIONERS’ MOTION FOR

DIRECTED VERDICT OF ACQUITTAL AT

THE CLOSE OF THE CASE IN THE AB-

SENCE OF SUFFICIENT EVIDENCE OF

CONSPIRACY.

The fundamental question as to Issue I is whether

the Government proved a conspiracy involving

LINARES and FERNANDEZ “beyond and to the ex-

clusion of every reasonable doubt”, as required. Holland

uv. U.S., 348 US 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954);

U.S. v. Palacios, 556 F.2d 1349 (1977).

The writer has purposely devoted a great deal of

time to pointing out the facts to this Honorable Court.

Of course, as counsel sees it, it must only give rise to the

fundamental facts that only three people ever had any

conversations at all which might, in its most remote

possibility, constitute some conspiracy. That is, the

alleged conversations between Mr. Berckmans, a

witness for the Government, a DEA agent, who allegedly

received some money, to wit: Special Agent Foley, and

the parties, Francisco Medina, Mario Abascal and

Pedro Navarro. However, the record shows that the only

statements made by the above three were to “bring in”’

lobster tails and coffee. Throughout the rather extensive

examination by the Government’s attorney, and cross

examination by all defense counsel, there never came a

time when any of the parties having discussions with

Mr. Berckmans or Agent Foley mention the names

LINARES or FERNANDEZ, nor, in fact, was any one

else’s name brought into play as having any knowledge

of any alleged conspiracy or attempt to commit a crime

dealing with narcotics. In addition, a perusal of the

record will not reveal the slightest scintilla of proof that

the Petitioners even knew any of the other parties,

defendants or otherwise, other than Lorenzo Aday

Lorenzo. According to U.S. v. Salinas-Salinas, 555 F.2d

470 (1977):

“The essential elements of a criminal con-

spiracy are an agreement among the con-

spirators to commt an offense against the

United States and an overt act by one of them

in furtherance of the agreement.”

U.S. v. Isaacs, 516 F.2d 409 (5 Cir. 1975) cert. den. 423

U.S. 936, 96 S.Ct. 295, 46 L.Ed.2d 269, states:

“The government must prove beyond a

reasonable doubt that a conspiracy existed,

that the accused knew of it, and with that

knowledge intentionally did something to

further or carry on that conspiracy.”

See also, Causey v. U.S., 352 F.2d 203 (5 Cir. 1965).

The closest the Government comes, allowing that

the evidence must be viewed in the light most favorable

to the Government as per Glasser v. U.S., 60 S.Ct. 457,

86 L.Ed 68 (1942) and U.S. v. Peterson, 488 F.2d 649; is

the fact that FERNANDEZ and LINARES were on a

boat called “The Last One” at or about the Turkey

Point area when allegedly the marijuana was found in

some trucks on shore. We must emphasize to this Court

~+ ——_—

that the Petitioners were not on a truck nor was there

any evidence that they were near a truck or trucks, that

they knew of anything. relative to any material, contra-

band, or otherwise, which may have been in the truck

and that the only relationship that the Government was

able to establish was that Petitioners were at the Turkey

Point area on the night in question. See U.S. v. Duckett,

550 F.2d 1027 (1977):

““Mere presence is insufficient to sustain a con-

viction of conspiracy.”

See U.S. v. Salinas-Salinas, supra:

“‘Mere presence at the scene of a crime is insuf-

ficient to establish participation.”

Without citing any additional pages in the

transcript of testimony, which would constitute a redun-

dancy, and for the purpose of brevity, we direct this

Honorable Court’s attention to the fact that ‘““The Last

One” on which the Petitioners were situated, was ul-

timately confiscated and a thorough search was made of

the vessel. It is rather remarkable to imagine that the

Petitioners herein, who were supposed to be involved in

a conspiracy and who were supposed to have aided and

assisted in a conspiracy, and who, in no form, manner or

means, were involved in the delivery or unloading of any

contraband, were by the Government’s own words,

“found free of any culpability in respect to what was

found on the boat “The Last One’’’. The record is replete

with testimony that:

A. “The Last One” had no marijuana on

it or even the slightest degree of residue of

marijuana.

B. That there was no conversation by any of

the Government’s witnesses that they loaded or

unloaded any contraband.

C. That any substance of burlap hairs or

fibers were found on the boat, ‘““The Last One’’.

We specifically direct attention to the fact that it

was clearly admitted that burlap sheds and had there

been any marijuana in burlap bails, some shedding

would have been found which could have at least con-

nected, as remote as it may have been, the Petitioners

with an alleged finding of marijuana in a few trucks.

What then connects the Petitioners herein to this

alleged conspiracy?

Nothing other than the fact that they traversed a

series of canals, came out of a canal, proceeded on their

way and then heard a distress signal from a bigger boat,

to wit: “The Andrea.” They then turned around and

went back to the large boat, ‘“The Andrea’’, and started

to tow her, it being clear that ““The Andrea” was dead in

the water. The Government assumes the position that

the acts of a “good samaritan” are to be construed, and

should be construed, as a form of conspiracy. We, of

course, take violent objection to same and cite to the

Court the following:

In the case of U.S. v. Duckett, 550 F.2d 1027 (5 Cir.

1977), it was promulgated as a principle of law that

““mere presence is insufficient to sustain a conviction for

conspiracy.” This case, in brief summation, dealt with a

situation where the defendant was in the company of

persons caught attempting to smuggle in a suitcase of

heroin from the Bahamas. It appeared that the defen-

dant had a pre-existing relationship with the con-

spirators and that each of the defendants gave the in-

spector an alias. The Court in that case reversed, and in

its decision, stated:

“In the conspiracy context, the proof may be

circumstantial or direct or both, but must con-

vince beyond a reasonable doubt and say that a

conspiracy existed. That the defendant knew

it, and with knowledge intentionally did some

act or thing to further carry on the conspiracy.”

Where factually does this exist in this case? Par-

ticularly, and I apologize for the redundancy, when the

Petitioners herein were not even close to any contra-

band. There was no showing of any contraband, no

showing of any knowledge that contraband was being

imported, or even in the furthest stretch of the imagina-

tion, that Petitioners knew any of the parties joined as

co-conspirators in this case.

Again, we challenge the Government to establish

with this Honorable Court that the parties knew each

other, that they were associated with each other, or that

they even knew of the existence of each other; which is,

of course, substantially less than the conditions in U.S.

v. Duckett, supra, where the defendant at least was in

the presence of those importing contraband.

It is, of course, general and fundamental law that

proof to establish a conspiracy must convince beyond a

reasonable doubt that a conspiracy existed, that the

defendant (or defendants) knew of it, and with that

knowledge intentionally did some act or thing to further

carry out the conspiracy.

U.S. v. Salinas-Salinas, supra, in addition to the

aforementioned case; we respectfully cite to this Court

the case of U.S. v. Bright, 550 F.2d 240 (5 Cir. 1977)

which, again, contains greater factual conditions or

evidence upon which to presume a conspiracy, and the

Court decided that a conspiracy could not be proved un-

der the facts presented in that case.

The charge in that case was conspiracy to import

marijuana. The defendant, an airplane broker, was to be

given Ten Thousand ($10,000.00) Dollars for modifica-

tion of a particular airplane which others intended to

use to import marijuana. The defendant was also heard

to refer to one of the individuals involved in the import

scheme as having “‘made another connection.”

I use this case and the others as an indication that I

am not taking the weakest of the cases, but those which

may have some greater factual situations which are not

present in the case at bar. Even under the factual situa-

tions as heretofore given in the case of U.S. v. Bright,

supra, the Court stated that despite the fact that the

defendant had made the statement “Bob has made

another connection”’, the defendant was to receive Ten

Thousand Dollars, the Court nevertheless stated:

“all the acts of the defendant which were

brought out at trial, therefore, can be given an

innocent interpretation. While it is true that

acts in themselves not unlawful will lose that

character when they become constituent ele-

ments of a criminal conspiracy, this will not be

the case unless the government first proves

that the accused had knowledge of the criminal

conspiracy.”

I am certain that this Court will find matters in this

brief which have heretofore been discussed. We

nevertheless feel it incumbent upon us to direct the

Court’s attention to previous rulings, and cite to the

Court in suport of our position U.S. v. Falcone, 311 U.S.

205 at page 207, in which the most significant portion of

the decision, at least in the writer’s opinion, is ‘‘those

having no knowledge of the conspiracy are not

conspirators.” U.S. v. Hirsch, 100 U.S. 33, 34, 25 L.Ed.

539; Weninger v. U.S., 47 F.2d 692, 693.

In addition, without belaboring the Court and

defending the point with additional arguments, we

respectfully cite to the Court for its information, con-

sideration and edification, U.S. v. Waddy and Gonzalez,

536 F.2d 632 (5 Cir. 1976); and Causey v. U.S., 352 F.2d

203 (5 Cir. 1976), in which the Court promulgated the

following rules on a case not actually on point, but

nevertheless represents the law as counsel understands

it, to wit:

“To establish the intent essential to a convic-

tion for conspiracy, the evidence of knowledge

must be clear and not equivocal. A suspicion,

however strong, is not proof and will not serve

in lieu of proof. Charges of conspiracy are not to

be made out by piling inference upon inference.

Guilt of conspiracy may not be inferred from

mere association.”

The Government in this case failed to even es-

tablish conspiracy by association, knowledge of the par-

ties, or anything else, other than the fact that the boat

“The Last One” was in or about the area where a crime

was alleged to have been committed.

“Tt is true that the proof may be circumstan-

tial, or direct, or both, but must convince

beyond a reasonable doubt that a conspiracy

existed, that the defendant knew it and with

that knowledge intentionally did some act or

thing to further or carry out that conspiracy.”

U.S. v. Causey, supra, at 207.

Probably the most significant current case is the

case decided in the matter of Causey v. U.S., supra, in

which the Court promulgated and continued to adopt

the following principles of law:

A. Charges of conspiracy are not to be made

out by piling inference upon inference.

B. Guilt of conspiracy may not be inferred

from mere association.

C. While proof of conspiracy may be cir-

cumstantial or direct or both, it must con-

vince beyond a reasonable doubt that a

conspiracy existed, that the defendant

knew of it, and that with that knowledge

he intentionally did some act or thing: to

further or carry out that conspiracy.

D. Evidence merely proving that by associa-

tion with known guilty parties defendant —

had an opportunity to become a part of

conspiracy to commit the substantive of-

fenses was insufficient to establish defen-

dant’s guilt on conspiracy counts.

In the more recent case of U.S. v. Salinas-Salinas,

supra:

“The essential elements of a criminal

conspiracy are an agreement among the con-

spirators to commit an offense against the

United States and overt act by one of them in

furtherance of the agreement, U.S. v. Isaacs,

516 F.2d 409 (5 Cir. 1975) cert. den. 423 US 936,

96 S.Ct. 295, 46 L.Ed.2d 269. The government

must prove beyond a reasonable doubt that a

conspiracy existed, that the accused knew of it,

and with that knowledge intentionally did

something to further or carry on that

conspiracy..” Causey v. U.S., supra.

We direct the Court’s attention, of course, to the

factual situation in Salinas which is more extenuating

than that which was before the Hon. Sidney Aronovitz,

U.S. District Judge, and considers closer circumstances

to conspiracy in the Salinas case than that which is

shown in all respects in the instant case.

The facts, very simply, for the Court’s edification

are as follows. Agents followed a truck (suspected of con-

taining contraband) to Orange Grove, where a number

of people scattered, found clothing presumably dis-

carded by wearers to enter truck storage area. Defen-

dant answered the door of a nearby house, wearing only

underwear. Defendant was in an “‘excited’”’ state, though

he said he had been sleeping. Defendant indicated

“marijuana” in response to query as to whether he knew

why the agents were present.

As an additional cite, we direct the Court’s atten-

tion to U.S. v. Amato, 495 F.2d 545, wherein it is noted

that knowledge that a conspiracy exists is a minimum

requirement for establishing requisite intent of the ac-

cused, and to establish the intent, evidence of

knowledge must be clear.

We conclude our argument in this matter by citing

the case of Montoya v. U.S., 402 F.2d 582:

“In order to sustain a conviction in circumstan-

tial evidence cases, the inferences must not

only be consistent with guilt, but inconsistent

with every reasonable hypothesis of in-

nocence.”’

We find it difficult to imagine or realize that an in-

ference can be drawn that the vessel ‘““The Last One’”’ on

which the Petitioners, LINARES and FERNANDEZ,

were situated, was in the area for illegal purposes; and

we must direct the Court’s attention to the fact that

there was found on the boat beer, a tackle box contain-

ing hooks, lines and sinkers, which are consistent with

fishing.

The testimony of the confiscating officer was in

total conflict in that in one instance he found lines, then

he didn’t find lines, then he did find lines. His

credibility must be placed in question, particularly

where he testified to the fact that it is not unusual for:

a. People to go line fishing.

b. People to buy bait at the point where they

intend to fish.

c. And, testimony that Mr. Lorenzo Aday

Lorenzo was a fisherman and that the par-

ties were out fishing.

At the very best, this is an extraordinarily remote

circumstantial evidence case. At its very worst, it shows

and proves absolutely nothing.

For our final cite in this section, Salinas states:

‘Where all evidence is as consistent with in-

nocence as with guilt, it is the duty of an ap-

pellate court to reverse a conviction of guilt

against the accused.”’

We also direct the Court’s attention to our state-

- ment which shows that the surveilling officers admitted

there were other boats in the area, which must give rise

to some doubt as to which, if any, boats had any

relationship to that which took place on shore, assuming

that anything at all took place, which is vague in nature.

We must conceivably direct the Court’s attention to

the factual situation in U.S. v. Barrera, 547 F.2d 1250

(1977). The facts in Barrera are that there appeared to

be some remote connection between Leyva and the

heroin which was evidenced to show that Leyva or his

wife at one time owned a station wagon in which the

heroin was concealed. In the case at bar, the showing by

the Government is far less in that there is not even the

slightest or remotest indication that the Petitioners had

any knowledge of the existence of any marijuana.

If the Court were to state, as per the Barrera case,

that it agrees with Petitioners that the evidence was in-

sufficient to support the conviction, then we respectfully

suggest to this Honorable Court that they have no other

alternative but to reverse in the instant case.

We further cite to the Court, also in the case of

Barrera:

“Motion for acquittal must be granted when

evidence, viewed in light most favorable to the

government, is such that a reasonably minded

. Jury must have a reasonable doubt as to-the ex-

istence of essential elements of crime charged.”

THE TRIAL COURT ERRED IN FAILING

TO GRANT PETITIONERS’ MOTION FOR

DIRECTED VERDICT OF ACQUITTAL AT

THE CLOSE OF THE CASE IN THE

ABSENCE OF SUFFICIENT EVIDENCE

OF POSSESSION WITH INTENT TO

DISTRIBUTE.

The second question raised before the Court is the

conviction of Petitioners who were charged with posses-

sion with intent to distribute. We find the conviction to

be without any foundation whatsoever. A perusal of the

facts indicate:

A. That there was no marijuana found on

“The Last One’.

B. That there was no residue of any mari-

juana found on ‘““The Last One’’, in which

the two Petitioners, together with one

Lorenzo Aday Lorenzo, were on.

C. That there was no residue evidence or

suspicion of marijuana or burlap fiber

from bags in which the alleged marijuana

was wrapped, and which was allegedly

found on shore in certain trucks which

Petitioners had no contact with, control

over, delivery for, or in any other way had

relationship with.

Counsel recognizes the differences between actual

and constructive possession of a controlled substance.

However, nothing—but nothing—in the record, as

closely as it may be read by anyone, will show any con-

structive or actual possession of a controlled substance,

to wit: marijuana. There is nothing in the record which

would give rise to a possibility that the Petitioners

herein possessed, either constructively or actually, any

substance which would evidence that they had any

knowledge of, or knew about, any narcotic contraband

allegedly brought into the United States.

We again deal with the question of inference upon

inference, and upon a series of suppositions that do not

constitute sufficient evidence for a Court to find the

Petitioners guilty; and to do so would stretch the im-

agination from the world of reality into the world of

make believe, fairyland, or any other imaginary supposi-

tion where everything may be possible, including the

traversing of “Dorothy on the yellow brick road’’, or

“‘Mr. Gene Kelley dancing with a mouse’”’.

We apologize to the Court for any facetiousness,

recognizing the severity of that which we argue;

however, counsel must, in good faith and in good con-

science, state that the remoteness of the Petitioners’

position to that which was charged, to wit: possession

with the intent to distribute, is so extreme that we must

go beyond the realm of reality to support the Govern-

ment’s argument of possession; constructive or

otherwise.

We cite to the Court the case of U.S. v. Martin, 483

F.2d 974:

“Such evidence, at most, may show appellant’s

knowledge of the sale of the illegal drug. It does

- not indicate that appellant took an active part

in the sale, much less that she ever exercised

any dominion or control over the drug. To es-

tablish constructive possession, however, there

must be proof of dominion and control.”

Garza v. U.S., 385 F.2d 899 (5 Cir. 1967)

Smith v. U.S., 385 F.2d 34 (5 Cir. 1967)

“We think this case is squarely governed by the

rule that ‘mere presence in the area where the

narcotic is discovered or mere association with

the person who does control the drug or the

property where it is located, is insufficient to

> 99

support a finding of possession’ ”’.

U.S. v. Stephenson, 474 F.2d 1353 (5 Cir. 1973)

In the Martin case there was again no evidence that

the appellants actually possessed the mescaline. We

must be redundant and state, in the same respect, that

_ in this case there was no showing that the Petitioners ac-

tually possessed, constructively or otherwise, the mari-

juana.

We cite the above case, again, to illustrate to the

Court that this judgment cites matters which were sub-

stantially more extreme than that which the Govern-

ment attempted to prove in the instant case, and in-

dicate again that the judgment of the jury and the Court

in the instant case must be reversed.

Redundantly, but nevertheless consistently, we

must hold, and we must direct the Court’s attention to

the fact that mere presence in an area where narcotics

may have been involved when the Petitioners neither

had possesson, maintained possession, or had construc-

tive possession of the marijuana for which they were

convicted, is insufficient to support a finding of

possession.

Counsel feels rather reluctant to pursue and make a

lengthy brief on matters which are so fundamental in

law that a continual citation might be considered by this

Honorable Court as an affront. We hope not, and it is

the intention of this writer not to imply that this Court

must be led or directed.

We, however, in support of our position, cite the

case of Judson Martin Smith, dJr., et al. v. U.S.,

385 F.2d 34 (1967) which holds that ‘‘mere presence in

an area of narcotics or awareness of its location is not

sufficient to establish possession thereof.”

Glasser v. U.S., 315 U.S. 60, 86 L.Ed. 68 (1942)

states:

“All matters must be viewed in light most

favorable to the government.”

We take no exception to that rule. What we take ex-

ception to, however, is the fact that all things being as

they are, the Government failed in all counts to es-

tablish the guilt of Petitioners beyond and to the exclu-

sion of every reasonable doubt, and that a conviction be

supported by underlying substantial evidence. The

Glasser case is probably a classic case in circumstantial

evidence, but of such an obtruse nature that the lower

Court, and of course this Court, must find that the

evidence was not consistent With guilt, but consistent

with every reasonable hypothesis of innocence. U.S. v.

Ferg, 504 F.2d 914 (1974).

The Petitioners, joined by the other defendants in

this case, moved for judgment of acquittal on the issues

of sufficiency, and we contend that the United States

District Court, Southern District of Florida, should

have, and was under an obligation to have dismissed or

discharged the Petitioners herein; it being understood

that these Petitioners, LINARES and FERNANDEZ,

were “‘wrapped into” a trial with at least two defendants

who allegedly did enter into some agreement to perform .

some act with Mr. Berckmans, the act being to import

lobsters, frozen lobster tails and coffee, not narcotics.

We emphasize this, not that it affects Petitioners herein,

but in all fairness to the other defendants who may be

taking an appeal. We, therefore, strongly suggest that

the verdict against the Petitioners, LINARES and FER-

NANDEZ, be reversed and this Court enter any other

appropriate orders.

Ill

THE TRIAL COURT ERRED IN AD-

MITTING INTO EVIDENCE A TACKLE

BOX FOUND ON “THE LAST ONE”

WHERE THE CHAIN OF CUSTODY WAS

DEFECTIVE AND THERE WAS EVIDENCE

OF DELIBERATE TAMPERING WITH THE

PROPERTY FOUND ON “THE LAST

ONE”. ,

Petitioners do not contest the general proposition of

law that where the record fails to reveal evidence by live

witnesses as to who had in their possession or control

evidence, involved from the time of its seizure until the

introduction into evidence, that the test is whether or

not there is an indication of probable tampering.

Gallego v. U.S., 276 F.2d 914 (9 Cir. 1960); State v.

Anderson, 242 or 368, 409 P.2d 681. In fact, the question

involved in this matter is where the record is highly

suggestive of actual tampering with evidence, whether

or not same could have been admitted into evidence or

whether the tampering with evidence was of such a

magnitude that a mistrial should have been declared

and a new trial given the Petitioners.

The test in Florida, as well as in the Federal

system, has always been whether or not there was an in-

dication of probable tampering with evidence. Bernard

v. State, 275 So.2d 35 (Fla. 3 DCA 1973). Clear cut

- evidence of tampering has never been required, merely

an indication from the record that same has occurred.

It is important to note at this point that what is be-

ing raised in this appeal is not a normal “chain of

custody” argument. Under the dictates of the Fifth Cir-

cuit, in U.S. v. Ellis, 547 F.2d 863 (5 Cir. 1977) and U.S.

v. McDowell, 539 F.2d 435 (5 Cir. 1976), chain of

custody normally g 7s to the weight and not the ad-

missability of the evidence and should be left to the con-

sideration of the jury. This is even the case in those

situations where the chain of custody did not establish

storage of contraband independently but with other

drugs of similar nature.

However, Petitioners, LINARES and FERNAN-

DEZ, would assert that the dictates of U.S. v.

Dougherty, 505 F.2d 1019 (5 Cir. 1974) are still control-

ling with regard to the admissability of evidence. In the

Dougherty case, it was held that the admission of pow-

der which defendant sold to an officer and .7% of which

was found to be heroin, was within the trial court’s dis-

cretion, notwithstanding the contention that the small

amount of heroin found in the powder had been added

by someone with access to the evidence at some point in

the chain of custody. The Court held that absent show-

ing of ill will, bad faith, or other evil motivation or some

physical evidence of tampering, even though such op-

portunity existed, would not render inadmissable the

evidence.

In the instant case, we have the physical evidence of

tampering which is necessary to exclude the evidence in-

troduced by the Government. A clear reading of the

Statement of Facts indicates that the Petitioners were

bringing forth for jury consideration a defense

predicated on the nature of the vessels being fishing

vessels, the nature of the individuals found on the

vessels being fishermen. Clearly, it became of impor-

tance as to whether or not fishing could have been at-

tempted by the vessels on the night in question.

Through the testimony of the Government witnesses, a

question did arise as to whether or not fishing line was

present upon the vessel, “The Last One’’. Petitioners

were aboard the vessel, ‘““The Last One’’, and are di-

rectly affected by that area relating to their defense. The

tackle box was admitted into evidence despite the fact

that the normal links in the “‘chain of custody” were not

built as solidly as those dealing with contraband itself.

To this point alone, we do not raise a great objection. In

fact, were that the only fact that there were defects in

the chain proven, Petitioners would agree that our ob-

jection would have gone to weight rather than to ad-

missability. The additional factor found, however, was

that at the time of the inventory on board there was an

indication that some line was found. (R 513-514) There

was further indication that at the time of the seizure on

board there were several cans of an alcoholic beverage.

(R 513-514) It is also clear that when the vessel was

turned over to Customs the alcoholic beverage (the

presence of which is uncontroverted) and the line (the

presence of which there may be some doubt) were no

longer present, and the items found in the tackle box

were just those items found by the custoins official.

There is no question that there is absolute physical

evidence of tampering. While the Petitioners do not

ascribe evil motive to either the boarding party or to the

customs officials, it is clear to see that under the cir-

cumstances, either of the parties may not have felt that

either the alcoholic beverage or the fishing line were

material to the issues of the case, neither were clearly

contraband, and someone may have just walked off with

same. As this is the most reasonable explanation of why

these items were missing, it was clearly error to admit

the tackle box into evidence where there was such

evidence of physical tampering. The introduction of

same to establish that there was no fishing gear on board

was clearly erroneous and highly prejudicial to the

Petitioners, LINARES and FERNANDEZ. Therefore,

Petitioners would pray that on this point alone, the

determination of the lower court be reversed with direc-

tions to remand this case for a new trial with instruc-

tions not to admit the tackle box into evidence.

THE TRIAL COURT ERRED IN DENYING

DEFENDANTS’ MOTION FOR THE

DIVULGENCE OF A CONFIDENTIAL IN-

FORMANT WHERE NO CLAIM OF

PRIVILEGE HAD BEEN MADE BY THE

UNITED STATES, NOR ANY REPRESEN-

TATION THAT DISCLOSURE OF THE

CONFIDENTIAL INFORMANT WOULD

ENDANGER THE GOVERNMENT’S

INTEREST.

In the case instanter, the Petitioners, by motion,

prior to and at trial, sought the identity of an un-

disclosed Governmental confidential informant.

Testimony was adduced at the hearing prior to trial

(and referenced during argument at trial) and at trial,

that the Government had a confidential informant

which had, in fact, procured the illegal act that the

Petitioners were accused of. The testimony at trial in-

dicated that a confidential informant had participated

in the creation of the original agreement between the

parties to bring in contraband to the United States, and

had been one of the operating or motivating forces in

procuring the ultimate acts which Petitioners were ac-

cused of. The identity, therefore, of the confidential in-

formant became essential to the Petitioners’ position

relating to the knowledge of the Petitioners as to the

quality and result of their ultimate acts. Clearly, this

had definite effect upon Petitioners’ rights under their

Sixth Amendment right of.confrontation. It is a general

rule that the Government is privileged to withhold from

disclosure the identities of persons who furnish informa-

tion relating to violations of law to officers charged with

enforcing those laws. Jencks v. U.S., 353 US 657, 1

L.Ed.2d 1103, 77 S.Ct. 1007 (1957). See also Portomene

v. U.S., 221 F.2d 582 (5 Cir. 1955).

It is equally true that there is no exact rule with

respect to the disclosure of the identity of the informer,

and the requirement which is created is a balancing of

public policy as opposed to a defendant’s right to

properly prepare his defense. Most importantly, it has

been held that whether a proper balance renders non-

disclosure erroneous, depends upon the circumstances of

each case, taking into consideration the crime charged,

the possible defenses, the possible significance of the in-

former’s testimony, and other relevant factors. Roviaro

v. U.S., 353 US 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957).

In recognizing this balancing test, the most impor-

tant consideration arises from what is felt to be the fun-

damental requirements of fairness. In other words, if an

informer’s identity is relevant and would be helpful to

the defense of an accused, or would be construed to be

essential to a fair determination of the case, the

privilege of non-disclosure must give way. Portomene v.

U.S., supra; Cannon v. U.S., 158 F.2d 952 (5 Cir. 1946).

Perhaps the leading case dealing with the question

of disclosure of the identity of a confidential informant

is Roviaro v. U.S., supra. In that case, the U.S. Supreme

Court ruled that the District Court, by allowing the

Government to withhold the identity of its informer,

committed reversible error where the informer, an un-

dercover Government employee, had taken a material

part in bringing about the defendant’s possession of

heroin, which was the basis of an indictment charging

the defendant with a violation of the narcotic drugs im-

port and export act.

It was the position of the Petitioners at the case at

bar that the undercover informant, whose name was not

even given, had participated in the initial negotiations

which set up the basis or scheme which was to evolve

into the conspiracy and had, in fact, direct knowledge as

to what the ultimate participation of the Petitioners

would become.

Further, in Roviaro, it was indicated that the dis-

closure of the confidential informant would be proper in

the event that he might be a material witness as to

whether or not the defendant knowingly transported the

drugs as charged. Although Roviaro differs from our case

in that the undercover informant was the only partici-

pant other than the defendant, the Court specifically

stated:

(353 U.S. 60)

tents are not privileged. Likewise, once the

identity of the informer has been disclosed to

those who would have cause to resent the com-

munication, the privilege is no longer

applicable.

A further limitation on the applicability of the

privilege arises from the fundamental require-

ments of fairness. Where the disclosure of an

informer’s identity, or of the contents of his

communicatiun is relevant and helpful to the

defense of an accused, or is essential to a fair

determination of a cause, the privilege must

give way. In those situations, the trial court

may require disclosure and if the government

withholds the information, dismiss the action.”’

The Court then went on specifically to say:

“Most of the Federal cases involving this

limitation on the scope of the informer’s

privilege have arisen where the legality of a

search without a warrant is in issue and the

communications of an informer are claim to es-

tablish probable cause. In these cases, the

government has been required to disclose the

identity of the informant, unless there was suf-

ficient evidence apart from his confidential

communication. ’”’ (Emphasis ours)

“The scope of the privilege is limited by its un-

derlying purpose. Thus, where the disclosure of

the contents of a communication will not tend

to reveal the identity of an informer, the con-

In the case at bar, the specific requirement of

Roviaro with regard to this question is evident. In the in-

stant case, the privilege has been upheld where the

legality of a search without a warrant was in fact at

issue; and further, that the communication of the in-

former did, in fact, establish the probable cause for

Government agents to even be in the area at the time.

The record is clear that all other communications other

than those with the initial confidential informant in-

dicated that the nature of the contraband to be brought

into the Turkey Point area was “‘lobster tails and/or cof-

fee’. The Court went on in Roviaro in reversing and

stating as follows:

“DOK, (Undercover Informant) had helped set

up the criminal occurrence and had played a

prominent part in it. His testimony may have

disclosed an entrapment. He may have thrown ;

doubt upon petitioner’s identity or the identity

of the package. He was the only witness who

might have to the petitioner’s possible lack of

knowledge of the contents of the package that

ke transferred from the tree to John Doe’s car.

With the desirability of calling John Doe as a

witness, or at least interviewing him in

preparation for trial, was a matter for the ac-

cused rather than the government to decide.”’

(353 US 64)

Petitioners’ rights to the divulgement of the con-

fidential informant is further substantiated by the

holding of the U.S. Supreme Court in Sherman v. U.S.,

356 U.S. 269, 2 L.Ed.2d 848, 78 S.Ct. 819 (1958) wherein

the Court said that to determine whether the defense of

entrapment has been established, a line must be drawn

between the trap for an unwary innocent and the trap

for an unwary criminal; to make this determination, the

accused at trial should be allowed to examine the con-

duct of the government agent or informant involved and

avail himself of an appropriate and searching inquiry

into the conduct of all parties, including himself, his

predisposition, and how same relates to his claim of in-

nocence. The Government, by denying Petitioners in the

case at bar the right to the identity of the informer, in ef-

fect, deprived the Petitioners of either a viable deter-

mination on their ultimate motion, or would have

deprived them of a fair trial. As such, the decision of the

trial court as to the question of the divulgence of the

confidential informant should be reversed and re-

manded with instructions to divulge the identity as

same would be consistent with the holding of the U.S.

Supreme Court in the Roviaro decision.

THE TRIAL COURT ERRED IN MAKING

PREJUDICIAL COMMENTS IN ITS

LIMITING INSTRUCTION WHICH EFFEC-

TIVELY DENIED PETITIONERS A FAIR

TRIAL.

As reflected in the Court’s opinion of January 26, 1979:

(12) Early in the direct examination of

Berckmans he was asked about conversations

between him and Abascal. Defendants asked

for an instruction limiting to Abascal the effect

of statements made by him. The Court gave

this instruction:

“Whenever it appears beyond a reasonable

doubt from the evidence in the case that a con-

spiracy existed and that a defendant was one of

the members, then the statement thereafter

knowingly made and the act or acts knowingly

done by any person likewise found to be a

member may be considered by the jury as

evidence in this case as to the other defendants

found to have been a member, even though the

statement and act may have occurred in the

absence and without the knowledge of the

defendant provided that such statement and

acts were knowingly made and done during the

continuance of such conspiracy and in

furtherance of some object or purpose of the

conspiracy.

Otherwise, any admission or incriminatcry

statement made or act done outside of the

court by one person may not be considered as

evidence against any person who was not

present and did not hear the statement made

nor see the act done.

Therefore, the statements of any conspirator

which are not in furtherance of the conspiracy

or made before its existence or after its ter-

mination, may be considered as evidence only

against the person making that statement.

I repeat that the Government will have to show

to the Court and to the jury that there has been

by independent evidence, not of a hearsay

nature, evidence sufficient to establish the par-

ticular defendant’s connection with the

conspiracy, and that determination will be

made by the Court.

Now, I also remind you that this testimony if

used, only applies to Count I of the indictment

and does not apply to the substantive count

which is the count that charges possession with

the intent to distribute and does not charge a

conspiracy.”

It is generally accepted that, “There is no question

that a witness can testify to declarations made to him by

a co-conspirator, only if the Government by indepen-

dent evidence establishes a prima facie case of the ex-

istence of a conspiracy and introduces at least ‘slight

evidence’ to connect with the conspiracy both the

declarant and the defendant against whom the state-

ment is introduced.” United States v. Archbold-

Newball, 554 F.2d 665 (5 Cir. 1977) See all United States

uv. Nixon, 418 U.S. 683 (1974); footnote 16; United States

v. Oliva, 497 F.2d 130 (5 Cir. 1974); United States v.

Tyler, 505 F.2d 1329 (5 Cir. 1974). Thus, the test for in-

troducing co-conspirator’s statements is proof by the

government by independent evidence of the existence of

a prima facie case of “slight evidence.”

The trial judge in the case at bar, however, in-

‘structed the jury that the test was, ‘““whenever it appears

beyond a reasonable doubt from the evidence in the case

that a conspiracy existed. . .” By instructing the jury

that the Court would make the determination of

whether or not there existed a conspiracy for the purpose

of introducing evidence of co-conspirators, and by

further instructing the jury that the test for making that

determination is beyond a reasonable doubt, the jury

was in effect told that the standard for the introduction

of this evidence is the same standard as for conviction,

to wit: beyond a reasonable doubt, and that the Court

would make this determination.

As read and objected to, the judge’s instructions to

the jury made it clear that the judge’s allowing in co-

conspirator’s statements indicated a determination by

the judge that evidence beyond a reasonable doubt had

been established as to the conspiracy. As such, the jury

could also determine that evidence beyond a reasonable

doubt of the conspiracy existed for the purpose of con-

viction. If in fact the judge had properly instructed the

jury as to the burden of proof prior to the introduction of

a co-conspirator’s statement as being the establishment

of a prima facie case, no conflict would have been es-

tablished in the jury’s mind as to their legal respon-

sibilities and duties.

Furthermore, the Fifth Circuit, in affirming, relied

upon the fact that, ‘‘at least three times later during the

testimony the Court gave the limiting instruction free of

the phrase objected to, and without objection, gave a

similar instruction in the charge to the jury.”” However,

as held in the case cited by the State in its brief, U.S. v.

Appollo, 476 F.2d 156 (5 Cir. 1973): i

“The government calls our attention to the

charge given by the court at the conclusion of

the trial. While it does contain an accurate

statemert of the rule of hearsay evidence in

conspiracy cases it came too late. This

delicately dangerous defusing must be firmly in

the jury’s mind when the hearsay is proffered.

An instruction at the end of the trial cannot

correct the erroneous refusal to give the proper

cautionary instruction when it was first

requested.”

Thus, the later proper instructions cannot

eliminate the error and prejudice caused by the trial

judge in improperly instructing the jury as to the ap-

propriate burden of proof for the introduction of co-

conspirator’s statements and the respective respon-

sibilities of the Court and the jury.

CONCLUSION

For the above reasons and the authorities cited

herein, it is respectfully requested that this Honorable

Court grant its Writ of Certiorari and enter its Order

quashing the decision hereby sought to be reviewed and

grant such other and further relief as seems fright and

appropriate to this Court.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the

foregoing Petition for Writ of Certiorari was this day

of , 1979, furnished by U.S. Mail to the Office

of the Solicitor General, Department of Justice,

~~ Washington, D.C. and to the Office of the U.S. Attor-

ney, 300 Ainsley Building, 14 NE First Avenue, Miami,

FL 33132.

Respectfully submitted,

ALVIN E. ENTIN, ESQ.

Attorney for Petitioner

2020 NE 163 Street

Suite 300

North Miami Beach, FL 33160

305/944-9100

Appendix

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Pedro Luis MORENO, Felix Gonzalez Valdez, Sebas-

tian Viera, Jose Luis Linares, Lorenzo Aday-

Lorenzo and Mario Abascal, Jose A. Fernandez,

Defendants-Appellants.

No. 77-5712.

United States Court of Appeals,

Fifth Circuit.

Jan. 26, 1979.

In a marijuana smuggling case, all defendants were

convicted in the United States District Court for the

Southern District of Florida at Miami, Sidney M.

Aronovitz, J., of conspiracy, and of possession. Defen-

dants appealed. The Court of Appeals, Godbold, Circuit

Judge, held that: (1) evidence was sufficient to sustain

the convictions; (2) there was adequate evidence of

probable cause and exigent circumstances to justify

warrantless search and seizure; (3) the mere possibility

of obtaining relevant testimony was too remote to re-

quire disclosure of an informant, and (4) in view of the

fact that a limiting instruction free of a phrase objected

to was given three times without objection during

testimony and that a similar instruction was also given

App. 1

in the charge to the jury, and in view of other cir-

cumstances, the ambiguous phrase, “‘and that deter-

mination will be made by the court,” used in reference

to sufficiency of evidence to establish a particular defen-

dant’s connection with the conspiracy, was not reversi-

ble error.

Convictions affirmed.

1. Conspiracy — 47(12)

Contention that evidence was insufficient to

sustain conviction for conspiracy in marijuana smug-

gling case was almost frivolous as to contact man, in

view of, inter alia, his payment of bribes, his promise of

new cars for all participants, and his boasting of

national and international size and scope of his

organization, and evidence was sufficient to sustain also

conviction of other defendants for conspiracy.

2. Criminal Law — 1177

As to defendants who received concurrent sentences

for marijuana possession and for conspiracy, it was not

necessary to review sufficiency of evidence under posses-

sion count in view of sufficiency of evidence to permit

the convictions for conspiracy.

3. Criminal Law — 59(1)

Conspirator can be found guilty of substantive of-

fense based upon acts of co-conspirator done in

furtherance of conspiracy unless act did not fall within

scope of the unlawful project or was merely part of

ramifications of plan which could not be reasonably

App. 2

foreseen as necessary or natural consequence of the un-

lawful agreement.

4. Drugs and Narcotics — 124

In view of finding of conspiracy, and attributing

acts of other defendants to defendant in question, who

was planner and expediter of beachhead end and active

participant at landing, evidence was sufficient to

sustain conviction on count of possession in marijuana

smuggling case.

5. Criminal Law — 394.4(12)

In view of adequate evidence of probable cause and

exigent circumstances, suppression of marijuana found

on vessel was properly refused, and same was true as to

marijuana found in blue truck/camper and van.

U.S.C.A.Const. Amend. 4.

6. Arrest — 63.5(6)

In view of evidence providing sufficient basis from

which to infer that person driving van when stop was

made, whoever he was, was participating in marijuana

conspiracy, and in view of operation of van in unusual

manner, there was probable cause to stop and remove

vehicle; officers needed only probable cause to suspect

criminal activity, and driver’s participation in it, and

not proof certain. U.S.C.A.Const. Amend. 4.

7. Arrest — 63.4(16)

For purposes of probable cause to arrest, officers,

who had probable cause to stop and remove van, were

App. 3

not required to exclude possibility that driver had no

knowledge of contents of cargo compartment.

8. Drugs and Narcotic — 183

Where, after van which had been stopped on

probable cause was driven to police headquarters and

officer found that side door was unlocked, and he opened

door and found bales of marijuana inside, entry was

proper. U.S.C.A.Const. Amend. 4.

9. Arrest — 63.5(6)

Evidence established probable cause on part of of-

ficers to stop truck/camver which, on search, was found

to contain marijuana. U.S.C.A.Const. Amend. 4.

10. Witnesses — 216

Absent any contention that informer participated

to any extent in criminal activity, but, rather, in initial

stages of venture he dealt with unindicted conspirators

before they first approached witness, disclosure of con-

fidential informant, sought during testimony of such

witness, was properly refused.

11. Witnesses — 216

Mere possibility of obtaining relevant testimony

was too remote to require disclosure of informant in

marijuana smuggling prosecution, something more than

speculation about possible usefulness of an informant’s

testimony being required.

App. 4

12. Criminal Law — 822(2)

In view of fact that limiting izstruction free of

phrase objected to was given three times without objec-

tion during testimony and that similar instruction was

also given in charge to jury, and in view of other cir-

cumstances, ambiguous phrase, ‘“‘and that determina-

tion will be made by the court,” used in reference

to sufficiency of evidence to establish particular

defendant’s connection with conspiracy, was not reversi-

ble error, despite contention that statements made by

co-defendant were not properly limited to such

codefendant.

Appeals from the United States District Court for

the Southern District of Florida.

Before BROWN, Chief Judge, GODBOLD and

FAY, Circuit Judges.

GODBOLD, Circuit Judge:

This is a marijuana smuggling case. All the ap-

pellants were convicted under Count I of conspiracy to

possess marijuana with intent to distribute, and under

Count II of possession of marijuana with intent to dis-

tribute. The convictions are affirmed.

There was ample evidence to permit the jury to find

the following facts. Berckmans was an officer of a firm

supplying security services for Turkey Point Nuclear

Power Plant, a large installation on Biscayne Bay and

near Miami, Florida. Berckmans was asked to arrange

to plant an outsider in the security force at Turkey Point

App. 5

who would cooperate in the landing of a shipment of

contraband described to him as lobster tails and coffee.

The initial approach to Berckmans was made by

Navarro and Medina, unindicted co-conspirators.

Berckmans began to cooperate with DEA agents. A few

days later he was approached by Abascal, who gave him

a bribe and discussed the proposed landing operation.

Foley, an undercover agent, was planted as the guard.

When word was passed that the shipment was arriving,

the Turkey Point area was put under surveillance by

numerous agents posted on land and water. They were

briefed on the operation beforehand. Foley came to the

scene at night, met Abascal, and opened a locked gate to

admit a white van with “JG Nursery” signs on it. Soon

thereafter, when Foley resumed his rounds as guard, he

saw on a road near Turkey Point a blue truck with a

white camper body on it sitting beside the road with its

lights out and occupied by appellant Valdez. Also,

about a mile further along on the same road, he saw

another camper, green in color.

Surveilling agents saw two boats enter a canal in

the Turkey Point area. The boats passed from view, and

no one saw any actual unloading. Later The Last One,

which was the smaller vessel, came out of the canal,

went back in, then re-emerged towing the Andrea, the

larger boat, which had lost power. The boats were

stopped and those aboard arrested. Minimal amounts of

marijuana were found on the Andrea.

Later, on the same night and within a few miles of

Turkey Point, the blue truck/camper and the JG Nur-

sery van were stopped and found to contain marijuana.

App. 6

ae An

The defendants fall into several groups: (1)

Abascal, the contact man; (2) those aboard the larger

boat, the Andrea; (3) those aboard the smaller boat, The

Last One; and (4) the two men driving the van and the

truck/camper.

I. Sufficiency of the evidence.

[1] All defendants argue that the evidence was in-

sufficient.! We consider this first with respect to the con-

spiracy count. This contention by Abascal, the contact

man, is almost frivolous. He paid bribes to Berckmans

and Foley, promised new cars for all participants, and

boasted of the national and international size and scope

of his organization. He took Berckmans and Foley to the

site to show them where the contraband was to be

landed and told them the site had been used three or

four times previously. He explained how the cargo boat

would be guided in. On the night of the landing he met

Foley at the locked gate and participated in admitting

the JG Nursery van. Abascal insists that there was in-

sufficient evidence to support an inference that he had

actual knowledge that the cargo was marijuana,

emphasizing his numerous references to lobster tails and

coffee. The jury was, of course, entitled to infer from the

evidence which we have set out, especially the elaborate

and costly arrangements for the specific shipment, the

mention of previous shipments, and the description of

the organization involved, that Abascal knew what the

contraband was. Berckmans was not so naive as to take

the lobster and coffee talk at face value, the jury was not

required to be that naive, nor are we.

‘All properly moved for judgments of acquittal.

App. 7

The defendants attach significance to the lack of

direct evidence that the marijuana in the van and the

blue truck/camper came from either or both of the

boats. There were other boats in the same area of

Biscayne Bay, but there was no testimony that other

boats entered the canal. No one actually save marijuana

offloaded from either boat or loaded into vehicles or even

observed the boats and the vehicles at the same site.

Nevertheless the circumstantial evidence is so strong

that lack of observation at canalside makes little dif-

ference. As the operation developed it was consistent

with Abascal’s advance arrangements, and no one saw

or even suggests the presence of lobster tails and coffee.

Boats, trucks and people assembled at the remote

designated place, on the seacoast, at nighttime. The van

was summoned, the jury could find, by Abascal’s

walkie-talkie. It and the two campers took up positions

on the only road that led along the canal up which the

boats were seen by surveilling agents to disappear. The

boats appeared on the bay, flashing lights on and off,

briefly entered one canal and then entered and disap-

peared up a second canal. Engine noises were heard

from sources other than the boats, and voices. The jury

could infer these came from the vehicles that had been

waiting inside the gate. These sounds stopped when the

boat engines stopped. Engine noises resumed, and soon

The Last One emerged, reentered the canal and

remerged towing the Andrea. The blue truck/camper

and the van were seen to depart and were soon stopped,

loaded with marijuana. Marijuana was found in the

larger boat. All of this adequately supports inferences

that the source of the marijuana in the blue truck/

camper and van was one or both boats.

App. 8

Viera and Aspuru were on the Andrea. A small

quantity of marijuana was found on board. Clearly the

evidence was sufficient as to them. Though no mari-

juana was found on The Last One, the evidence was suf-

ficient as to those on it, Linares, Fernandez, and Aday-

Lorenzo. Its activities, Abascal’s statements describing

the arrangement for a navigator (or, inferentially, a lead

boat) to guide the cargo boat in, the movements of the

two boats into and out of one canal and then into the

second canal, the temporary departure of The Last One

and its reentry and return towing the Andrea — these

adequately support jury submission on the conspiracy

count with respect to those aboard The Last One.

[2-4] We are required to review the sufficiency of

evidence under the possession count with respect to only

Abascal because all other defendants received con-

current sentences.” There was no evidence that Abascal

was ever in actual possession of any of the marijuana.

Possibly his role as the person in charge of arrangements

for the landing, his presence at the scene, and his ac-

tivities at the time, were sufficient to support submis-

sion to the jury of constructive possession. But we do not

need to rest on this basis. In Pinkerton v. U.S., 328 U.S.

640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme

Court set out the principle of vicarious liability in con-

spiracy cases. A conspirator can be found guilty of a sub-

stantive offense based upon acts of a co-conspirator

done in furtherance of the conspiracy, unless the act

“did not fall within the scope of the unlawful project, or

was merely a part of the ramifications of the plan which

could not be reasonably foreseen as a necessary or

2Although some of what we have to say relates to the othér

defendants as well.

App. 9

natural consequence of the unlawful agreement.” Jd. at

647-48, 66 S.Ct. at 1184, 90 L.Ed. at 1497. Several of our

judges have noted their concern that vicarious guilt may

have due process limitations, Park v. Huff, 506 F.2d 849,

864 (CA5, 1975) (en banc) (Thornberry, J., dissenting).

This concern need not trouble us here with respect to

Abascal. The jury could infer actual possession by the

defendants aboard the Andrea and the defendants who

hauled marijuana away in the van and the blue

truck/camper. Attributing the acts of these defendants

to Abascal, the planner and expediter of the beachhead

end and an active participant at the landing, is not so

attenuated as to give us due process concerns.

II. Validity of searches and arrests.

[5] There was no error in refusing to suppress the

marijuana found on the Andrea. There was adequate

evidence of probable cause and the circumstances were

exigent.

[6,7] Nor was there error in refusing to suppress

the marijuana found in the blue truck/camper and the

van. After Foley admitted the van through the gate and

observed the two campers he radioed to other agents in

the vicinity a description of the vehicles. Later he saw

the two campers and the van within the Turkey Point

area, that is, inside the entry gate through which he had

let the van enter. Still later he saw the blue truck/

camper and the van leave the Turkey Point area and

proceed north on Tallahassee Road with their lights out.

He radioed this information.

Defendant Moreno was driving the JG Nursery van

when it was stopped. An agent coming south spotted it

App. 10

mae -—- =

moving north on Tallahassee Road. The van pulled off

the road and turned off its lights. The agert made « U-

turn and found the van had resumed moving north and

with its lights still off. He and a back-up unit stopped

the van and arrested driver Moreno. The rear door was

padlocked and Moreno had no key to it. Moreno con-

cedes that it was lawful to make an investigatory stop of

the van but asserts there was not probable cause to

arrest him. The van was tied to the Turkey Point ac-

tivities by the circumstances we have described, and

soon after it left Turkey Point and after being observed

to operate in an unusual manner, was stopped. While

Moreno had not been identified as present at Turkey .

Point, there was sufficient basis to infer that the person

driving the van when the stop was made, whoever he

was, was participating in a marijuana conspiracy. The

officers only needed probable cause to suspect there was

criminal activity afoot and that Moreno was par-

ticipating in it, not proof certain of it. For purposes of

probable cause to arrest, the officers were not required

to exclude the possibility that Moreno had no knowledge

of the contents of the cargo compartment. A second

argument, that officers had insufficent basis to suspect

there was marijuana in the van, is disposed of by what

we have said concerning sufficiency of the evidence.

[8] The officers did not search the van at the scene

because the rear door opening into the cargo area was

locked. After the van was driven to police headquarters

an officer found that a side door was unlocked. He

opened the door and found bales of marijuana inside.

The entry was proper under Chambers v. Maroney, 399

U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

App. 11

[9] A surveilling agent saw the blue truck/

camper going north on Tallahassee Road. He followed it

while verifying the license number with Foley by radio.

Officers in a marked car assisted in making a stop and

an arrest. Valdez was asked to open the cargo compart-

ment, he did so, and there were bales uf marijuana in-

side. The officers had probable cause to stop and arrest.

What we have just said concerning Moreno applies to

Valdez as well. Also Valdez had been identified by Foley

as the driver of the blue truck/camper when Foley first

saw it near Turkey Point. Possibly Valdez consented to

the search of the van but, in any event, there was

probable cause to search and exigent circumstances.

III. Disclosure of informer.

{10, 11] During the testimony of Berckmans

defense counsel moved for the disclosure of a confiden-

tial informant who had met with persons involved in the

conspiracy before Abascal contacted Berckmans and

began the series of events described above. After oral

argument the court denied the motion. This was not

error. There was no contention that the informer par-

ticipated to any extent in the events we have described.

Rather, in the initial stages of the venture, he dealt with

the unindicted conspirators, Navarro and Medina,

before they first approached Berckmans. This court has

held that where the informant was not an active partici-

pant in the criminal activity, but only a tipster, dis-

closure of his identity is not required by Roviaro v. U.S.,

353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Suarez

v. U.S., 582 F.2d 1007, 1011 (CA5, 1978); U.S. v. Alonzo,

571 F.2d 1384, 13887 (CA5, 1978). There is no contention

that any of the defendants, or Berckmans or Foley, ever

met or talked with this informer. Defendants asserted a

App. 12

es Il i aha nls BRE hg eee

right to know his identity on the basis that his early con-

versations with Navarro and Medina might shed light

on their theory that they had no knowledge marijuana

was involved in the shipment. This possibility of obtain-

ing relevant testimony is too remote to require dis-

closure. See Suarez v. U.S., supra at 1012; U.S. uv.

Morris, 568 F.2d 396, 400 (CA5, 1978). Something more

than speculation about the possible usefulness of an in-

formant’s testimony is required. U.S. v. Hansen, 569

F.2d 406, 411 (CA5, 1978).

IV. Admission of evidence.

The admission into evidence of a tackle box found

aboard The Last One was within the discretion of the

trial court.

V. The limiting instruction concerning hearsay.

[12] Early in the direct examination of Berckmans

he was asked about conversations between him and

Abascal. Defendants asked for an instruction limiting to

Abascal the effect of statements made by him. The

court gave this instruction:

Whenever it appears beyond a reasonable

doubt from the evidence in the case that a con-

spiracy existed, and that a defendant was one

of the members, then the statement thereafter

knowingly made and the act or acts knowingly

done by any person likewise found to be a

member may be considered by the jury as

evidence in this case as to the other defendants

found to have been a member, even though the

statement and act may have occurred in the

App. 13

absence and without the knowledge of the

defendant, provided that such statement and

acts were knowingly made and done during the

continuance of such conspiracy and in

furtherance of some object or purpose of the

conspiracy.

Otherwise, any admission or incriminatory

statement made or act done outside of the

court by one person may not be considered as

evidence against any person who was not

present and did not hear the statement made

nor see the act done.

Therefore, the statements of any conspirator

which are not in furtherance of the conspiracy

or made before its existence or after its ter-

mination, may be considered as evidence only

against the person making that statement.

I repeat that the Government will have to

show to the Court and to the jury that there has

been by independent evidence, not of a hearsay

nature, evidence sufficient to establish the par-

ticular defendant’s connection with the con-

spiracy, aiid that determination will be made

by the Court.

Now, I also remind you that this testimony if

used, only applies to Count I of the indictment

and does not apply to the substantive count

which is the count that charges possession with

the intent to distribute and does not charge a

conspiracy.

App. 14

epee aan a ee ee a ae

Defendants objected to the underlined language on the

ground that it would lead the jury to believe that a rul-

ing by the court that the evidence was sufficient to tie a

defendant into the conspiracy would be a direction to

them that as a matter of law the particular defendant

was a member of the conspiracy. The phrase was am-

biguous. But at least three times later during the

testimony the court gave the limiting instruction free of

the phrase objected to, and without objection, and gave

a similar instruction in the charge to the jury. Also,

Abascal’s statements implicated by name no other per-

sons charged as conspirators but only by descriptive

terms such as “truck drivers’ and “‘navigator.”’ In these

circumstances the ambiguous phrase, used once in this

lengthy trial, was not reversible error.

The convictions are AFFIRMED.

App. 15

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

CASE NO. 77-5712

LORENZO ADAY-LORENZO,

JOSE ASPURU, and

SEBASTIAN VIERA,

Appellants,

vs.

UNITED STATES OF AMERICA,

Appellee.

MOTION FOR REHEARING

COME NOW the Defendants, LORENZO ADAY-

LORENZO, JOSE ASPURU, and SEBASTIAN

VIERA, by and through their undersigned counsel, and

file this, their Petition for Rehearing, and would allege

in furtherance thereof as follows:

1. As reflected in this Court’s opinion of

January 26, 1979:

(12) Early in the direct examination of

Berckmans he was asked about conversations

between him and Abascal. Defendants asked

for an instruction limiting to Abascal the effect

of statements made by him. The court gave

this instruction:

App. 16

Whenever it appears beyond a reasonable

doubt from the evidence in the case that a con-

spiracy existed and that a defendant was one of

the members, then the statement thereafter

knowingly made and the act or acts knowingly

done by any person likewise found to be a

member may be considered by the jury as

evidence in this case as to the other defendants

found to have been a member, even though the

statement and act may have occurred in the

absence and without the knowledge of the

defendant provided that such statement and

acts were knowingly made and done during the

continuance of such conspiracy and in

furtherance of some object or purpose of the

conspiracy.

Otherwise, any admission or incriminatory

statement made or act done outside of the

court by one person may not be considered as

evidence against any person who was not

present and did not hear the statement made

nor see the act done.

Therefore, the statements of any conspirator

which are not in furtherance of the conspiracy

or made before its existence or after its ter-

mination, may be considered as evidence only

against the person making that statement.

I repeat that the Government will have to show

to the Court and to the jury that there has been

by independent evidence, not of a hearsay

nature, evidence sufficient to establish the par-

ticular defendant’s connection with the con-

App. 17

spiracy, and that determination will be made

by the Court.

Now, I also remind you that this testimony if

used, only applies to Count I of the indictment

and does not apply to the substantive count

which is the count that charges possession with

the intent to distribute and does not charge a

conspiracy.”

2. It is generally accepted that, ‘““There is no ques-

tion that a witness can testify to declarations made to

him by a co-conspirator, only if the Government by in-

dependent evidence establishes a prima facie case of the

existence of a conspiracy and introduces at least ‘slight

evidence’ to connect with the conspiracy both the

declarant and the defendant against whom the state-

ment is introduced.” United States v. Archbold-

Newball, 554, F.2d 665 (5th Cir., 1977). See also United

States of America v. Nixon, 418 U.S. 683 (1974) footnote

16; United States of America v. Oliva, 497 F.2d 130 (5th

Cir., 1974); United States of America v. Tyler, 505 F.2d

1329 (5th Cir., 1974).

3. Thus, the test for introducing co-conspirator’s

statements is proof by the government by independent

evidence of the existence of a prima facie case or “‘slight

evidence’.

4. The trial judge in the case at bar, however, in-

structed the jury that the test was, ‘““whenever it appears

beyond a reasonable doubt from the evidence in the case

that a conspiracy existed. . .”

App. 18

5. By instructing the jury that the court would

make the determination of whether or not there existed

a conspiracy for the purpose of introducing evidence of

co-conspirators, and by further instructing the jury that

the test for making that determination is beyond a

reasonable doubt, the jury was in effect told that the

standard for the introduction of this evidence is the

same standard as for conviction, to wit: beyond a

reasonable doubt, and that the court would make this

determination.

6. As read and objected to the judge’s instructions

to the jury made it clear that the judge’s allowing in co-

conspirator’s statements indicated a determination to

the judge that evidence beyond a reasonable doubt had

been established as to the conspiracy. As such, the jury

could also determine that evidence beyond a reasonable

doubt of the conspiracy existed for the _urpose of con-

viction.

7. If in fact the Judge had properly instructed the

jury as to the burden of proof prior to the introduction of

a co-conspirator’s statement as heing the establishment

of a prima facie case, no conflict would have been es-

tablished in the jury’s mind as to their legal respon-

sibilities and duties.

8. Furthermore, this Court in affirming relied

upon the fact that, ‘‘at least three times later during the

testimony the Court gave the limiting instruction free of

the phrase objected to, and without objection, gave a

similar instruction in the charge to the jury.”

9. However, as held in the case cited by the State

in it’s brief, United States v. Appollo, 476 F.2d 156 (5th

Cir. 1973);

App. 19

“The government calls our attention to the

charge given by the court at the conclusion of

the trial. While it does contain an accurate

statement of the rule of hearsay evidence in

conspiracy cases it came too late. This

delicately dangerous defusing must be firmly in

the jury’s mind when the hearsay is proffered.

An instruction at the end of the trial cannot

correct the erroneous refusal to give the proper

cautionary instruction when it was first

requested.”

10. Thus, the later proper instructions cannot

eliminate the error and prejudice caused by the trial

judge in improperly instructing the jury as to the ap-

propriate burden of proof for the introduction of co-

conspirator’s statements and the respective respon-

sibilities of the court and the jury.

WHEREFORE, Defendants respectfully request

this Honorable Court to take under consideration the

arguments presented herein and to grant rehearing in

this matter.

I HEREBY CERTIFY that a (illegible) copy of the

foregoing Motion was furnished by U.S. mail to the

(illegible) of THE U.S. ATTORNEY, 300 Ainsley

Building, Miami, Florida (illegible) 6th day of Feb.,

1979. RONALD A. DION, ESQ.

LAW OFFICES OF

ALVIN E. ENTIN

Attorney for Appellants

2020 N.E. 163 St., Suite 300

North Miami Beach,

Florida 33162

Tel: (305) 944-9100

App. 20

AD ER ne Rn Os OR mn ot

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

CASE NO: 77-5712

JOSE LUIS LINARES and

JOSE A. FERNANDEZ,

Appellants,

vs.

UNITED STATES OF AMERICA,

Appellee.

MOTION FOR REHEARING

COME NOW the Appellants, JOSE LUIS

LINARES AND JOSE A. FERNANDEZ, and move this

Honorable Court to adopt as argument hereon, the Mo-

tion for Rehearing previously filed on behalf of Co-

Appellants LORENZO-ADAY-LORENZO, JOSE

ASPURU and SEBASTIAN VIERA.

Telegraphic notification was sent this date in order

not to prejudice Appellants due to the illness of their

counsel.

I HEREBY CERTIFY that a true copy of the

foregoing Motion for Rehearing was furnished by US.

mail to the OFFICE OF THE U.S. ATTORNEY, 300

Ainsley Building, Miami, Florida this 13th day of

February, 1979.

App. 21

SEYMOUR LONDON, ESQ.

Attorney for Appellants

1175 N.E. 125th Street, Suite 207

North Miami, Florida 33161

FILED MAR 2 1979

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5712

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO LUIS MORENO, FELIX GONZALEZ

VALDEZ, SEBASTIAN VIERA, JOSE LUIS

LINARES, LORENZO ADAY-LORENZO,

MARIO ABASCAL, JOSE A. FERNANDEZ, and

JOSE ASPURU. —

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

App. 22

Ske te Stet 2B Sit met elev a

ORDER:

IT IS ORDERED that the request of Appellants,

Jose Luis Linares and Jose Fernandez, to adopt the peti-

tion for rehearing previously filed on behalf of .Ap-

pellants, Lorenzo Aday-Lorenzo, Jose Aspuru, and

Sebastian Viera, is GRANTED

/s/ John Godbold

UNITED STATES CIRCUIT

JUDGE

FILED MAR 2 1979

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5712

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO LUIS MORENO, FELIX GONZALES

VALDEZ, SABASTIAN VIERA, JOSE LUIS

LINARES, LORENZO ADAY-LORENZO,

MARIO ABASCAL, JOSE A FERNANDEZ and

JOSE ASPURU,

Defendants-Appellants.

App. 23

Appeals from the United States District Court for the

Southern District of Florida

ON PETITIONS FOR REHEARING

(March 2, 1979)

Before BROWN, Chief Judge, GODBOLD and FAY,

Circuit Judges. PER CURIAM:

IT IS ORDERED that the petitions for rehearing

filed on behalf of appellants Moreno, Viera, Aday-

Lorenzo and Aspuru in the above entitled and

numbered cause be and the same are hereby DENIED.

ENTERED FOR THE COURT:

/s/ JOHN C. GODBOLD

United States Circuit Judge

App. 24

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