# Petition — Linares v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2704%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 947

## Text

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

a

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

ii

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,

7

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.

10

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

11

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-

12

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

13

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.

14

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)

15

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

16

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

17

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.

18

ee

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.

19

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
I

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

21

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

22

~+ ——_—

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.

23

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

24

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.

25

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.”

26

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.

27

“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:

28

“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-

29

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.

30

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.

31

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.”

II

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

32

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

33

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.

36

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

37

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-

38

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

39

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.

IV

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-

40

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).

41

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-

42

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-

43

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

44

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.

V

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

45

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

46

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.

47

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.

49

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

ad

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2704%3A1. Public record. Not legal advice.