Petition — Albert v. United States

~ Supreme Court, U.

FILED

IN THE . we a RODAK, JR., CLERK

Supreme Court of the Hnited States

TERM, 1979

NO. 3-9 -207

DOUGLAS W. ALBERT, BERNARD D. JACKSON,

GILBERT GONZALEZ, JESSE C. SMITH,

JOHN J. DAVIS, RICHARD Y. GARCIA,

Petitioners

V.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Fifth Circuit

ROBERT C. HUNT

Counsel for Petitioners

4801 Woodway Drive

Houston, Texas 77056

(713) 965-9752

Of Counsel:

JAMES A. Moore

2020 North Loop West, Suite 101

Houston, Texas 77018

(713) 688-9581

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

Page

ee dads wasuadecsbeveeccss 1

EEE EEE SF PE 2

sme boc en bene nsceceecesss 2

Statutory Provisions Involved ................0.0e000e 3

UREN AEC RG Gah chy wheabess cccbaseccecessess 3

Statement of the Nature of the Case .................. 3

Reasons for Granting the Writ ....................005. 7

Ne anc eenecestcccaceves 7

Ne asc weceecnsenssvccese 9

Ne secs c cs unerccweccevess 13

Ss oie kins Ss aivscuscinessscssessces 16

ee SLs Sack a NAb o0'scenvecceees 17

Appendix

Constitutional and Statutory Provisions Involved .... A-1

Opinion and Judgment of the Court of Appeals ...... B-1

Indictment In Case No. 74-H-159 ................. C-1

Defendants’ Motion to Dismiss Indictment In Case

EE EE ee re D-1

Order Dismissing Indictment In Case No. 74-H-159 E-1

Notice from United States Court of Appeals, 5th Cir.

Denying Petition for Rehearing and Rehearing En Banc F-1

TABLE OF AUTHORITIES

CASES Page

EO 8

Cae @. We, © WG. 200 (ITSB) 2... cece cccccccccese 5,7

Davis v. United States, 417 U.S. 332 (1974) ........... 8

Glasser v. United States, 315 U.S. 60 (1942) .......... 3, 6, 13, 14

Ingram v. United States, 360 U.S. 672 (1959) .......... 15

Kaufman v. United States, 394 U.S. 217 (1969) ........ 8

United States v. Beechum, 582 F.2d 878 (5th Cir. 1978)

RIE EE he Seaeea vee Sins By SG, 7, 21,82

United States v. Carter, 516 F.2d 431 (5th Cir. | ae 10

II

CASES Page

United States v. Goodwin, 442 F.2d 1001 (Sth Cir. 1974) 9

United States v. Henson, 486 F.2d 1292 (D.C. Cir. 1973) 8

United States v. Kirk, 528 F.2d 1057 (Sth Cir. 1976) .... 9

United States v. Malatesta, No. 77-5032 (5th Cir. 1979)

pat nths 6000444054 bo Sed EA SHR eens aah aa xe 2,7, 8, 14, 15, 16

United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) .... )

United States v. San Martin, 50S F.2d 918 (5th Cir. 1974) 10

MISCELLANEOUS

United States Constitution, Article I, §9 .............. 8

Federal Rules of Evidence, 404(b) ............ccceeeee 4

IN THE

Supreme Court of the Hnited States

TERM, 1979

NO.

DOUGLAS W. ALBERT, BERNARD D. JACKSON,

GILBERT GONZALEZ, JESSE C. SMITH,

JOHN J. DAVIS, RICHARD Y. GARCIA,

Petitioners

V

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Fifth Circuit

The Petitioners DOUGLAS W. ALBERT, BERNARD

D. JACKSON, GILBERT GONZALEZ, JESSE C.

SMITH, JOHN J. DAVIS, RICHARD Y. GARCIA, pray

that a Writ of Certiorari issue to review the Judgment

of the United States Court of Appeals for the Fifth Cir-

cuit.

OPINION BELOW

The Opinion of the Court of Appeals for the Fifth

Circuit is reported at 595 F.2d 283 (1979). It is set

out in the Appendix Infra, p. B-1.

2

JURISDICTION

The Judgment of the Court of Appeals was entered

on May 21, 1979. Petition for Rehearing was denied on

July 2, 1979. The Jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

QUESTION ONE

WHETHER THE FIFTH CIRCUIT COURT OF

APPEALS ERRED IN FAILING TO APPLY THE

BENEFITS OF U.S. V. MALATESTA, NO. 77-5032

WHILE APPLYING THE BURDENS OF U.S. wv.

BEECHUM, 582 F.2d 878, WHERE BOTH CASES

WERE DECIDED DURING THE PENDENCY OF

THIS APPEAL AND THEREBY DEPRIVED THESE

PETITIONERS OF DUE PROCESS OF LAW AND

EQUAL PROTECTION OF LAW AND VIOLATED

THE EX POST FACTO PROVISION OF THE

CONSTITUTION.

QUESTION TWO

DID THE CIRCUIT COURT DECISION VIO-

LATE THE ORDINARY RULE OF THIS COURT

AND OTHER CIRCUITS REQUIRING THAT IN-

TENT BE AT ISSUE BEFORE EVIDENCE OF AN

EXTRINSIC OFFENSE MAY BE OFFERED AND

ADMITTED AS PROBATIVE OF THAT ISSUE.

3

QUESTION THREE

DID THE CIRCUIT COURT OPINION AS TO

PETITIONERS DAVIS AND GARCIA VIOLATE

THE RE-ADOPTED RULE OF GLASSER V. U.S.,

315 U.S. 60.

STATUTORY PROVISIONS INVOLVED

STATEMENT

Petitioner Albert was sentenced to five years on Count

One, one year as to Counts Two, Three and Five, to

run consecutive to each other and consecutive to the

sentence imposed in Count One for a total of eight

years. Petitioner Jackson was sentenced to five years as

to Count One, and one year as to Counts Two and Three,

to run consecutive to each other and to Count One for

a total of seven years. Petitioner Gonzalez was sentenced

to five years as to Count One, and one year as to Counts

Two, Three and Six, to run consecutive to each other

and to the sentence imposed in Count One, for a total

of eight years. Petitioner Smith was sentenced to five

years as to Count One and one year as to Counts Two,

Three and Seven, to run consecutive to each other and

consecutive to the sentence imposed in Count One for

a total of eight years. Petitioner Davis was sentenced

to three years on Count One. Petitioner Garcia was

sentenced to three years on Count One. (App. C-1 thru

C-5).

This appeal followed.

STATEMENT OF THE NATURE OF THE CASE

Petitioners were charged in an eight count indictment

with conspiracy to violate the civil rights of the citizens

4

of the United States, (18 U.S.C. § 241, depriving citizens

of property without due process of law, 18 U.S.C. § 242,

and Appellants Albert, Gonzalez, Smith and Davis were

charged with perjury, 26 U.S.C. § 7206(1). Said indict-

ment was filed on May 31, 1974.

Prior to arraignment the Government moved to dis-

qualify Messrs. Moore and Hunt as defense counsel on

the basis of an alleged conflict of interest. (R. 1517-

1530). The trial court disqualified Messrs. Moore and

Hunt. (R. 1657-1665). The Fifth Circuit Court of Ap-

peal reversed and remanded with directions. (R. Page

3, Docket Sheet), United States v. Garcia, Nos. 74-3527,

74-3718 (Sth Cir. Aug. 7, 1975)

Petitioners were arraigned and pled not guilty on Oc-

tober 31, 1975. (R. Page 3, Docket Sheet)

In March of 1976, the Petitioners, six (6) former

police officers, were convicted by a jury on one (1) or

more counts of an indictment charging conspiracy to de-

prive United States citizens of guaranteed rights, de-

priving persons of property without due process of law

and under color of state law, and filing false income tax

returns.

Petitioners appealed alleging that the trial court com-

mitted reversible error in admitting into evidnce testi-

mony concerning alleged extrinsic criminal activity of

Co-Defendant Gonzalez which allegedly occurred three

(3) years prior to the date of offense charged for the

limited purpose of showing intent under Federal Rules of

Evidence 404(b) without any limiting instruction to the

jury. Intent was never a contested issue. The other five

(5) Petitioners were not accused of culpable involvement

in the extrinsic scenario, but the trial court gave no

3

limiting instructions or directions to the jury as to the

effect of the extrinsic evidence against them.

The Court of Appeals for the Fifth Circuit overruled

this point of error by retroactively applying the stand-

ards recently set by United States v. Beechum, 582 F.2d

878 (Sth Cir. 1978), which was decided and then re-

versed in en banc by the Fifth Circuit while the Court de-

layed the instant appeal. The Panel found that the trial

court “could” have correctly ruled in 1976 by complying

with the new 1979 (Beechum) rule as to admissibility of

extrinsic offenses, but the requirement and necessity of

extrinsic limiting jury instructions, which should have

been given by the trial court, was purged by the Panel

because they did not approve of those instructions pro-

posed by trial counsel at the 1976 trial. This Ex Post

Facto application now challenged on certiorari directly

conflicts with the long standing precedents in this cir-

cuit and the Supreme Court beginning with Calder v.

Bull, 3 U.S. 269 (1798).

Government witness Chavez testified over objection

that in 1969 Co-Defendant Gonzalez was involved in a

theft and sale of one (1) pound of Heroin under cir-

cumstances allegedly similar to those charged in the

present offense alleged to have occurred in 1972. This

extrinsic offense was the subject of Indictment No. 74-

H-159 which was subsequently dismissed after it was

shown that Van’s Ballroom (the site at which Chavez

claimed the alleged 1969 Co-Conspirators met to “cut

up the pie”) had been destroyed by fire on August 1,

1969 which made it impossible for the “split” to have

occurred on October 20, 1969 as alleged in the ex-

trinsic indictment. Thus the extrinsic offense was not.

6

(See Appendix C-1 thru C-5; D-1 thru D-5; and Ap-

pendix E)

While visiting the burdens of Beechum upon the Pe-

titioners in this Ex Post Facto fashion the Fifth Circuit

denied the Petitioners the benefit of United States v.

Malatesta, No. 77-5032 (Sth Cir. 1979), another en

banc decision handed down during the pendency of the

instant appeal, which abolished the “slight evidence rule”

in this Circuit in conspiracy cases. The Government re-

lied upon the now abandoned “slight evidence rule”

against the claims of insufficiency of evidence by Ap-

pellants Davis and Garcia and ihe Panel’s decision is

contrary to Malatesta, which now requires substantial evi-

dence to support the verdict. The Panel’s decision con-

flicts with the law of the Fifth Circuit which as stated in

Malatesta, recently, on March 12, 1979, reverted to the

parameters, of Glasser v. United States, 315 U.S. 60

(1942) and should be reversed.

The stated Ex Post Facto problems notwithstanding, the

Fifth Circuit incorrectly applied the facts of this case

to the precedent of Beechum as outlined in detail in the

argument herein. The Petitioners motion for rehearing

was denied on July 2, 1979.

This decision should be vacated with this conviction

being reversed and the cause remanded for trial where

the trial court can comply with Beechum prospectively

rather than subject the Petitioners to an Ex Post Facto

application of Beechum through a post mortem of psy-

chological indulgence requiring astral projection.

7

REASONS FOR GRANTING THE WRIT

QUESTION ONE (Restated)

WHETHER THE FIFTH CIRCUIT COURT OF

APPEALS ERRED IN FAILING TO APPLY THE

BENEFITS OF U.S. V. MALATESTA, NO. 77-5032

WHILE APPLYING THE BURDENS OF U.S. »v.

BEECHUM, 582 F.2d 878, WHERE BOTH CASES

WERE DECIDED DURING THE PENDENCY OF

THIS APPEAL AND THEREBY DEPRIVED THESE

PETITIONERS OF DUE PROCESS OF LAW AND

EQUAL PROTECTION OF LAW AND VIOLATED

THE EX POST FACTO PROVISION OF THE

CONSTITUTION.

While the case at bar was on appeal, the Fifth Circuit

reversed itself en banc on two substantial points of law.

On October 25, 1978 the Fifth Circuit redefined the

law concerning the admissibility of extrinsic offenses.

U.S. v. Beechum, 582 F.2d 878. Subsequently on March

12, 1979 ihe Fifth Circuit banished the “slight evidence

rule” as applied to conspiracies. U.S. vy. Malatesta, No.

77-5032. The Panel did not apply the benefits of Mala-

festa, supra, to Appellants Davis and Garcia but at

tempted to apply the burdens of Beechum, supra, to the

detriment of all Defendants. This inconsistency denied all —

Petitioners due process of law and equal application

of law. It would appear that the Circuit has misconnected

the application of the benefits and burdens of these re-

spective cases. That is to say, under controlling decisions

of the Supreme Court, the Circuits analysis violates the

prohibition against retrenching rules of evidence so as

to make conviction more easy. The Circuit’s reasoning

falls within the gambit of Ex Post Facto prohibition.

8

Beazell v. Ohio, 269 U.S. 167; see also U.S. v. Henson,

486 F.2d 1292. Mr. Justice Chase noted in Calder v.

Bull, 3 U.S. 269, what laws fell within that prohibition

and included “every law that alters the legal rules of

evidence, and requires less or different testimony than the

law required at the time of the commission of the offense,

in order to convict the offender”. The Circuits change in

the law regarding the admissibility of extrinsic offenses,

while the case was on appeal, altered the rules of evidence

by making the Government’s burden of proof less onerous

and in turn sustained the conviction on less than what

was required at the time of trial.

The Supreme Court held in Davis vy. U.S., 417 USS.

332, that a petitioner may make a collateral attack under

article 2255 where new law has been established in the

Circuit since his trial and appeal even though that issue

was raised in the prior direct appeal and determined

against him, see also Kaufman v. U.S., 394 U.S. 217.

Because Davis, supra, held that petitioner may benefit

from a change of law in his favor on collateral attack it

must follow that these Defendants on direct appeal may

do the same.

‘ Furthermore, it is impermissible to burden these Peti-

tioners with adverse rulings which occurred while their

case on appeal. U.S. Constitution, Article I, § 9.

The two important en banc decision U.S. v. Beechum,

supra and U.S. v. Malatesta, supra, were either not ap-

plied, misapplied, or applied to the detriment of these

Petitioners as pointed out above without an opportunity

for them to present briefs and/or arguments consistent

with their respective positions. Since the current dilemma

of these Petitioners is a direct product of the Fifth Cir-

9

cuit’s subsequent en banc procedures only as en banc

determination of the applicability of both new laws can

establish the legal precedent upon which these Petitioners

were convicted.

QUESTION 'TWO (Restated)

DID THE CIRCUIT COURT DECISION VIO-

LATE THE ORDINARY RULE OF THIS COURT

AND OTHER CIRCUITS REQUIRING THAT IN-

TENT BE AT ISSUE BEFORE EVIDENCE OF AN

EXTRINSIC OFFENSE MAY BE OFFERED AND

ADMITTED AS PROBATIVE OF THAT ISSUE.

The controlling rule of the Fifth Circuit as to the

admissibility of evidence of an extrinsic offense as stated

in United States v. Kirk, 528 F.2d 1057 (Sth Cir. 1976)

and United States v. Goodwin, 442 F.2d 1144 (Sth Cir.

1974) is, if the defendant’s intent is not contested, then

the incremental probative value of the extrinsic offense

is inconsequential when compared to its prejudicial effect;

therefore, in this circumstance the evidence is uniformly

excluded. As evidenced by the defense used in the state

trial of this case the prosecution was aware that the

Petitioners did not contest the issue on intent, but simply

asserted that the alleged offense did not occur.

To assume that intent was in any way at issue is to

Overlook the distinction between offenses that require

proof of intent in order to convict, (i.e, forgery, passing

counterfeit money, receiving stolen property, obtaining

money under false pretenses) from those offenses in which

intent may be inferred from proof of the criminal act

charged. United States vy. Ring, 513 F.2d 1001 (6th

Cir. 1975).

10

Footnote 11 of the Fifth Circuit opinion recognized

that the evidence of the extrinsic offense was offered to

show intent. The error in admitting the evidence of an

extrinsic offense in this case against Defendant Gonzalez

is compounded by the extreme prejudicial effect it had

upon the other five (5) Petitioners. When we finally add

to this the fact that no limiting charge was given to the

jury, the prejudice becomes very great. To assume that

the jury was able, without instruction, to place this evi-

dence that is inadmissible in the first place, in the proper

perspective completely disregards the complexity of the

problem and natural workings of the human mind.

Whether the extrinsic offense is sufficiently similar in

it’s physical elements so that it’s probative value is not

substantially outweighed by it’s undue prejudice is a

matter within the sound discretion of the trial judge.

United States v. Carter, 516 F.2d 431, 434-35 (Sth Cir.

1975). This however, first requires that there actually

was an extrinsic offense, and that it be convincingly

proved. United States v. San Martin, 505 F.2d 918 (Sth

Cir. 1974). The Fifth Circuit incorrectly stated that the

extrinsic offense occurred in 1969 or 1970. But as shown

‘by the superseding indictment on the extrinsic offense,

said offense in which Defendant Gonzales was charged

supposedly culminated on October 24, 1969 at Van’s

Ballroom. Van’s Ballroom burned down in August of

that year, which means the only real evidence of the

extrinsic offense was false. The superseding indictment

as to the extrinsic offense was dismissed when the above

fact was proved and is in all things untrue. The Fifth

Circuit has bootstrapped it’s opinion by stating that the

case in chief and the extrinsic offense are very similar.

It is better said that what a convicted perjurer Chavez

11

says happened is that he participated in a similar offense

and that Petitioner Gonzalez was a participant but that

the other Petitioners were not. The Fifth Circuit in

Beechum said that the extrinsic offense was not of a

heinous nature and that it would hardly incite the jury

to an irrational decision by it’s force on human emotion.

The alleged extrinsic offense in this case was the theft

and sale of a pound of Heroin by a police officer, whereas

the offense in question involved money and Marijuana.

It is inconsistent with human experience that the citizens

on the jury would make no distinction between the Mari-

juana charge in the indictment and the Heroin claimed

in the extrinsic offense.

The en banc decision in Beechum by the majority

captures the improper application of the law of the Fifth

Circuit when the rights of Beechum were carefully pro-

tected and assured by the trial court in it’s lengthy limit-

ing instructions. They gave extensive instructions to

the jury on the limited use of extrinsic offense evidence

employed to prove unlawful intent. In this decision the

Court gave no limiting instructions as to the Petitioner

Gonzalez and justified it saying that trial counsel offered

a defective jury instruction. As to the other Petitioners

the Circuit says the extrinsic offenses was not relevant

or admissible, and there was likewise no limiting instruc-

tions. “In reaching a decision whether to exclude on

grounds of unfair prejudice, consideration should be given

to the probable effectiveness of a limiting instruction”.

Gonzalez’s participation in the 1969 offense was prof-

fered only as to whether or not he had the requisite in-

tent to commit the offense. This was not disputed or an

issue at any rate. Therefore the extrinsic offense should

not have been admitted and if it was to be admitted under

12

the Beechum theory then a careful, particularized, limited

instruction should have been given and to fail to do so

should be plain error.

Therefore the Circuit has misapplied the ruling of

Beechum by allowing a perjurer to inferentially involve

one of the Co-Defendants with an extrinsic offense al-

legedly committed three (3) years prior to the crime

charged: under the theory of showing intent wherein

intent 1s not an issue. To establish a rule such as the

Panel has done clearly flies in the teeth of the en banc

decision in Beechum by saying that the trial court could

have found that the proffer complies with the newly re-

discovered rules of evidence of Beechum. To recite that

the probative value of the extrinsic offense evidence was

strong because the high degree of similarity between

the two occurrences would establish the dangerous prece-

dent that regardless of cross-examination or evidence to

the contrary an alleged Co-Conspirator could testify

as to the existence of a fabricated similar conspiracy

or numerous previous conspiracies unsupported by real

evidence, and even contrary to the actual facts. This

would invite perjury on the part of Government witnesses

‘testifying under a promise of immunity, or other con-

siderations not to prosecute in return for their testimony,

which would state that at some unknown time, at some

unknown place, the other Co-Conspirators, or at least one

of them participated in an offense in the same manner

and method, in similar capacities as the Co-Defendants

on trial and that the other imagined extrinsic offenses

were indeed very similar because he so wrote the part.

This misapplication of Beechum should be carefully ex-

amined by this Court to avoid the suggestion above,

which must follow the rule of law established in the

13

Circuits opinion with absolutely no parameters of ad-

missibility except that if it is strongly similar and the

Government needs the evidence then, in that event, the

probative value will outweigh the danger of undue preju-

dice. The Government and the Circuit cannot deny that

the actual charges against Gonzalez in the indictment

were dismissed and that Chavez was incorrect when he

said that the “cutting of the pie” took place on October

20, 1969 because the truth is Van’s Ballroom burned

in August of 1969. If the Circuit is going to engage

in speculation and hindsight they should reconsider

their position and at the very minimum reverse this

conviction with instruction that the trial court upon re-

trial carefully determine if intent is in issue, then they

must determine whether or not the offenses were suffici-

ently similar by examining the physical facts of the al-

legations by Chavez. The Government must offer proof

in demonstrating that the Defendant committed the of-

fense. As a dismissal of the indictment against Mr. Gon-

zalez after finding that Van’s Ballroom burned in August

of 1969 is certainly inconsistent with the fact that the

Defendant committed the offense. If the proof is in-

sufficient, the Judge must exclude the evidence because

it is irrelevant.

QUESTION THREE (Restated)

DID THE CIRCUIT COURT OPINION AS TO

PETITIONERS DAVIS AND GARCIA VIOLATE

THE RE-ADOPTED RULE OF GLASSER V. U.S.,

315 U.S. 60.

Petitioners Davis and Garcia contend that the Circuit

decision is contrary to the holding of U.S. v. Malatesta,

14

No. 77-5032 (Sth Cir. 1979) which abolished the “slight

evidence rule” in the Fifth Circuit. The Panel summarily

dismissed these Appellants’ claim of lack of evidence to

support their convictions and stated that it did not merit

discussion.

In attempting to have these convictions sustained,

the Government argued in it’s brief that the “slight

evidence rule” had been satisfied. This rule recognizes

that once the existence of a conspiracy has been estab-

lished only “slight evidence” is necessary to connect a

particular defendant to that conspiracy. However, the

“slight evidence rule” was very recently abolished in this

Circuit, U.S. v. Malatesta, supra. The Fifth Circuit held

en banc that “the slight evidence rule as applied to

conspiracy cases since 1969 should not have been al-

lowed to worm it’s way into the jurisprudence of the

Fifth Circuit”. That Circuit has now re-adopted the forty

(40) year old rule established in Glasser v. U.S., 315

U.S. 60, where the Supreme Court held that the verdict

of the jury is to be sustained if there is substantial

evidence to support the verdict taking the view most

favorable to the jury’s conclusions.

Petitioners Davis and Garcia were found guilty of

Count 1, conspiracy to violate the civil rights of citizens,

while at the same time being found not guilty of Counts

2 and 3, the actual theft from the citizens.

A review of the record shows that there is not even

slight evidence, let alone substantial evidence to support

their convictions. The three (3) Government witnesses

who were allegedly wiretapped, beaten and robbed made

no mention of Defendants Davis or Garcia. Furthermore,

in regards to Davis, the Government stipulated that he

15

was at Army summer camp from July 8, 1972 through

July 21, 1972, (R. 990-1, 1007). The period of the

alleged wiretap took place from July 2, 1972 to July 25,

1972 according to Government witness Avila. (R. 379)

Zavala, another Government witness, stated all six (6)

Defendants took part in physical surveillance, but that

he had never seen any of them participate in any wire-

tapping (R. 622, 637-38) Government witness Fowler,

who designed and assembled the wiretapping equipment

allegedly used in this case, testified that he had never

checked any wiretapping equipment to Davis. (R. 671-

72) Furthermore, Davis denied any participation in the

alleged offense.

Regarding Garcia, Avila testified that a “Gilbert

Garcia” was in physical surveillance at the Ramada Inn

but did not (and could not) testify as to any participation

by Appellant Richard Garcia. (R. 379) Chavez merely

identified Appellant Garcia as participating in the wire-

tapping made the basis of this indictment at some un-

known time and place. (R. 503-04) Chavez should have

been able to specify since he admitted his involvment.

Government witness Fowler further exculpatated Garcia

when he testified that he never checked out any wire-

tapping equipment to him. (R. 671-72) Furthermore,

Garcia denied under oath any participation in any wire-

tapping or any other offense. (R. 996, 1028)

In Ingram v. U.S., 360 U.S. 672, which was cited to

in Malatesta, supra, it was noted that “a conspiracy to

commit a particular substantive offense cannot exist with-

out at least that degree of criminal intent necessary for

the substantive offense itself’. The jury’s acquittal of

Appellants Davis and Garcia on Counts 2 and 3 of the

indictment indicates that the jury had at least a reason-

16

able doubt as to their participation in the alleged sub-

stantive offenses. There is not substantial evidence that

Appellants Davis and Garcia or either of them voluntarily

associated with the alleged conspiracy. On reconsideration

the application of Malatesta must obviate the guilty find-

ings of the jury relating to Appellants Davis and Garcia

and their convictions should be reversed and dismissed

for lack of sufficient evidence.

CONCLUSION AND PRAYER

For all the reasons stated above the petition for writ

of certiorari should be granted and the petitioners con-

victions and sentences set aside.

Petitioners pray for such relief.

Respectfully submitted,

ROBERT C. HUNT

Counsel for Petitioners,

Douglas W. Albert

Bernard D. Jackson

Gilbert Gonzalez

Jessie C. Smith

John J. Davis

Richard Y. Garcia

4801 Woodway Drive

Houston, Texas 77056

(713) 965-9752

17

CERTIFICATE

I certify that three (3) copies of the foregoing petition

for writ of certiorari was mailed to J. A. “Tony” Canales,

515 Rusk, Houston, Texas, on this 31st day of July,

1979 and three (3) copies to the Solicitor General of

the United States.

ROBERT C. HUNT

A-1

APPENDIX A

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Constitution of the United States of America

Sec. 9 [Powers denied Congress.]

* * *

[3] No Bill of Attainder or ex post facto Law shall be

passed.

* * *

United States Statutes

18 U.S.C. § 2

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an

offense against the United States, is punishable as a

principal.

(June 25, 1948, ch 645, § 1, 62 Stat. 684; Oct. 31,

1951, ch 655, § 17b, 65 Stat. 717.)

18 U.S.C. § 241

If two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free exercise or

A-2

enjoyment of any right or privilege secured to him by

the Constitution or laws of the United States or because

of his having so exercised the same;

* * *

26 U.S.C. § 4704

(a) General requirement.—It shall be unlawfui for

any person to purchase, sell, dispense, or distribute nar-

cotic drugs except in the original stamped package or

from the original stamped package; and the absence of

appropriate taxpaid stamps from narcotic drugs shall be

prima facie evidence of a violation of this subsection by

the person in whose possession the same may be found.

(b) Exceptions in case of registered practitioners.—

The provisions of subsection (a) shall not apply—

(1) Prescriptions—To any person having in his or

her possession any narcotic drugs or compounds of nar-

cotic drug which have been obtained from a registered

dealer in pursuance of a written or oral prescription

referred to in section 4705 (c) (2), issued for legitimate

medical uses by a physician, dentist, veterinary surgeon,

or other practitioner registered under section 4722; and

where the bottle or other container in which such narcotic

drug or compound of a narcotic drug may be put up

by the dealer upon said prescription bears the name and

registry number of the druggist, and name and address of

the patient, serial number of prescription, and name,

address, and registry number of the person issuing said

prescription; or

(2) Dispensations Direct to Patients—To the dis-

pensing or administration or giving away of narcotic

A-3

drugs to a patient by a registered physician, dentist,

veterinary surgeon, or other practitioner in the course

of his professional practice, and where said drugs are

dispensed or administered to the patient for legitimate

medical purposes, and the record kept as required by

this subpart [§§ 4701-4707 of this title] of the drugs so

dispensed, administered, distributed or given away. (Aug.

16, 1954, c. 736, 68A Stat. 550; Aug. 31, 1954, c. 1147,

§ 8, 68 Stat. 1004.)

18 U.S.C. § 242

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any inhabitant

of any State, Territory, or District to the deprivation of

any rights, privileges, or immunities secured or pro-

tected by the Constitution or laws of the United States

or to different punishments, pains or penaities, on ac-

count of such inhabitant being an alien, or by reason

of his color or race, than are prescribed for the punish-

ment of citizens .. .

26 U.S-C. § 7206

Any person who—

(1) Declaration under penalties of perjury.—Willfully

makes and subscribes any return, statement, or other

document, which contains or is verified by a written

declaration that it is made under the penanties of perjury,

and which he does not believe to be true and correct as

to every material matter; or

* * *

A4

26 U.S.C. § 7237

7237. Violation of Laws Relating to Narcotic Drugs

and to Marihuana.

(a) Violation of law relating to opium and coca leaves

and marihuana.—Whoever commits an offense or con-

spires to commit an offense described in part I [§§ 4701-

4736 of this title], or part II [$§ 4741-4762 of this title]

of subchapter A of chapter 39 for which no specific

penalty is otherwise provided, shall be fined not more

than $2,000 and imprisoned not less than 2 or more than

5 years. For a second offense, the offender shall be fined

not more than $2,000 and imprisoned not less than 5 or

more than 10 years. For a third or subsequent offense, the

offender shall be fined not more than $2,000 and impri-

soned not less than 10 or more than 20 years. Upon con-

viction for a second or subsequent offense, the imposition

or execution of sentence shall not be suspended and

probation shall not be granted. For the purpose of this

subsection, an offender shall be considered a second or

subsequent offender, as the case may be, if he previously

has been convicted of any offense the penalty for which

-is provided in this subsection or in section 2 (c) of the

Narcotic Drugs Import and Export Act, as amended (21

U.S.C. 174) [21 § 174], or if he previously has been

convicted of any offense the penalty for which was pro-

vided in section 9, chapter 1, of the act of December

17, 1914 (38 Stat. 789), as amended; section 1, chapter

202, of the act of May 26, 1922 (42 Stat. 596), as

amended [21 §§ 171, 173, 174, 176, 177]; section 12,

chapter 553, of the act of August 2, 1937 (50 Stat. 556),

as amended; or sections 2557 (b) (1) or 2596 of the

Internal Revenue Code enacted February 10, 1939 (ch.

A-5

2, 53 Stat. 274, 282), as amended. After conviction, but

prior to pronouncement of sentence, the court shall be

advised by the United States attorney whether the con-

viction is the offender’s first or a subsequent offense. If

it is not a first offense, the United States attorney shall

file an information setting forth the prior convictions.

The offender shall have the opportunity in open court

to affirm or deny that he is identical with the person

previously convicted. If he denies the identity, sentence

shall be postponed for such time as to permit a trial before

a jury on the sole issue of the offender’s identity with the

person previously convicted. If the offender is found by

the jury to be the person previously convicted, or if he

acknowledges that he is such person, he shall be sentenced

as prescribed in this subsection.

(b) Unlawful disclosure of information on returns or

order forms.—Any person who shall disclose the informa-

tion contained in the statements or returns required under

section 4732 (b) or in the duplicate order forms required

in section 4705(e), except as expressly provided in sec-

tion 4773, and except for the purpose of enforcing the

provisions of part I of subchapter A of chapter 39

[$§ 4701-4736 of this title], or for the purpose of enforc-

ing any law of any State or Territory or the District of

Columbia, or any insular possession of the United States,

or ordinance of any organized municipality therein, regu-

lating the sale, prescribing, dispensing, dealing in, or dis-

tribution of narcotic drugs, shall, on conviction, be fined

or imprisoned as provided by subsection (a) of this

section. (Aug. 16, 1954, c. 736, 68A Stat. 860; Jan. 20,

1955, c. 1, 69 Stat. 3.)

B-1

APPENDIX B

NOS. 76-2560, 76-4350.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT.

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

¥,

Douglas W. ALBERT, Bennard D. Jackson, Gilbert

Gonzalez, Jesse C. Smith, John J. Davis and

Richard Y. Garcia,

Defendants-A ppellants.

May 21, 1979.

Appeals from the United States District Court for the

Southern District of Texas.

Before GODBOLD, SIMPSON and GEE, Circuit

Judges.

GODBOLD, Circuit Judge:

The defendants were charged in an eight-count indict-

ment with conspiring to deprive United States citizens of

guaranteed rights, 18 U.S.C. § 241, depriving persons

of property without due process of law and under color

of state law, 18 U.S.C. § 242, and filing false income

tax returns, 26 U.S.C. § 7206(1). Each was convicted

B-2

by a jury on one or more counts.’ All appeal. We affirm

all convictions.

The facts

All defendants were members of the Narcotics Division

of the Houston Texas Police Department. The evidence

at trial supported the following version of the facts. In

the spring and summer of 1972 defendants and others’

participated or aided in placing and monitoring unlawful

wiretaps on telephone lines to gain information about

drug traffic in Houston. These wiretaps revealed that a

sale of marijuana was to take place in Houston in July

1972 between Geronimo Torres, a Houston seller, and

Charles Jacobs, a Michigan buyer. It was also learned

that John Huston of Michigan was to transport the mari

juana from Houston to Michigan.

The transfer of the marijuana took place in a motel in

Houston. Jacobs gave Huston about $300 for his ex-

penses, and Huston left the motel in a car containing the

marijuana. Jacobs also gave Torres $900 as a final pay-

ment on the marijuana. After these transactions Jacobs

had approximately $9,000 in cash on his person.

Jacobs and Torres remained at the motel after Huston

departed. Soon thereafter witness Avila and defendant

1. All were found guilty of conspiracy. Also, Albert, Jackson,

Gonzalez and Smith were found guilty of deprivation of property

without due process and under color of state law, and Albert, Gon-

zalez and Smith were found guilty of filing false income tax returns.

2. Carlos Avila and Antonio Zavala were also indicted but pleaded

guilty to other crimes and testified for the government at the trial

of these defendants. Michael Chavez entered a plea of guilty in

another case, was not indicted in the present case, and was a govern-

ment witness. Avila, Zavala, and Chavez were all members of the

Narcotics Division during the time the offenses charged took place.

B-3

Jackson appeared at the motel room of Torres and

Jacobs, identified themselves as police officers and en-

tered. A short time later defendant Albert arrived at the

room.’ Torres and Jacobs were then beaten by one or

more of the officers. Avila took the $900 Torres had

and later divided it with witness Chavez. Jackson seized

Jacobs’ cash and gave it to Albert. No report was made

of the seizure of this money. It was not included on

property receipts given to Jacobs and Torres, and it was

never returned.

Huston was stopped shortly after leaving the motel

by persons identifying themselves as Houston police

officers. He too was beaten and the $300 he had was

seized and has never been accounted for or returned.

After Jacobs, Torres, Huston and the confiscated mari-

juana had been taken to the police station, witnesses

Aliva and Zavala and defendants Albert, Jackson and

Gonzalez prepared a list of the officers who had par-

ticipated in the investigation and how much of the stolen

money from the raid each was to get.* The money was

then divided.

These prosecutions followed.

The fo'lowing alleged trial errors require discussion:

(1) denial of motion for continuance, (2) denial of

speedy trial, (3) admission of testimony of a prior

crime of defendant Gonzalez, (4) admission of a tape

recording as a prior consistent statement of a govern-

3. The evidence shows that other, unidentified officers may have

come into the motel room at some time while Torres and Jacobs

were being beaten and arrested and while the money was being taken.

4. Other, unidentified officers may have participated in making

this list.

B-4

ment witness, (5) outside communication with the jury.

Other claims of error—sequestration of the jury, lack of

evidence to support convictions of defendants Garcia and

Davis, and reversible cumulative error—do not merit

discussion.

(1.) Denial of continuance

Defendants moved for a continuance based on the

illness of prospective defense witness Sgt. Robert Hos-

ford of the Houston Police Department, defendants’

immediate superior.

[1-3] The denial of a continuance is within the dis-

cretion of the trial judge, e. g., Ungar v. Sarafite, 376

U.S. 575, 84 s.Ct. 841, 11 L.Ed.2d 921 (1964); U.S. v.

Sahley, 526 F.2d 913 (CA 5, 1976); U. S. v. Gidley,

527 F.2d 1345 (CA 5, 1976); U. S. v. Ruiz, 533 F.2d

939 (CA 5, 1976), and will be disturbed on appeal

only on a clear showing of abuse of discretion by the

trial court, e. g., U. S. v. Moriarity, 497 F.2d 486 (CA

5, 1974); U. S. v. Harper, 505 F.2d 924 (CA 5, 1974).

Whether a trial court has abused this discretion is decided

on a case-by-case basis in light of the circumstances.

Ungar; McKinney v. Wainwright, 488 F.2d 28 (CA 5,

1974); U. S. v. Uptain, 531 F.2d 1281 (CA 5, 1976).

Of particular importance are the reasons for continuance

presented to the trial court. Ungar & Uptain. A request

for continuance should be advanced with all specificity

and detail feasible under the circumstances and presented

as early as possible. Uptain.

[4] In the present case there has been no showing

of an abuse of discretion. Although Hosford suffered a

stroke on December 18, 1975, the motion for continuance

B-5

was not filed until February 11, 1976, only six days

before trial was set to begin. To delay what was foreseen

to be, and indeed was, a long and complex trial so close

to its beginning required a showing to the trial court of

strong reasons. Defendants in their motion stated only

that Hosford’s testimony was “material and relevant” and

that he was the only witness capable of presenting

“material evidence.” Because these were the only reasons

given they took on special significance. Ungar. The trial

court found that because of the paucity of information

contained in the conclusory assertions of the motion,

it was unable to determine whether Hosford’s testimony

would be material, whether it would be substantially

favorable to defendants, whether it would be corrobora-

tive or cumulative, and whether it could be obtained

through other witnesses or other sources.

The defendants made no representation concerning

when Hosford would be able to testify except that he

“should be available in the near future” and that he

was “steadily improving.”® The trial court found, on

the basis of these statements, that it could not evaluate

when Hosford would be available to testify. Thus, de-

fendants made no sufficient showing that Hosford vould

be able to testify if a continuance was granted. See Black-

well v. U. S., 405 F.2d 625 (CA 5, 1969). The prose-

cution offered to stipulate to the substance of Hosford’s

testimony by direct stipulation of fact and by stipulated

admission of portions of Hosford’s testimony in prior

related proceedings. In addition, the prosecution offered

to cooperate in taking Hosford’s deposition. Defendants

refused these offers. While defendants were not compelled

5. Appellants tell us that Hosford would have been able to

testify in July, 1976, but this is with the benefit of hindsight.

B-6

to accept the offers, the possibility of these alternative

sources for the testimony Hosford would have given may

be taken into account in determining whether a delay

was justified.

[5] The defendants review the trial record and point

to testimony which, they say, demonstrates the sig-

nificance of Hosford as a witness. But the trial court can-

not be put in error for matters not made known to it

when the motion was presented.

The court did not abuse its discretion in declining to

grant a continuance.

(2.) Speedy trial

Defendants maintain that the indictments should have

been dismissed for delays between indictment and ar-

raignment and between arraignment and trial, violative

of the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161

et seq., and the Rule 50(b) Plan for the United States

District Court for the Southern District of Texas for

Achieving Prompt Disposition of Criminal Cases. The

district court did not err in failing to dismiss the indict-

ments.

The indictments were returned May 31, 1974. De-

fendants were arraigned October 31, 1975, and trial be-

gan February 17, 1976.

[6] Since indictment, arraignment and trial all oc-

curred before July 1, 1976, the time limitations of the

Speedy Trial Act of 1974, 18 U.S.C. § 3161(c), do not

apply.° 18 U.S.C. § 3163(b); U. S. v. Garza, 547 F.2d

1234 (CA 5, 1977).

6. Defendants ailege that, because they were designated as high

risk defendants by the government, the interim requirements of

B-7

The Rule 50(b) Plan in effect at the time in question

required that arraignment occur within 30 days of indict-

ment and that trial take place within 90 days of the

arraignment for high risk defendants.’

Seventeen months elapsed between indictment and ar-

raignment. However, most of this time was spent pursuing

an interlocutory appeal to this court to determine whether

defense attorneys should be disqualified for conflict of

interest. It was the duty of the prosecution to call at-

tention to the possible existence of a conflict of interest.

The trial judge ruled that there was a fatal conflict, but

this court reversed. U. S. v. Garcia, 517 F.2d 272 (CA

5, 1975). Three and one-half months passed between

arraignment and trial. Trial had been set for early Jan-

uary 1976, but was moved to February 18 because of

an earlier trial still in progress before the original trial

judge and because of that judge’s poor health.

[7, 8] Rule 50(b) plans are “not inflexible and non-

compliance therewith does not automatically result in

dismissal.” U. S. v. Maizumi, 526 F.2d 848 (CA 5,

1976); see also, U. S. v. Garcia, 553 F.2d 432 (CA 5,

1977); U. S. v. Bloom, 538 F.2d 704 (CA 5, 1976):

U. S. v. Atkins, 528 F.2d 1352 (CA 5, 1976); U.S. v.

Pena, 527 F.2d 1356 (CA 5, 1976); U.S. v. Clendening,

§ 3164 of the Speedy Trial Act applies to them requiring that they

be tried within 180 days of July 1, 1975. However, § 3164 deals

with the custodial situation of defendants awaiting trial and has no

provision for dismissal of indictments if its limitations are exceeded.

7. This plan went into effect September 9, 1975, between in-

dictment and arraignment. The previous plan had limits of 45 days

between indictment and arrignment and 90 days between indictment

and trial.

B-8

526 F.2d 842 (CA 5, 1976). A 50(b) plan is “not in-

tended to impose arbitrary or impractical penalties on

the system of criminal justice it seeks to expedite.”

U. S. v. Rodriguez, 497 F.2d 172 (CA 5, 1974).

[9] The delay between the end of the interlocutory

appeal and arraignment was short,* and the delay beyond

the plan limit between arraignment and trial was only

18 days. Given the complexity of this case and the

multiplicity of defendants,’ the short period by which the

50(b) plan time was extended, and the reasons for the

extensions,’® the district court was not in error in re-

fusing to dismiss the indictment because of non-compli-

ance with the 50(b) plan.

(3.) Evidence of prior criminal activity

The court allowed testimony by Chavez, an unindicted

coconspirator and government witness, and formerly an

officer in the Narcotics Division, see n.2, supra, concern-

ing events that occurred in 1969 or 1970 involving de-

fendant Gonzalez. Chavez testified that, as a result of use

of an illegal wiretap, a pound of heroin was seized from

a suspect. It was brought to Chavez by officers Zavala,

see n.2, supra, and Collins. Chavez turned the heroin

over to an informer who gave Chavez $8,000 in return.

Chavez met Gonzalez, Zavala and Collins at a ballroom

and “sliced the pie” with them by giving each $2,000.

8. The Fifth Circuit mandate was filed in the district court

September 2, 1975, and arraignment was October 31, 1975.

9. See U. S. v. Bloom, supra.

10. Several cases also note that the docket for the District Court

for the Southern District of Texas has been exceptionally crowded

which is to be considered in determining reasonableness of delay.

E. g., Bloom, Pena, Clendening, Rodriguez.

B-9

Chavez acknowledged that his receipt of the heroin was

“theft of heroin from a narcotics suspect.” (Counsel for

defendants objected to Chavez’s testimony on the ground

that it related to an extraneous offense. The objection

was overruled, and no limiting instruction was requested.

[10] We examine the admissibility of the testimony

under the standards of U. S. v. Beechum, 582 F.2d 898

(CA5, 1978) (en banc) cert. denied, __. U.S. ___, 99

S.Ct. 1244, 59 L.Ed.2d 472 (1979). We conclude that

it was admissible against Gonzalez under F.R.Evid. 404

(b) for the purpose of showing that in 1972 he and

other police officers were involved in a scheme to de-

prive narcotics offenders in Houston of their property

through the use of wiretaps.’ For this purpose, the dis-

trict judge could find that the evidence of the 1969

scheme was relevant under Rule 401. He could find that

there was sufficient evidence for the jury to conclude

that Gonzalez in fact participated in the 1969 offense.

And, under Rule 403, he could find that the probative

value outweighed the danger of undue prejudice to

Gonzalez. In this connection we must consider the gov-

ernment’s need for the evidence. Its case rested upon testi-

mony of narcotics offenders whose money had been taken

and who had been beaten, and of other officers involved

who had pleaded guilty pursuant to plea bargains or had

been convicted of committing perjury before the grand

jury. The government did not have so strong a case that

a case that the incremental value of Chavez’s testimony

was slight. The probative value of the extrinsic offense

11. Discussion at trial centered on admissibility to show “intent.”

But defendants were not mislead by this because the limiting instruc

tions, requested later, included motive, intent, scheme, design and

propensity.

B-10

evidence was strong because of the high degree of simi-

larity between the two occurrencs. In both, wiretaps

were used, officers of the Houston Police Department

were participants, money or property was mulcted from

narcotics offenders, and police officers split the “take.”

Finally, the two events were not too temporally remote,

one in 1969 or 1970, the other in 1972.”

[11] Several days after the testimony was admitted

defense counsel filed written requests for jury instructions.

Included was an instruction limiting testimony concern-

ing the 1969 events to the purpose of showing Gonzalez’s

“motive, intent, scheme and design and propensity to

participate” in the conspiracy charged in the indictment,

and instructing that the 1969 events were not to be con-

sidered at all with respect to the other defendants. Pre-

termitting the untimeliness of the request, while this

charge contained correct elements the court did not err

in refusing it because it was internally inconsistent and

misleading. In addition to what we have already de-

scribed it said: “You are not to concern yourself with

the question of whether or not the defendant Gilbert

Gonzalez participated in said criminal offense or is any-

way guilty of the alleged sale of heroin in 1969.” Gon-

zalez’s participation in the 1969 offense was the whole

point of the collateral offense matter.

[12] The defendants other than Gonzalez assert that

even if Chavez’s testimony was admissible against Gon-

zalez it was not admissible against them, and the jury

should have been so instructed. We agree that evidence

of Gonzalez’s prior misdeeds, occurring before the

12. In U.S. v. Kirk, 528 F.2d 1057 (CA 5, 1976), three years

was held not too remote.

B-11

charged conspiracy began, was not even “relevant” to

these other defendants under Rule 401. The limiting in-

struction belatedly requested was flawed, as already de-

scribed. Also, since the Chavez testimony only related

to Gonzalez, and none of the other defendants was men-

tioned in connection with it or during the time frame

covered by it, the contention that the jury would con-

sider it at all with respect to the other defendants is some-

what attenuated. Also, elsewhere in his charge, the judge

instructed that in determining whether a particular de-

fendant was a member of the conspiracy, if any, the jury

should consider only his acts and statements, and that

he could not be bound by the acts or declarations of

other participants until it was established that a con-

spiracy existed and that he was one of its members. We

hold that there was no reversible error as to these other

defendants.

(4.) Admission of tape recording

[13] The trial court allowed into evidence a tape

recording between government witness Chavez and a

drug dealer, portions of which corroborated Chavez’s

trial testimony. Defendants urge that this was inadmissible

hearsay. The trial court admitted the tape under Fed.R.

Evid. 801(d)(1)(B)** as a prior consistent statement

used to rehabilitate a witness who has been attacked for

13. ‘Statements which are not hearsay.

A statement is not hearsay if—

(1) Prior statement by witness. The declarant testifies at the

trial or hearing and is subject to cross-examination concerning

the statement and the statement is... .

(B) consistent with his testimony and is offered to rebut an

express or implied charge against him of recent fabrication or

improper influence or motive. . . .”

B-12

recent fabrication of his testimony or improper motiva-

tion for his testimony.

The trial court did not err. Chavez testified and under-

went vigorous cross-examination. The content of the tape

was consistent with his testimony at trial. There may be

some doubt whether express charges of improper motive

or recent fabrication were made, but the defense at-

torney, during his cross-examination of Chavez, implied

improper motive or recent fabrication. Several times the

defense brought out that it was not until an arraignment

was worked out between the government and Chavez on

charges against him that he agreed to testify against the

defendants.

[14] Defendants also say that the tape was inadmissible

because the government did not show, other than by the

testimony of Chavez, that the tape was authentic and

had not been tampered with.

Rule 901 of the Federal Rules of Evidence provides

in part:

(a) General provision—The requirement of au-

thentication or identification as a condition precedent

to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what

its proponent claims.

(b) Illustrations—By way of illustration only,

and not by way of limitation, the following are

examples of authentication or identification conform-

ing with the requirements of this rule:

(1) Testimony of witness with knowledge.—

Testimony that a matter is what it is claimed to be.

iti taiisciecittariiessisti ori Pein 6 . tiie he

B-13

(5S) Voice identification.—lIdentification of a

voice, whether heard firsthand or through mechan-

ical or electronic transmission or recording, by

opinion based upon hearing the voice at any time

under circumstances connecting it with the alleged

speaker.

Further, a trial judge may admit physical evidence if he

is satisfied that in reasonable probability the article has

not been changed in any important respect from its

original condition. E. g., U.S. v. Daughtry, 502 F.2d

1019 (CA 5, 1974); U.S. v. Brown, 482 F.2d 1226

(CA 8, 1973); Gallego v. U.S., 276 F.2d 914 (CA 9,

1960); Wigmore, Evidence 3d ed., § 437(1)."

[15] Here, Chavez identified the voices on the tape

and stated that the conversation on the tape was the one

he had conducted with the drug dealer at the time the

recording was made. This testimony by Chavez meets

the admissibility requirement of Rule 901. Chavez was

available for and was put through cross-examination con-

cerning his identification of the voices and the conversa-

tion on the tape. Any doubts the defendant may have

raised about his identification went to the weight and not

the admissibility of the tape.

(5.) Communications with Jury

Early in the first full day of jury deliberation, two

Assistant United States Marshals made statements to

14. Factors to be considered in making this decision include the

nature of the article, the circumstances surrounding its custody, and

the likelihood of others tampering with it. U.S. v. Daughtry, 502 F.2d

1019 (CA 5, 1974); U.S. v. Brown, 482 F.2d 1226 (CA 8, 1973).

B-14

members of the jury to the effect that “it shouldn’t take

you long to reach a verdict in this case” and “we were up

early so we could get through today.” Upon learning of

these communications, the Marshal’s Service had the

foreman of the jury investigate the matter, take statements

from other jurors and make a written report to the

Marshal’s Service. This report was given to the trial court

the next day. Following the verdict a full-scale hearing

was held on this incident and the trial court found that

these communications had not been harmful and denied

defendant’s motion for new trial based on this occurrence.

[16, 17] Prejudicial private communications, between

jurors and third persons are, or course, prohibited. E. g.

Mattox v. U.S., 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed.

917 (1892); Remmer v. U.S., 350 U.S. 377, 76 S.Ct.

425, 100 L.Ed. 435 (1956); Tillman v. U.S., 406 F.2d

930 (CA 5, 1969). However, if, by means of a hearing

or other investigation by the trial court, the private com-

munications are shown to be harmless, a new trial is not

required. Id. The granting of a new tiral because of out-

side contacts with the jury is left largely to the discretion

of the trial court. Jd.; U.S. v. Khoury, 539 F.2d 441

(CA 5, 1976).

In the present case, a complete hearing was held on

the outside communications to the jury and whether this

contact had been harmful to the defendants. After the

hearing the trial judge decided that the defendants had

not been prejudiced by the remarks to some of the jurors.

According to the trial judge the reasons for this con-

clusion were: the remarks did not relate to the evidence

and did not indicate the Marshal’s view of the evidence;

the remarks were made in jest; and after the statements

the jury deliberated for nearly three days. The lower court

B-15

also found the actions of the Marshal’s Service after

learning of the incident were the result of commendable

caution.

[18] Because the record indicates that this contact with

the jury was not an egregious breach of the jury’s time-

honored and much-needed privacy and isolation and be-

cause the trial court has wide discretion in this matter

and exercised its discretion only after a thorough inves-

tigation and because there were substantial reasons for the

trial court’s decision, we find that the trial court did not

abuse its discretion in refusing to grant a new trial be-

cause of improper statements to some jurors.

Newly discovered evidence

[19] In a separate, consolidated appeal defendants ask

for reversal of the district court’s denial of a second

motion for new trial based on newly discovered evidence.

Defendants contend that witness Zavala in a statement to

the Houston news media contradicted testimony he had

given at trial concerning the existence of an agreement

between him and the prosecution promising no prison

term if he testified against defendant. The trial court

found that it had disposed of this contention at a hearing

on an earlier motion for new trial. The denial of a motion

for new trial is within the discretion of the trial court.

E. g., Montgomery Ward v. Duncan, 311 USS. 243, 61

S.Ct. 189, 85 L.Ed. 147 (1940); Harris v. Whiteman,

243 F.2d 563 (CA 5, 1957), rev’d on other grounds 356

U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958). This

discretion was not abused.

The convictions of all defendants are AFFIRMED.

C-]

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CRIMINAL NO. 74-H-159

UNITED STATES OF AMERICA

Vv.

ANTONIO V. ZAVALA

GILBERT GONZALEZ

DELBERT D. COLLINS

INDICTMENT

THE GRAND JURY CHARGES:

Count One

That from on or about October 1, 1969, and con-

tinuing to on or about November 1, 1969, in the Houston

Division of the Southern District of Texas, and within

the jurisdiction of this Court, ANTONIO V. ZAVALA,

GILBERT GONZALEZ, and DELBERT D. COLLINS,

the defendants and conspirators herein, willfully and

knowingly did combine, conspire, confederate, and agree

together, with each other, and with Michael E. Chavez,

a conspirator, not named as a defendant herein, and with

other persons to commit the following offense against

the laws of the United States of America, to-wit: to re-

ceive, conceal and sell and facilitate the concealment and

sale of a quantity of a narcotic drug, to-wit: Heroin,

after being imported and brought into the United States,

C-2

knowing the same to have been imported and brought

into the United States contrary to law and in violation of

Title 21, United States Code, Section 174.

That said combination, conspiracy, confederation and

agreement was substantially as follows:

That a quantity of Heroin would be seized from a

narcotics trafficker.

That conspirators would fail and refuse to properly

receipt for and inventory the seized Heroin and to turn

the said Heroin into the Houston Police Department

at Houston, Texas.

That conspirators would cause the Heroin to be sold.

That conspirators would divide the proceeds from

the sale of Heroin among themselves.

That pursuant to and for the purpose of Carrying out

the said combination, conspiracy, confederation and

agreement, and to effectuate the objects thereof, the fol-

lowing and other overt acts were committed within the

Houston Division of the Southern District of Texas and

elsewhere:

OVERT ACTS

1. That on or about October 15, 1969, a quantity of

Heroin was seized by ANTONIO V. ZAVALA, in Hous-

ton, Texas, from a narcotics trafficker.

2. That on or about October 15, 1969, ANTONIO

V. ZAVALA, GILBERT GONZALEZ and DELBERT

D. COLLINS caused the Heroin to be delivered in

Houston, Texas, to Michael E. Chavez for sale.

C-3

3. That on or about October 18, 1969, Michael E.

Chavez caused the Heroin to be sold in Houston, Texas.

4. That on or about October 20, 1969, ANTONIO

V. ZAVALA, GILBERT GONZALEZ, DELBERT D.

COLLINS and Michael E. Chavez divided the proceeds

from the sale of Heroin in Houston, Texas, among them-

selves.

(Violation: Title 21, United States Code, Section 174)

Count Two

That on or about October 15, 1969, in the Houston

Division of the Southern District of Texas, and within

the jurisdiction of this Court, ANTONIO V. ZAVALA,

GILBERT GONZALEZ and DELBERT D. COLLINS

knowingly and intentionally did receive, conceal and sell,

and did knowingly and intentionally facilitate the con-

cealment and sale of a narcotic drug after being imported

and brought into the United States, knowing the same

to have been imported and brought into the United States

contrary to law, to-wit: approximately sixteen (16)

ounces of Heroin.

(Violation: Title 21, United States Code, Section 174

and Title 18, United States Code, Section 2)

Count Three

That on or about October 18, 1969, in the Houston

Division of the Southern District of Texas, and within

the jurisdiction of this Court ANTONIO V. ZAVALA,

GILBERT GONZALEZ, and DELBERT D. COLLINS

did unlawfully, knowingly and willfully sell and distrib-

ute and did unlawfully, knowingly, and willfully cause to

C-4

be sold and distributed a narcotic drug, to-wit: approxim-

ately sixteen (16) ounces of Heroin, which said narcotic

drug was sold, distributed and caused to be sold and

distributed by the said ANTONIO V. ZAVALA, GIL-

BERT GONZALEZ, and DELBERT D. COLLINS, not

in or from the original stamped package and did not

have attached thereto the appropriate tax paid stamps,

as required by law.

(Violation: Title 26, United States Code, Sections 4704

and 7237 and Title 18, United States Code, Section 2)

Count Four

That on or about April 12, 1970, in the Houston Divi-

sion of the Southern District of Texas, and within the

jurisdiction of this Court, ANTONIO V. ZAVALA, de-

fendant, a resident of Houston, Texas, did willfully and

knowingly make and subscribe his Form 1040, income

tax return, for the calendar year 1969, which was verified

by a written declaration that it was made under the penal-

ties of perjury and was filed with the Internal Revenue

Service, which said Form 1040 he did not believe to be

true and correct as to every material matter, in that the

said Form 1040 did not disclose the fact that the defend-

ant had received gross income from the sale of Heroin,

whereas, as he then and there well knew and believed,

he had received gross income from the sale of Heroin.

(Violation: Title 26, United States Code, Section 7206

(1))

Count Five

That on or about March, 1970, in the Houston Division

of the Southern District of Texas, and within the juris-

C-5

diction of this Court, GILBERT GONZALEZ, defend-

ant, a resident of Houston, Texas, did willfully and

knowingly make and subscribe his Form 1040, income

tax return, for the calendar year 1969, which was verified

by a written declaration that it was made under the

penalties of perjury and was filed with the Internal

Revenue Service, which said Form 1040 he did not be-

lieve to be true and correct as to every material matter,

in that the said Form 1040 did not disclose the fact that

the defendant had received gross income from the sale

of Heroin, whereas, as he then and there well know and

believed, he had received gross income from the sale of

Heroin.

(Violation: Title 26, United States Code, Section 7206

(1))

A TRUE BILL:

Foreman of the Grand Jury

ANTHONY J. P. FARRIS

United States Attorney

By:

RONALD J. WASKA

Assistant United States Attorney

D-1

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA

V.

»

DELBERT D. COLLINS

GILBERT GONZALEZ

‘h

CRIMINAL NO. 74-H-159

Filed July 12, 1976

DEFENDANTS’ MOTION TO DISMISS THE

INDICTMENT ON THE GROUNDS THAT

THE PROSECUTION IS BARRED BY THE

STATUTE OF LIMITATIONS UNDER

TITLE 18, SECTION 3282

Come now, Defendants, Gilbert Gonzalez and Delbert

D. Collins, by and through their attorney of record, and

file this their Motion to Dismiss the Indictment on the

Grounds that the Prosecution is Barred by the Statute

of Limitations under Title 18, Section 3282 and as

grounds for same would respectfully show unto the Court

the following:

I.

The Defendants stand charged by indictment with the

offense of possession with intent to distribute a narcotic

drug, to-wit: heroin, in violation of Title 26, United States

Code, Sections 4704 and 7237; Title 18, United States

D-2

Code, Section 2; and Title 21, United States Code, Sec-

tion 174 in that from October 1, 1969 to November a

1969, that these two defendants and others had entered

into a conspiracy to participate in the offense charged.

It is specifically alleged that the heroin was taken on or

about October 15, 1969, that it was distributed on or

about October 18, 1969 and that the proceeds were

subsequently split up between Gonzalez, Collins, Antonio

V. Zavala and Michael Chavez on or about October

20, 1969.

In the trial of Criminal No. 74-H-158, Michael Chavez

testified in essence as stated above and was emphatic and

specific in that the proceeds from the sale of the heroin

were divided among the co-conspirators on or about

October 20, 1969 at Van’s Ballroom, 2020 Kipling in

Houston, Harris County, Texas. The other co-conspirator,

Antonio V. Zavala, also testified that he received his

money from the proceeds of the sale of the heroin at

Van’s Ballroom at the same address but that the De-

fendants, Collins and Gonzalez, were not present. Zavala’s

testimony also differs from Chavez in the material respect

that the transaction between Chavez and Zavala did not

occur in October, 1969, but moreover, occurred in late

March, 1969.

IIT.

Chavez’s testimony is untrue and physically impossible

in that Van’s Ballroom at the above address was com-

pletely destroyed by fire in the early morning hours of

August 1, 1969. This establishes first that the charges

in the indictment cannot now be supported by the evi-

dence; secondly, that if it occurred at all, it occurred at

D-3

sometime other than alleged in the indictment and in any

case that would had to have been prior to August 1, 1969.

The indictment in this cause was returned on May 31,

1974 which is clearly more than five years from the

date of Zavala’s recollection of the transaction between

he and Chavez. The irreconcilable conflict between the

alleged co-conspirators as testified in Criminal No. 74-

H-158 establishes conclusively that, if in fact the alle-

gations contained in the instant indictment are true, that

they did not and could not have occurred on the dates

alleged in the indictment. The indictment in this cause

Should be dismissed on the grounds that first if the trans-

action, which the Defendants herein maintain only took

place between Chavez and Zavala alone occurred at

all, it happened in late March, 1969, clearly outside the

statutes of limitation. Secondly, the indictment should be

dismissed on the grounds that the sworn testimony of the

Government’s witness Chavez clearly establishes, when

taken in conjunction with the destruction of Van’s Ball-

room by the fire on August 1, 1969, conclusively, that

if it was in fact a conspiracy, it had to occur prior to

August 1, 1969 and thereby the Government’s evidence

if given the weight most favorable to the Government

could not support the allegations contained in this indict-

ment since they are clearly too far removed to sub-

stantiate an “on or about” indictment beginning on Octo-

ber 1, 1969.

IV.

An indictment alleging violations within the statute of

limitations period cannot be supported by evidence of

wrongdoing outside the statute of limitations and under

such a set of circumstances the indictment is void. It is sub-

D-4

mitted that the irrefutable proof of the physical fact of

the destruction of Van’s Ballroom by the fire clearly

establishes the Government’s untenable position of being

able to support the allegations of a conspiracy during the

month of October, 1969. The only other evidence to

support a date of the split of the funds between Chavez

and Zavala for the sale of the heroin is by Zavala in

that he recalls that it was a few days after the arrest of

Louis Gonzalez on March 22, 1969.

WHEREFORE, PREMISES CONSIDERED, the De-

fendants pray that this Honorable Court grant them a

hearing in which evidence to support the allegations con-

tained in this Motion to Dismiss may be produced and

upon a hearing thereafter, they would respectfully move

that this Court dismiss this indictment as void on the

grounds that the prosecution thereof is barred by the

statute of limitations under Title 18, Section 3282 and

in the alternative that the irreconcilable conflict of the

Government witnesses Zavala and Chavez in conjunction

with the undeniable physical fact that the destruction of

Van’s Ballroom by fire on August 1, 1969 places the

proof of the conspiracy against the Defendants, if any,

clearly outside the confines of the allegations contained

in the indictment and that the evidence, if any, would

D-5

not support a conviction hereunder and should in all

things be dismissed.

Respectfully submitted,

JAMES A. MOORE

Attorney At Law, Inc.

By /s/ JAMES A. MOORE

James A. Moore

Attorney for Defendants

2010 North Loop West, Suite 125

Houston, Texas 77018

(713) 688-9581

teint

E-1

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA

v.

DELBERT D. COLLINS

GILBERT GONZALEZ

CRIMINAL NO. 74-H-159

Filed July 12, 1976

ORDER

On the 12th day of July, 1976, came on to be heard

Defendant’s Motion to Dismiss the Indictment on the

Grounds that the Prosecution is Barred by the Statute

of Limitations under Title 18, Section 3282, and the

Court, after considering same, grants said Motion and

said Indictment is in all things DISMISSED.

It is further ORDERED that the Clerk of the United

States District Court deliver a certified copy of this Order

to the United States Marshal for the Southern District

of Texas.

DONE at Houston, Texas, this the 12th day of July,

1976.

/s/ ROSS N. STERLING

United States District Judge

F-]

APPENDIX F

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

July 2, 1979

Edward W. Wadsworth Tel. 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

CORRECTED

TO ALL PARTIES LISTED BELOW:

NOS. 76-2560 & 76-4350—U. S. A. v. DOUGLAS

W. ALBERT, ET AL.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing, and

no member of the panel nor Judge in regular

active service on the Court having requested that

the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/ JULIE HARRISON

Deputy Clerk

cc: Mr. James A. Moore

Mr. Ray B. Martin

Mr. James R. Gough