# Petition — Albert v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 963

## Text

~ 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,

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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.

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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

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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-

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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

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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-

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0698%3A1. Public record. Not legal advice.