Petition — Houde v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 9-462

TIMOTHY RICHARD HOUDE and

BARRY ALAN LABRECQUE,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOSEPH (SIB) ABRAHAM, JR.,

CHARLES LOUIS ROBERTS,

Attorneys for

TIMOTHY RICHARD HOUDE and

BARRY ALAN LABRECQUE,

Petitioners

505 Caples Building

El Paso, Texas 79901

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - $04/822-1611

TABLE OF CONTENTS

Page

ee iirc sev ekececcccsacces i

Pg SR i Se Se ii

Citations to Opinions Below ..............e0005: 2

EE SLI STREET EE CTT 2

De ee. acess nee seees 2

Constitutional and Statutory

I dacs ks icp ewscdccccvccccce 3

Ea cb S Sess dese teccccccces 4

Reasons Why the Writ Should be Granted ....... 15

Conclusion and Prayer. UGE kha ered 65409009. 25

Cg cieeccs ccnecacvcicnconnes 26

Appendix A — Opinion of the United States

Court of Appeals for the Fifth Circuit, Unit-

ed States v. Houde, 596 F.2d 696 (Sth Cir. 1979) .... la

Appendix B — Order of the United States

Court of Appeals for the Fifth Circuit deny-

SOE ee ee 20a

ii

TABLE OF AUTHORITIES

Page

A. Duda and Sons Coop. Ass'n. v. United States, 504

Poe Te GAT: BOUUE vo ckas ence cases vsece 25

Cooper v. United States, 594 F.2d 12 (6th Cir.

NT <5 0 wdea ee Se AL AS ae Del GO ep LI, 18,20

Imbler v. Pachtman, 424 U.S. 409 (1976) ..... mites 18

Jackson v. Denno, 378 U.S. 368 (1964) .......... 19,24

Santobello v. New York, 404 U.S. 257 (1971) ..... 17,18

Spano v. New York, 360 U.S. 315 (1959) ........ 19,23

United States v. Barket, 530 F.2d 189 (8th Cir.

EE Sa os Oecchcs cau swa sa Lecter ee 25

United States v. Gonzales, 548 F.2d 1185 (Sth Cir

BOF) 25a iets welt a rained oes A cece wes 24

United States v. Houde, 596 F.2d 696 (Sth Cir.

ME ech chaeeda te oeacs te eh etent es 15,17,24,25

United States v. Millet, 559 F.2d 253 (5th Cir.

1977) . Cette eee eee eeeeeeeeeeseeseee tenes 17

United States v. Nobles, 422 U.S. 225 (1975) ....... 22

United States v. Roybal, 566 F.2d 1109 (9th Cir.

NR et tg tans 22

United States v. White, 569 F.2d 269 (Sth Cir.

TE en cap eceese sabes 16

- a le

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

TIMOTHY RICHARD HOUDE and

BARRY ALAN LABRECQUE,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, TIMOTHY RICHARD HOUDE

and BARRY ALAN LABRECQUE, respectfully pray a

Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding on June 11,

1979.

2

CITATIONS TO OPINIONS BELOW

The United States District Court for the Western

District of Texas, El Paso Division, United States Dis-

trict Judge John H. Wood presiding, entered a judgment

of conviction against the Petitioners herein. This con-

viction was made the subject of an Appeal under 28

U.S.C. §1291 to the United States Court of Appeals for

the Fifth Circuit. The Court of Appeals affirmed on

June 11, 1979. This opinion was reported as United States

v. Houde, 596 F.2d 696 (1979), and reproduced herein as

Appendix A. The Court of Appeals subsequently de-

nied Petitioners HOUDE and LABRECQUE’s Petition

for Rehearing on August 20, 1979. This result was not

reported, but is reproduced herein as Appendix B.

JURISDICTION

The judgment of the United States District Court

was affirmed by the United States Court of Appeals for

the Fifth Circuit. The Court of Appeals denied a Peti-

tion for Rehearing En Banc on August 20, 1979.

Jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1) and Supreme Court Rule 22.

QUESTIONS PRESENTED

1. Whether a Trial Court is required under the prin-

ciples of due process and fundamental fairness to

grant a Continuance or to impose sanctions, or to

3

fashion some other remedy after the Government

intentionally and materially violated a Pre-trial

Discovery Agreement between itself and a crimi-

nal Defendant.

Whether a Trial Court is required under the prin-

ciples of due process and fundamental fairness to

grant a criminal Defendant the opportunity to

place proof of prejudice in the record regarding the

prejudice to his Defense caused by an intentional

and material violation of a Pre-trial Discovery

Agreement by the Government.

Whether an Appellate Court must consider a Trial

Court's stipulation as to the fact that prejudice in-

ured to the Defendant- through the intentional

acts of the Government is breaching a Pre-trial

Discovery Agreement.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The United States Constitution, Amendment V

provides in pertinent part:

No person shall be held to answer for a capital,

or otherwise infamous crime, ... nor be

deprived Sf life, liberty, or property, without

due process of law; ...

The United States Constitution, Amendment VI

provides in pertinent part:

4

In all criminal prosecutions, the accused

shall enjoy the right . . . to beconfronted with

the witnesses against him; to have compul-

sory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel

for his defence.

STATEMENT OF THE CASE

The Petitioners, TIMOTHY RICHARD HOUDE

and BARRY ALAN LABRECQUE, were arrested on

the 26th day of April, 1978, which was the date of the

offenses set forth in the Indictment:

THE GRAND JURY CHARGES:

FIRST COUNT

(21 U.S.C. §846)

That commencing on or about April 1, 1978

and continuously thereafter up to and includ-

ing on or about April 26, 1978, in the Western

District of Texas, Denver, Colorado, and else-

where, Defendants WILLIAM DUDLEY

CONNELL, MARIO CENTENO, TIM-

OTHY RICHARD HOUDE and BARRY

ALAN LA BRECQUE, wilfully, knowingly

and unlawfully conspired, combined, confed-

erated and agreed together and with each

other, and with others whose names to your

grand jurors are unknown, to commit offen-

5

ses against the United States, in violation of 21

U.S.C. §846, that is to say, they conspired to

possess Cocaine, a Schedule II Controlled

Substance, with intent to distribute same con-

trary to 21 U.S.C. §841(a)(1);

* * *

SECOND COUNT

(21 U.S.C. §841(a)(1)

and 18 §2)

1. That on or about April 26, 1978, in

the Western District of Texas, Defendants

WILLIAM DUDLEY CONNELL and BARRY

ALAN LA BRECQUE unlawfully, knowingly

and intentionally distributed a quantity of

Cocaine, a Schedule II Controlled Substance

to Detective Gary Graham, who was acting in

an undercover capacity.

2. Defendants MARIO CENTENO and

TIMOTHY RICHARD HOUDE aided,

abetted, counseled, induced and procured the

commission of the offense alleged above. (RI

1-2)

The record reflects that they were arraigned before a

magistrate on the 27th day of April, 1978, and that a

preliminary hearing was set by the magistrate for May

5, 1978, (RI Docket Sheet). This hearing was never held

because the Government secured an Indictment

6

against the Petitioners on the day before May 4, 1978,

(RI Docket Sheet). On the 12th day of May, 1978, the

Petitioners were arraigned on an Indictment, (RI 1-2),

charging them with intent to distribute (21 U.S.C.

§846) and one count of distributing cocaine (21 U.S.C.

§841); and they received a trial setting for June 5, 1978,

(RI Docket Sheet). Pursuant to their preparation for

trial TIMOTHY RICHARD HOUDE and BARRY

ALAN “SABRECQUE entered into an “Omnibus

Agreement” with the United States of: America, (RII 4-

28), as is the practice in the Western District of Texas.

This Agreement, which contains numerous pro-

visions, committed the parties to the following:

“3(a) The parties agree to exchange all state-

ments [Per 18 U.S.C. §3500(e)] and reports of

‘statements (including written reports in in-

vestigator’s interviews) of all witnesses they

expect to call in its case in chief. If any, will

provide five days prior to trial. (RII 5)

and

14(j) The parties acknowledge that any duty

to disclose imposed herein is a continuing

duty, and that any discoverable evidence or

material becoming known during the pen-

dency of this case will be promptly disclosed to

the opposing party.

ls) CHARLES LOUIS ROBERTS

Attorney for Defendant

ls} JAMES W. KERR, JR.

Attorney for Government”

4 : %

7

On Friday, June 2nd, Defense Counsel called the

Court in San Antonio where he was referred to the

Court’s clerk, Mr. Don Reser, at his residence number.

Defense Counsel notified Mr. Reser that either sanc-

tions or a continuance would be needed because of

gross violations of the pre-trial discovery agreement on

the part of the Government, (RI 29-30, 45).

Before the docket call on Monday, June 5th, Defense

Counsel filed two lengthy sworn motions which set out

in some detail the events and acts relied upon in re-

questing sanctions or acontinuance, (RI 23-39, 40-56).

After filing their motions, the Appellants made the

following announcement at the morning docket call:

MR. ROBERTS: Charles Roberts with Mr.

Abraham for the Defendants, Houde and La-

Brecque, and we are not ready for trial on the

grounds stated in our Motion for Sanctions

and Renewed Motion for Continuance. (RIII

2) ;

The Government contended it was not bound by the

agreement, and admitted that the violation was inten-

tional:

MR. KERR: But that’s the reason is because

that’s one of the conditions under which I got

the statement, that we would keep his

cooperation with the Government secret until

8

the time that it had to be exposed. Omnibus

does not require me to expose all of my wit-

nesses to harassment or to be approached by

anyone who wishes to approach them with a

signed copy of their statements. (RIII 7-8)

After learning that the Court intended to overrule both

the Motion for Sanctions and the Motion for Continu-

ance, Defense Counsel requested an evidentiary hear-

ing on the Motion for Continuance, (RIII 12). In

explaining what he wished to prove at an evidentiary

hearing, Defense Counsel recounted the following

basic facts: (1) That the Government had violated its

agreement with Defense Counsel to supply them with

names and statements of witnesses five days prior to

trial, (RIII 8-11, 13); (2) That the Defense had relied on

this agreement, and thus was not prepared for trial,

(RIII 8-11, 13); and (3) That this lack of preparation was

the result of “purposeful and intentional deceptive

practices of the United States Attorney,” (RIII 13). To

which the Court responded:

THE COURT: I'l overrule the motion,

gentlemen. I'll stipulate that the evidence is

going to show everything you say it will. And]

will agree that that’s what it’s going to show.

Gentlemen, we will proceed to trial. This will

be jury selection No. 1.

Be back at 1 o'clock and we will: ject a jury.

(RII 14)

9

The Assistant United States Attorney, Mr. KERR, did

not indicate any objection to this stipulation, nor to this

resolution of the matter, (RIII 14). Subsequently, the

jury was picked and sworn (RIII 45-46), and, shortly

thereafter, the United States made its opening state-

ment, (RIII 46, 53).

At trial, the Government began its case with the two

witnesses WILLIAM DUDLEY CONNELL and Miss

JODY LIGGIN, whose statements were withheld from

Defense Counsel. Their testimony, which formed the

bulk of the Government's case, was as follows:

1. The Direct Testimony of WILLIAM DUDLEY

CONNELL.

In his direct examination, Mr. CONNELL testifi -d to the

following extraneous and out of town offenses:

a. The Virginia Matter. Mr. CONNELL testified

that in the fall of 1977, he had prior dealings with TIM-

OTHY HOUDE in which he fronted Mr. HOUDE

some four ounces of cocaine which Mr. HOUDE took

to Virginia, and that he received a quantity of “pills”

from TIMOTHY HOUDE when he returned from Vir-

ginia.

b. The Denver-Seattle Matter. Mr. CONNELL fur-

ther testified that in March, 1978, he had conversa-

tions with BARRY LABRECQUE in which Mr. LA-

BRECQUE said he had a connection for alarge amount

10

of cocaine, (RIII 69-79). According to Mr. CONNELL,

he later spoke with TIMOTHY HOUDE, and pursu-

ant to this, he picked up a pound of cocaine at Mr.

HOUDE’s house on Palmary Street, (RIII 70-71), which

Mr. CONNELL tested by tasting and inhaling (RIII 71).

Mr. CONNELL related that he had the cocaine sent to

Seattle through Denver under the care of a “friend” of

his, named JODY LIGGIN, (RIII 71). Mr. CONNELL

further testified that pursuant to his plans, Miss

LIGGIN went to Denver and met with an individual

known as PAUL TAYLOR, but they did not continue to

Seattle because something happened to the cocaine;

specifically, some of the cocaine was missing and some

had been adulterated, (RIII 72). Because of this, Mr.

CONNELL flew to Denver to escort Miss LIGGIN back

to El Paso, (RIII 72-77), on March 22, 1978, (RIII 76).

Mr. CONNELL related that when he returned, Mr.

LABRECQUE and Mr. HOUDE came to his house;

were told of the problem; and, in turn, told Mr. CON-

NELL that because the cocaine had been “fronted,”

money was still owed on it, (RIII 78). Mr. CONNELL

testified that the “concern at the time” was to raise

money to pay back the “Mexicans,” who were the

source of the cocaine and to whom the money was

owed, (RIII 79-80). Mr. CONNELL testified that he

was later informed that Mr. HOUDE and his automo-

bile were taken to Mexico or kidnapped by the Mexi-

cans, and that only through he and Mr. LABRECQUE

raising a sum of money were they able to secure his re-

lease, (RIII 81-82). The “Mexicans,” however, did retain

11

the car, (RIII 82), and the “threat against their lives” re-

mained, (RIII 81).

c. Other Testimony. The remainder of Mr. CON-

NELL’s direct testimony dealt with offenses described

in the indictment.

2. The Direct Testimony of JODY LIGGIN.

a. The Denver-Seattle Matter. Miss LIGGIN testified

that she did make the trip to Seattle in March at Mr.

CONNELL ’s instructions, that the deal fell through,

that somehow the cocaine was adulterated, and that

she returned to Denver where Mr. CONNELL escort-

ed her home, (RIII 159-161). Miss LIGGIN further

testified that after the Seattle trip, when Mr. LA-

BRECQUE and Mr. HOUDE visited Mr. CONNELL at

his house, she overheard “slightly raised voices,” (RIII

167). She then testified that after Mr. LABRECQUE

and Mr. HOUDE left, Mr. CONNELL told her that the

“coke” had been adulterated.

b. Other Testimony. Miss LIGGIN’s entire testi-

mony was focused on this above extraneous offense,

with no testimony dealing with the offenses described

in the indictment. (RIII 155-181).

3. The Testimony of the Drug Agents.

Detective GRAHAM, a Colorado Drug Agent, testi-

fied that he became involved in the case on April 10,

12

1979, (RIII 182), while investigating one “Dudley Con-

nell” of El Paso, Texas. During their negotiations

between the Drug Agent and Mr. CONNELL, Mr.

CONNELL mentioned dealing with a person who he

referred to “only as Barry,” (RIII 185-186). After an

aborted “buy” of cocaine, which Mr. CONNELL failed

to deliver, (RIII 186-190), another “buy” was set up.

After contacting the local Federal Drug Agents, Detec-

tive GRAHAM flew to El Paso, (RIII 191-192), and met

with Mr. CONNELL. Subsequently, he and Mr. CON-

NELL went to a location called “Ray’s Bassett Burger”

in a “rented recreational vehicle” of Mr. CONNELL’s,

(RIII 193). As to the events there, Detective Graham

gave the following account: (1) Mr. CONNELL and

he arrived and parked south of the Bassett Burger

location, (RIII 194); (2) Mr. CONNELL left their recre-

ational vehicle and went into “Ray's” to talk with

BARRY LABRECQUE who was inside, (RIII 194); (3)

Mr. CONNELL came back and said that the Mexicans

were “slow,” (RIII 195, 200); (4) Mr. LABRECQUE left

the restaurant and went up toa brown Ford beside the

restaurant and at that time the brown Ford left the

area; (5) Detective GRAHAM briefly left the recrea-

tional vehicle to talk with Detective O‘DELL, and when

he returned, Mr. CONNELL was setting up some

“triple beam” scales, (RIII 197); (6) Mr. CONNELL left

the recreational vehicle again to get a hamburger and

returned with the hamburger, (RIII 198); (7) Mr. CON-

NELL stated to Detective GRAHAM that the Mexi-

cans would first go to “Barry,” and pointed at the blue

Volvo, (RIII 198); (8) BARRY LABRECQUE exited the

13

blue Volvo and made a phone call, (RIII 199); (9).Within

a minute, the “brown Ford” drove up again, and

MARIO CENTENO and a Mr. ONTIVEROS got out

and walked up to the blue Volvo, (RIII 200); (10)

MARIO CENTENO attempted to pull something out

of his pants, but Mr. LABRECQUE waved him off, (RIII

201); (11) Mr. CENTENO, Mr. ONTIVEROS, and Mr.

LABRECQUE e. tered the restaurant where Mr. CEN-

TENO and Mr. LABRECQUE entered the restroom,

(RIII 201); (12) Mr. CONNELL exited the recreational

vehicle and spoke to TIMOTHY HOUDE in the blue

Volvo, (RIII 201-202); (13) Detective GRAHAM again

exited the recreational vehicle to talk with Detective

ODELL, and upon his return to the recreational vehi-

cle found BARRY LABRECQUE with DUDLEY CON-

NELL inside, (RIII 203); (14) At that time, Mr. LA-

BRECQUE apologized to me for the holdup, relating

that his was the land of mananaand he was sorry that it

was taking so long. And he, inthe same manner as I ob-

served Mr. CENTENO, he reached up — reached

down, pulled up his shirt, reached into his pants and

pulled out a baggie of-what he represented to be

cocaine, (RIII 203); (15) Detective GRAHAM tested the

cocaine, then left the vehicle to get the “money” and

shortly thereafter gave the bust signal, whereupon Mr.

CONNELL and Mr. LABRECQUE were arrested in the

recreational vehicle, Mr. CENTENO and Mr. ONTI-

VEROS were arrested in the brown Ford, Mr. HOUDE

was arrested in the blue Volvo, (RIII 204-206). Upon

questioning, Detective GRAHAM admitted:

14

Q. All right. Now, have you ever, ever

before April 26th talked to Barry LaBrecque?

A. Ihave not talked to him in person.

Q. Have you ever talked to Mr. Houde prior

to April 26, 1978?

A. No sir. (RIII 208-209).

Another Agent, Special Agent SEARS of the Drug

Enforcement Administration, testified that he had ob-

served a blue Volvo bearing BARRY ALAN LA-

BRECQUE and TIMOTHY RICHARD HOUDE, ar-

rive a few minutes before the arrival of the recreation-

al vehicle carrying’ Mr. CONNELL and Detective

GRAHAM, (RIII 253-264).

Following the final argument and the Court’s charge,

the jury retired on June 7,.1978, to deliberate, and re-

turned some four hours later with verdicts of guilty as

to the First Count (conspiracy) and as to the Second

Count (distribution), (RII 96); as to both Defendants,

and accordingly, the Petitioner, TIMOTHY RICH-

ARD HOUDE, was sentenced on July 12, 1978 to:

SEVEN YEARS imprisonment and SEVEN YEARS

SPECIAL PAROLE on Count 1; SEVEN YEARS im-

prisonment and SEVEN YEARS SPECIAL PAROLE on

Count 2. Count 2 is to run consecutively to Count 1.

TOTAL SENTENCE: 14 years to serve and 14 years

special parole. (RII 97). To which, Notice of Appeal was

filed the next day on July 13, 1978, (RII 98). The Peti-

tioner, BARRY ALAN LABRECQUE, was sentenced

on July 12, 1978, to: NINE YEARS imprisonment and

15

NINE YEARS SPECIAL PAROLE on Count 1; NINE

YEARS imprisonment and NINE YEARS SPECIAL

PAROLE on Count 2. Count 2 is to run consecutively

to Count 1. TOTAL SENTENCE: 18 years to serve and

18 years special parole, (RI 78). To which, Notice of

Appeal was filed the next day on July 13, 1978, (RI 79).

The United States Court of Appeals affirmed these

convictions and sentences in United States v. Houde, 596

F.2d 696 (Sth Cir. 1979), entered on June 11, 1979. That

opinion reasoned that in the absence of prejudice dem-

onstrated in the record, the error was not reversible,

Houde, Supra., at 701. The panel opinion in reciting the

facts, however, pointedly omitted the request for an

evidentiary hearing by Counsel, (RIII 12, et seq.), and

the trial Court’s denial of that request by stipulating to

the prejudice caused by the Government’s intentional

act, (RIII 14).

REASONS WHY THE WRIT

SHOULD BE GRANTED

Whether A Trial Court Is Required Under

The Principals Of Due Process And Funda-

mental Fairness, To Grant A Continuance Or

To Impose Sanctions, Or To Fashion Some

Other Remedy After The Government In-

tentionally And Materially Violated A Pre-

Trial Discovery Agreement Between Itself

And A Criminal Defendant.

16

Before turning to legal argument, the Petitioners

would first summarize the factual setting of their due

process and fundamental fairness claim. First of all, let

us remember that this was an extremely speedy trial,

barely over thirty days from offense to indictment, (RI

Docket Sheet), and less than thirty days from arraign-

ment to trial, (RI Docket Sheet). Secondly, let us recall

that aside from the actual delivery of the contraband by

Petitioner LABRECQUE, which was witnessed by Fed-

eral Agents, (1) Petitioner HOUDE’s involvement in

that delivery; (2) Petitioner LABRECQUE’s involve-

ment in a narcotics conspiracy as against involvement

in a simple delivery, [see Linited States v. White, 569 F.2d

269, (Sth Cir. 1978)]; and (3) Petitioner HOUDE’s in-

volvement in that same conspiracy, all rested on the

testimony of WILLIAM DUDLEY CONNELL, (RIII 66-

95), and of his girlfriend, JODY LIGGIN, (RIII 155-

172), both confessed drug dealers who had made a deal

with the Government. It is in this light that the

Government's breach should be viewed.

In this case we have a breach of a signed Pre-trial

agreement between the Petitioners and the United

States. This fact was admitted on oral argument before

the Court of Appeals by the United States. The breach

was an intentional act on the part of the Government.

Indeed, the Prosecutor admitted this very fact when he

explained his reasons for withholding the statements

from the Defense, (RIII 7-8), i.e. protecting his wit-

nesses from “harassment,” (RIII 8). It is the Peti-

tioners’ position that this agreement bound the

17

sovereign and in so doing invoked due process and

fundamental fairness principles implicit and explicit

within the Bill of Rights of the United States Constitu-

tion, United States v. Millet, 559 F.2d 253 (Sth Cir. 1977),

citing Santobello v. New York, 404 U.S. 257, (1971). In

Millet, the Fifth Circuit so held, Millet, Supra., at p. 257.

However, the panel's opinion in Houde stepped back

from Millet and analyzed the above problem as a mere

procedural defect, Houde, 596 at 701 specifically:

The argument that the failure to comply with

the omnibus agreement constitutes a denial of

due process is based ona faulty premise. As we

have already said, no prejudice has been

shown. Even when there has been non-com-

pliance with the statutory mandate of the

Jencks Act, this is not per se a violation of the

constitution. Prejudice must be shown. This

applies a fortori to violation of an agreement.

Houde, Supra.

Ignoring even the contract principles posited by Santo-

bello, 404 U.S. at 262, the Fifth Circuit added:

In any event, the statements of the

witnesses were Jencks Act material which, in

the absence of the omnibus agreement,

Government counsel would not have been re-

quired to furnish until the witnesses had testi-

fied. See 18 U.S.C. §3500(b). Houde, Supra.

18

A. Contract Principles.

The signed plea bargain here may be seen as a con-

tract between the Government and a Defendant, simi-

lar to that involved in plea bargaining, Santobello, Supra.,

Cooper v. United States, 594 F.2d 12, 15-16, (6th Cir. 1979).

Here, Defense Counsel signed the agreement, which

included among other things: (1) eschewing certain de-

fenses, (2) adopting and giving certain other defenses,

(3) waiving objections, waiving hearings, and (4) obli-

gating himself to provide the Government with a

witness list together with statements, if any, five days

prior to trial, (RII 4-28). The Defense list of witnesses,

there being no statements, was forwarded to the Unit-

ed States Attorney five days prior to trial. (See docu-

ments attached to Motions for Sanction and for Con-

tinuance, RI 23-39, 40-56). This much according to

Santobello, 404 U.S. at 262, and Cooper, 594 at 15-16,

would bind the Government so that it would be re-

quired to fulfill its agreement or, at the very least, place

the Defendants in the position they would have been in

had they not relied on the agreement.

B. Fundamental Fairness and Due Process.

The unfairness of the all-powerful Government in-

tentionally breaking its word with a relatively insigni-

ficant criminal Defendant need not be elaborated upon.

His bargaining position is so slight as to be meaning-

less. If the trial Court is unmoved, then he is truly lost.

There is no remedy even as to the deceiving Prose-

cutor himself; of course, he is immune, Imbler v. Pacht-

man, 424 U.S. 409 (1976).

19

Additionally, we must recognize the need for en-

forcing these agreements not only because of fairness

to the Defendant, but to protect and promote these

agreements as methods of avoiding needless waste of

time and expense by Court and Counsel. If these agree-

ments are not enforceable by a Defendant, they will

disappear from the scene. No Counsel will risk a

serious malpractice suit by naively trusting in a mere

signature of a United States Attorney. In Jackson v. Den-

no, 378 U.S. 368, 386, (1964) this Court talked about:

“the deep-rooted feeling that the police must

obey the law while enforcing the law; that in

the end life and liberty can be as much endan-

gered from illegal methods used to convict

those thought to be criminals as from the ac-

tual criminals themselves.” Jackson v. Denno,

Supra., quoting Spano v. New York, 360 U.S. 315,

320-321 (1959)

The situation here is similar. The Government de-

ceives the Defendant, and then asks the Court to ig-

nore its wrongdoing, if not approve it. There may be

some sort of superficial logic in the statement that the

United States should be allowed to use dishonesty in

prosecuting dishonesty, but our system can not en-

dure it. The effects of such practices on innocent and

guilty defendants alike can only destroy any rehabili-

tative aspects that ofr Criminal Justice System might

possess. How can there be any respect for a State which

uses the same dubious methods which brought many

of its criminal defendants to bar.

20

C. Effective Assistance of Counsel.

In analyzing a withdrawn plea bargain agreement,

the Sixth Circuit in United States v. Cooper, Supra., at 18-

19, the Court remarked that because plea bargains

were necessarily communicated through Counsel:

For this reason, not only the credit and integ-

rity of the government but those of his coun-

sel are involved in a defendant’s perception of

the process.

and,

To the extent that the government attempts

through defendant’s counsel to change or re-

tract positions earlier communicated, a

defendant's confidence in his counsel’s cap-

ability and professional responsibility, as well

as in the government's reliability, are neces-

sarily jeopardized and the effectiveness of

counsel's assistance easily compromised.

(footnote omitted) United States v. Cooper, Supra.,

at 18-19.

Here, we can imagine that Counsel informed his

clients that in spite of the fact that they were being

pushed to trial with barely a month’s time, they would

be receiving the statements of the Government's wit-

nesses five days prior to trial, which would be a great

help. We can also imagine Counsel informing his clients

at trial that the Government had decided to cheat on

21

the agreement, and apparently the Court was going to

let them get away with it.

D. Remedies.

It is the Petitioners’ position that a breach of a dis-

covery agreement between the Government and the

Defendant should command much more attention than

mere violations of discovery orders or procedural rules.

These orders and rules are fashioned and are accorded

such weight as the Court sees fit. However, by agree-

ment both the Defendant and Government can go far

beyond that which could be reached by any order or

rule, such as when a Defendant waives a Constitu-

tional right, etcetera. And it is not the Court’s place to

enforce the agreement from the standpoint that the

Court perhaps would not have fashioned such an

agreement, but simply to enforce it. Looking at viola-

tions of Pre-trial discovery orders, we first need to

review the facts of this case.

The direct testimony’ of the two witnesses, Mr.

CONNELL and Miss LIGGIN dealt with various

matters which were not contained in the indictment,

(See RI 1-2). These allegations included extraneous

criminal activities on the “east coast,” (RIII 68), Seattle,

(RIII 71), Denver, (RII 72); included extraneous sub-

stances, (RIII 69); included extraneous persons such as

“PAUL TAYLOR,” (RIII 71), “the Mexicans,” (RIII 79),

and “the buyers” (RIII 160); and included a time frame

preceding the time set forth in the indictment by sev-

22

eral months, (compare RIII 68 with RI 1-2). In other cir-

cuits, the bare fact that these matters, substances, peo-

ple, and times were extraneous to the indictment

would constitute prejudice so as to compel a reversal

when coupled with a discovery breach. United States v.

Roybal, 566 F.2d 1109 (9th Cir. 1978). The Ninth Circuit

stated:

We cannot ignore the unfairness and po-

tential prejudice to the defendant who must

suddenly defend against evidence such as this.

Similarly, we cannot ignore the unfairness

and discourtesy to the trial judge who is

suddenly faced with having to decide, on an in-

complete record, whether trial should con-

tinue or whether the time and cost, thereto-

fore expended, is to be wasted — with its ob-

vious delays. United States v. Roybal, Supra.

Likewise, the Courts will enforce a discovery order

against Defendants, United States v. Nobles, 422 U.S. 225

(1975). In Nobles, this Court approved the ultimate

sanction, a Court's refusal to allow the witness to testi-

fy, where the Defense had failed to timely provide the

Government with a report. There was no discussion in

that case of whether lack of the report would have

prejudiced the Government. If a mere Court’s order

may be enforced in such a fashion, then a solemn agree-

ment between the Defendant and Government must

be enforced or otherwise remedied. Here, instead of

the faraway legions of police fighting crime in the

|

23

street, Spano, Supra., we are dealing with an officer of

the Court who can easily be reached and deterred from

unseemly conduct, the Prosecutor. The integrity of the

entire system is needlessly implicated by allowing such

practices. Here, there are no strong, identified needs of

society which demand that the Government have the

right to deceive a Defendant through a faithless bar-

gain. Thus, it is clear that an exercise of the super-

visory powers of this Court is called for. Not only to

assure fairness to these Petitioners, but also to insure

that the system is perceived as fair.

II

Whether A Trial Court Is Required Under

The Principals Of Due Process And Funda-

mental Fairness To Grant A Criminal

Defendant The Opportunity To Place Proof

Of Prejudice In The Record Regarding The

Prejudice To His Defense Caused By An In-

tentional And Material Violation Of A Pre-

Trial Discovery Agreement By The Govern-

ment. '

Before trial, Counsel filed sworn affidavits and doc-

uments attesting to the breach of the agreement, (RI

23-39, 40-56), and requested that the Court allow him

an evidentiary hearing to present evidence as to the

breach and the resulting prejudice, (RIII 12, et seq.),

which the trial Court avoided by the curious plot of

stipulating to the breach and the prejudice, (RIII 14).

24

The Fifth Circuit’s opinion ignored the Petitioners’

request for an evidentiary hearing in its recital of the

facts, Houde, Supra., at 698-701, and its treatment of this

issue, Ibid., at 701. By refusing to allow such a hearing

because it was stipulating to the facts, the trial Court

foreclosed the Defense from placing Counsel and an

investigator on the stand to testify as to what would

have been done if there had been no discovery agree-

ment on May 17th, and to what would have been done

to investigate, verify and counter the statements had

they been available five days prior to trial. Where con-

stitutional rights are implicated and where the evi-

dence is not suitable for presentation before the jury,

this Circuit had previously held that such an eviden-

tiary hearing must be held, United States v. Gonzalez, 548

F.2d 1185 (Sth Cir. 1977); following Jackson v. Denno, 378

U.S. 368 (1964). Thus, the Petitioners were denied not

only a remedy, but alsoa forum in which to present evi-

dence of their injury.

Whether An Appellate Court Must Consider

A Trial Court’s Stipulation As To The Fact

That Prejudice Inured To The Defendant

Through The Intentional Acts Of The

Government Is Breaching A Pre-Trial Dis-

covery Agreement.

Likewise, the Fifth Circuit ignored the Court's stip-

ulation as to the Defendants’ prejudice! as well as the

1 This fact of this stipulation was presented several times in

Appellants’ *ief in Chief and Reply Brief, and was mentioned so often

in Oral Argument that the panel bade counsel not to refer to it

again.

‘25

Government's acquiescence in that stipulation, (RIII

14; Houde, Supra., at 698-701). Prior to the panel opin-

ion, it was the law in that Circuit that stipulations of

fact fairly entered into are controlling and conclusive

with the Court’s being bound to enforce them even if

the Government is the party bound. A. Duda and Sons

Coop. Ass'n v. United States, 504 F.2d 970 (Sth Cir. 1974).

Viewed in another manner, it is the law in every circuit

that factual findings as to prejudice made by a District

Court are controlling unless clearly erroneous. United

States v. Barket, 530 F.2d 189 (8th Cir. 1976).

CONCLUSION AND PRAYER

Wherefore, the above premises considered, the Peti-

t.oners pray that this Court grant a Writ of Certiorari

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

cuit. ;

Respectfully submitted,

CHARLES LOUIS ROBERTS

Attorney for Petitioners

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

26

27

CERTIFICATE OF SERVICE

Respondent, by depositing same in the Unit-

ed States post office, with first class postage

prepaid, properly addressed to said attorneys

for Respondent at their said addresses.

The undersigned attorney of record for Petitioners,

TIMOTHY RICHARD HOUDE and BARRY ALAN

LABRECQUE, hereby certifies as follows:

(a) That I am a member of the bar of the EXECUTED, this day of September, 1979.

United States Supreme Court, and that I have

duly served all parties required by the Rules of

said Court to be served with the foregoing

Petition for Writ of Certiorari, as hereinafter

JOSEPH (SIB) ABRAHAM, JR.

Attorney for Petitioners

505 Caples Building

shown:

El Paso, Texas 79901

(b) That the names and addresses of the at- (915) 532-1601

torneys of record for the adverse party are as

follows:

The Honorable Wade H. McCree, Jr. CHARLES LOUIS ROBERTS

Solicitor General of the United States Attorney for Petitioners

Department of Justice 505 Caples Building

Washington, D.C. 20530 El Paso, Texas 79901

jamie Boyd (915) 532-1601

United States Attorney

U.S. Attorney’s Office

655 E. Durango Blvd.

Hemisfair Plaza

San Antonio, Texas 78206

(c) That on this day I served three printed

copies of the foregoing Petition for Writ of

Certiorari on the said Wade H. McCree, Jr.,

and the said Jamie Boyd, attorneys for said

la

APPENDIX “A”

UNITED STATES of America,

Plaintiff-Appellee,

versus

Timothy Richard HOUDE and

Barry Alan La Brecque,

Defendants-Appellants.

No. 78-5453

United States Court of Appeals

for the Fifth Circuit

June 11, 1979.

Appeals from the United States District Court for

the Western District of Texas.

Before GODBOLD, Circuit Judge, SKELTON,

Senior Judge*, and RUBIN, Circuit Judge.

SKELTON, Senior Judge.

In this case the appellants, Timothy Richard Houde

and Barry Alan La Brecque, along with William Dudley

Connell and Mario Centeno, were charged by indict-

ment on May 4, 1978, in the Western District of Texas

with conspiracy to possess cocaine with the intent to

* Senior Judge of the United States Court of Claims, sitting by

designation.

2a

distribute in violation of 21 U.S.C. §§841(a)(1) and 846.

Appellant La Brecque was also charged with the com-

pleted substantive offense, and Appellant Houde, with

aiding and abetting La Brecque’s possession of cocaine

in violation of 18 U.S.C. §2 and 21 U.S.C. §841(a)(1).

After being convicted by a jury, Appellant La Brecque

was sentenced to consecutive nine-year terms of im-

prisonment and nine-year special parole terms, and

Appellant Houde received consecutive seven-year

terms of imprisonment and seven-year special parole

terms. They have both appealed their convictions.

The facts alleged in the briefs of the Appellants and

the Government are substantially the same. We adopt

the statement of facts in the Government's brief. This

statement of facts shows that in March of 1978,

William Dudley Connell, a travel agent in El Paso, Tex-

as, and a co-conspirator in this case, was asked by

Appellant La Brecque to find buyers for cocaine; La

Brecque told Connell that he had connections with “the

Mexicans” and could obtain large quantities of cocaine.

A few days later, on March 20, 1978, Connell called

Appellant Houde and told him he had found a pur-

chaser. Appellant Houde responded that he had a

pound of cocaine, and Connell went to Houde’s house

to get it.

After obtaining the narcotics from Houde, Connell

sampled it by tasting and inhaling. The substance was

cocaine. Connell packaged the cocaine in four plastic

bags to be taken to Seattle for sale by his girlfriend,

3a

Jody Liggin. The price was $24,000, and Connell was to

pay this to Appellant Houde upon Liggin’s return. Con-

nell retained less than half of a gram of the cut cocaine

from the pound he received from Houde.

The next day, Liggin flew to Denver where she was

met by a friend of Connell’s, and together they flew to

Seattle. However, the expected purchase did not oc-

cur, and Liggin returned to Denver where she was met

and escorted to El Paso by Connell. Upon reaching

Connell’s home in El Paso, Connell discovered that only

three of the packages were in the same condition that

they were in when he had packaged them. One pack-

age had been adulterated by some unknown sub-

stance, and some of the cocaine was missing from it.

Shortly after the couple returned to the house,

Appellant Houde called trying to locate Connell.

Although Liggin, at Connell’s instructions, informed

Houde that Connell was still in Denver, Appellants

Houde and La Brecque appeared at Connell’s house an

hour later.

The three men had a serious conversation about the

adulteration of the cocaine, because the cocaine had

been delivered to them by the Mexicans without pre-

payment, and money was still owed on it. Each decided

to raise as much money as he could to help pay the debt

to the Mexicans. Although returning one package of

the cocaine and the twenty grams of uncut cocaine to

Appellants La Brecque and Houde, Connell gave two of

ee

4a

the three packages of cocaine to another individual and

retained the small quantity that he had skimmed off the

original pound.

Sometime thereafter, Appellant La Brecque inform-

ed Connell that Appellant Houde had been kidnapped

by the Mexicans and that he and his car would be re-

tained in Juarez, Mexico — the border town across the

river from El] Paso — until the $8,000 still owed the

Mexicans was paid. Connell responded that he had re-

ceived a call from a person he knew as Dave Anderson,

seeking to purchase large quantities of cocaine, and this

transaction would assist them toraise the money to get

Houde released. However, the men managed to raise

sufficient money to release Appellant Houde, although

the Mexicans retained his car.

Connell was still anxious to deal with Dave Ander-

son of Denver and asked Appellant La Brecque tosee if

the Mexicans would provide them with a quantity of

cocaine without prepayment to enable them to repay

the balance due on the original cocaine transaction. Al-

though Appellant La Brecque doubted that the Mexi-

cans would agree, he said he would approach them.

Reporting back, Appellant La Brecque stated the Mex-

icans would provide one pound of cocaine under very

strict guidelines and would not allow the cocaine to

leave their sight or possession until delivery.

About April 15, 1978, Connell flew to Denver and

met with Dave Anderson, who in reality was Gary Lee

5a

Graham, a narcotics detective working under cover

with the Denver Police Department. Detective

Graham and Connell discussed the details of the trans-

action with Graham negotiating to purchase three to

four pounds of cocaine to be delivered in El Paso the

following Tuesday. Connell informed Detective

Graham that he had a Mexican connection that would

deliver to“ Barry” who in turn would supply the cocaine

to him.

Returning to E] Paso, Connell met with Appellant La

Brecque to discuss the possibility of arranging the

transaction by the following Wednesday. Appellant La

Brecque informed Connell that he could get the cocaine

and instructed him to arrange for Detective Graham to

come to El Paso. After several telephone calls, Detec-

tive Graham arrived in E] Pasoon April 19, 1978. While

there, Detective Graham refused to buy \% ounce of

cocaine for $500, and negotiations for the delivery of

the several pounds were unsuccessful; so, Graham re-

turned to Denver.

Again, after numerous telephone calls, Detective

Graham, accompanied by Detective John O'Dell, re-

turned to El Paso five days later to finally buy the three

to four pounds of cocaine. Detective Graham received

assurances from Connell that he had a pound of cocaine

in his possession before Graham left Denver and he in-

formed Connell that he would have to return to

Denver on the same day. Accordingly, Connell spoke to

Appellant La Brecque, explaining that Detective

6a

Graham would arrive at 3:45 p.m. and had to leave at

7:20 p.m., so the cocaine sale had to occur within that

time frame.

When Detective Graham and Detective O’Dell ar-

rived at the airport, surveillance agents observed

Appellant Houde in the concourse where Graham’s

flight deplaned and at the lobby doors of the airport.

However, it was Connell who met the detectives, tak-

ing Detective Graham to a local restaurant in a rented

recreational vehicle. Detective O'Dell was to follow the

men in a separate rented vehicle and used the oppor-

tunity to meet with local agents of the Drug Enforce-

ment Administration to obtain a flash roll of $24,000.

Graham and Connell arrived at the restaurant at

approximately 6:35 p.m., and Connell, having seen

Appellant La Brecque inside, told Detective Graham

that he had to go inside to talk to “Barry”. Inside, La

Brecque informed Connell that the Mexicans would

only deliver half a pound; later, if everything went

smoothly, they would deliver the rest of the cocaine.

The Appellant La Brecque was observed leaving the

restaurant. He approached the driver's side of a brown

Ford sedan and spoke to its occupants. The brown Ford

left the parking lot, and Appellant La Brecque return-

ed to the restaurant.

Connell returned to the recreational vehicle and

moved it to the other side of the parking lot to wait for

the delivery of the cocaine. Seeing that Detective

7a

O'Dell had arrived and parked 100 to 150 feet behind

them, Detective Graham left Connell on the pretext of

assisting O'Dell to count the money. After bringing

O'Dell up to date, Detective Graham returned to the

recreational vehicle.

Shortly thereafter, at approximately 6:50 p.m., a blue

Volvo station wagon arrived on the parking lot and was

parked in front of the restaurant. In the blue station

wagon was Appellant Houde, the driver. He was join-

ed by Appellant La Brecque. Connell pointed to the blue

station wagon and said that the Mexicans would first

go to Barry. Then Appellant La Brecque got out of the

station wagon and approached the pay telephone just

outside the restaurant's front door, where he dialed a

number, waited a brief time, and hung up, returning to

the Volvo. Within a minute, the same brown Ford

sedan containing two Mexican-American males ar-

rived on the parking lot. The Ford was parked parallel

to the recreational vehicle, and two Mexican-American

men got out of it and approached the Volvo. Connell

said, “Here they are!”

As the men approached the Volvo, one of them lift-

ed the front of his shirt and reached down inside his

pants as though he were about to bring something out.

However, Appellant La Brecque waved at the man with

one hand and stopped what appeared to be about to

happen. La Brecque then entered the restaurant and

went directly to the restroom followed by one of the

Mexican-American males. The other man remained in

the restaurant looking around.

8a

Concerned, Detective Graham instructed Connell to

find out what was occurring; Connell left the recrea-

tional vehicle and approached the Volvo to ask Houde

what was going on. Appellant La Brecque was in the

restaurant and Connell returned, saying that “Barry”

was making the pickup in the bathroom.

Having left the recreational vehicle to allegedly re-

assure Detective O’Dell, Detective Graham returned

just as Appellant La Brecque was going through the

door of the trailer. Connell said, “Come on Barry, let’s

do it,” and La Brecque, after apologizing for the delay,

pulled out a plastic bag containing one-half pound of

cocaine and placed it on the counter in front of Detec-

tive Graham.

Detective Graham field tested the substance and ob-

tained positive results for cocaine. He then asked Con-

nell to weigh it, and agreed to a price of $14,000. When

Detective Graham questioned Connell regarding the

quality of cocaine, Connell referred the question to

“Barry,” and Appellant La Brecque stated that the

cocaine was 80% pure. Detective Graham left the rec-

reational vehicle to allegedly obtain the purchase

money, and gave the signal for the arrest of the four co-

conspirators.

The Appellants and the attorney for the Govern-

ment signed the following “Omnibus Agreement” on

May 17, 1978:

pI aaa a i

9a

“3(a) The parties agree to exchange all

statements [Per 18 U.S.C. §3500(e)] and

reports of statements (including written

reports of investigator’s interviews) of all wit-

nesses they expect to call in its case in chief. If

any, will provide five days prior to trial.

and

14(j) the parties acknowledge that any

duty to disclose imposed herein is a continu-

ing duty, and that any discoverable evidence

or material becoming known during the pen-

dency of this case will be promptly disclosed to

the opposing party.

ls| CHARLES LOUIS ROBERTS

Attorney for Defendant

Is] JAMES W. KERR, JR.

Attorney for Government”

The case was scheduled to go to trial on June 5, 1978.

The record shows that prior to May 31, 1978, Appellant

had access to the agency reports of the Government,

and the results of its laboratory tests of the cocaine, all

in accordance with the Omnibus Agreement. On May

31, 1978, Appellants’ counsel asked Government

counsel for a list of Government witnesses. Govern-

ment counsel replied on June 1, 1978, that he had no

witnesses whose names were not in the case reports al-

ready given to Appellants’ counsel, but investigation

was continuing and names of any additional witnesses

10a

would be supplied as soon as possible. On June 2nd

Government counsel sent Appellants’ counsel a list of

witnesses whiv: included the names of co-conspirator

Connell and Jody Liggin. A statement was taken from

Connell on June 1st and Jody Liggin gave a statement

on June 2nd. However, copies of both statements were

not given to Appellants’ counsel until the first day of

the trial on June Sth.

Appellants filed a motion for sanctions and a motion

for continuance on June Sth, claiming that Govern-

ment counsel had breached the Omnibus Agreement

by failing to furnish the names of witnesses Connell

and Liggin when they were known to Government

counsel, and by failing to furnish copies of their state-

ments to Appellants’ counsel prior to the 1st day of the

trial on June 5th. Both motions were denied by the

court. The facts show that Appellants’ counsel knew

that Connell was going to testify as a Government

witness before his name was furnished to them.

Furthermore, they knew from the case report the con-

nection Connell had with the case.

Appellants’ motion for continuance was general in

character. The only prejudice alleged was that “the

Government received the surprise and other advan-

tages of its lack of faith.” However, the above facts

show that Connell’s testimony was no surprise to

Appellants. They are not entitled to a reversal of their

convictions in the absence of showing prejudice. See

United States v. Phillips, 585 F.2d 745 (5 Cir. 1978). This is

oe

lla

true even if Government counsel did not comply with

the agreement. At oral argument, Appellants’ counsel

were unable to point out any prejudice to their clients,

and they have not alleged any. The argument that the

failure to comply with the omnibus agreement consti-

tutes a denial of due process is based on a faulty prem-

ise. As we have already said, no prejudice has been

shown. Even when there has been non-compliance

with the statutory mandate of the Jencks Act, this is

not per se a violation of the constitution. Prejudice

must be shown. This applies a fortiori to violation of an

agreement.

In any event, the statements of the witnesses were

Jencks Act material which, in the absence of the omni-

bus agreement, Government counsel would not have

been required to furnish until the witnesses had testi-

fied. See 18 U.S.C. §3500(b). Appellants’ counsel ad-

mitted this to be true at oral argument. The trial court

could have granted a reasonable recess under 18 U.S.C.

§3500(c) upon request of counsel for Appellants to ex-

amine the Jencks Act materjal, but they made no such

request after the material was delivered to them.

The question of a continuance is traditionally within

the trial court’s discretion, and subject to reversal only

for an abuse of discretion. United States v. Smith, 548 F.2d

545, 548 (5 Cir. 1977), cert. denied, 431 U.S. 959,975.Ct.

2685, 53 L.Ed.2d 277 (1977); United States v. Uptain, 531

F.2d 1281, 1285 (5 Cir. 1976); United States v. Sahley, 526

F.2d 913, 918 (5 Cir. 1976); United States v. Moriarity, 497

12a

F.2d 486, 489 (5 Cir. 1974); and United States v. Clements,

484 F.2d 928, 930 (5 Cir. 1973). To establish that a de-

nial of a continuance is arbitrary, the movant must

show that the denial seriously prejudiced him. United

States v. Miller, 513 F.2d 791, 793 (5 Cir. 1975). No such

prejudice has been shown in this case. We hold that

there was no abuse of discretion by the trial court in

denying the motion for sanctions and the motion for a

continuance.

Appellants complain that the evidence was insuffi-

cient to sustain their convictions. We disagree.

Appellant Houde was convicted of conspiracy to

possess cocaine with the intent to distribute, and aid-

ing and abetting La Brecque’s possession of cocaine.

Appellant La Brecque was convicted of the same con-

spiracy, and also of the completed substantive offense.

He challenges only the sufficiency of the evidence on

the conspiracy count. Because the question of the suf-

ficiency of the evidence is the same on all three counts

as to both Appellants, they will be considered together.

It is well settled that where a jury has rendered a ver-

dict of guilty, the evidence sustaining that verdict must

be examined in the light most favorable to the Govern-

ment. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct.

457, 86 L.Ed. 680 (1942). Also, it has been held that all

reasonable inferences and credibility choices must be

made in favor of the jury verdict. United States v. Prout,

526 F.2d 380, 384 (5 Cir. 1976), cert. denied, 429 U.S. 840,

oP ee

ne eee

13a

97 S.Ct. 114, 50 L.Ed.2d 109 (1976); United States v. Black,

497 F.2d 1039, 1041 (5 Cir. 1974); and Gordon v. United

States, 438 F.2d 858, 867 (5 Cir. 1971), cert denied, 404 U.S.

828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971). We held in Unit-

ed States v. Placios, 556 F.2d 1359, 1364 (5 Cir. 1977):

“The standard for review of the sufficiency

of evidence to support conviction is the same

whether the evidence is direct or circumstan-

tial. See Holland v. United States, 348 U.S.121,75

S.Ct. 127, 99 L.Ed. 150 (1954); United States v.

Warner, 441 F.2d 821 (5 Cir. 1971), cert. denied

404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58.”

To prove the conspiracy, the Government had to es-

tablish the existence of an agreement by two or more

persons to combine efforts for an illegal purpose, and,

while this Court has frequently stated that an overt act

by at least one of those persons in furtherance of that

agreement is required, no overt act need be alleged or

proved in prosecuting a drug conspiracy under 21

U.S.C. §846 or §963. United States v. Thomas, 567 F.2d

638, 641 (5 Cir. 1978); United States v. Palacios, supra, 556

F.2d at 1364, n. 9; United States v. Beasley, 519 F.2d 233,

247 (5 Cir. 1975), vacated and remanded on other

grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201

(1976). Proof of the illegal agreement or common pur-

pose may rest upon either direct evidence or upon in-

ferences drawn from relevant and competent circum-

stantial evidence. United States v. Warner, supra.

14a

The Government's evidence in the instant case con-

tains no proof uv! an expressed agreement to commit

the offenses charged. However, direct proof of a formal

agreement is not necessary to establish a conspiracy

whose “ ‘existence often is proven by inferences from

the actions of the actors or circumstantial evidence of a

scheme’.” United States v. Riggins, 563 F.2d 1264, 1267 (5

Cir. 1977), quoting, United States v. Amato, 495 F.2d 545,

549 (5 Cir. 1974), cert. denied, 419 U.S. 1013, 95 S.Ct.

333, 42 L.Ed.2d 286 (1974). As this Court stated in Unit-

ed States v. Jacobs, 451 F.2d 530, 535 (5 Cir. 1971), cert. de-

nied, 405 U.S. 995, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972):

“Persons who enter into a conspiracy to

commit a criminal offense do not do so open-

ly, and generally a conspiracy can be estab-

lished only by evidence of the attendany cir-

cumstances and the concerted acts and con-

duct of the alleged conspirators and the infer-

ences reasonably deducted therefrom that

logically and consistently warrant the con-

clusion that an unlawful agreement, express-

ed or implied, existed.”

See also, Park v. Huff, 506 F.2d 849, 860 (5 Cir. 1975), cert.

denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975);

United States v. Ryan, 478 F.2d 1008 (5 Cir. 1973); United

States v. Harvey, 464 F.2d 1286 (5 Cir. 1972), cert. denied,

410 U.S. 938, 93 S.Ct. 1399, 35 L.Ed.2d 604 (1973);

United States v. Sutherland, 463 F.2d 641 (5 Cir. 1972), cert.

denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668

(1972).

15a

Applying these principles to this case, we agree with

Government’s counsel that the following facts, which

we repeat, prove that the evidence was sufficient to

sustain the convictions of Appellants.

The evidence showed that while Appellant La

Brecque asked co-conspirator Connell to find buyers

for cocaine, it was Appellant Houde who supplied the

cocaine once the purchaser was found. The joint in-

volvement of Appellants is further established by their

appearance together at Connell’s house after he re-

turned from Denver and was supposed to have the

$24,000 that was due Appellants for the cocaine. While

both Appellants appeared at Connell’s house, it was

Appellant Houde who made the telephone call attempt-

ing to locate Connell and the $24,000. When

Appellants Houde and La Brecque learned that the

money was not forthcoming and some of the cocaine

was adulterated, they jointed decided to raise what

money they could to pay the debt to their Mexican sup-

plier. It was Houde who was kidnapped and La Brecque

and Connell bailed him out through partial payment to

the Mexicans.

With respect to the dealings with Dave Anderson, it

is undisputed that Appellant Houde and Appellant La

Brecque were jointed present at the delivery site, that

they were there together in Appellant Houde’s car, and

that when questioned by Connell, Houde informed him

that La Brecque was taking delivery of the cocaine in

the restroom of the restaurant. Shortly thereafter,

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Appellant La Brecque left the restaurant and delivered

one-half pound of cocaine to Detective Graham.

The joint meetings of Houde and La Brecque that

were essential to the continuing conspiracy, their

manner their conversations with Connell and the

agents, and the actual delivery of cocaine proved that

Appellants were working actively and in concert to

possess cocaine with the intent to distribute it to Detec-

tive Graham. Further, each was present, either singu-

larly or collectively, at various crucial stages of the

negotiations when cocaine and various narcotic trans-

actions were discussed. We hold that the evidence sup-

ports the decision of the jury that Houde and La

Brecque were guilty beyond a reasonable doubt of the

conspiracy as charged.

The Appellant La Brecque was convicted of the sub-

stantive offense of possessing cocaine with the intent

to distribute it. He does not challenge the sufficiency of

the evidence on this count, aithough he did contest the

sufficiency of the evidence on the conspiracy charge, as

shown above. Appellant Houde was convicted of aid-

ing and abetting La Brecque’s possession of cocaine

with intent to distribute it. He challenges the suffi-

ciency of the evidence on this charge.

The evidence showed that Appellant Houde was an

active participant, aiding and abetting Appellant La

Brecque in possessing the cocaine with intent to dis-

tribute it to Detective Graham. It will be recalled that

i

17a

the debt owed to the Mexicans who were Appellant’s

source of supply was jointly that of Connell, Houde,

and La Brecque, and that Houde had much to gain by

insuring the possession of the cocaine by La Brecque

and its distribution to Detective Graham so that money

could be obtained to liquidate the debt to the Mexi-

cans.

Before one:can be convicted under the law of princi-

pals, it is necessary to prove that he aided or abetted the

commission of a federal crime by another. In making

such proof, it is only necessary for the prosecution to

show that the defendant in some way ” ‘associate[d]

himself with the venture, that he participate[d] in it as

in something he wishe[d] to bring about, and that he

[sought] by his action to make it succeed.’ L. Hand, J., in

United States v. Peoni, [, 2nd Cir.] (CCA 2d NY) 100 F.2d

401, 402.” Nye and Niessen v. United States, 336 U.S. 613,

619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949); and, United

States v. Trevino, 556 F.2d i265 (5 Cir. 1977). Houde’s

participation in the substantive offense was clearly

proven in the instant case. The proof of this fact was

more than sufficient to meet the required test. See

United States v. Baldarrama, 566 F.2d 560 (5 Cir. 1978).

The Appellants complain of five instances where

they objected to the closing argument of the prose-

cutor as being prejudicial, and which they contend de-

nied them a fair trial. The trial judge overruled some of

the objections and sustained others. However, in each

instance, the judge gave appropriate instructions to the

18a

jury regarding the argument. We have examined the

argument of the prosecutor and the instructions of the

court and have concluded that if there was any error,

which is doubtful, such error was adequately cured by

the instructions of the court. See United States v. Morris,

568 F.2d 396, 402 (5 Cir. 1978); and United States v.

Arteaga-Limones, 529 F.2d 1183, 1191 (5 Cir. 1976), cert.

denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976).

It is well settled that the test to be applied is whether

the prosecutor’s argument, taken as a whole and in the

context of the entire case, prejudicially affected the

substantial rights of Appellants. Berger v. United States,

295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); and

United States v. Rodriquez, 503 F.2d 1370 (5 Cir. 1974). We

hold that, considering the curative charges of the court

to the jury, the substantial rights of the Appellants

were not prejudicially affected by the argument of the

prosecutor. He was entitled to make a fair response to

the argument of defense counsel and to comment on

the evidence. In our opinion his remarks in this case

were in line with the principle of fair reply. United States

v. Hiett, 581 F.2d 1199, 1204 (5 Cir. 1978). Further-

more, at the conclusion of the arguments, the trial

judge invited Appellants’ counsel to submit any fur-

ther curative instructions regarding the argument to

which they had objected, but counsel did not submit

any such requested instructions.

Finally, Appellants complain that the trial court

should not have imposed special parol terms after they

19a

were convicted of narcotics violations. However,

Appellants concede that this court previously held that

a special parole term was properly applied toa 21 U.S.C.

§846 sentence in United States v. Dankert, 507 F.2d 190 (5

Cir. 1975).1 They ask that we re-examine and re-eval-

uate our prior holding in this regard. We are without

authority to overrule a decision of a prior panel of this

court on the same question. See United States v. Hernan-

dez, 580 F.2d 188, 191 (5 Cir. 1978), affirmed and re-

manded for resentencing, 591 F.2d 1019 (5 Cir. en banc,

1979). Furthermore, we conclude that a special parole

term after conviction of a narcotics offense is proper

under the statute. __ :

Accordingly, the convictions of Appellants are af-

firmed.

AFFIRMED.

1 This decision has now beert followed by the Second Circuit in

United States v. Wiley, 519 F.2d 1348, 1351 (2 Cir. 1975), cert. denied,

sub nom. James v. United States, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d

648 (1976); the Eighth Circuit in United States v. Rich, 518 F.2d 980,

986-987 (8 Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49

L.Ed.2d 1200 (1976); and the Tenth Circuit in United States v. Jacob-

son, 578 F.2d 863 (10 Cir. 1978). j

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APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OFFICE OF THE CLERK

August 20, 1979

TO ALL PARTIES LISTED BELOW:

NO. 78-5453 — U.S.A. v. TIMOTHY RICHARD

HOUDE and BARRY ALAN LABRECQUE

Dear Counsel:

This is to advise that an order has this day been enter-

ed 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 25, 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 Appeilate Procedure for

issuance and stay of the mandate.

Very truly yours,

CLERK, U.S. COURT OF

APPEALS

Is} Sally Hayward

Deputy Clerk

cc: Messrs. Joseph Abraham, Jr.

Charles Louis Roberts

Ms. Leroy Morgan Jahn