Petition — Garcia v. United States

IN THE

Supreme Court of the United States

October Term, 1979

No. v4 ae

220

Petitioner,

EDWIN GARCIA,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

JOSEPH I. STONE

Attorney for Petitioner

277 Broadway

New York, New York 10007

IN THE

Supreme Court of the United States

October Term, 1979

No.

Kpwin Garcia,

Petitioner,

v.

Unrrep Starrs or AMERICA,

Respondent,

ray

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

To tHe HonoraBLe CHrer JUSTICE oF THE UNITED STATES

AND THE ASSOCIATE JUSTICES OF THE SUPREME CouRT OF

THE UnitTep States:

The Petitioner, Edwin Garcia, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit entered against

him in the above-entitled case on January 2, 1980.

A. THE OPINION BELOW

There was no opinion by the trial judge. The opinion

of the Court of Appeals filed January 2, 1980, affirming

the judgment of conviction of the petitioner, Edwin Garcia,

is printed herein as Appendix A. The defendant is cur-

rently on bail. A request for a stay of the mandate was

submitted to the United States Court of Appeals and denied

on January 24, 1980. A simuitaneous petition for bail

pending determination by tiis court will be filed.

B. JURISDICTION

The judgment of the Court of Appeals was entered on

January 2, 1980. Petitioner Edwin Garcia is, still enlarged

on bail and the jurisdiction of this court is invoked under

Rule 19 of the Supreme Court Rules and Title 28, United

States Code, Section 1254(1) on the ground that the re-

view by the Supreme Court by writ of certiorari is sought

of a judgment of affirmance on appeal by the United States

Court of appeals for the Second Circuit.

C. QUESTIONS PRESENTED

1. Was Garcia’s right to a fair trial violated when

the United States Attorney stated in summation that

‘‘Garcia failed to present any evidence?’’

2. Does the conspiracy end at the arrest of the peti-

tioner?

3. Does possession of a liceused gun and large amounts

of cash make one guilty of a narcotics conspiracy ?

4, Are the ‘‘inferences’”’ as enumerated above constitu-

tionally permissible?

.. Is the driver of a car constitutionally liable for

contraband found after an arrest on the passenger side of

the car?

9

v

D. UNITED STATES CONSTITUTION AND THE STATUTES

United States Code, Title 21, Sections 812, 841(a) (1),

841(b)(1)(B) and 846.

E. SUMMARY STATEMENT OF MATTERS INVOLVED

The above petitioner-appellant, along with Donald Me-

Dermott and others, was arrested on April 19, 1979, within

the Southern District of New York. At the time of the peti-

tioner’s arrest, he was driving his Lincoln automobile in the

vicinity of 149th Street and Southern Boulevard, Bronx,

New York. This was in the vicinity of the E & J Vending

Company, which was owned by the petitioner. A passenger

in petitioner’s car was Donald McDermott (an indicted co-

defendant, pleaded guilty during the trial.)

McDermott had previously communicated with Ben-

jamin Williams and agreed to sell Williams a substantial

amount of cocaine. This communication was known to the

federal agents after Williams had agreed to cooperate.

After extensive surveillance wherein the agents saw Garcia

and McDermott meet another co-defendant, Roseborough,

and after several telephone calls between Williams and co-

defendant McDermott, the agents stopped Garcia’s car and

placed Garcia and McDermott under arrest. At this time,

McDermott was asked to leave the car and a small amount

of cocaine fell from the passenger side (McDermott’s) and

was immediately retrieved by the arresting agents. Peti-

tioner Garcia remained as a driver in his car, was then

asked to leave the car. A search of Garcia’s person and

briefcase revealed the following evidentiary items. The

briefcase contained $5,900 in cash and an unloaded .357

magnum. After Garcia was taken to the DEA head-

quarters, $25,000 was found inside his shoes and $3,713

inside his pocket. Two days after his arrest and arraign-

ment, $18,410 in cash was found behind a commode in a

cell occupied by Garcia and McDermott and another $10,000

was found in the back seat of the DEA car which trans-

ported Garcia and McDermott.

Williams testified as a witness for the government and

conceded that he did not know Garcia nor did he have any

narcotic activity with Garcia. During the summation by

the United States Attorney, he indicated that ‘‘Garcia

failed to present any evidence.’’ The judge immediately

tried to rectify this erroneous statement but it was com-

pletely violative of the petitioner’s constitutional rights and

would require his court to grant a petition for certiorari.

F. REASONS FOR GRANTING WRIT

POINT I

A prosecutor’s misrepresentation of testimony may re-

quire reversal because of the inevitable prejudice to the

defendant, see Berger v. U.S., 295 U.S. 78.

POINT II

This court has continually held that a conspiracy effec-

tively ends with the arrest of the conspirator. There was

no evidence that Garcia participated in a conspiracy or

even knew anyone other than McDermott until after his

arrest. To hold Garcia liable as a conspirator is contrary

to what the Second Cireuit decided in U.S. v. Glasser, 443

F.2d 994.

4)

POINT III

The Second Cireuit Court of Appeals stated in their

decision that cash and weapons are probative of drug

offenses, citing U.S. v. Wiener, 534 F.2d 15 and U.S. v.

Tramunti, 513 F.2d 1087. This is contrary to the Third

Cireuit Court of Appeals in U.S. v. Pantone, 609 F.2d 675.

POINT IV

An inference which a jury could base its decision of

guilty is constitutionally impermissible. The mere fact that

a person is arrested in possession of large sums of money

and a legally licensed gun effectively shifts the burden upon

a defendant. This is contrary to this court’s decision in

Sandstrom v. Montana, 99 S.Ct. 2450. In the Sandstrom

decision, the court quoted Jn re Winship, 397 U.S. 358, and

held that the due process clause of the United States Con-

stitution ‘‘protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact neces-

sary to constitute the crime with which he is charged.

POINT V

This court should grant a writ of certiorari to determine

the constitutional liability of a driver when contraband is

found near the passenger when the probable cause that

existed was solely for the arrest of the passenger and not

for the arrest of the driver. This court is again asked to

define the legal requirements of ‘‘constructive possession”’

of narcotic drugs and to determine whether a conviction

on this basis is reasonable or violates the fundamental fair-

ness doctrine of Twining v. New Jersey, 211 U.S. 78. The

Ninth Circuit Court of Appeals case in Arellanes v. U.S.,

302 F.2d 603, is in conflict with basic constitutional and

permissible inferences as set forth in Sandstrom v. Mon-

tana, supra,

CONCLUSION

In conclusion the writ of certiorari should be granted

and the court, in the exercise of its power, should order

the judgment of conviction reversed.

Respectfully submitted,

JosePH I, Stone

Member of the Bar of the Supreme

Court of the United States

277 Broadway

New York, New York 10007

APPENDIX A

Opinion of United States Court of Appeals,

Dated January 2, 1980

UNITED STATES COURT OF APPEALS

For tHE Seconp Circuit

Docket No. 79-1348

At a stated Term of the United States Court

of Appeals for the Second Circuit, held at the

United States Courthouse in the City of New

York, on the second day of January one

thousand nine hundred and eighty.

Present:

Howoras.e Irvin R. Kaurman, Chief Judge.

Honoraste J. Epwarp Lumparp,

HonorasBteE Exisworth A, Van GRAaFEILAND,

Circuit Judges.

(| eae

Vv

Unrrep S1ates oF AMERICA,

Appellee,

v.

Epwin Garcia,

Appellant.

ia

Vv

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of ree-

ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

A-2

Appendix A

On ConsiperaTion Wuereor, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed.

1. On April 19, 1979, Benjamin Williams called Donald

McDermott at the suggestion of agents of the Drug Enforce-

ment Administration to arrange to purchase one eighth of a

kilogram of cocaine. Appellant Edwin Garcia drove Mc-

Dermott to the site of the proposed transaction, where

another vehicle owned by McDermott and containing the

requested quantity of cocaine was waiting.

2. At the time of his arrest shortly thereafter, Garcia

was wearing an electronic ‘‘beeper’’ that answered to the

same telephone number as a beeper worn by McDermott

and used in arranging the planned drug transaction. Gar-

cia’s briefcase, which was found in the back seat, contained

$9,900 in cash, and an unloaded, licensed pistol, ammuni-

tion for which was found in the pocket of Garcia’s rain-

coat. At the headquarters of the Drug Enforcement

Agency, $25,000 in $100 bills was discovered in Garcia’s

Shoes. Possession of weapons and large amounts of cash

have been held probative of drug offenses. United States

v. Wiener, 534 F.2d 15 (2d Cir.) cert. denied, 429 U.S. 1103

(1977) ; United States v. Tramunti, 513 F.2d 1087 (2d Cir.),

cert. dented, 423 U.S. 832 (1975). The beeper and the large

sums of money evidently entrusted to Garcia support the

inference that Garcia was a knowing participant in the

planned transaction, and therefore his conspiracy convic-

tion under 21 U.S.C. § 846 is supported by sufficient evi-

dence.

3. When Special Agent Panessa opened the passenger-

side door of Garcia’s car, a package containing 53 grams

of cocaine fell to the ground. Garcia, as the driver and

Do ee ee

A-3

Appendix A

registered owner of the car, had dominion and control over

the car and its contents, Arellanes v. United States, 302 F.2d

603 (9th Cir. 1962). Eason v. United States, 281 F.2d 818

(9th Cir. 1969). United States v. Steward, 451 F.2d 1203

(2d Cir. 1971), involved possession imputed to the driver

of an automobile where his passenger was arrested with

drugs on his person after leaving the car, and is accord-

ingly not controlling here. The jury could properly have

inferred the intent to distribute required to sustain Garcia’s

conviction under 21 U.S.C. § 841 from his demonstrated

association with the attempted sale to Williams and his

associate McDermott’s prior history of illicit transactions.

/s/ Irvine R. Kaurman,

Irving R. Kaufman,

Chief Judge.

/s/ J. E>warp Lumsarp,

J. Edward Lumbard,

/s/ ExtswortH A, Van GRaaFEILAND,

Elisworth A. Van Graafeiland,

Circuit Judges.