Petition — Perez v. United States

Court, Um

EILLED

MAR 27 1980

“RICHAET. RODAK, JR., CLERA

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1979

®»

‘7

ALBERT PEREZ, EVANGELINE

SALAZAR, and CAROLYN SANCHEZ,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Tony Aguilar

Attorney for

Petitioners

303 Texas

El Paso, Texas 79901

INDEX

Page

GRERLOR BELG is -ccccéacacics &

Questions Presented....... 2

Constitutional Provisions

SRVOAVOR 6c cc ccciscebesecss J

Statement of Case......... 4

Reasons For Granting

WEAR sid Ge Ce cic cnsawhicnces- 14

COBCLUGLOG se vc isicetionsciss US

Certificate of Service.... 12, 13

RPGR, 6 Vike cicccahnwtecee R

Opinion of Fifth Circuit

Court of Appeals Dated

Frentubre 1, 2006..ic cis.

Judgment Showing Issuance

of Mandate on Petitioners. 49

TABLE OF CASES

United States v. Calzada,

579 F.2d 1358 (7th Cir.

RPGR itos vce usb vbcede woe 6,9

United States v. Mendez-

Rodriguez, 450 F.2d 1

Ir. BOT sh Hb we rn dhae 6,7,8

United States v. Tsutagawa,

F.2d 420 (9th Cir.

I DM oa ag ga uk. a a 8

CONSTITUTION

Fifth Amendment........... 3

Sixth Amendment........... 4

-ii-

IN THE SUPREME COURT OF THE

_ UNITED STATES

OCTOBER TERM, 1979

NO.

ALBERT PEREZ, EVANGELINE

SALAZAR, and CAROLYN SANCHEZ,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED

STATES:

Petitioners respectfully pray

that 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 matter

' On February 1, 1980. the petition

ohe

for rehearing was denied on February

28, 1980.

OPINION BELOW

The February 1, 1980 opinion of

the Court of Appeals whose judgment

is herein sought to be reviewed not

reported but is reprinted in the sep-

arate Appendix to this Petition, pp.

14-48 ,

JURISDICTION

The Judgment of the Court of

Appeals was entered February 1, 1980.

The Petition for rehearing was denied

on February 28, 1980. The jurisdic-

tion of this Court is invoked pursu-

ant to 28 USC § 1254.

QUESTIONS PRESENTED

Once it is shown that Petit-

ioners' constitutional rights to due

process and compulsory process are

violated by the deportation of alien

witnesses from the jurisdictional

limits of the United States by the

United States Government prior to

Petitioner's right to interview said

witnesses, must Petitioners show the

prejudice resulting from the unavail-

ability of the deported witnesses.

CONSTITUTIONAL PROVISIONS INVOLVED

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or in-

dictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual ‘service in time of War or public

danger; nor shall any person be subject

for the same offence to be twice put in

jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without

=3-

due process of law; nor shall private

property be taken for public use, with-

out just compensation."

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an in-

partial jury of the State and district

wherein the crime shall have been com-

mitted, which district shall have been

previously ascertained by law, and to

be informed of the nature and cause of

the accusation; to be confronted with

the witnesses against him; to have

compulsory process for obtaining wit-

nesses in his favor, and to have the

Assistance of Counsel for his defence."

STATEMENT OF CASE ?

This is an alien transportating

case wherein the Petitioners were

arrested on April 22, 1978. At the

time of their arrest twenty-two alien

a

witnesses were also detained. On the

same day of the arrest three of the

aliens were deported by the United States

Immigration Service. On May 2, 1978,

an additional eleven aliens were de-

ported. On June 1, 1978, Petitioners

were indicted. On June 16, 1978 the

Petitioners were, for the first time,

given the names and addresses of the

previously deported alien witnesses

residing in the Republic of Mexico

who were not available to be interviewed or

deposed by Petitioner's counsel.

The Rulings Below

The district court ruled that the |

constitutional rights of the Petitioners’

had not been violated by the govern-

ments unilateral act of deporting the

alien witnesses. It ruled that the

furnishing of the deported witnesses’

names and addresses was sufficient and

oSe

that it was incumbent upon the Petiti-

oners to obtain the presence of the

deported witnesses. None of the de-

ported witnesses were present at the

trial of this case.

The Court of Appeals held that

Petitioners' Fifth and Sixth Amend-

ment rights were violated but that

reversal was not necessary since

Petitioners could not show prejudice

that resulted from the unavailability

of the deported witnesses. The Court

of Appeals refused to accept in tota

Opinions of cases decided in the

Ninth and Seventh Circuits. United

.States v. Mendez~-Rodriguez, 450 F. 241

(9th Cir. 1971) and United States v.

Calzada, 579 F.2d 1358 (7th Cir. 1978)

cert. dismissed, 439 U.s.920 (1978).

REASONS FOR GRANTING THE WRIT

Certiorari Should Be Granted To

Resolve The Conflict between the Seventh

and Ninth Circuits, jointly, and the Fifth

Circuit since their opinions on the same

matter differ.

The issue in this case has been de-

cided by three of the Circuit Courts of

Appeals. In United States v. Mendez-

Rodriguez, 450 F.2d 1 (9th Cir. 1971),

the Ninth Circuit was spaniels with

essentially the same type of fact situ-

ation present in this case. In the Mendez-

Rodriguez case, at page 5 of the Opinion,

the court noted that the Appellant could

not show that the deported witnesses in

question would have offered testimony

favorable to the defense. The Court said

such position was understandable in view

ef the fact that Appellant was, by Govern-

ment action, deprived of the opportunity

to interview the witnesses. Appellant

could not say what, if anything, the

~ = ?

4

witnesses might say. The Court

accepted Appellant's position and

refused to indulge in speculation as

to whether or not the interviews

would, or would not, have been fruit-

ful to the defense. On page 2792 of

the opinion in this case, the Fifth

Circuit took the opposite position

of the Ninth Circuit and stated that

Petitioners should give some suggestion

as to how the deported witnesses might

advance the cause of revealing the

truth, a position that Appellant in

Mendez-Rodriguez was unable to do and

that Petitioners were unable to do in

this present case. See Appendix, pp.

33 °

The Ninth Circuit further expounded

On Mendez-Rodriguez in United States vy.

Tsutagawa, 500 F.2d 420 (9th Cir. 1974)

and stated, at page 423 of the opinion,

~

that the vice of the problem encount-

ered in this type of case lies in the

unfettered ability of the government

to make the decision to deport witnesses.

Petitioners, before the district

court, relied upon the two Ninth Circuit

cases since there were no other cases

directly in point. While Petitioners’

case was in the district court the

Seventh Circuit decided United

States v. Calzada, 579 F.2d 1358 (7th

Cir. 1978) cert dismissed, 439 U.S. 920

(1978). In Calzada the view the govern-

ment asked the Court to adopt is the

position taken by the Fifth Circuit:

that the Petitioners must show bad

faith or undue prejudice to the

defendant's case. The Seventh Circuit

declined to adopt the aforementioned

position. See page 1361 of the opinion.

Due to the positions taken by the

-9-

Seventh and Ninth Circuits, jointly,

and the Fifth Circuit Petitioners be-

lieve that this Petition For writ of

Certiorari should be granted since

individual's constitutional rights are

involved and there is a definite conflict

between circuits. Petitioners relied upon

the case law then outstanding when they

pursued this point in the district court.

According to the Ninth Circuit, their

position was correct and dismissal of

the charges could have followed. The

Same result would now occur within the

Seventh Circuit. However, such is not

the case in the Fifth Circuit. Hence,

the applicability of an individual's

constitutional rights on the question

raised in this case is determined,

at present, on a circuit to Circuit

basis. Petitioners believe the following

paraphrase from Judge Wisdom is appropriate:

-10-

We are one nation under one set of

laws and should have one interpretation

of them.

CONCLUSION

WHEREFORE, Petitioners respectfully

pray that a writ of certiorari be

granted.

—RespectfullyAubmitted,

(a tYar

AttorMey ffor Petitioners

303 Texa

El Paso, Texas 79901

-li-

Certificate of Service

I, Tony Aguilar, a member of the

Bar of the Supreme Court of the United

States and counsel of record for

Albert Perez, Evangeline Salazar,

and Carolyn Sanchez, Petitioners here-

in, hereby certify that, pursuant to

Rule 33, Rules of the Supreme Court,

I served three copies of the Petition

For Writ Of Certiorari on each of the

parties herein, as follows:

On Ms. Le Roy Morgan Jahn, Assistant

United States Attorney for the Western

District of Texas, by depositing such

copies’ in the United States Post Office,

El Paso, Texas, with first class postage

prepaid, properly addressed to Ms. Morgan,

above-named counsel for the United States

Of America, at 655 E. Durango Blvd.,

Suite G-13, San Antonio, Texas 73206.

Dated March 26, 1980.

303 Texas

El Paso, Texas 79901

=~} 9e

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Maximo AVILA-DOMINGUEZ, Albert

Perez, Evangeline Salazar and

Carolyn Sanchez, Defendants-

Appellants.

No. 78-5575

United States Court of Appeals

Fifth Circuit

Feb. 1, 1980.

Multiple convictions were returned

against defendants by the United States

District Court for the Western District

of Texas, at El Paso, William S. Sessions,

J., for assisting Mexican aliens in ille-

gally entering the United States, and

defendants appealed. The Court of Ap-

peals, Roney, Circuit Judge, held that:

(1) while defendants' constitutional

rights were violated by the deportation

of alien witnesses before defendants were

given an opportunity to interview the

witnesses, the convictions would never-

APPENDIX i

theless be affirmed, since the case was

flavored with an element of waiver even

though defendants' conduct was not clothed

with a full-dress waiver of constitutional

rights, and since, more importantly, no

suggestion was made as to how the witness-

es might have, in the slightest way,

helped defendants in the defense of the

case, and (2) there was sufficient evi-

dence to support the convictions.

Affirmed.

1. Criminal Law 1182

While defendants' constitutional

rights were violated by the deportation

of alien witnesses before the defendants

were given the opportunity to interview

the witnesses, the convictions would

nevertheless be affirmed, since the case

was flavored with an element of waiver

even though defendants' conduct was not

APPENDIX -15-

clothed with a full-dress waiver of con-

stitutional rights, and since, more im-

portantly, no suggestion was made as to

how the witnesses might have, in the

slightest way, helped defendants in the

defense of the case. U.S.C.A. Const.

Amends. 5, 6.

2. Criminal Law 666 1/2

Defendants have a constitutional

right to interview alien witnesses and

must be given reasonable notice before

the deportation of such witnesses. U.S.

C.A. Const. Amends. 5, 6.

3. Indictment and Information

125 (51/2)

Fact that alleged conspiracy includes

the violation of more than one federal

statute does not make the indictment du-

plicitous.

APPENDIX -16-

4. Conspiracy 48

Once a defendant is found guilty of

participating in a conspiracy, it is

unnecessary that the verdict specify the

particular statutory provision which

defendant conspired to violate. 18

U.S.C.A. § 371.

5. Arrest 63.4(1)

Constitution does not require that a

warrant issue prior to an arrest based

On probable cause, even if no exigent cir-

cumstances prevented the obtainment of a

warrant.

6. Arrest 63.4(8,9)

Agents of the Immigration and Nat-

uralization Service clearly had probable

cause to arrest defendants, where an agent

testified that he had dealt with the

informant on 20 prior occasions and was

convinced of his reliability, where the

informant's detailed information about

APPENDIX -17-

aliens' whereabouts, one defendant's

appearance, and the presence of a woman

alien accompanied by two children was

corroborated by the agents' personal

observation soon after surveillance

began, and where an agent observed

through a window that more people were

concealed in camper that he had seen

enter. Immigration and Nationality

Act, § 274(a)(2, 4), 8 U.S.C.A §

1324 (a) (2,4); 18 U.S.C.A. § 371.

7. Arrest 71.1(8)

Searches of defendants incident

to their lawful arrests were Clearly

proper, even though the searches took

place at the courthouse rather than

at the sites of the arrests.

8. Criminal Law 394.4(4)

Agent had probable cause for

search of camper shell, and therefore

the testimony of illegal aliens

APPENDIX -18-

discovered therein was properly

admissible.

9. Conspiracy 23

Essential elements of criminal con-

spiracy are an agreement between two

or more persons to commit a crime and

an overt act in furtherance of the agree-

ment by one of the conspirators. 18

U.S.C.A. § 371.

10. Conspiracy 47(1)

Once the existence of a conspiracy

is established, there must be substan-

tial evidence that each alleged conspir-

ator knew of, intended to join, and parti-

cipated in the conspiracy. 18 U.S.C.A.

§ 371.

ll. Conspiracy 47(3)

In prosecution for conspiracy to

encourage or induce the entry of illegal

aliens into the United States and to

transport those aliens within the United

APPENDIX -19-

States, there was sufficient evidence to

establish the essential elements of con-

spiracy and defendants' knowledge, intent

and participation therein. Immigration

and Nationality Act, § 274(a) (2, 4),

8 U.S.C.A. § 1324(a) (2, 4); 18 U.S.C.A.

§ 371.

12. Aliens 59

Defendant's conviction on six counts

of encouraging and inducing aliens' ille-

gal entry into the United States was

Supported by sufficient evidence. Immi-

gration and Nationality Act, § 274 (a) (4),

8 U.S.C.A. § 1324(a) (4).

13. Aliens 59

Evidence that defendant met aliens

in Mexico, coordinated their illegal

entry into the United States, and was

apprehended in El Paso while driving a

truck in which they were passengers was

sufficient to establish his violation

APPENDIX -20-

of statute pertaining to the transpor-

tation of illegal aliens within the

United States. Immigration and Nation-

ality Act, § 274(a) (2), 8 U.S.C.A. §

1324 (a) (2).

Appeals from the United States Dis-

trict Court for the Western District of

Texas.

Before WISDOM, AINSWORTH and. RONEY,

Circuit Judges.

RONEY, Circuit Judge:

This case involves multiple con-

victions for assisting Mexican aliens

in illegally entering the United States.

The most serious question is whether the

convictions should be reversed because

the Government deported potential wit-

nesses before defendants' counsel could

interview them. Acknowledging that the

Government violated defendants' consti-

APPENDIX -21-

tutional rights, we nevertheless affirm

the convictions, partly because the case

has an element of waiver of those rights,

but more importantly because no suggestion

has been made to this Court or the dis-

trict court as to how the witnesses might

have, in the slightest way, helped defend-

ants in the defense of this case.

The facts on this controlling issue

are undisputed. Acting on an informant's

tip and surveillance, an Immigration

and Naturalization Service (INS) a-

gent stopped a pickup truck driven by

defendant Perez and placed him under

arrest. Perez opened the truck's

camper shell at the agent's request,

and twenty-two illegal aliens were

discovered within. [In the meantime,

another INS agent arrested defendants

Avila, Salazar and Sanchez in the near-

APPENDIX -22-

by parking lot from which the truck

had departed.

The twenty-two aliens were taken

into custody of the INS and each was

interviewed by an INS agent. The

United States Attorney determined

that eight of them would be detained

as material witnesses, and a written

Statement was taken from each of those

eight. The sole woman alien in custody

and the two children accompanying her

were granted voluntary return to Mexico

on the day of defendants' arrests be-

cause of the inadequacy of detention

facilities. Deportation proceedings

were begun against the other eleven

aliens and they were deported to Mexico

ten days later. The dates are signifi-

cant. The arrests occurred on April 22,

' 1978. Initial appearances were made

APPENDIX ~23- -

and bonds were set on April 24. Defen-

dants then had an attorney. The eleven

aliens in question were deported on

May 2.

At the preliminary hearing on May 3,

an INS agent unintentionally misinformed

defendants' counsel that nineteen aliens

remained in custody, including the eleven

who had actually been deported the pre-

vious day. On June 16, defendants moved

for dismissal because of the Government's

failure to provide the names of the de-

ported aliens and make them available

for interviews. The district court de-

nied the motion to dismiss, but ordered

the Government to furnish the names

and addresses of the witnesses. The

aliens resided in Mexico, however,

and were not available to be inter-

viewed or deposed by defendants’

APPENDIX -24-

counsel.

Defendants Avila, Perez, sities

and Sanchez were convicted of conspiracy,

a8 9.8.C.A, § 3th, tO encourage or in-

duce the entry of illegal aliens into

the United States in violation of 8 0.8.

C.A. § 1324(a) (4), and to transport

those aliens within the United States

in violation of 8 U.S.C.A. § 1324(a) (2).

Avila was also convicted on six counts

for violating 8 U.S.C.A. § 1324 (a) (4),

and Perez was convicted on eight counts

for violating 8 U.S.C.A. § 1324(a) (2).

Deportation of Witnesses

Relying on United States vy. Mendez-

Rodriguez, 450 F.2d 1 (9th Cir. 1971),

defendants argue the Government vio-

lated their Fifth Amendment right to

due process and their Six Amendment

APPENDIX -25-

right to compulsory process by deporting

the potential witnesses before defend-

ants were notified of their impending

deportation and given an opportunity

to interview them. In tindaedeike Veena,

defendant was charged with violations

of 18 U.S.C.A. § 371 and 8 U.S.C.A. §

1324(a) (2) and convicted on the basis

of testimony of three aliens who had

been detained in the United States

pending his trial. In reversing the

convictions, the Ninth Circuit held

that defendant's Fifth and Sixth

Amendment rights were violated by

the deportation to Mexico of three

other alien witnesses before de-

fendant had an Opportunity to inter-

view them. The court held the de-

fendant was not required to show pre-

judice resulting from the unavailability

of the deported witnesses. See also

APPENDIX -26-

United States vy. Tsutagawa, 500 F.2d

420. (9th Cir. 1974).

The Seventh Circuit adopted the

rule of Mendez-Rodriguez in United

States v. Calzada, 579 F.2d 1358,

cert. dismissed, 439 U.S. 920 (1978).

That decision affirmed the district

court's dismissal of indictments

against eight defendants because

seven of thirteen potential alien

witnesses had been made anavailable

by the Government for interviewing

by defendants. The court based its

decision solely on the right to

compulsory process, and rejected

the Government's argument that

defendants would be entitled to

relief only on a showing of either

prosecutorial bad faith or prejudice

to defendants.

APPENDIX -27-

The effect of Government conduct

such as this has not heretofore

beed addressed by our Court. The

opinion in Uribe v. United States,

529 F.2d 742 (Sth Cir. 1976), speci-

fically reserved the issue for later

determination:

Pecause of our resolution of

this question, we need not

decide whether we agree with

the Ninth Circuit that due

process is denied when the

Government deports potential

witnesses before the defendant

has an opportunity to inter-

view them. United States v.

Mendez~-Rodriguez, 9 Cir. 1971,

450 F.2d 1.

529 F.2d at 743 n 3.

APPENDIX -28-

[1} We agree with the Ninth and Seventh

Circuits that a criminal defendant's

constitutional rights are violated if

an alien witness is deported before the

defendant is given opportunity to inter-

view the witness. The reasoning of those

cases appears sound and we adopt it as

our own, without repetition here. We

disagree, however, with the automatic

reversals and ‘indictment dismissals

which occurred in those cases.

We base the affirmance of these

convictions on two rationales. First,

defendants' interest in the deported

aliens heightened once they were un-

available, and the case is flavored

with an element of waiver, even though

defendants' conduct is not clothed with

a full-dress waiver of constitutional

right. Of. United States y. Lujan-

APPENDIX -29-

Castro, 602 F.2d 877 (9th Cir. 1979)

(defendant knowingly waived right to

have alien witnesses retained in the

United States).

Defendants were arrested and the

illegal aliens taken into custody on

April 22, 1978. Complaints issued

against defendants on April 24, noti-

fying them of the crimes with which

they were charged. That same day

defendants were represented by counsel

at initial appearances before the court.

More than a week after the initial

appearances, on the tenth day after the

defendants' arrests, the eleven aliens

were ordered deported to Mexico by a

special inquiry officer of the INS.

Although defense counsel asserted

that he had inquired about the names and

APPENDIX -30-

location of the aliens on or about April

24, the district judge noted that defense

counsel failed to show that he had made

any efforts to follow up that informal

inquiry.

A requirement that defendants act

diligently to preserve the testimony

of illegal aliens must by imposed in

the circumstances of these cases.

Otherwise, the great burden arid expense

of detaining and housing alien witnesses

is borne by the Government, while de-

fendants delay the simple efforts in-

volved in locating and interviewing them.

Although detention methods involving

parole or work programs rather than in-

carceration would be less burdensome to

the Government, these entail the risk

of escape by the alien, defeating the

purposes of both detention for trial and

APPENDIX -31-

deportation. See United States v.

Verduzco-Macias, 463 F.2d 105 (9th Cir.),

cert. denied, 409 U.S. 883, 93 S.Ct.

173, 34 L.Ed2d 139 (1972).

Defendants could have preserved

the testimony of the eleven deported

witnesses by making a prompt formal

request for their names and where-

abouts. If there had been insufficient

time to interview all the witnesses,

a postponement of their deportation

could have been sought. Any alien be-

lieved by defendants to be able to give

exculpatory testimony could have been

detained in this country until trial.

[2] Since we believe, however, that

the better procedure for protecting the

constitutional rights here involved

would be for the Government to give

APPENDIX -32-

notice of prospective deportation

and a reasonable Opportunity for de-

fense counsel to interview the witness-

eS, we are not comfortable with rest-

ing an affirmance on the ground of

Waiver alone.

The second and more compelling

rationale for this decision is that

not the slightest Suggestion has been

made as to what testimony helpful to

defendants these witnesses could offer.

We are in general accord with the propo-

Sition set forth in Mendez-Rodriguez and

Calzada that to obtain relief in a case

of this kind, the defendant need not

show prejudice arising from the vio-

lation with "any degree of assured-

ness." 579 F.2d at 1362. But we

agree with the dissents in both of

those cases that reversal is not

APPENDIX -33-

warranted where the "record is com-

pletely devoid of anything which

would suggest that the testimony of

any one, or more, of the deported

persons would have been helpful" to

the defendants, 450 F.2d at 6, and

that "it does not seem too much to

require that they offer at least a

plausible theory" of how the testi-

mony Of the witnesses would be help-

ful to the defense. 579 F.2d at

1365. The purpose of a criminal trial

is to produce evidence which shows the

truth. The purpose of criminal pro-

cedure is to assure that end through

fair means. It is important to remember

that the defendants presumably know

the truth in this case. It does not

damage the underlying purposes of the

Fifth Amendment to require that at least

in counsel's brief or argument, some

APPENDIX - -34-

5 ae

Suggestion be made as to how the deported

witnesses might advance the Cause of re-

vealing the truth.

Nothing in the record permits an

inference that defendants were prejudiced

by the unavailability of the alien wit-

nesses. An INS agent testified that each

of the aliens related basically the same

story, and that the decision as to de-~

portation turned on the Superior

health and fitness of the aliens chosen

for detention. Proof of conspiracy fo-

cused on transactions between various

defendants and the aliens who testified

at trial, not those who were deported.

Prosecution of the substantive counts

was based on the illegal entry and

transportation of the aliens who testi-

fied at trial, not those who were de-

ported.

APPENDIX ~35-

Ds

Thus, while adhering to the prin-

ciples set forth in the Ninth and Seventh

Circuit cases, we refuse to blindly apply

those principles where there is no

Suggested suspicion that the deported

witnesses could give testimony which

would affect the trial in any way at

all. We need not here decided with

what strength any such theory of

helpfulness would need to be advanced

by counsel to justify relief. All we

do is hold that where there is nothing,

reversal is not required.

We especially note that the Govern-

ment neither acted in bad faith nor

purposefully deprived defendants of

their rights. Now that the Government

knows we subscribe to the rule that

defendants have a constitutional right

APPENDIX -36-

to interview such witnesses, and must

be _iven reasonable notice before their

deportation, this decision will not

necessarily immunize subsequent simi-

liar conduct. Likewise, our comments

here about the need for counsel to

act promptly should suggest that

purposeful delay which imposes on the

Government the hardship of retaining

witnesses not needed in good faith

by the defense will be of little a-

vail.

Duplicity

[3] Defendants sought dismissal of

Count One of the indictment for dupli-

city because it alleged conspiracy to

commit two distinctive substantive

offenses, the inducement of illegal

alien entry and the transport of

APPENDIX -37-

illegal aliens. "The fact that the

alleged conspiracy includes the vio-

lation of more than one federal statute

does not make [the indictment] du-

plicitous." Overstreet -7. United

States, 321 F.2d 459, (5th Cir. 1963),

cert. denied, 376 U.S. 919, 84 S.Ct.

675, 11 L.Ed.2w 614 (1964).

[4] The failure of the guilty verdict

to specify which substantive crime was

determined to be the object of the con-

spiracy is not prejudicial. Once a

defendant is found guilty of partici-

pating in a conspiracy, it is "un-

necessary that the verdict specify the

particular statutory provision which

an individual defendant conspired to

violate." United States v. Bolts,

558 F.2d 316, 325-326 (5th Cir.),

cert. denied, 434 U.S. 930, 98 S.Ct.

APPENDIX -38-

417, 54 L.Ed.2d 290 (1977).

Search and Seizure

The district court refused to

suppress three types of evidence:

Salazar's statements at the time of

her arrest, the testimony of the de-

tained witnesses, and certain sums

of money taken from the defendants

upon arrest. Defendants argue this

evidence was obtained as the result

of illegal arrests and should have

been suppressed. United States v.

Cruz, 581 F.2d 535, (5th Cir. 1978)

(en banc). See United States v.

Ceccolini, 435 U.S. 268, 98 S.Ct.

1054, 55 L.Ed.2d 268 (1978).

[5] The Constitution does not require

that a warrant issue prior to an arrest

based on probable cause, even if no

APPENDIX -39-

exigent circumstances prevented the

obtainment of a warrant. United States

v. Watson, 423 U.S. 411, 423-424, 96

S.Ct. 820, 46 L.Ed.2d 598 (1976).

The test is whether or not the INS

agents had probable cause at the time

the arrests occurred:

Probable cause exists when the

facts and circumstances within

the arresting officer's know-

ledge and of which he had reason-

ably trustworthy information

are sufficient in themselves

to warrant a man of reasonable

caution to believe that an

offense has been or is being

committed.

United States v. Lowery, 436 F.2d 1171,

1174 (5th Cir. 1970), cert. denied, 401

U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 329

(1971), citing Draper v. United States,

358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.

APPENDIX -40-

2d 327 (1959).

[6] The INS agents clearly had prob-

able cause to arrest defendants. An

agent testified he had dealt with the

informant on twenty prior occasions

and was convinced of his reliability.

Moreover, the informant's detailed in-

formation about the aliens' whereabouts,

Salazar's appearance, and the presence

of a woman alien accompanied by two

children was corroborated by the agents'

personal observations soon after surveil-

lance began. See United States v. Tuley,

546 D.2d 1264 (5th Cir.), cert. denied,

424 U.S. 837, 98 S.Ct. 128, 54 L.Ed.2d

99 (1977). Finally, an agent observed

through a window that more people were

concealed in the camper than he had

seen enter. This served to corroborate

the informant's allegation of criminal

APPENDIX -41-

conduct, especially in view of the

lengthy time the truck remained in the

parking lot. See United States v.

Smith, 598 F.2d 936, 939-940 (5th Cir.

1979).

[7,8] The searches of defendants inci-

dent to their lawful arrests were clearly

proper, United States v. Robinson, 414

U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427

(1973), even though the searches took

place at the courthouse rather than at

the sites of the arrests. United States

v. Edwards, 415 U.S. 800, 94 S.Ct. 1234,

39 L.Ed.2d 771 (1974); United States v.

Castro, 596 F.2d 674, 677 (5th Cir.),

cert denied, __..._veBe sg 105 §.CE.

448, 62 L.Ed.2d (1979). The

agent had probable cause for the search

of the camper shell, so the testimony

of the illegal aliens discovered therein

APPENDIX -42-

was properly aebeuibie. Carroll v.

United States, 267 U.S. 132, 45 S.Ct.

280, 69 L.Ed. 543 (1925); United States

v. Wright, 588 F.2d 189, 193 (5th Cir.

1979). Moreover, there was reason for

concern that the aliens might flee if

not taken promptly into custody. The

district court did not err in admitting

the evidence resulting from defendants'

arrests and the accompanying searches.

Sufficieny of the Evidence

[9, 10] Defendants challange the suffici-

ency of the evidence to support the convi-

ctions. The essential elements of crimi-

nal conspiracy are an agreement between

two or more persons to commit a.crime

and an overt act in furtherance of the

agreement by one of the conspirators.

United States v. White, 569 F.2d 263,

APPENDIX -43-

266 (5th Cir. 1978), cert. denied, 439

U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149

(1979). Once the existence of the con-

spiracy is established, there must be

substantial evidence that each alleged

conspirator knew of, intended to join

and participated in the conspiracy.

United States v. Malatesta, 590 F.2d

1379 (5th Cir.) (en banc), cert. denied,

440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d

777 (1979).

[11] The evidence is viewed in the light

most favorable to the Government. Glasser

v. United States, 315 U.S. 60, 80, 62

S.Ct. 457, 86 L.Ed. 680 (1942). In this

case the evidence establishing the essent-

ial elements of conspiracy and defendants'

knowledge, intent and participation therein

is sufficient. Several weeks before their

arrests, Salazar, Sanchez and Perez entered

APPENDIX -44-

Mexico and recruited the aliens in Juarez,

arranging to transport them to Chicago or

Denver. Senne later returned to Mexico,

and on the morning of April 22, 1978, he

supervised the transportation of the aliens

by municipal bus from downtown Juarez to

an abandoned house near the border.

Avila and several unknown persons es-

corted the aliens to the border, where

Avila crossed first, ascertained that no

INS patrols were present, and signalled

the aliens to follow. He then walked

the aliens to a pickip point, from which

they were driven into El Paso. Sanchez

and Avila collected fees from the aliens

for the conspirators assistance in

bringing them into the United States.

Additional payments were to be made

after the aliens secured employment

in Chicago and Denver.

APPENDIX -45-

As thus described by the testimony

of the eight alien witnesses, the acti-

vities engaged in by defendants were

not "random" or "separate", but rather

evinced "continuous planning and co-

operation [among] the persons involved."

United States v. Michel, 588 F.2d 986,

995 (5th Cir.), cert. denied,

U.S. , 100 S.Ct. 47, 62 L.Ed.2d

32 (1979).

[12] Avila also challenges the suffi-

ciency of the evidence by which he was

convicted on six counts of encouraging

and inducing the aliens' entry into the

United States, in violation of 8 U.S.C.A.

§ 1324(a) (4). The testimony of the

alien witnesses fairly established that

Avila met them across the border, assisted

their transportation to the river, told

APPENDIX -46-

them he would signal from the other side

when it was safe to cross, scouted the

vicinity for law enforcement officers,

then called, whistled and waved to the

aliens to indicate the right time for

crossing. The surreptitious manner

in which Avila led the aliens across

the border and his subsequent accept-

ance of cash payments in exchange for

that guidance amply support an inference

of his knowledge that they were not law-

fully entitled to enter the United States,

and of the willfulness of his activity.

See United States v. Boerner, 508 F.2d

1064, 1068 (5th Cir.), cert. denied, 421

U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681

(1975). From this evidence, a jury could

reasonably conclude that Avila encouraged

or induced entry of illegal aliens into

the United States.

[13] Perez met the aliens in Mexico,

APPENDIX -47-

coordinated their illegal entry into the

United States, and was apprehended in

El Paso while driving a truck in which

they were passengers. The evidence is

sufficient to establish his violations

of 8 U.S.C.A. § 1324(a) (2), the trans-

portation of illegal aliens within the

United States.

AFFIRMED.

APPENDIX -48-

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-5575

D.C. Docket No. EP-78-CR-147

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAXIMO AVILA-DOMINGUEZ,

ALBERT PEREZ, EVANGELINE SALAZAR

and CAROLYN SANCHEZ,

Defendants-Appellants.

Appeal from the United States

District Court for the Western

District of Texas.

Before WISDOM, AINSWORTH and RONEY,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Western

APPENDIX -49-

District of Texas, and was argued by

counsel;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the conviction of the said District

Court in this cause be, and the same is

hereby, affirmed.

February 1, 1980

ISSUED AS MANDATE: MAR 7 1980

(AS TO APPELLANTS ALBERT PEREZ,

EVANGELINE SALAZAR, & CAROLYN

SANCHEZ)

¥ APPENDIX -50-