# Petition — Morejon-Pacheco v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 827

## Text

in the
Supreme Cou

of the
United States

OCTOBER TERM, 1979

No. 79-178%

JULIO MOREJON-PACHECO,
Petitioner,

versus

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT

MICHAEL J. OSMAN, ESQUIRE
ROBERT M. DUBOFF, ESQUIRE
Micheel J. Osman, P.A.

Peninsula Federal Building

200 S.E. First Street

Suite 501

Miami, Florida 33131

(305) 358-6491

Counsel for Petitioner

May 9, 1980

INDEX

Page
I HII 6 ginsc tek ceenkdecnscksuedcue 2
PI Sc cncuinaatounweswaenuen ok Guawaauhne tee 2
Cpuettion Propented .........cccscccccccoccccuceecs 2
Statutory Provisions Involved ..................... 3
Statement of the Case and Facts ...............08. 3
Reasons for Granting the Writ..................... 9

I. The Court Of Appeals Violated The

IT.

Petitioner’s Right To Due Process By
Disposing Of His Fourth Amendment
Claim On The Basis Of Standing Where
The Government Conceded Standing At
Every Stage Of The Proceedings Below
And The Question Of The Petitioner’s
Standing Was Never Raised On Appeal By
Re. kas sctiasesaneete

The Court Of Appeals Erred In
Concluding That The Petitioner Did Not
Have Standing Where The Indictment
Specifically Charged Him With Possession
Of The Seized Contraband And The
Record Clearly Reflects That He Was In
Possession At The Time Of The Search
RTE book Rhee eee

INDEX (continued)

Nee ne eubbecvcecen

Tacs ca cheecnessscessvece

ii

TABLE OF AUTHORITIES

Page
Barrows v. Jackson,
BAB U.S. 249 (1953) ....cccccccccccccvccccccees 12
Brown v. United States,
411 U.S. 223, 93 S.Ct. 1565 (1973) ...... 18, 19, 23,
24, 25, 26
Combs v. United States,
92 S.Ct. 2284 (1972) ....cscccccccceeceee 12, 24, 25
Dorszynski v. United States,
94 S.Ct. 3042 (1974) ...ccccccccccccccccvsceces 13
Duncan v. State,
276 Md. 715, 351 A.2d 144 (1976) ........0eeeee 18
Garrity v. State of New Jersey,
385 U.S. 498 (1967) ....ccccccccccccccscccceces 11
Harris v. New York,
401 U.S. 222, 91 S.Ct. 643 (1971) .......e eee eee 18
Hormel v. Helvering,
312 U.S. 552, 61 S.Ct. 719, (1941) .......+.-. 11, 13

Jones v. United States,
962 1.3. 257 (1060) ..ccccccccccccees 16, 17, 18, 19,
23, 26, 28, 29

King v. United States,
565 F.2d 356 (5th Cir. 1978) .......eeeeeeeeeeee 14

iii

TABLE OF AUTHORITIES (continued)

Page
Mancusi v. DeForte,
392 U.S. 346, 88 S.Ct. 2120 (1968) ........... 17, 26
Mayberry v. Davis,
608 F.2d 1070 (5th Cir. 1979) ..............006. 14
Messelt v. Alabama,
595 F.2d 247 (5th Cir. 1979) .......... cc ccc cece 14
Miranda v. Arizona,
ee cu ebacecsececen 18

Nadeau v. Helgemoe,
423 F.Supp. 1250 (D. N.H. 1976), 561 F.2d 411
CRT CF, OE We RTO CIO IE) nn ciccccccccccnccs 11

Needleman v. Bohlen,
WE CMM EE BUTE ciccieccccevececcvccs 14

New Jersey v. Portash,
pote, eee a ee eee 18

People v. Sturgis,
58 Ill.2d 211, 317 N.E.2d 545 (1974) ......... 17, 18

Pinkerton v. United States,
Re I a ve adivedbeuve¥aes<suns 21

iv

TABLE OF AUTHORITIES (continued)

Page
Rakas v. Illinois,

on) a | it re 12, 16, 17, 22,
23, 24, 26, 27, 29

Response of Carolina, Inc. v. Leasco Response, Inc.,
537 F.2d 1307 (5th Cir. 1976) .................. 14

Simmons v. United States,
390 U.S. 377, 88 S.Ct. 967 (1968) ....... 10, 11, 15,
17, 18, 24, 25, 28

Singleton v. Wulff,
Ee 11, 13

United States v. Aguiar,
610 F.2d 1296 (5th Cir. 1980) .................. 2

United States v. Bazzano,
570 F.2d 1120 (8d Cir. 1977) ................... 14

United States v. Byers,
600 F.2d 1130 (5th Cir. 1979) ............ 21, 22, 23

United States v. Chapman,
549 F.2d 1075 (6th Cir. 1977) .................. 14

United States v. Edmonds,
611 F.2d 1386 (5th Cir. 1980) .................. 12

United States v. Emery,
541 F.2d 887 (1st Cir. 1976) ................. 12, 14

TABLE OF AUTHORITIES (continued)

Page
United States v. Grunsfeld,
re Bee Ce as BOTT vnc cc ccccvaccscss 28
United States v. Harwood,
ST Fe ae Cee Gt. FBTR) ince cccccccccccces 28
United States v. Hodges,
606 F.2d 520 (5th Cir. 1979) ............. 20, 21, 22
United States v. Jeffers,
342 U.S. 48, 72S.Ct. 98 (1951) ..........06: 24, 26,
27, 28
United States v. Moore,
ee ee Oe es BUTE) oo ivi cc ccccicccccnce 14
United States v. Morejon-Pacheco,
446 F.Supp. 83 (S.D. Fla. 1978) ............... 5
United States v. Oakes,
664 F.2d 364 (10th Cir. 1977) ....ccccsccsccese. 14
United States v. Palazzo,
- 488 F.2d 942 (Gth Cir. 1974) .......cccccceces 22, 23
United States v. Patrin,
BFS Fe Fee Cee Ce TOTS) vccccccvecccvcass 13, 14
United States v. Russell,
585 F.2d 368 (8th Cir. 1978) .........cccccecees 14

TABLE OF AUTHORITIES (continued)

Page

United States v. Salvucci,

599 F.2d 1094 (1st Cir. 1979); cert. granted,

A RETO heccedciccncccencacs 16, 17, 29
United States v. Whitaker,

592 F.2d 826 (5th Cir. 1979) ........ccccccees 12, 13
United States v. Wilson,

536 F.2d 883 (9th Cir. 1976) ..............cceee 28
Vale v. Louisiana,

a ino Cac ced daa sen cas eeck 8

Youakim v. Miller,
SP, MINE gos coc ek ence pencanccscucn 13

STATUTORY PROVISIONS INVOLVED

Page
Pe es Ciivnivsnapccavscivnsssscanssecces 3
weeee ah, UBLC.A, GERAD) ons ccsccsccsccccsene 3
BEE, VOD, FOU) ooiscsccscccscccvesssscs 3
RE Ey ls UE Saks ccd sn csicuvancecdasecs 3
PE, CA GEMM) cc ciccccccccccccwssuves 2
BOE, rs WI Sin os ve ccutcendscccdosiede 14
OE, Was GOD oc indscssvcanevissesscccer 14

OTHER AUTHORITIES

American Heritage Dictionary (1979) ............. 21

Gutterman, A Person Aggrieved: Standing to
Suppress Illegally Seized Evidence in
Transition, 23 Emory L.J. 111, 119 (1974) ..... 27

LaFave, Wayne R., Search and Seizure, A Treatise

On The Fourth Amendment, Vol. 3, (1978) . 18, 24,
26, 27

viii

in the
Supreme Court
of the
United States

OCTOBER TERM, 1979

No.

JULIO MOREJON-PACHECO,
Petitioner,

versus

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT

The petitioner, Julio Morejon-Pacheco, respectfully
prays that a writ of certiorari issue to review the
judgment, opinion, and order on rehearing of the United
States Court of Appeals for the Fifth Circuit entered in
this proceeding on February 4, 1980, and on March 10,
1980.

OPINIONS BELOW

The opinion of the Court of Appeals, reported as
United States v. Aguiar, 610 F.2d 1296 (5th Cir. 1980)
appears in the Appendix attached hereto. (Appx. pp. 8-
28) The Court of Appeals denied the petitions for
rehearing and rehearing en banc in a per curiam order
dated March 10, 1980. (Appx. p. 30)

JURISDICTION

The judgment of the Court of Appeals for the Fifth
Circuit was entered on February 4, 1980. A timely
petition for rehearing and petition for rehearing en banc
was denied without an opinion on March 10, 1980. For
good cause shown, this Honorable Court extended the
time for filing the present petition for a writ of certiorari
until May 9, 1980. This Court’s jurisdiction is invoked
under Title 28, U.S.C.A. §1254(1).

QUESTIONS PRESENTED

Whether the Court of Appeals erred by disposing of
the petitioner’s Fourth Amendment claim on the basis
of standing where the government conceded standing at
every stage of the proceedings below and the issue of
standing was never briefed or argued on appeal by the
government.

Whether the Court of Appeals erred in concluding
that the petitioner did not have standing where the
indictment specifically charged him with possession of
the seized contraband and the record clearly reflects

that he was in possession at the time of the search and
seizure.

STATUTORY PROVISIONS INVOLVED
Title 21, U.S.C.A. §841(a)(1).

Title 21, U.S.C.A. §846.
STATEMENT OF THE CASE AND FACTS

This petition arises out of the opinion and judgment
of the Court of Appeals for the Fifth Circuit affirming
the judgment of the United States District Court for the
Southern District of Florida. The petitioner, Julio
Morejon-Pacheco, was indicted along with ten other co-
defendants. (R.I, pp. 1-5; 131-136.) The petitioner was
tried and convicted on all five counts alleged in the
second superseding indictment. (R.I, pp. 131-136.)

Count I charged a conspiracy to possess with the
intent to distribute cocaine in violation of Title 21,
U.S.C.A. §841(a)(1); Title 21, U.S.C.A. §846; and Title
18, U.S.C.A. §2. Count II charged the petitioner with
the distribution of an unspecified amount of cocaine in
violation of Title 21, U.S.C.A. §846 and Title 18,
U.S.C.A. §2. Count III charged the petitioner with
possession with the intent to distribute 448 grams of
cocaine in violation of Title 21, U.S.C.A. §841(a)(1) and
Title 18, U.S.C.A. §2. Counts IV and V charged the
petitioner with the knowing use of a communications
facility in furtherance of a felony in violation of Title 21,
U.S.C.A. §843(b). (R.I, pp. 131-136.)

Prior to the trial, the United States Magistrate held
a hearing on the petitioner’s motion to suppress the 448
grams of cocaine he is charged with possessing under
Count III of the indictment. (Appx. p. 24) Based upon
the fact that the government did not contest the
petitioner’s standing to make a motion to suppress the
Count III cocaine, the Magistrate heard evidence on the
merits of the Fourth Amendment question presented.
The Magistrate found that the search and seizure was
valid under a very narrow warrant exception and
recommended denial of the motion to suppress the 448
grams of cocaine. On appeal, the only Fourth
Amendment question briefed and argued by the parties
was the reasonableness of the warrantless search in this
case. (Appx. p. 6) (Appx. p. 24) The question of standing
was expressly conceded by the government at the
hearings below and was not raised on appeal. (Appx.

p. 3)

The district court accepted the Magistrate’s
recommendation and proceeded to deny the petitioner’s
motion to suppress the seized cocaine.' The
government's failure to raise the question of standing
and the ultimate concession thereof foreclosed any offer
of evidence or that question to the Magistrate or to the
district court. The district court’s memorandum opinion
clearly notes that the government had conceded the
question of the petitioner’s standing to contest the
seizure of the Count III cocaine he is charged with

‘Local Rule 25(c)(2) of the District Court for the Southern
District of Florida provides that the Magistrate may conduct
evidentiary hearings on a motion to suppress evidence seized during
an alleged unlawful search, but the final decision thereon shall be
by the district court.

possessing. (Appx. p. 3) United States v. Morejon-
Pacheco, 446 F.Supp. 83 (S.D. Fla. 1978).

On appeal to the Fifth Circuit Court of Appeals, the
petitioner raised numerous issues, to wit: improper
comment upon the petitioner’s failure to testify at trial;
the trial court’s abuse of discretion in failing to sever the
petitioner’s trial from the co-defendants with
antagonistic defenses; the trial court’s erroneous denial
of the petitioner’s motion for new trial based upon newly
discovered evidence of governmental misconduct and
the suppression of favorable exculpatory evidence; and
the erroneous cenial of the petitioner's motion to
suppress the 448 grams of cocaine he is charged with
possessing under Count III of the indictment. (Appx. p.
24)

For the purposes of the instant petition, the main
issue presented is the erroneous manner in which the
Court of Appeals raised the question of standing sua
sponte and then decided the Fourth Amendment issue
without reaching the merits of the claimed error. (Appx.
p. 25) Subsequent to the Court of Appeals’ opinion, the
petitioner timely filed a petition for rehearing and a
petition for rehearing en banc which was limited to the
issues presented herein, to wit: the procedural error of
raising and deciding a question not raised on appeal and
upon which the petitioner had no opportunity to present
evidence below and the substantive standing question
itself. Said petitions for rehearing and rehearing eri Sanc
were denied without an opinion in a per curiam order on
March 10, 1980. (Appx. p. 30)

The relevant facts adduced below reflect that the
Drug Enforcement Administration had conducted an

undercover operation which began in April of 1977 and
ended on July 18, 1977, the date of the petitioner’s arrest
and the contested search and seizure. (Appx. pp. 13-14)?
After several months of negotiations between the DEA
agents and the defenuants below, the petitioner,
Morejon-Pacheco, agreed to take agent Jezzeny to the
home of a co-defendant for the purpose of weighing and
testing the cocaine that the agents were to purchase.
One of the co-defendants had simultaneously taken
agent Fonte to another house for the purpose of showing
the sellers the money they were to receive from the
cocaine sale. The date of these events was July 18, 1977.
(Appx. p. 13) (R.VI, pp. 431, 627.)

The record reflects that when the petitioner and
agent Jezzeny entered the house, co-defendant Virgen
Palenzuela led them to a back bedroom where she
produced a box containing five and one-half (5%)
kilograms of cocaine. She also produced a bag from a
bathroom drawer which contained the 448 grams of
cocaine that became the subject of the petitioner’s
motion to suppress below. (Appx. p. 15) (R.VI, pp. 631-
632; R.IV, pp. 16-17.) Before the sale could be
consummated, agent Jezzeny and Morejon-Pacheco
received a telephone call from agent Fonte who told
them something had gone wrong at the money house and
that a meeting was necessary. (Appx. p. 14) (R.VII, pp.
651-661.)

Before agent Jezzeny and the petitioner left Virgen
Palenzuela’s house, two of the co-defendants, Mr. and

2Accepting the statement of facts in the Court of Appeals’
opinion as accurate, the facts set forth herein will be restricted to
the events immediately preceding the contested search and seizure.
(Appx. pp. 13-15)

Mrs. Torres, removed the five and one-half (5%)
kilograms but the petitioner left the 448 gram bag of
cocaine with Mrs. Palenzuela. (Appx. p. 14) (R.VII, pp.
656-658; R.IV, pp. 31-32.)

Upon leaving Mrs. Palenzuela’s house with agent
Jezzeny, the petitioner was placed under arrest by
agents Fonte, Jezzeny and other officers. (Appx. p.
14)(R.VO, pp. 662-663.) Subsequen: to the petitioner’s
arrest, the DEA agents and eight or more City of Miami
police officers went back to the Palenzuela house to
arrest the co-defendants. (Appx. p. 14) (R.IV, pp. 35-
39.) The elapsed time between the arrest of the
petitioner and the contested search and seizure was
twenty-five (25) minutes. (Appx. p. 14) (R.IV, p. 35.)

Although all of the co-defendants were arrested in
the front yard of the Palenzuela house, the agents
proceeded to enter the house and conduct a systematic
warrantless search. (Appx. p. 15)(R.IV, pp. 43, 53, 57,
81.) After a twenty-minute search of the house, the eight
agents and officers recovered the 448 grams of cocaine
from a drawer in a back bathroom. (Appx. p. 15)(R.IV,
pp. 45-46.) Said search was conducted despite the
agents’ admission that there were more than enough

officers to secure the premises until a warrant could be
obtained. (R.IV, pp. 84-86.)

It is significant to note that Count II of the
indictment specifically alleges that on or about July 18,
1977, the date of the contested search and seizure, the
petitioner knowingly possessed the 448 grams of cocaine
seized from the Palenzuelas’ house moments after he
left and was placed under arrest. (Appx. p. 3) It is also
significant to note Virgen Palenzuela’s trial testimony in
which she stated that all of the cocaine that she showed
to agent Jezzeny belonged to the petitioner, Morejon-
Pacheco. (Appx. p. 15) (R.VII, pp. 805, 831-836, 850.)
The Court of Appeals’ opinion correctly notes that
Virgen Palenzuela testified that she had no idea what
was in the packages and that she was only doing a favor
for her friend, the petitioner. (Appx. p. 15, N. 8.)
(R.¥ M1, pp. 800-806.) Both the five and one-half (512)
kilograms in the box that she gave back to Mr. and Mrs.
Torres and the 448 gram bag of cocaine in issue here
belonged to the petitioner according to Virgen
Palenzuela and the indictment itself. (Appx. p. 15)
Despite the facts noted herein, the Court of Appeals
ruled that the petitioner did not have standing to
contest the search and seizure and did not reach the
merits of the petitioner’s claim of constitutional error.
This petition for a writ of certiorari follows.

°The district court ruled that the warrantless search in this
case was permissible under a very narrow search warrant exception
recently formulated by the Fifth Circuit Court of Appeals. This
exception to the controlling law of Vale v. Louisiana, 399 U.S. 30
(1970), permits a “cursory” check of the premises for armed persons
if the officers have a reasonable belief that unknown confederates
pose an immediate threat to their safety. This issue was never
reached by the Court of Appeals because of the erroneous
conclusion that the petitioner lacked standing to contest the search
and seizure.

8

REASONS FOR GRANTING THE WRIT
I,

THE COURT OF APPEALS VIOLATED
THE PETITIONER’S RIGHT TO DUE
PROCESS BY DISPOSING OF HIS FOURTH
AMENDMENT CLAIM ON THE BASIS OF
STANDING WHERE THE GOVERNMENT
CONCEDED STANDING AT EVERY
STAGE OF THE PROCEEDINGS BELOW
AND THE QUESTION OF THE
PETITIONER’S STANDING WAS NEVER
RAISED ON APPEAL BY THE
GOVERNMENT.

It is submitted that the issues presented by the
instant petition are of far-reaching significance because
the procedure employed by the Court of Appeals has
resulted in a denial of due process regarding the
determination of the petitioner’s claim of an illegal
search and seizure. As noted above, the government had
never raised the question of standing before the district
or appellate courts. The trial judge’s memorandum
opinion noted the government’s concession of the
petitioner’s standing before ruling upon the merits of the
Fourth Amendment claim. (Appx. p. 3)

On appeal, neither the government nor the
petitioner raised the issue of the petitioner’s standing to
contest the search and seizure. Notwithstanding the fact
that standing was conceded by the government and the
district court, the Court of Appeals avoided the merits of
the Fourth Amendment claim against the petitioner on

the basis of standing. (Appx. p. 24) Such action by the
Court of Appeals rises to the level of a denial of due
process because the posture in which the case reached
the appellate level prevented the petitioner from
introducing any evidence of his standing to contest the
search and seizure in the trial court.

It is submitted that had the government and/or the
trial court contested the Petitioner’s standing, he would
have had the opportunity and the inclination to testify
at the suppression hearing under the guidelines of
Simmons v. United States, 390 U.S. 377 (1968).
Simmons holds that a defendant may testify at a
suppression hearing to establish his standing to contest
the search and seizure, but the government cannot use
said testimony against the defendant in its case-in-
chief. Id. at pp. 390-394. The Court of Appeals has
caused the petitioner to be the victim of a deception by
disposing of his constitutional claim on the basis of
standing when the government conceded the question of
standing at all times.

The opinion of the Court of Appeals in this case sets
two disturbing precedents. First, it encourages a
prosecutorial practice of conceding the question of
standing below when the government knows that said
tactic will serve to prevent the defendant from making a
full and complete appellate record. Second, once this
tactic becomes widespread, it will force the defendant to
testify at pretrial suppression hearings, thereby creating
a chilling effect upon his constitutional right to testify in
his own behalf at trial. This is so because although
Simmons, supra, does prevent the use of the defendant’s
suppression hearing testimony as evidence-in-chief, the

10

government can still use it to attempt to impeach the
defendant if he testifies at trial and to possibly
prosecute him for perjury if his trial testimony is
inconsistent. It is a denial of due process to force a
criminal defendant to forsake one constitutional right to
preserve another. Simmons v. United States, at p. 394.
Garrity v. State of New Jersey, 385 U.S. 493 (1967);
Nadeau v. Helgemoe, 423 F.Supp. 1250, 1261 (D. N.H.
1976), 561 F.2d 411 (1977); 581 F.2d 275 (1978).

With regard to the question of what issues are
properly before the Court of Appeals, the Supreme
Court has stated:

“It is the general rule, of course, that a federal
appellate court does not consider an issue not
passed upon below. In Hormeg] v. Helvering,
312 U.S. 552, 556, 61 S.Ct. 719, 721, 83 L.Ed.
1037 (1941), the Court explained that this is
‘essential in order that parties may have the
opportunity to offer all the evidence they
believe relevant to the issues . . . [and] in
order that litigants may not be surprised on
appeal by final decision there of issues upon
which they have no opportunity to introduce
evidence.’ ” Singleton v. Wulff, 96 S.Ct. 2868,
2877 (1976).

It is precisely the danger recognized by this Court in
Singleton, supra, that confronts the Court now. The
failure of the government to properly raise the question
of standing below precludes the Court of Appeals from
raising and passing upon the question because the
petitioner has been denied the opportunity to introduce

11

evidence relevant to the question of standing. See,
Rakas v. Illinois, 99 S.Ct. 421, 422 (N. 1) (1978); and
Combs v. United States, 92 S.Ct. 2284 (1972).

In Combs v. United States, supra, this Court held
that the Court of Appeals had erred in denying the
defendant’s Fourth Amendment claim on the basis of
standing. The reasoning of the Court was that Combs
had not introduced any evidence because, as here, the
government did not raise the question of standing in the
trial court. Id. at p. 2286. In Combs, supra, the Court
remanded the case to the trial court for an evidentiary
hearing on the question of standing. It is submitted that
as announced in Rakas v. Illinois, supra, standing is no
longer an issue of separate inquiry but a part of the
substantive Fourth Amendment question itself. Hence,
the government’s concession of standing waives the
question forever because it is not a jurisdictional issue.
United States v. Emery, 541 F.2d 887 (1st Cir. 1976);
United States v. Whitaker, 592 F.2d 828, 829 (5th Cir.
1979); United States v. Edmonds, 611 F.2d 1386 (5th
Cir. 1980); Barrows v. Jackson, 346 U.S. 249 (1953).

In United States v. Emery, supra, the government
failed to raise the question of standing in any form
before the district court. Although the government did
raise the question of standing on appeal, the Court of
Appeals refused to consider the question of standing
because the government had waived it below. 541 F.2d
at p. 889. In the present case, the government did not
raise the question of standing at all — below or on
appeal.

In United States v. Whitaker, 592 F.2d 826 (5th Cir.
1979), the Court of Appeals expressed doubts about the

12

defendant/appellant’s standing to raise the search and
seizure issue. Despite its own reservations about the
defendant’s standing, the court proceeded to rule upon
the merits of the Fourth Amendment claim because the
question of standing had gone unlitigated below. Id. at
p. 828 (N. 2). As in Whitaker, supra, the Court of
Appeals must accept the issues in the same manner as
they came to the court and rule upon the merits of the
Fourth Amendment claim.

The general rule of the scope of appellate review
announced in Singleton, supra, applies with even
greater force in this case because the question of
standing was expressly conceded by the government at
all stages only for it to be raised sua sponte by the Court
of Appeals. As the court stated in United States v.
Patrin, 575 F.2d 708 (9th Cir. 1978):

‘“‘As a general rule, ‘a federal appellate court
does not consider an issue not passed on below.’
(Citation omitted.) It is immaterial whether
the issue was not tried in the district court
because it was not raised or because it was
raised but conceded by the party seeking to
revive it on appeal.” Jd. at p. 712.

The facts of the present case go beyond Singleton and
Patrin, supra, because the petitioner was further unable
to face the question when the government did not raise
it on appeal either. This principle of limited appellate
review has been reaffirmed by this Court on numerous
occasions. Singleton v. Wulff, 96 S.Ct. 2868 (1976);
Hormel v. Helvering, 61 S.Ct. 719 (1941); Youakim v.
Miller, 96 S.Ct. 1399 (1976); Dorszynski v. United
States, 94 S.Ct. 3042 (1974).

13

Virtually every federal circuit has also followed the
general rule that an appellate court will not consider
issues that were not presented to the district court.
Needleman v. Bohlen, 602 F.2d 1 (1st Cir. 1979) —
appeal from suit by dismissed teacher under Title 42,
U.S.C.A. §1983; United States v. Emery, 541 F.2d 887
(1st Cir. 1976) — appeal from denial of motion to
suppress contraband evidence; United States v.
Bazzano, 570 F.2d 1120 (3d Cir. 1977) — appeal from
criminal conviction for illegal gambling; United States
vu. Moore, 453 F.2d 601 (3d Cir. 1971) — appeal from a
criminal conviction; Response of Carolina, Inc. uv.
Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir.
1976) — civil anti-trust litigation; Mayberry v. Davis,
608 F.2d 1070 (5th Cir. 1979) — court of appeals refused
to consider state prisoner’s claims that were not
presented to the district court; Messelt v. Alabama, 595
F.2d 247 (5th Cir. 1979) — court of appeals refused to
consider the question of lack of exhaustion of state
remedies because the state did not challenge the state
habeas corpus petitioner on that issue in the district
court; King v. United States, 565 F.2d 356 (5th Cir.
1978) — appeal from denial of relief for a federal
prisoner under Title 28, U.S.C.A. §2255; United States
v. Chapman, 549 F.2d 1075 (6th Cir. 1977) — appeal
from a criminal conviction; United States v. Russell, 585
F.d 368 (8th Cir. 1978) — arguments not raised by
criminal defendant in district court would not be heard
by court of appeals; United States v. Patrin, 575 F.2d
708 (9th Cir. 1978) — appeal from a criminal conviction;
United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) —
appeal from a criminal conviction in which motion to
suppress seized evidence was an issue.

14

The action of the Court of Appeals in the present
case has worked a manifest injustice upon the petitioner
because the failure of the government to challenge his
standing below effectively prevented him from
introducing any evidence on that question. It is precisely
this danger that the above cited cases jealously guard
against. The Court of Appeals’ opinion states that:
“Because Morejon does not claim and the record does
not indicate that the indictment charged him with
possession at the time the search occurred, he lacks
standing to challenge its legality.” (Appx. p. 25) The
petitioner had no opportunity to take the stand under
Simmons, supra, claim ownership of the contraband,
and establish his expectation of privacy in the premises
searched because the government conceded standing
and the district court accepted the government’s
concession as valid. (Appx. p. 3) The action or non-
action of the government cannot be used to deprive the
petitioner of a full and fair review of his Fourth
Amendment claim.

It is respectfully submitted that it does not matter
whether it is the opposing party or the court who raises
an issue that was not litigated below by the parties. The
issue of standing was not litigated below despite the fact
that the government had the opportunity to challenge
standing. In this posture of the case, the Court of
Appeals erred by raising the question of standing sua
sponte and then deciding the petitioner’s Fourth
Amendment claim on that basis.

15

II.

THE COURT OF APPEALS ERRED IN
CONCLUDING THAT THE PETITIONER
DID NOT HAVE STANDING WHERE THE
INDICTMENT SPECIFICALLY CHARGED
HIM WITH POSSESSION OF THE SEIZED
CONTRABAND AND THE RECORD
CLEARLY REFLECTS THAT HE WAS IN
POSSESSION AT THE TIME OF THE
SEARCH AND SEIZURE.

In the present case, the Fifth Circuit Court of
Appeals has not questioned the continued vitality of the
automatic standing rule announced in Jones v. United
States, 362 U.S. 257 (1960). Rather, the Court of
Appeals held that the petitioner lacked standing
because he was not charged with possession of the
cocaine at the time of the search and seizure. (Appx. p.
25)

As noted by this Court in Rakas v. Illinois, ___
U.S. ___, 99 S.Ct. 421, 426 n.4 (1978), the Jones rule of ™
automatic standing has not been overruled as it applies
to cases in which the defendant is charged with
possession of the seized contraband. However, the
petitioner is aware of the fact that this Court is presently
considering the continued vitality of the Jones rule in
the recently argued case of United States v. Salvucci,
599 F.2d 1094 (1st Cir. 1979); cert. granted, 100 S.Ct.
519 (1979).

Because the outcome of the Salvucci case could
have a material impact upon the argument of this
petitioner, we must necessarily adopt the arguments of

16

the Salvucci respondents in favor of retaining the Jones
rule of automatic standing. In addition to the Jones
automatic standing argument, the petitioner submits
that he had actual standing to contest the search and
seizure in the present case. Accepting the language in
Rakas v. Illinois, supra, the petitioner did have a
legitimate expectation of privacy in the 448 grams of
cocaine which Virgen Palenzuela testified that he
entrusted to her for safekeeping. (R.VIII, pp. 831-836,
850.) (Appx. p. 8) Hence, even if this Court overrules
Jones in the Salvucci case, the petitioner would still
have standing to contest the search and seizure. See,
Mancusi v. DeForte, 392 U.S. 346, 88 S.Ct. 2120 (1968).

Briefly stated, the petitioner submits that the Jones
rule of automatic standing should not be abandoned for
precisely the same reasons that it was originally
formulated, to wit: to avoid the perils of self-
incrimination and the vice of prosecutorial self-
contradiction. The principal case that arguably erodes
the automatic standing rule of Jones is Simmons uv.
United States, 390 U.S. 377, 88 S.Ct. 967 (1968).
Simmons, supra, holds that if the defendant testifies at
the suppression hearing, his testimony will not be
directly admissible against him on the issue of guilt or
innocence. Id. at p. 976.

It is submitted that the retreat from the Jones rule
in Simmons did not cure the underlying chill on the
defendant’s ability to take the stand at trial after he has
testified at the hearing on the motion to suppress. In the
case of People v. Sturgis, 58 Ill.2d 211, 317 N.E.2d 545
(1974), the Illinois Supreme Court held that Simmons
did not preclude the prosecution from using the

17

defendant’s suppression testimony for impeachment
purposes. In reaching this conclusion, the Illinois court
relied upon this Court’s decision in Harris v. New York,
401 U.S. 222, 91 S.Ct. 643 (1971). Harris, supra, held
that the government could impeach the defendant with
his prior statements even though said statements were
rendered otherwise inadmissible by Miranda v. Arizona,
384 U.S. 436 (1966). :

Although this Court has not yet ruled upon the
question raised by Sturgis, supra, the probability that
the defendant’s suppression testimony will be used for
impeachment purposes is high because the suppression
testimony is voluntary — not compelled testimony. See,
New Jersey v. Portash, ___ U.S. _—, 9 S.Ct. 1292
(1979). The very real danger that the suppression
testimony will arm the prosecution with impeachment
evidence still serves to keep the defendant from
testifying at both the suppression hearing and at trial.
The defendant must still surrender one constitutional
right to preserve another. Simmons v. United States, at
p. 976. Additionally, by forcing the defendant to take
the stand at the pretrial suppression hearing, the courts
are affording the prosecution an opportunity to develop
evidence to make its case stronger. Duncan v. State, 276
Md. 715, 351 A.2d 144 (1976). See also, Wayne R.
LaFave, Search and Seizure, A Treatise On The Fourth
Amendment, p. 589 (1978).

The second major decision that arguably erodes the
automatic standing rule of Jones is Brown v. United
States, 411, U.S. 223, 93 S.Ct. 1565 (1973). As will be
seen below, the Fifth Circuit Court of Appeals placed a
great deal of reliance upon Brown’s limitation of Jones

18

in holding that the petitioner did not have standing to
contest the search and seizure. Jones stands for the
proposition that where possession is the charge, or an
essential element thereof, the defendant has automatic
standing to contest the search and seizure.

The Brown decision, however, added the
requirement that to have automatic standing the
indictment must allege that the defendant possessed the
ontraband at the time of the contested search and
seizure. Id. at p. 1569. In essence, this added
requirement says that if there has been a “substantial’”’
change in the defendant’s relationship to the property
between the time of the charged possession and the time
of the contested search, the defendant loses automatic
standing. In Brown, the defendants had relinquished all
interests in the goods two months before the contested
search and seizure. It is this aspect of Brown that the
Court of Appeals erroneously relied upon in holding that
the petitioner did not have the standing to contest the
search and seizure. (Appx. p. 25)

The Court of Appeals first states that because the
petitioner does not claim possession of the seized
contraband, he lacks standing. (Appx. p. 25) The logical
response to this is found in the petitioner’s first .
argument. Because the government conceded standing
and both the magistrate and the trial judge ruled that
the petitioner had standing, he had no reason to take the
stand to establish that point. (Appx. p. 3)

The Court of Appeals next states that the record

does not reflect that the indictment charged the
petitioner with possession at the time the search

19

occurred. Count III of the second superseding
indictment‘ specifically charges that on or about July
18, 1977, the date of the contested search and seizure,
the petitioner knowingly possessed the 448 grams of
cocaine seized from the Palenzuelas’ house. (R.I, pp.
131-136.) The Court of Appeals totally overlooked this
specific wording of the indictment.

The facts developed at the hearing on the motion to
suppress and at the trial confirm that the petitioner was
charged with possession at the time of the search and
seizure. The record reflects that the contested search
and seizure took place twenty-five (25) minutes after the
petitioner left the Palenzuelas’ house with Agent
Jezzeny. (Appx. p. 24) (R.IV, pp. 35-37.) When co-
defendant Virgen Palenzuela took the stand at trial, she
testified that the 448 grams of cocaine belonged to the
petitioner, Morejon-Pacheco. (Appx. p. 8; R.VII, pp.
805, 833-836, 850.) Her testimony was that the cocaine
in her house belonged to the petitioner who left it with
her because her house was chosen by the petitioner as
the place where the cocaine would be transferred to
Agent Jezzeny. (R.VII, pp. 833-836.)

The faulty analysis of the Court of Appeals is best
illustrated by the legally and factually inapposite
decisions cited in the opinion. (Appx. p. 25) The case of
United States v. Hodges, 606 F.2d 520 (5th Cir. 1979),
has no bearing on the issues herein. In Hodges, supra, all
of the defendants were charged with conspiracy to
possess and possession of marijuana. It is clear from the
facts of the case that defendant Hodges was charged

‘Count III of the second superseding indictment corresponds to

Count II of the first superseding indictment referred to in the
opinion of the district court. (Appx. p. 3)

20

with the substantive possession count under the
vicarious liability theory established in Pinkerton v.
United States, 328 U.S. 640 (1948). At no time was it
alleged or proved that Hodges ever had actual or
constructive possession of the marijuana. United States
v. Hodges, at p. 523.

Unlike Hodges, supra, the Count III possession
charge was based upon the petitioner’s actual possession
— not the Pinkerton vicarious liability theory. Count III
specifically charges the petitioner and only five of the
ten other co-defendant conspirators with possession of
the 448 grams of cocaine seized from the Palenzuelas’
house on July 18, 1977. (R.I, pp. 131-136.) That only six
of the eleven co-conspirators were charged with
possession of the 448 grams of cocaine seized from the
Palenzuelas’ residence makes it clear that this was not a
Pinkerton/Hodges vicarious liability count.

The Court of Appeals’ reliance on United States v.
Byers, 600 F.2d 1130 (5th Cir. 1979) was also erroneous.
In Byers, supra, the defendants were denied standing
because they were found to have voluntarily abandoned
both the vessels and the contraband prior to the search
and seizure. In the present case, the record clearly shows
that Morejon-Pacheco did not abandon the cocaine.
Rather, he entrusted it to Virgen Palenzuela for
safekeeping in her house until he and Agent Jezzeny
could return to complete their transaction.

The petitioner’s entrustment of the cocaine to
Virgen Palenzuela was not an abandonment but a
gratuitous common law bailment or entrustment to his

‘American Heritage Dictionary (1979). Bailment: The act of
delivering goods or personal property to another in trust.

21

agent, Virgen Palenzuela. Although Virgen Palenzuela
may have had temporary custody, under common law
property concepts, the petitioner was at all times the
actual possessor of the cocaine. As stated by this Court
in Rakas v. Illinois, 99 S.Ct. 421 (1978):

“. . . by focusing on legitimate expectations of
privacy in Fourth Amendment jurisprudence,
the Court has not altogether abandoned use of
property concepts in determining the presence
or absence of the privacy interests protected by
that amendment.” Jd. at p. 430-431, n.12.

The record here establishes that the petitioner retained
both ownership and possession when he placed the
cocaine in Virgen Palenzuela’s house for safekeeping.
The Byers case is also inapposite because the charge
there was conspiracy, not a possessory offense. Hence,
the language in Byers, supra, regarding abandonment is
mere dicta.

Nor is the present case factually similar to United
States v. Palazzo, 488 F.2d 942 (5th Cir. 1974), which is
relied upon heavily in the Hodges opinion. In Palazzo,
supra, the Court found that the defendant Viagran had
voluntarily relinquished all interest in or claim to the
contraband when he sold it the morning before the
search and seizure of the buyers’ luggage at the airport.
Id. at p. 947. It should also be noted that the buyers were
not agents of Viagran in the scheme charged. The Court
reasoned that Viagran had given up all claims of
possession/ownership when he sold the contraband prior
to the search because he no longer had any control over
it.

22

In the present case, unlike Brown, supra, there was
no change in the defendant’s relationship to the
property between the time of the alleged possession and
the time of the contested search and seizure. In fact,
both the indictment and the record reveal that the
charged possession was contemporaneous with the time
of the contested search and seizure — the afternoon and
early evening of July 18, 1977. (R.I, pp. 131-136; R.IV,
pp. 35-37.)

The petitioner further submits that the “‘at the time
of the contested search and seizure’’ language in Brown
vu. United States, supra, is mere dicta that has been
misinterpreted by the courts. All that Brown, Byers, and
Palazzo, supra, stand for is the proposition that if the
defendant wilfully abandons the property by some
affirmative act prior to the search and seizure, he has
given up all claims of possession for standing purposes.
There was no such abandonment by the petitioner in the
present case; therefore, for the purposes of standing, he
was in possession at the time of the search and seizure.

It is further submitted that notwithstanding the
Jones concept of automatic standing, the petitioner had
a “legitimate expection of privacy” in the contraband
seized from the Palenzuelas’ house under Rakas’
substantive Fourth Amendment analysis. The record
below reflects that the petitioner had entrusted his 448
grams of cocaine to Virgen Palenzuela for safekeeping
until he could complete a sale to Agent Jezzeny (R.VII,
pp. 805, 831-836, 850.) The record further reflects that
Virgen Palenzuela had wilfully consented to the
petitioner’s request that she hold the cocaine for him
until he could complete the proposed transaction.

23

(R.VII, p. 833.) Virgen’s testimony was to the effect that
the petitioner retained complete control over his
property. She had no power to sell, transfer or display
the cocaine to anyone other than the petitioner. (R.VII,
pp. 836-837.)

The leading case on this point is United States v.
Jeffers, 342 U.S. 48, 72 S.Ct. 93 (1951). In Jeffers, supra,
the defendant had stored 19 bottles of cocaine in a hotel
room rented by and solely for his two aunts. Although he
had free access to the hotel room, the defendant did not
reside there. This Court held that the defendant had a
legitimate expectation of privacy in the narcotics seized
during the warrantless search of the room. Hence,
Jeffers had the requisite standing to contest the search
of his aunts’ room which resulted in the seizure of the
narcotics he stored therein.

Since the Jeffers decision, this Court and other
federal and state appellate courts have reaffirmed its
holding that the petitioner had a legitimate expectation
that his property would be free from governmental
intrusion when he entrusted it to Virgen Palenzuela.®
Hence, the petitioner had standing to contest the search
and seizure because the search of the house resulting in
the warrantless seizure of the petitioner’s cocaine
violated his Fourth Amendment rights. This Court’s
decisions in Simmons v. United States, supra; Combs v.
United States, 92 S.Ct. 2284 (1972); Brown v. United
States, supra; and Rakas v. Illinois, supra, all recognize
that a defendant may establish a legitimate expectation
that the area in which he stores the property will be free
from governmental intrusion.

®See, Wayne R. LaFave, Search and Seizure, A Treatise On
The Fourth Amendment, Vol. 3, pp. 556-563 (1978).

24

In Simmons, supra, the defendant, charged with
bank robbery, moved to suppress the contents of his
suitcase which he had hidden in the basement of a house
belonging to someone totally unconnected to the crime.
The Court held that even though the defendant had no
proprietary or possessory interest in the premises
searched, he could establish a legitimate expectation of
privacy (standing) in the objects seized. Id. at pp. 974-
976.

In Combs v. United States, supra, the defendant
was charged with possession of illicit whiskey stolen
from interstate commerce. The petitioner had stored the
seized contraband in a shed on his father’s farm.
Because standing was not litigated below, this Court
remanded the case for said determination. One of the
avenues implicitly left open was that the defendant
could establish standing vis-a-vis his interest in the
goods stored on his father’s premises and his expectation
that the storage shed would be free from government
intrustion.

In Brown v. United States, supra, the Court held
that the defendants did not have standing and affirmed
the denial of the motion to suppress the goods seized
from Knuckles’ store. However, the Court specifically
noted that the petitioners “alleged no proprietary or
Possessory interest in Knuckles’ premises or in the goods
seized there.” Id. at p. 1567. The Court did not rule upon
the argument that the defendants had a protected

25

interest in the goods because it was not raised at the
district or circuit court levels. Jd. at pp. 1569-1570, n.4.’

Finally, in Rakas v. Illinois, supra, this Court again
addressed the Jeffers question without having to rule on
it because the petitioners did not assert that they owned
the rifle or the shells that were seized. Jd. at p. 423. The
Rakas opinion leaves no doubt that had the petitioners
properly asserted an ownership or possessory interest in
the objects seized, that a “legitimate expectation of
privacy” could be established. In any event, the Rakas
opinion recognizes the continued vitality of Jeffers
legitimate expectation of privacy in the objects seized.
Id. at p. 426.

Unlike a claim of automatic standing under Jones,
supra, the petitioner, Morejon-Pacheco, has suffered a
violation of his Fourth Amendment rights, not those of a
third party. As in Mancusi v. DeForte, 88 S.Ct. 2120
(1968), despite the fact that Virgen Palenzuela had
knowledge of and access to the 448 grams of cocaine,
society recognizes his legitimate expectation that the
goods seized would be free from governmental intrusion.
Id. at pp. 2123-2124. The Rakas opinion also makes it
clear that on our facts, the petitioner’s legitimate
expectation of privacy is bolstered by his ownership,
possession, and control over the seized contraband in
this case. Jd. at p. 430, n.12.

It is anticipated that the government would rely upon
language in footnote 4 to argue that one cannot have a legitimate
expectation of privacy in narcotics. This argument was expressly
rejected in United States v. Jeffers, supra. See also, Wayne R.
LaFave, Search and Seizure, Vol. 3 at p. 559, n.72. (1978).

26

As the commentators have noted, under Jeffers and
its progeny, the petitioner has met the substantive
expectation of privacy test of Rakas v. Illinois, supra.

“An individual’s right to privacy from
governmental intrusion into his personal
effects does not require that he have physical
control of the property. He can reasonably
expect that his lawfully possessed ‘effects’ will
remain undisturbed upon premises where they
have been lawfully placed or in the custody of a
third party to whom they are lawfully
entrusted. If, however, the individual places
his effects upon premises where he has no
legitimate expectation of privacy (for example,
in an abandoned shack or as a trespasser upon
another’s property), then he has no legitimate
reasonable expectation that they will remain
undisturbed upon these premises.’ LaFave,
Search and Seizure, Vol. 3, pp. 560-561 (1978).

Citing to, Gutterman, “A Person Aggrieved:”’ Standing
to Suppress Illegally Seized Evidence in Transition, 23
Emory L.J. 111, 119 (1974).

In the present case, the record clearly establishes
that the petitioner did not relinquish dominion and
control over his property when he entrusted it to Virgen
Palenzuela. The Court’s attention is also directed to
several other decisions in which standing was predicated
on the defendant’s expectation of privacy in bailed or
entrusted property.

27

In United States v. Wilson, 536 F.2d 883 (9th Cir.
1976), the court indicated that one defendant could have
a reasonable expectation of privacy in his co-defendant’s
suitcase if he had entrusted his belongings to the co-
defendant for storage in that suitcase. Jd. at p. 885. See
also, United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.
1977) where the court held that the defendant might
have established a legitimate expectation of privacy in
the premises searched if he had alleged a sufficient
possessory right in a machine seized from his co-
defendant’s house. Jd. at p. 1241.

A case involving facts very similar to the present
case is United States v. Harwood, 470 F.2d 322 (10th
Cir. 1972). In Harwood, supra, the defendant stored
containers in the attic of a friend’s garage. The owner of
the garage had given the defendant permission to use
the attic for said containers in much the same manner
that Virgen Palenzuela testified she consented to the use
of her house as a place to store the petitioner’s cocaine.
(R.VII, pp. 805-850.)

The court in Harwood, relying upon Jones,
Simmons, and Jeffers, supra, held that the defendant
had standing to contest the search of his friend’s garage
which resulted in the seizure of his containers. United
States v. Harwood, at p. 325. The facts of the present
case are even stronger than Jeffers and Harwood, supra,
because the petitioner not only had Virgen Palenzuela’s
permission to conceal the cocaine in her house, but she
voluntarily aided in its concealment therein. (R. VIII,
pp. 831-836.) (Appx. p. 13) In Jeffers and Harwood,
supra, the expectation of privacy was necessarily
diminished because of the chance that the owner of the

28

premises would accidentally discover the contraband
nature of the bailed goods and call in law enforcement
agents.

If this Court retains the Jones automatic standing
rule, the petitioner’s standing is established because he
was charged with possession at the time of the contested
search and seizure. If, however, the Court overrules
Jones in the pending Salvucci case, the petitioner has
actual standing to contest the search and seizure
because his legitimate expectation of privacy was
violated.

It is submitted that based on the foregoing
authorities, the petitioner had a legitimate expectation
that the goods entrusted to Virgen Palenzuela solely for
his benefit would be free from governmental intrusion
under Rakas’ substantive Fourth Amendment analysis.

29

CONCLUSION

For the above stated reasons, a writ of certiorari
should issue to review the judgment and opinion of the
United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

MICHAEL J. OSMAN, ESQ.
ROBERT M. DUBOFF, ESQ.
Michael J. Osman, P.A.
Peninsula Federal Building
200 S.E. 1st Street, Suite 501
Miami, Florida 33131

(305) 358-6491

Counsel for Petitioner

BY /s/ MICHAEL J. OSMAN
MICHAEL J. OSMAN

BY /s/ ROBERT M. DUBOFF
ROBERT M. DUBOFF

30

CER1iFICATE OF SERVICE

I hereby certify that on this 7th day of May, 1980,
three copies of the Petition for Writ of Certiorari were
mailed, postage prepaid, to the Solicitor General,
Department of Justice, Washington, D.C. 20530, and to
the United States Attorney, 300 Ainsley Building,
Miami, Florida 33132. I further certify that all parties
required to be served have been served.

MICHAEL J. OSMAN, P.A.
Counsel for Petitioner

BY /s/ MICHAEL J. OSMAN

MICHAEL J. OSMAN

31

Appendix

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

NO. 77-437-Cr-JLK

UNITED STATES OF AMERICA
v.

JULIO MOREJON-PACHECO, et al.

APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA,

JAMES LAWRENCE KING, DISTRICT JUDGE

Decided: Feb. 6, 1978

Melvyn Kessler, for defendant Julio Morejon-Pacheco.
Richard Woolf, Assistant U.S. Attorney, for plaintiff.

ORDER DENYING MOTION
TO SUPPRESS

JAMES LAWRENCE KING, District Judge.
This cause came on for consideration upon the

motion of the defendants to suppress evidence. The
court, having considered the record and being fully

la

advised in the premises, finds and concludes that the
motion should be denied.

This motion was filed by the defendants Jorge
Palenzuela and Virgen Palenzuela and was joined in by
the remaining codefendants, Julio Morejon-Pacheco,
Luis Ernesto Triana-Digas, and Rene Benitez. The
matter was referred to U.S. Magistrate Sorrentino, who
conducted an evidentiary hearing and filed a written
report recommending that the motion be denied. All
defendants filed or joined in objections to the
Magistrate’s report. After having carefully considered
the objections, the Magistrate’s report, the record, and
the transcript of the evidentiary hearing, this court has
concluded that the Magistrate’s recommendation is
correct and should be carried out.

I. Facts

The facts surrounding the seizure of the evidence
sought to be suppressed are briefly as follows. On July
18, 1977, a Special Agent of the Drug Enforcement
Agency in undercover capacity went to the home of the
defendants Jorge and Virgen Palenzuela with
defendants Jorge and Virgen Palenzuela with defendant
Morejon in order to purchase some cocaine for which he
had been negotiating as part of a conspiracy
investigation. The deal was not consummated and the
agent left. While he was in the home, however, he
observed two packets of cocaine, a scale on which the
cocaine was measured, and a glass in which a field test
as to the quality of the cocaine was made. He also
observed a number of people entering the house and
could not be sure how many left again.

2a

Within an hour after the agent left the house with
the defendant Morejon, these five defendants were
placed under arrest. Morejon and Benitez were arrested
at separate locations away from the house; Triana-Digas
and the Palenzuelas were arrested in the front yard of
the Palenzuela home. A small crowd gathered, and the
officers and the agent took the three defendants into the
Palenzuela home, searching it for any other co-
conspirators who might possess weapons or destroy the
contraband that the agent had so recently observed in
the house. The agent testified that because of the
number of people who had gathered he feared for the
safety of the officers and those under arrest. He also
thought that there might be co-conspirators still inside
the house with access to weapons as well as to the
cocaine. All defendants seek to suppress the items which
were seized during this search, including a loaded
automatic weapon and one-half kilogram of cocaine.

Il. Standing

A threshold issue not fully analyzed in the
Magistrate’s report is that of the standing of defendants
Morejon-Pacheco, Triana-Digas, and Benitez to contest
the seizure of the cocaine at the Palenzuelas’ home. The
defendants argue, the government concedes, and the
Magistrate’s report concludes that these three
defendants have standing because they are charged in
Count II of the indictment with possession of the cocaine
seized with intent to distribute. The issue to be
addressed here is whether the Fifth Circuit still
recognizes a count of possession as conferring automatic
standing, considering the recent Supreme Court
decisions.

3a

The Supreme Court created this concept of
automatic standing in Jones v. U.S., 362 U.S. 257, 80
S.Ct. 725, 4 L.Ed.2d 697 (1960), to prevent a defendant
from having to give up one constitutional right —
protection from self-incrimination — in order to assert
another — privacy. The Court sought to eliminate the
situation in which a defendant was required to prove
what amounted to an essential element of the
government’s case against him in order to contest an
allegedly illegal search and seizure. This protection was
fully developed in 1968 when the Court held that
“testimony given by a defendant to meet such
[standing] requirements should not be admissible
against him at trial on the question of guilt or
innocence.” Simmons v. U.S., 390 U.S. 377, 390, 88
S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968).

Subsequently, Supreme Court propounded what is
now the accepted test for standing under the
circumstances arising in this case:

[T]here is no standing to contest a search and
seizure where, as here, the defendants: (a) were not on
the premises at the time of the contested search and
seizure; (b) alleged no proprietary or possessory interest
in the premises; and (c) were not charged with an
offense that includes, as an essential element of the
offense charged, possession of the seized evidence at the
time of the contested search and seizure.

Brown v U.S., 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36
L.Ed.2d 208 (1973). However, the Court specifically
declined to determine whether the Simmons decision
“makes Jones’ ‘automatic’ standing unnecessary” and

4a

decided to “reserve that question for a case where
possession at the time of the contested search and
seizure is ‘an essential element of the offense .. .
charged.’ ”’ Brown, 411 U.S., at 229, 93 S.Ct., at 1569
(citing Simmons, 390 U.S., at 390, 88 S.Ct., at 974).
This is such a case.

The circuits have split as to whether automatic
- standing is still available to a defendant who is charged
with a possession crime but does not meet either of the
other two standards. Hence, automatic standing is still
the law in the Second Circuit and in the Ninth Circuit,
but has been eliminated in the Sixth Circuit. See U.S. v.
Banerman, 552 F.2d 61 (2nd Cir. 1977); U.S. uv.
Jamerson, 549 F.2d 1263 (9th Cir. 1977); U.S. v.
Delguyd, 542 F.2d 346 (6th Cir. 1976). The Fifth Circuit
had adopted the automatic standing rule established by
Jones. See U.S. v. Holmes, 521 F.2d 859 (5th Cir. 1975).
Although subsequent case law in the circuit indicates
that the three Brown standards operate independently
to accord standing (See U.S. v. Smith, 550 F.2d 277 (5th
Cir. 1977) (no evidence offered establishing standing
under ‘‘any of the three categories set out in Brown’’).),
which would indicate that a defendant charged with a
possession crime should be granted standing, the narrow
question presented here is still undecided.

In U.S. v. Archbold-Newball, 554 F.2d 665 (5th Cir.
1977), the defendants were held not entitled to
“constructive standing” derived from Jones. In dicta,
the court quoted language from Brown to the effect that

Simmons has removed the danger of coerced
self-incrimination. We simply see no reason to

5a

afford such “automatic” standing where, as
here, there was no risk to a defendant of either
self-incrimination or prosecutorial self-
contradiction. [441 U.S., at 1569, 93 S.Ct.
1565. ]

554 F.2d, at 679. It would be a mistake, however, to read
this language broadly and construe it to do away
entirely with automatic standing: in Archbold the
question of constructive standing was foreclosed because
the defendant was not charged with an offense which
included the element of possession of the seized item at
the time of the seizure. Archbold is therefore
distinguishable.

[1] Since the Supreme Court has specifically
reserved the question of automatic or constructive
standing where a defendant has been charged with a
possession offense concerning the seized property, and
since the Fifth Circuit has not construed Brown and
Simmons to overrule Jones where the defendant/movant
has been charged. with a possession offense, this court
concludes that Jones, supported by category (c) of
Brown, still presents a viable grant of standing under
these circumstances. Therefore, in the case sub judice,
defendants Morejon-Pacheco, Triana-Digas, and
Benitez must be accorded standing to seek suppression
of the evidence seized at the Palenzuelas’ house. The
Palenzuelas, of course, have standing under all three
categories.

III. Motion to Suppress

[2] This court finds that the circumstances
surrounding the search and seizure are such that this

6a

case qualifies for the ‘‘threat to safety” exception to the
general rule that a warrantless search of a dwelling
cannot be made incident to an arrest occurring outside
the building. See U.S. v. Bowdach, 561 F.2d 1160 (5th
Cir. 1977); McGeehan v. Wainwright, 526 F.2d 397 (5th
Cir. 1976); Hopkins v. Alabama, 524 F.2d 473 (5th Cir.
1975); United States v. Smith, 515 F.2d 1028 (5th Cir.
1975). The record reflects that the officers had probable
cause to fear for their safety and that of the suspects and
bystanders. According to the Supreme Court, “[t]he
Fourth Amendment does not require police officers to
delay in the course of an investigation if to do so would
gravely endanger their lives or the lives of others.”
Warden v. Hayden, 387 U.S. 294, 298 9, 87 S.Ct. 1642,
1646, 18 [°.Ed.2d 782 (1967). Therefore, the Magistrate’s
recommendation is hereby adopted and it is

ORDERED and ADJUDGED that the defendant’s
motion to suppress be and the same is hereby denied.

DONE and ORDERED in chambers at the United
States District Courthouse, Miami, Florida, this 6th day
of February, 1978.

7a

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 78-5748
NO. 79-2084

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Vv.

LUIS AGUIAR, JORGE PALENZUELA,
AND JULIO MOREJON-PACHECO,
Defendants-Appellants.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

U.

VIRGEN PALENZUELA,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

VU.

JULIO MOREJON-PACHECO
AND LUIS AGUIAR,
Defendants-Appellants.

APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA,
JAMES LAWRENCE KING,
DISTRICT JUDGE

Decided: Feb. 4, 1980

BEFORE AINSWORTH, VANCE
AND ANDERSON,
CIRCUIT JUDGES

Michael J. Osman, for defendant-appellant Morejon-
Pacheco.

Bruce A. Zimet, Assistant U.S. Attorney, for plaintiff-
appellee.

9a

VANCE, Circuit Judge:

These appeals arise out of a federal prosecution of
Jorge Palenzuela, Virgen Palenzuela, Luis Aguiar, Julio
Morejon-Pacheco and others! for offenses relating to
their alleged involvement in the illegal trafficking of
cocaine. After a jury trial in federal district court,
Aguiar, Morejon and Jorge Palenzuela were convicted of
conspiracy to distribute cocaine, 21 U.S.C. §846. Aguiar
and Morejon were also convicted for distributing
cocaine, id. §841(a)(1) and 18 U.S.C. §2. Morejon
additionally was convicted of possession with intent to
distribute cocaine, 21 U.S.C. §841(a)(1),2 and of the
knowing use of a communications facility in the
commission of a narcotic-related felony, id. §843(b).
The case of Virgen Palenzuela, charged with conspiracy
to distribute cocaine and with possession with the intent
to distribute cocaine, id. §§841(a)(1), 846, was severed
from that of her co-defendants. Her appeal is from the
denial of her motion for dismissal on double jeopardy

'The second superceding indictment, upon which the
defendants were tried, named Jose Aleman, Luis Aguiar, Juan
Basilia a/k/a Juan B. Zigler or Sigler, Augusto Gonzalez, Julio
Morejon-Pacheco, Rene Benitez, Jorge Palenzuela, Virgen
Palenzuela, Oscar Torres, Mariana Torres, and John Doe a/k/a
Carlos, for their involvement in the illegal trafficking of cocaine.
Prior to trial, Aleman entered a guilty plea. John Doe a/k/a Carlos
and the Torres were not defendants in this prosecution. Benitez was
convicted with appellants, but failed to appear for sentencing.
Gonzalez was also convicted, but was later granted a new trial by
the court because of the discovery of additional evidence. Basilia
was convicted as well.

2The trial court granted Jorge Palenzuela’s motion for

judgment of acquittal on the charge of possession of cocaine with
intent to distribute, 21 U.S.C. §841(a)(1).

10a

grounds. For reasons stated below, the challenges to the
trial judge’s rulings are for the most part without merit.
We reverse, however, the district court’s decision
denying Jorge Palenzuela’s motion for acquittal based
on the insufficiency of the evidence to sustain his
conspiracy conviction.

I. Facts

In early April 1977, Agent Norman Jezzeny of the
Nevada district of the Drug Enforcement
Administration and Agent Jorge Fonte of the State of
Nevada Division of Investigation of Narcotics began an
investigation into drug trafficking in Las Vegas,
Nevada. Acting in their undercover capacity, they
contacted Jose Aleman in Las Vegas, introducing
themselves as “men in the drug business,’’ and
subsequently expressed their interest in a drug deal.
Aleman mentioned that he knew a man in Key West,
Florida, that might be able to help them, and that he
might arrange a meeting with this man.

Fonte and Jezzeny flew to Florida on April 26, 1977,
to meet Luis Aguiar, the person introduced by Aleman.
They met the next day in Key West. Because Jezzeny
does not speak Spanish, Fonte translated the
conversation, as he continued to do on subsequent
occasions. The agents asked Aguiar about the
availability of a regular supply of significant quantities
of cocaine. Aguiar had none, but promised to look into
some contacts for the agents. Nothing else came of this
meeting, and the agents returned to Las Vegas.

They returned to Miami in June and July to meet
with Aguiar. The three agreed that, if an initial

lla

transaction for cocaine culminated successfully, the
agents would begin purchasing a regular monthly supply
of cocaine. Apparently realizing that alone he could not
provide the agents the amounts of cocaine sought,
Aguiar began seeking alternatives sources of the illicit
drug.’ At their July 15 meeting, therefore, Aguiar
introduced the agents to Rene Benitez, and Aguiar toid
Benitez of his difficulties in procuring cocaine for the
agents and asked Benitez for assistance. Benitez, in
turn, brought the agents and Aguiar to Julio Morejon-
Pacheco. Morejon showed Fonte and Jezzeny samples of
various lots of cocaine and attempted to secure the ten
kilograms of cocaine they sought. The agents, Morejon
and Benitez held further discussions in subsequent days
to settle the price ($380,000) and mode of exchange.

Morejon, with Benitez and the agents present,
made several telephone calls on July 17, 1977, to set up
the cocaine transaction. In two of these calls, Morejon
spoke with individuals whom he addressed as ‘“Mami’”’
and ‘“‘Pepi.’’* After these calls, they discussed a $25,000
deposit to hold the ten kilograms of cocaine until the
next day. Saying that Aguiar wanted this transaction to
go through, saan offered to guarantee the $25,000
deposit.

3One man known only as Carlos met the agents at a Miami bar
on July 14. He offered Fonte seven kilograms of cocaine, which were
refused.

“Pepi” was a nickname used by Jorge Palenzuela, according
to the testimony of his wife, Virgen.

12a

After a number of changes in the plans for the
Tansaction, Benitez and Morejon told Jezzeny on the
lay of the transaction, July 18, that they had two safe
1ouses. Morejon and Jezzeny would go to one house to
view and inspect the cocaine, while Benitez and Fonte
proceeded to the second safe house, where another man
would help count the purchase money brought by Fonte.
When all parties were satisfied, Fonte was to leave the
money at the counting house, and Jezzeny would take
the cocaine with him from the other safe house.

Jezzeny went with Morejon to the home of Jorge
and Virgen Palenzuela (husband and wife). Jorge was
not at home.® Virgen took the men to the bedroom,
where she produced and displayed five and one-half (of
the ten) kilograms of cocaine to Jezzeny. He weighed the
cocaine on a triple-beam scale that was on Mrs.
Palenzuela’s dresser and performed several field tests.
She then offered to give Jezzeny an extra pound of
cocaine, which she obtained from a drawer in her
bathroom, if he was dissatisfied with the quality of the
ten kilograms.® The three then waited for the call from
the second safe house. On the way to the “counting”
house, the location of which was unknown to Fonte,
Fonte mistakenly arrested Benitez, searched him and
removed a piece of paper with an address written on it.
Fonte proceeded to the address and knocked on the
door. Mrs. Ortega, who is Mrs. Palenzuela’s mother and
the house’s owner, opened the door.

‘Oscar Torres, described as an old man in a white suit, was
sitting in a front room of the Palenzuela house when Jezzeny
arrived. Later, Mrs. Torres arrived and joined her husband. During
the cocaine transaction, the couple remained in the front room.

SWhen Jezzeny asked where the other five kilograms were, Mrs.
Palenzuela responded that they were at a nearby house.

/

13a

A few moments earlier, Jorge Palenzuela had called
Morejon. They spoke in Spanish, and Morejon then
reported to the others that they were “not there yet”
(referring to Benitez and Fonte). The telephone
conversation between Morejon and Jorge resumed until
Jorge said “They’re here,” handed the telephone to
Fonte and left the room. Fonte then told Morejon that
the deal was off and to meet him with Jezzeny at a
certain location.? Morejon told the others that
something was wrong.

On hearing this news, Mrs. Palenzuela picked up
the box containing the five and one-half kilograms of
cocaine, and told Jezzeny that “I’m going to give it back
to the people who own it. They have to take it someplace
where it’s safe.”” She took the box to the front of the
house and gave it to Mrs. Torres, who left the house. The
bonus pound remained in the house.

Shortly thereafter, Jezzeny and Morejon arrived at
the designated location and met Fonte. Morejon was
then arrested. Jezzeny, Fonte, other DEA agents and
several uniformed police officers in six or seven police
cars proceeded to the Palenzuela home. When they
arrived, approximately twenty-five minutes after
Jezzeny and Morejon had left, the police and agents
found the Palenzuelas outside. Mr. Palenzuela was
playing with the children, and Mrs. Palenzuela was
talking with neighbors and Luis Triana. They
immediately arrested Mr. and Mrs. Palenzuela and Mr.
Triana. None of the defendants or neighbors offered any
resistance nor were any of them armed. The agents next,
without consent, entered the house and conducted a

7After Fonte left Mrs. Ortega’s home, Mr. Palenzuela returned
to his own home.

14a

search of the premises that lasted about twenty
minutes. The agents took the defendants through each
room as they searched it. They found the pound of
cocaine and $26,000 in the bathroom adjoining the
bedroom. The arrests and search were both warrantless.

The trial of Virgen Palenzuela, Jorge Palenzuela,
Aguiar, Benitez, Morejon, Gonzalez and Basilia
commenced on September 25, 1978, before a jury in the
Southern District of Florida. Following the completion
of the government’s case, Virgen Palenzuela informed
the court that she had elected to testify. Some of her co-
defendants moved for a mistrial or severance of their
cases. She was cross-exa*nined by government counsel
and by counsel for Morejon.® At the completion of her
testimony, her counsel informed the court of his intent
to comment during closing argument on Morejon’s
failure to testify. All defendants, except Virgen, renewed
the motions for a mistrial or severance.

The court, however, severed the trial of Mrs.
Palenzuela and proceeded with the trial against the
remaining defendants. Mrs. Palenzuela did not object,
although she had not moved for the severance. The
remaining defendants were convicted by the jury.

8Mrs. Palenzuela testified that she knew Morejon and indicted
coconspirators Mr. and Mrs. Torres, and that Oscar Torres had left
a package at her house to be held for Morejon. She denies knowing
that the package contained cocaine, denies having discussed the
deal with Jezzeny and Morejon, and denies promising to supply
Jezzeny with any additional quantity of cocaine. She also testified
to her husband’s extreme anger upon learning of her decision to
cooperate with Morejon. She concedes, however, that she acted as a
nonparticipating interpreter for the two men and that she
transferred the cocaine from the bathroom to the bedroom and
back.

15a

II. Severance of Virgen Palenzuela and
Double Jeopardy Bar

On appeal Virgen Palenzuela argues that the trial
court improperly denied her motion to dismiss the
indictment. She contends that she was wrongly severed
from the trial of her six co-defendants and that a retrial
would violate her constitutional protection against
double jeopardy. We disagree.

[1] Once jeopardy attaches, as it did for Virgen
Palenzuela when the jury was sworn to try this case,
Illinois v. Somerville, 410 U.S. 458, 467-68, 93 S.Ct.
1066, 35 L.Ed.2d 425 (1973), a criminal defendant
normally will not lose the opportunity to seek a
favorable verdict from the jury and will not be required
to stand trial a second time, Arizona v. Washington, 434
U.S. 497, 503, 504, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717
(1978); Wade v. Hunter, 336 U.S. 684, 688-90, 69 S.Ct.
834, 93 L.Ed. 974 (1949). An exception to this rule is
made if the defendant consents to a retrial, United
States v. Kessler, 530 F.2d 1246, 1255 (5th Cir. 1976) or
if a retrial before a new jury is mandated by some form
of manifest necessity, United States v. Kin Ping
Cheung, 485 F.2d 689, 690-91 (5th Cir. 1973). E. g.,
Wade v. Hunter, 336 U.S. at 690-92, 69 S.Ct. 834
(witness temporarily unavailable during war); Simmons
uv. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed.
968 (1891) (juror prejudice); United States v. Alford, 516
F.2d 941, 947-49 (5th Cir. 1975) (mere convenience not
enough).

[2] In De Luna v. United States, 308 F.2d 140 (5th
Cir. 1962), we held that the fifth amendment requires
severance if a defendant exercises his privilege against

16a

ad

self-incrimination and a co-defendant’s attorney will
make prejudicial comments about his privileged silence.
Id. at 154. All parties to this action agree that Virgen’s
decision to testify and her attorney’s proper decision to
draw the jury’s attention to her co-defendants’ silence
would penalize the fifth amendment privilege of her co-
defendants and would create the sort of incompatibility
between their defenses that under De Luna requires a
severance. We believe that severance, and hence retrial,
of Virgen’s case was justified by the manifest necessity
of protecting the fifth amendment rights of the other
defendants under De Luna and did not violate the
double jeopardy protection of Virgen.

[3] The parties disagree, however, as to who
should have been severed. Contrary to Virgen’s
assertion, De Luna does not provide a rigid answer to
this question. In light of the principles of Arizona v.
Washington, once a severance is found to be warranted
by manifest necessity, the trial court has sound
discretion over who is to be retained and who is to be
severed. See 434 U.S. at 506, 98 S.Ct. at 830 n. 18, 832-34
(1978).

[4] The trial court did not abuse its discretion in
ordering Virgen’s retrial. Cf. United States v. Alford,
016 F.2d at 947-49 (improperly considering
convenience); United States v. Kin Ping Cheung, 485
F.2d at 691-92 (must consider alternatives to mistrial
and must not facilitate the potential for prosecutorial
misconduct). The fact that Virgen was the only
defendant not seeking a severance, although she did not
object to the severance, is simply one of many factors
that properly entered the district court’s decision. That

17a

fact is not, however, dispositive. In light of the district
court’s thoughtful and scrupulous consideration, we
affirm the decision to sever Virgen and to order her
retrial. See Arizona v. Washington, 434 U.S. at 514-516,
98 S.Ct. at 835-36.

III. Nonseverance of Jorge Valenzuela

As previously noted, severance was necessary
below. Aguiar and Morejon argue, however, that the
trial court’s severance of Virgen Palenzuela alone was
error because Jorge remained a defendant in their case
and Jorge’s lawyer, who represented both Palenzuelas,
retained a duty to comment on Morejon’s failure to
testify. This argument fails because it rests on the
fallacious theory that Jorge’s defense, like his wife’s, was
antagonistic to the defenses of Aguiar and Morejon.

[5] A trial court has a duty to sever the trials of co-
defendants with mutually antagonistic defenses to
preserve their rights to a fair trial. De Luna resists the
situation in which one defendant’s counsel properly
wishes to contrast his client’s testimony with the silence
of a co-defendant, who does not want to have his fifth
amendment right not to testify abridged.

[6] There is no antagonism between the defenses
of Jorge and of his co-defendants. Jorge’s defense —
built primarily on his wife’s testimony, see note 8 supra
— is that he did not participate in the cocaine deal and
that he was incensed by and expressly repudiated his
wife’s activities and her decision to allow the transaction
to take place at their home. That defense of ignorance
and then anger differs markedly from his wife’s defense

18a

that she had some idea of what was going on and that
she had agreed to do a favor for Morejon. Thus Jorge and
Virgen were not alter egos each to the other. Although
Virgen’s defense is antagonistic to that of Morejon and
Aguiar, Jorge’s defense cannot be similarly
characterized. No evidence in the record supports the
contention of Morejon and Aguiar that their defenses
were antagonistic to Jorge’s defense.

[7] The trial court’s decision concerning severance
is discretionary, absent a showing of unfairness resulting
from the presence of mutually antagonistic defenses,
which Morejon and Aguiar have not established. A
decision not to sever will not be disturbed, unless the
trial court abused its discretion or some prejudice
resulted from trying the defendants together. United
States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert.
denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152
(1978); United States v. Perez, 489 F.2d 51, 65 (5th Cir.
1973), cert. denied sub nom. Hamilton v. United States,
417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). That
discretionary decision was made below in a manner that
was sensitive both to the rights and the relations of the
parties and to the impact that Jorge’s defense would
have on the jury’s deliberations.

IV. Comments by Jorge Palenzuela’s Attorney

Aguiar and Morejon claim that the following
comment by counsel for Jorge Palenzuela, to which they
did not object, constituted reversible error because it
abridged their fifth amendment right to silence, see
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14
L.Ed.2d 106 (1965).

19a

Mr. Morejon is lifelong friend of their family. And
[Virgen Palenzuela’s] father and her mother and all of
her brothers, and whoever that she said that she had.

But, in any event, she told her husband what she
had done. She said that her husband raised all manner
of hell and told her that she surely must be crazy. And
stormed out of the house.

She was under oath. No testimony to the contrary.
(Emphasis added.) They are mistaken.

[8] Comments that undermine a defendant’s fifth
amendment right to silence can vitiate a conviction.
See, e. g., United States v. Edwards, 576 F.2d 1152, 1154
(5th Cir. 1978); United States v. Henderson, 565 F.2d
900, 905 (5th Cir. 1978); De Luna v. United States, 308
F.2d at 154. It makes no difference that the comments
were made by persons other than the prosecutor, e. g.,
United States v. Kaplan, 576 F.2d 598, 600 (5th Cir.
1978), cert. denied, 439 U.S. 1078, 99 S.Ct. 858, 59
L.Ed.2d 47 (1979), or that the comments were indirect,
United States v. Brown, 546 F.2d 166, 173 (5th Cir.
1977).

[9] The comments of Jorge Palenzuela’s attorney,
however, were not intended, and would not naturally
and necessarily be viewed by a jury, as a comment on
Aguiar’s or Morejon’s silence. See United States uv.
Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977). The
comments of Mr. Palenzuela’s attorney clearly aimed
toward two ends. First, they reminded the jury of
Virgen’s testimony describing Jorge’s discovery of the
proposed cocaine transaction and his reaction to it.

20a

Second, they pointed out the government’s lack of
evidence on Jorge’s involvement in the conspiracy. The
lack of any purpose of commenting on his co-defendant’s
silence, suggested by Aguiar and Morejon, is reflected in
their failure to object to the comment when it was made.
That fact is significant considering the vigilant and
vigorous defenses that co-defendants’ counsels provided
their clients, and the need to look at the comments in
context. United States v. Sorzano, 602 F.2d 1201, 1202
(5th Cir. 1979).

[10] Because no objection was raised to the
challenged comment, reversal is warranted only upon a
showing of plain error. United States v. Cook, 592 F.2d
877, 879-80 (5th Cir.), cert. denied, ___ U.S. ___., 99
S.Ct. 2847, 61 L.Ed.2d 289 (1979); Fed.R.Crim.P. 52(b).
See also, Benham v. United States, 215 F.2d 472, 473
(5th Cir. 1954). Aguiar and Morejon have neither
established the occurrence of plain error below nor of
any error at all. Their counsel was at most entitled to
seek cautionary instructions from the trial court with
respect to the challenged comments made by counsel for
Jorge Palenzuela.

V. Sufficiency of the Evidence Supporting
Jorge Palenzuela’s Conviction

At the conclusion of the taking of the testimony in
the case, the district court granted Jorge Palenzuela’s
motion for judgment of acquittal as to Count II,
‘“‘possess[ion] with intent to distribute a controlled
substance.” The court, however, denied his motion for
judgment of acquittal as to Count I, ‘‘conspiracy to. . .
distribute multi-kilogram quantities of a Schedule II
narcotic controlled substance, to-wit: cocaine.”

2la

[11] In reviewing the sufficiency of the evidence,
we view the evidence in the light most favorable to the
government, with all reasonable inferences and
credibility choices read in support of the jury’s verdict.
Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457,
86 L.Ed. 680 (1942); United States v. Barresi, 601 F.2d
193, 195 (5th Cir. 1979). We seek to determine whether
jurors might reasonably find the evidence inconsistent
with every reasonable hypothesis except that of guilt.
United States v. Lonsdale, 577 F.2d 923, 925 (5th Cir.
1978); United States v. Squella-Avendano, 478 F.2d 433,
436 (5th Cir. 1973); United States v. Sidan-Azzam, 457
F.2d 1309, 1310 (5th Cir. 1972).

[12] Our review of the record discloses no evidence
sufficient to show that Jorge had agreed to be involved
in a conspiracy to distribute cocaine. The sole evidence
against Mr. Palenzuela is as follows: (1) Virgen
Palenzuela’s uncorroborated testimony that her
husband used the nickname ‘‘Pepi,” the name of a party
to whom Mr. Morejon spoke; (2) Jorge’s presence at the
home of his mother-in-law, the second safe house, at the
time the counting was to have occurred; and (3) his
saying, ““They’re here,” before handing the telephone to
Fonte.

The trial court specifically found that there was
insufficient evidence to establish that Jorge was guilty
of possessing the cocaine found in his home. The court
thought, however, that the statement, ‘“They’re here,”’
tended to indicate that Mr. Palenzuela had sufficient
knowledge of the drug transaction.

22a

In Roberts v. United States, 416 F.2d 1216 (5th Cir.
1969), we said:

It is elementary that neither association
with conspirators nor knowledge of illegal
activity constitute proof of participation in a
conspiracy.

Id. at 1220 (citing United States v. Falcone, 311 U.S.
205, 61 S.Ct. 204, 85 L.Ed. 128 (1940)). Roberts
indicates that mere knowledge of the purpose of a
conspiracy or association with conspirators, without an
agreement to cooperate in the crime, is not sufficient to
make one a conspirator. United States v. Morado, 454
F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92
S.Ct. 1767, 32 L.Ed.2d 116 (1972); see United States v.
Tyler, 505 F.2d 1329, 1332 (5th Cir. 1975). The requisite
fact of intentional agreement or participation cannot
“be made out by piling inference upon inference,”
Ingram v. United States, 360 U.S. 672, 680, 79 S.Ct.
1314, 1320, 3 L.Ed.2d 1503 (1959) (quoting Direct Sales
Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 87
L.Ed. 1674 (1943)), or by “suspicion and innuendo,”
United States v. Palacios, 556 F.2d 1359, 1365 (5th Cir.
1977). Cf. United States v. Perez, 489 F.2d at 73
(repeated actions of participants in scheme sufficient).

On the facts of this case, insufficient evidence
existed for a reasonable jury to infer that Jorge
Palenzuela was a party to an illegal conspiracy. E. g.,
United States v. Littrell, 574 F.2d 828, 832-34 (5th Cir.
1978). It is tempting, although all too often wrong, to
suppose that mere presence is tantamount to
participation, but ‘‘actual presence at the scene of the
crime is not sufficient.’’ United States v. Caro, 569 F.2d

23a

411, 418 (5th Cir. 1978). The statement ‘““They’re here,”’
standing alone, likewise reveals nothing of consequence
here. This statement could have just as easily been
made by any innocent bystander. The conviction of
Jorge Palenzuela must, therefore, be reversed.

VI. Search and Seizure at the Palenzuela House

A motion to suppress the evidence found at the
Palenzuela home was filed on behalf of the defendants
on October 7, 1977. The United States magistrate took
testimony and recommended denial of the defendants’
motion to suppress. The trial court entered its order
denying the defendants’ motion on February 6, 1978.

[13] The general rule is that a warrantless search
of a dwelling cannot be made incident to an arrest
occurring outside the building. An important exception
to this rule is made if the delay from securing a warrant
would seriously threaten the lives of the police or of
others. The trial court denied suppression of the cocaine
because it concluded that the requisite “threat to
safety” existed in this case.

[14] Jorge Palenzuela and Morejon have attacked
this decision on appeal. We conclude, however, that we
need not decide the issue today. Jorge Palenzuela’s
conviction is reversed on other grounds. Morejon, on the
other hand, has no standing to raise this question. In
Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36
L.Ed.2d 208 (1973), the Supreme Court articulated the
accepted test for standing to contest an allegedly illegal
search and seizure under the circumstances arising in
this case.

24a

[T]here is no standing to contest a search and
seizure where. . . the defendants: (a) were not
ou the premises at the time of the contested
search and seizure; (b) alleged no proprietary
or possessory interest in the premises; and (c)
were not charged with an offense that includes,
as an essential element of the offense charged,
possession of the seized evidence at the time of
the contested search and seizure.

Id. at 229, 93 S.Ct. at 1569. Because Morejon does not
claim and the record does not indicate that the
indictment charged him with possession at the time the
search occurred, he lacks standing to challenge its
legality. United States v. Hodges, 606 F.2d 520, 523 (5th
Cir. 1979); United States v. Byers, 606 F.2d 1130, 1132
(5th Cir. 1979). See Rakas v. Illinois, 439 U.S. 128, 133,
99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

VII. New Trial and Evidentiary Hearing Regarding
Fonte

After their convictions, Aguiar and Morejon moved
for a new trial. They attached to this motion a transcript
of a preliminary hearing in Nevada state court involving
coconspirator Aleman (charged with trafficking in
heroin) during which Fonte testified. They also
submitted posttrial affidavits of Aleman and Ramon
Gutierrez to the effect that Fonte falsely testified at
trial. They also submitted additional transcripts and
reports that they claimed to establish Fonte’s reputation
and history of false testimony in unrelated matters.

The trial court denied the new trial motion, and did
so without holding an evidentiary hearing on the
accusations. Aguiar and Morejon contend that the trial
court abused its discretion in failing to conduct an
evidentiary hearing and, in the alternative, in denying
their new trial motion. We disagree with that
contention.

The heart of this challenge is the contention that
Fonte’s prior testimony in the Nevada proceeding was in
direct conflict with, or impeaches his credibility with
respect to, his testimony at the trial below. From this
contention Aguiar and Morejon argue that their
convictions were obtained through the government’s
knowing use of false evidence and perjured testimony
violated the standing discovery order and Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). Aguiar and Morejon also contend that Aleman,
who was familiar with Fonte’s prior testimony, was
impermissibly “hidden” by the prosecution during the
trial.

[15, 16] After a careful examination of the
transcripts and affidavits, we see no significant
inconsistency or discrepancy in Fonte’s testimony on
any material issue involved below or on any matter that
constitutes impeaching evidence. Appellants’ perjury
argument, therefore, is groundless. To establish a
violation under Brady, Aguiar and Morejon must
establish “(a) suppression by the prosecution after a
request by the defense, (b) the evidence’s favorable
character for the defense, and (c) the materiality of the
evidence.” Moore v. Illinois, 408 U.S. 786, 794-95, 92
S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972); United States
uv. Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978). See

26a

Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194.
Assuming that appellants have established (a), they
have not shown (b) and (c) because there is no
reasonable likelihood that “the suppressed evidence
might have affected the outcome of the trial.” United
States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49
L.Ed.2d 342 (1976). See id. at 112-14, 96 S.Ct. 2392;
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763,
31 L.Ed.2d 104 (1972); United States v. Barham, 595
F.2d 231, 241-43 (5th Cir. 1979); United States v.
Herberman, 583 F.2d 222, 228 (5th Cir. 1978); Galtieri v.
Wainwright, 582 F.2d 348, 362 (5th Cir. 1978) (en banc,
plurality opinion); United States v. Anderson, 574 F.2d
1347, 1354 (5th Cir. 1978). The undisclosed prior
testimony was neither material, favorable nor
exculpatory. The prior testimony similarly does not
constitute “impeaching evidence.” United States v.
Anderson, 574 F.2d at 1354. The production of the
earlier testimony would not have created a reasonable
doubt of defendants’ guilt that did not otherwise exist.
See United States v. Agurs, 427 U.S. at 112, 96 S.Ct.
2392. No evidence suggests a government plan to hide
Aleman, his testimony in the Nevada proceeding, or
Ramon Gutierrez.® Finally, we see no reason why the
district court should have held an evidentiary hearing.
The trial court, therefore, did not abuse its discretion in
denying the new trial motion or in not conducting an
evidentiary hearing. See United States v. Hamilton, 559
F.2d 1370, 1373 (5th Cir. 1977).

In light of these conclusions, we need not reach the merits of
the government’s argument regarding due diligence. United States
v. Beasley, 582 F.2d 337 (5th Cir. 1978).

27a

Conclusion

The convictions of Luis Aguiar and Julio Morejon-
Pacheco are affirmed, as is the district court’s denial of
Virgen Palenzuela’s motion for dismissal. The
conviction of Jorge Palenzuela is reversed.

AFFIRMED IN PART; REVERSED IN PART.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 78-5748
NO. 79-2084

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

JULIO MOREJON-PACHECO,
Defendant-Appellant.

APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA,

JAMES LAWRENCE KING, DISTRICT JUDGE

Decided: Feb. 4, 1980
Rehearing Denied: March 10, 1980

BEFORE AINSWORTH, VANCE AND
ANDERSON, CIRCUIT JUDGES

Michael J. Osman for defendant-appellant Julio
Morejon-Pacheco. Bruce A. Zimet, Assistant U.S.
Attorney, for plaintiff.

RECEIVED MAR 10, 1980

FILED MAR 10, 1980

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 78-5748
79-2084

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JULIO MOREJON-PACHECO,
Defendant-Appellant.

Appeal from the United States District Court for the
Southern District of Florida

ON PETITION FOR REHEARING AND
PETITION FOR REHEARING EN BANC

(Opinion February 4, 1980,
5 Cir., 1980, 610 F.2d 1296).

(March 10, 1980)

Before AANSWORTH, VANCE and ANDERSON,
Circuit Judges.

PER CURIAM:

( )The Petition for Rehearing filed on behalf of Julio
Morejon-Pacheco is DENIED and no member of this
panel nor Judge in regular active service on the Court
having requested that the Court be polled on rehearing en
banc, (Rule 35 Federal Rules of Appellate Procedure;
Local Fifth Circuit Rule 16) the Petition for Rehearing En
Banc is DENIED.

( ) The Petition for Rehearing filed on behalf of Junio
Morejon-Pacheco is DENIED and the Court having been
polled at the request of one of the members of the Court
and a majority of the Circuit Judges who are in regular
active service not having voted in favor of it, (Rule 35
Federal Rules of Appellate Procedure; Local Fifth Circuit
Rule 16) the Petition for Rehearing En Banc is also
DENIED.

( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en
banc, and a majority of the judges in active service not
having voted in favor of it, rehearing en banc is DENIED.
ENTERED FOR THE COURT:

United States Circuit Judge

Form 704-2

3la

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2363%3A1. Public record. Not legal advice.