Petition — Wegner v. United States

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KANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT CF THE UNITED STATES

October Term, 1980

No.

RICHARD WEGNER, Petitioner,

Ve

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

DOMINIC P. GENTILE, LTD.

A Professional Corporation

1200 South Maryland Parkway

Las Vetas, Nevada 89104

(702) 382-7755

Attorney for Petitioner,

Richard Wegner

QUESTION PRESENTED

1. Whether or not a Defendant-

Appellant appealing from a judgment of

conviction in a criminal case entered in a

United States District Court has a con-

Sstitutional right to demand the conscien-

tious judgment of a United States Court of

Appeals on every assignment of error prop-

erly raised before that Court in accor-

dance with the Rules of Appellate Proce-

dure and 28 U.S.C. §1291?

é

ke

Page

Opinion below . . . « « « © « « « « « 2

Jurisdiction .« «6 « « * «© = #96. 5" 2

Question presented ...-«-e«-«e«e eh 2

. Statutory provisions involved... . 3

Statement of the case ... +. + « « « 3

Reasons for granting the writ... . 6

1. The Complete Failure of the

Court of Appeals for The

Fifth Circuit to Provide a

Conscientious Judgment on

Every Assisgnment of Error

Properly Raised Before That

Court and the Complete Fail-

ure of the Court of Appeals

to Address the Issue Raised

in the Petition for Rehearing

of the Defendant-Appellant's

Right To a Conscientious

Judgment on Every Assignment

, of Error Properly Raised on

Appeal Leaves an Important

Question of Federal Law Un-

settled.

Conelusion « «© «ss « « * 2 ee 14

Appen@ix .<«+e«+ss+se+s+¢ © #7) = eee

- 434°

Cases: Page

Abney v. United States,

431 U.S. 656 (1977) ~« «© « « «© « «@ 7

Blewen v. United States,

375 F.2d 285 (5th Cir. 1967) a 8

Carroll v. United States,

369 U.S. 438 (1962) ~. « «© «© «© « « 7

Soppedge v. United States,

369 U.S. 438 (1967) «. «© © «© «© « « 7

Hardy v. United States,

375 U.S. 277 (1964) ~ « «© «© « « » 8

Post v. Jones,

19 How. 150, 15 L.Ed. 618 (1856). 8, 13

Rodriquez v. United States,

395 U.S. 327 (1969) ~« «© « © « «© « 8

Thomas v. United States,

368 F.2d 941, 945 (Sth Cir. 1966) 9

United States v. Garza,

608 F.2d 656 (5th Cir. 1979) . .11, 12

United States v. Mendoza,

565 F.2d 1285 affirmed en banc

581 F.2d 89 (5th Cir. 1978) . « - 11

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

RICHARD WEGNER, Petitioner,

Ve

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

The Petitioner, Richard Wegner re-

spectfully prays that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals for

the Fifth Circuit entered in this proceed-

ing on July 17, 1980.

OPINION BELOW

The unpublished opinion of the Court of

Appeals appears in the Appendix attached

hereto. No opinion was rendered by the

District Court for the Western District of

Texas, San Antonio Division.

JURISDICTION

The judgment of the Court of Ap-

peals for the Fifth Circuit was entered on

July 17, 1980. A timely petition for re-

hearing en banc was denied on December 11,

1980, and this petition for certiorari was

filed within sixty days of that date.

This Court's jurisdict’on is invoked under

28 U.S.C. §1254 (1).

QUESTION PRESEN™ED

1. Whether or not a Defendant-

Appellant appealing from a judgment of

conviction in a criminal case entered ina

United States District Court has a con-

stitutional right to demand the conscien-

tious judgment of a United States Court of

Appeals on every assignment of error pro-

perly raised before that Court in accor-

dance with the Federal Rules of Appellate

Procedure and 28 U.S.C §1291?

STATUTORY PROVISIONS INVOLVED

United States Code, Title 28 §1291.

STATEMENT OF THE CASE

On September 12, 1978, Richard

Wegner (hereinafter "Petitioner" ) was

charged by the Grand Jury for the United

States District Court in the Western Dis-

trict of Texas, San Antonio Division, in

Indictment No. S.A.-78-CR-185 for viola-

ting 21 U.S.C. §846. The same indictment

brought charges against Richard Wegner for

three counts of violating 18 U.S.C §2 as

the same relate to violations of 21 U.S.C.

§841(a)(1) by other persons. On November

14, 1978, the aforementioned indictment

was superseded by Indictment No. S.A.-

7%

78-CR-238, making substantially the same

allegations and charges.

On November 20, 1978, Petitioner

entered a plea of not guilty as to each

Count of the indictment. A jury trial

commenced in the City of San Antonio,

Texas, on March 19, 1979. After a two-

week trial, the jury returned a verdict of

guilty as to all counts on March 30,

1979.

On April 20, 1979, Richard Wegner

was sentenced pursuant to Title 18 U.S.C.

§4205(b)(2) to four years' incarceration

to be followed by a special parole term of

four years as to each count, with Counts

I, X, and XVIII, to be served concurrently

and Count IV to be consecutive thereto.

The Petitioner filea a notice of appeal,

and had been at large on bail pending the

final outcome of those proceedings.

Briefs were filed pursuant to said

appeal by Petitioner and the United States

Government (a copy of Petitioner's brief

and reply brief are in the Appendix at-

tached hereto), and argument was heard be-

fore the United States Court of Appeals

for the Fifth Circuit in New Orleans,

Louisiana, on July 16, 1980. On July 17,

1980, the Court of Appeals for the Fifth

Circuit issued an unpublished opinion

wherein the Court affirmed the conviction

of Petitioner.

Petitioner then filed a Petition

for Rehearing and Suggestion for Rehearing

en banc. A copy of the petition is in the

Appendix attached hereto. In a letter

dated December 11, 1980, from the Clerk

for the United States Court of Appeals for

the Fifth Circuit, counsel for Petitioner

was advised that Petitioner's Petition for

Rehearing and Suggestion for Rehearing en

banc was denied. A copy of the letter is

in the Appendix attached hereto.

Thereafter, on December 29, 1980,

the opinion of the United States Court of

Appeals for the Fifth Circuit was issued

as mandate. Pursuant to the issuance of

mandate, Petitioner was informed that he

was to surrender himself to the United

States Marshall Service on Tuesday,

January 20, 1981, in San Antonio, Texas.

Upon motion of Petitioner, an order was

entered permitting Petitioner to voluntar-

ily surrender to the place of his incar-

ceration at the United States Penitentiary

at Terre Haute, Indiana.

REASONS FOR GRANTING THE WRIT

Te THE COMPLETE FAILURE OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT TO

PROVIDE A CONSCIENTIOUS JUDGMENT ON EVERY

ASSIGNMENT OF ERROR PROPERLY RAISED BEFORE

THAT COURT AND THE COMPLETE FAILURE OF THE

COURT OF APPEALS TO ADDRESS THE ISSUE

RAISED IN THE PETITION FOR REHEARING OF

THE DEFENDANT-APPELLANT'S RIGHT TO A CON-

SCIENTIOUS JUDGMENT ON EVERY ASSIGNMENT OF

ERROR PROPERLY RAISED ON APPEAL LEAVES AN

IMPORTANT QUESTION OF FEDERAL LAW UNSET-

-

TLED.

It is the Petitioner's position

that a defendant appealing from a judgment

of conviction in a criminal case entered

in the United States District Court has a

constitutional right to demand the con-

scientious judgment of a United States

Court of Appeals on every assignment of

error properly raised before that Court in

accordance with the Federal Rules of Ap-

pellate Procedure and 28 U.S.C. §1291.

The United States Supreme Court has held

that there is no constitutional right to

an appeal from a _ criminal conviction.

Abney v. United States, 431 U.S. 656

(1977). However, in the federal system,

it is clear that 28 U.S.C. §1291 provides

a statutory right to appeal from a crimi-

nal conviction. See Coppedge v. United

States, 369 U.S. 438 (1967); Carroll v.

United States, 369 U.S. 438 (1962); and

— ee ese <> ae + epeaee +n

“

Blewen v. United States, 375 F.2d 285 (5th

Cir. 1967). This right should not be

frustrated. Rodriguez v. United States,

35 -G.8.:' 327 ¢€1969). This right also

carries with it both the right to counsel

and concommitant duties upon counsel.

These duties include examining the trial

court record for errors and urging the

reviewing court to grant relief therefrom.

See Hardy v. United States, 375 U.S. 277

(1964).

In an early decision of the Court

in Post v. Jones, 19 How. 150, 15 L.Ed.

618 (1856), it was held that where the law

gives a party an appeal, he has a right to

demand the conscientious judgment of the

appellate court on every question arising

in the cause. Post, supra, at 160. The

Fifth Circuit has also acknowledged that

an appeal is an integral part of the trial

System for finally adjudicating the guilt

Or innocence of a defendant. Thomas Vv.

United States, 368 F.2d 941, 945 (5th

Cir. 1966). It is therefore axiomatic

that where alleged errors of the trial

court have been properly preserved and

urged upon a United States Circuit Court

of Appeals, the Court of Appeals has a

duty to consider each of them before ren-

dering judgment.

In the case at bar, Richard Wegner

presented two issues for review to the

United States Court of Appeals for the

Fifth Circuit. The first was whether or

not he was deprived of his rights to

confrontation, cross-examination, and

effective assistance of counsel by the ad-

mission into evidence without proper foun-

dation of computer printouts of telephone

toll records. In its per curiam opinion

decided within a day of oral argument,

pursuant to Local Court Rule 21, the panel

disposed of this issue by stating:

Defendant-Appellant WEGNER alleges

that he was denied a fair trial,

because he was deprived of his

rights of confrontation and cross-

examination, as guaranteed by the

Sixth Amendment to the United

States Constitution, when the Court

admitted computer print-outs' of

telephone toll records into evi-

dence, and we find this allegation

of error without merit, and we af-

firm his conviction. Opinion of

July 17, 1980, page 2.

The second issue presented to the

United States Court of Appeals for the

Fifth Circuit, which the Court completely

failed to address, was whether or not

Petitioner was deprived of his liberty

without due process of law and a fair

trial in light of the prosecution's mis-

conduct in obtaining testimony, and in

cross-examination, and the Court's charge

to the jury. The argument in support of

Defendant's contention encompassed sixteen

(16) pages of the Appellant's Brief and

two additional pages in his Reply Brief.

Two of his primary contentions in regard

to that argument were of such a nature as

to require the Fifth Circuit to clarify

the question as to whether United States

v. Mendoza, 565 F.2d 1285, affirmed en

banc, 581 F.2d 89 (5th Cir. 197%) permit-

ted a trial judge to forestall ruling on

a motion made pursuant to Rule 35 of the

Federal Rules of Criminal Procedure until

after the Movant testified on behalf of

the Government, at the Government's re-

guest, some 210 days after sentence was

imposed and some 90 days beyond the 120

day limitation on Rule 35 Motions. The

second contention would have required that

Court to either reverse or to distinguish

the closing argument in the instant case

from that of United States v. Garza, 608

F.2d 6059 (Sth Cir. 1979). It was submit-

ted in the Appellant's Brief and it was

Submitted in the Petition for Rehearing

and Suggestion for Rehearing en banc that

the summation of the prosecutor in the in-

stant case was even more prejudicial and

inflammatory than that or Garza. The

United States Court of Appeals for the

Fifth Circuit completely and unequivocally

failed to address these issues in its

cursory opinion issued in the instant

case. As such, Defendant believes that

this failure of the appellate court to ad-

dress the issues raised on appeal created

a meritorious issue for consideration by

the Supreme Court of the United States on

Petition for Writ of Certiorari.

It is respectfully submitted that

an examination of the three page opinion

of the panel which is attached in the Ap-

pendix will demonstrate to the Court that

the first issue presented by Petitioner

was not analyzed by the Court at all in

its opinion and the second issue presented

for review on appeal was not given any

consideration whatsoever by the panel and

therefore Petitioner was deprived of due

process and equal protection of law as

guaranteed to him by the United States

Constitution, Amendment Five. Surely, if

Post, supra is to be given any credence at

all, it must apply equally to all members

of the class to which it was directed.

Tnis was certainly not done in the instant

case.

The complete failure of the (United

States Court of Appeals for the Fifth Cir-

cuit to address the aforementioned issues

raised by Petitioner leaves important

questions of federal law unsettled as to

the specific issues raised by Petitioner

and also leaves unsettled tne fundamental

question of whether a defendant-appellant

in a criminal case is entitled to the con-

Sscientious judgment of the Court of Ap-

peals on all issues of errors that are

properly raised by a defendant-appellant.

These are issues which the Supreme Court

of the United States, it is respectfully

Submitted, should settle.

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the judg-

ment and opinion of the Fifth Circuit.

Respectful ly submitted,

Dominic P. Gentile, Ltd.

A Professional Corporation

1200 So. Maryland Parkway

Las Vegas, Nevada 89104

(702) 382-7755

Attorney for P@titioner

Richa

Gentile, Esquire

CERTIFICATE OF SERVICE

I hereby certify that three (3) true

and correct copies of the foregoing were

sent by United States Mail to the

following:

The Solicitor General

Department of Justice

Washington, D.C. 20530

DOMINIC P. GENTILE, LTD.

A Professional Corporation

1200 South Maryland Parkway

Las Vegas, Nevada 89104

(702) 382-7755

Attorney for Petitioner

Richard Wegner

a

DAVID Z HESNOFF, ESQUIRE

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

HPAI

FOR THE FIFTH CIRCUIT ; F bE ;

FILED : i

; No. 79-5262 ~ DEC 31 1980

iia VAunen, Clerk

Pa) Deputy

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE M. MALDONADG, FEDERICO CRUZ, and

Defendants-Appellants.

Appeals from the United States District Court for the

Western District of Texas

(JULY 17, 1980}

Before CHARLES CLARK, TJOFLAT and GARZA, Circuit Judges.

PER CURIAM:

Defendant-Appellant Joe M. Maldonado was convicted by

a jury of conspiracy to possess marihuana, with intent to dis-

tribute, and possession of marihuana, with intent to distribute.

Defendant-Appellant Richard Wegner was convicted by

a jury of conspiracy and aiding and abetting the possession of

marihuvana, with intent to distribute.

Defendant-Appellant Federico Cruz was convicted by a

jury of conspiracy to possess marihuana, with intent to distribute,

and of aiding and abetting the possession of marihuana, with

aimtent to distribute.

rather than the single conspiracy alleged in the indictment,

and that his constitutional guarantee of confrontation ot all -

adverse witnesses was violated when the trial court unduly

restricted his cross-examination of a witness by the name of

Acosta, when he testified for the Government. We find all of

the contentions to be without merit, and, therefore, affirm

his conviction.

1

AFFIRMED. See local Rule Bee

¥

Issued as Mandate: nec .2 9 1960

1 See NLRB v. Amalgamated Clothing Workers of America,

5 Cir. 1970, 430 F.2d 966.

J, true copy

EXHIBIT B

a ee TE

79-5262

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WEGNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

BRIEF OF APPELLANT

DOMINIC P. GENTILE

1200 South Maryland Pkwy.

Las Vegas, Nevada 89104

Telephone: (702) 382-7755

Attorney for Appellant

SCOFIELOS' QUALITY PRINTERS. P O BOX $3096. N O.. LA. 70153 - 504/822-1611

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WEGNER,

Defendant-Appellant.

CERTIFICATE OF COUNSEL

The undersigned counsel of record certifies that the

following listed person has an interest in the outcome

of this case. This representation is made in order that

the Judges of this Court may evaluate both disqualifi-

cation or recusal pursuant to Local Rule 13.6.1:

Richard Wegner, Defendant-Appellant herein.

DOMINIC P. GENTILE

1200 South Maryland Pkwy.

Las Vegas, Nevada 89104

Attorney for Defendant-

Appellant

ii

REQUEST FOR ORAL ARGUMENT

The defendant-appellant, RICHARD WEGNER, re-

quests oral argument in this matter. The Report of Pro-

ceedings at the trial of this cause consists of 1,710

pages, exclusive of the common law record. The trial of

this case took two full weeks. The issues presented to

this Court relate to the prejudicial effect of the admis-

sion of a specific piece of evidence, which was greatly

relied upon by the prosecutor throughout his case in

chief, the cross-examination of the defense witnesses,

and summation. Furthermore, the issues relating to

due process and prosecutorial misconduct cannot be as

vividly described by the printed word and a cold record

as it can by oral presentation indicating the general

tenor and mood of the proceedings in the trial court

below.

Finally, to the extent that this Court would require

the resolution of issues that are included within its

decision-making process, but which have been either

unnoticed or assumed by the appellant in his brief, only

oral argument will present an opportunity to confront

and clarify these problems.

iii

TABLE OF CONTENTS

Page

CERTIFICATE OF COUNSEL ...........cceccec. i

REQUEST FOR ORAL ARGUMENT ............ ii

ROM WOE PPPEMMED vo icciccccccccccevecces iii

TARE OF AUTIIORITIES on ccccccccccccvccess iv

ISSUES PRESENTED FOR REVIEW ............. 1

STATEMENT OF THE CASE ...........sc0cc.. 2

A. Course of Proceedings and Disposition

STE NE Bnebe nb dece vncoccecce or 2

B. Statement of Facts Relevant to

I eae ecto tdekedwae 3

(1) Prosecution’s case in chief ............ 3

ESE SE: Hane ee 19

ae 34

SUMMARY OF THE ARGUMENT ............. 36

PI 6 kbd dS on ek babe deena bids costes 37

I. The Defendant Was Deprived Of His

Right Of Confrontation And Cross-

Examination As Guaranteed By The

Sixth Amendment To The United

States Constitution When The Court

Admitted Computer Print-Outs Of

Telephone Records Into Evidence ....... 37

Il. The Defendant Is Being Deprived Of

His Liberty Without Due Process Of

i i A a

a

iv

TABLE OF CONTENTS (Continued

Law, As Guaranteed. By The Fifth

Amendment To The United States

Constitution, As A Result Of Having

Been Denied A Fair Trial ............

A. The Indictment .........+--+e+ 0%

B. The Prosecutor’s Misconduct ....

CONC AIIIIIG ccccvccecescscccvccscescses

CERTIFICATE OF SERVICE ..........--.--

BEEING kgci cd ve scovevevescecovscccencs

TABLE OF AUTHORITIES

Cases:

Berger v. United States, 295 U.S. 78, 79

L.Ed. 1314 (1935) 2... cccecececccvccceeee

Cole v. Arkansas, 333 U.S. 196, 92 L.Ed.

634 (1948) ..cccccccccccccccccscvcccccces

Dugan Drug Stores, Inc. v. United States, 326 F.2d

ea” ee. ee

Dunn v. United States, 307 F.2d 883

ED Pi ve cawncbAcdtRedkrncorsces

Jackson v. United States, 311 F.2d 686 (Sth

ES or ven see eke eeee een is

Jay v. Boyd, 351 U.S. 345, 100 L.Ed. 1242, 76

ee Parr

Page

Vv

TABLE OF AUTHORITIES (Continued)

Page

Kotteakos v. United States, 328 U.S. 750

eae os catit eau yes yah eile sk ends 55

Rochin v. California, 342 U.S. 165, 97 L.Ed. 183,

TS DOCEBee. B05 (ISSS) onc ciccnccccs swuws 53

Roper v. United States, 403 F.2d 796 (Sth

rs Leeks ee ead Wied wah 60

Russell v. United States, 429 F.2d 237 (Sth Cir.

a vemos de uae as eek CRS b hed «6 55,56

Smith v. Smith, 454 F.2d 572 (Sth Cir.

ES CR OSL NT Ia ene a 60

Ungar v. Sarafite, 373 U.S. 575, 11 L.Ed.2d

ee ee ee chee pavendeneeensabe 59

United States v. Arteaga-Limones, 529 F.2d 1183

Se he bye Sat bw 56,57

United States v. Beaver, 524 F.2d 963 (Sth Cir.

CS ee a es eee Bee eek kau keke de 60

United States v. Bourg, 598 F.2d 445 (Sth Cir.

Ee etre as ele dia WE eaten ie ce do o5 a 8-4 oO KS 61

United States v. Corona, 511 F.2d 1386 (Sth Cir

iE as ae i Eee ge ae hey aac 66

United States v. DeGeorgia, 420 F.2d 889

SS WS eh oes sea eddeeheeneed ec eees 49,50

United States v. Duran, 411 F.2d 275 (Sth Cir.

Ea. ear dew ee nes bt ko ee Oe enae eee

vi

TABLE OF AUTHORITIES (Continued)

Page

United States v. Fendley, 522 F.2d 181 (Sth Cir.

ER i oe Oe te ee eae h noha 46,47,50,51

United States v. Garner, 581 F.2d 481 (Sth Cir.

ee enc here bed a 59

United States v. Gonzalez, 491 F.2d 1202

I I aT oc iS ox oe wie’ 64

United States v. Havens, 592 F.2d 848 (Sth Cir.

er ee ea a lean 63

United States v. Liebert, 519 F.2d 542

ee ee tues cac is eens 50

United States v. Malatesta, 583 F.2d 748

oe ae eke sewers 56

Linited States v. Mendoza, 565 F.2d 1285

ie cas enee ea exe a ped 67

United States v. Mendoza, 581 F.2d 89 ‘

I ee eg nO sw wend 67

United States v. Miller, 500 F.2d 751 (Sth Cir.

RN a tu ekes 51,52

United States v. Owens, 431 F.2d 349 (Sth Cir

ee he el ea ee ae eee ee ft eB 56

United States v. Prejean, 494 F.2d 495 (Sth

8 RE a ree ee 60

United States v. Russo, 480 F.2d 1228 (6th Cir.

A SE ee ee + ei nae 46,47

vii

TABLE OF AUTHORITIES (Continued)

Page

United States v. Scholle, 553 F.2d 1109 (8th

Cie, 1979) .cccccecceesess050e eee 47,48,49

Linited States v. Somers, 496 F.2d 723 (3rd Cir.

1974) 2. ccccceccccsesseueeeebaee eee ane

United States ex rel. Waters v. Bensinger, 507 F.2d

103 (7th Cir. 1976) ..cccceccervedastunneeneees 60

United States v. Weatherspoon, 581 F.2d 595

(Fth Cir. 1978). ocapcccecsscnssunaeeeeeeeeee 51

Other Authorities:

Ped R.Crim. Proc. 7 ...ccecccccessaeeas ene 55

Fed R Crim.Proc. 38 ..ceccvccvesecesawaueeeeee 67

Federal Rules of Evidence 901(a) ....... 37,44,45,46

Federal Rules of Evidence 901(b)(9) .... 37,44,45,46

U.S. Constitution, Fifth Amendment ............ 53

U.S. Constitution, Sixth Amendment ........ 37,46

5 Weinstein, Evidence, para. 901(d)(9)(02),

PZ. VOL-109 2... cece cece cree cree ee rere eeeees 44

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WEGNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

BRIEF OF APPELLANT

ISSUES PRESENTED FOR REVIEW

1. Was the defendant deprived of his rights to con-

frontation, cross-examination, and effective assis-

tance of counsel by the admission into evidence, with-

out proper foundation, of computer print-outs of tele-

phone toll records?

2. Was the defendant deprived of his liberty

without due process of law anda fair trial in light of the

prosecution’s misconduct in obtaining testimony,

2

cross-examination and summation, and the Court’s

charge to the jury?

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition

in Court Below.

On September 12, 1978, RICHARD WEGNER

(hereinafter “defendant” or “appellant”), was charged

by the Grand Jury for the United States District Court

in the Western District of Texas, San Antonio Division,

along with eleven others, in Indictment No. S.A.-78-

CR-185 for violating 21 U.S.C. §846. The same indict-

ment also brought charges against RICHARD WEG-

NER alone for three counts of violating 18 U.S.C. §2 as

the same relate to violations of 21 U.S.C. §841(a)(1) by

other persons. On November 14, 1978, the aforemen-

tioned indictment was superseded by Indictment No.

S.A.-78-CR-238, making substantially the same alle-

gations and charges.

On November 20, 1978, Defendant WEGNER enter-

ed a plea of not guilty as to each Count of the indict-

ment. A trial commenced before the Hon. Dorwin

Suttle, District Judge, sitting with a jury, in the City of

San Antonio, Texas, on March 19, 1979. After a two-

week trial, the jury returned a verdict of guilty as to all

counts on March 30, 1979.

On April 20, 1979, Defendant WEGNER was sen-

tenced pursuant to Title 18, U.S.C. §4205(b)(2) to four

years’ incarceration to be followed by a special parole

3

term of four years as to each count, with Counts I, X,

and XVIII to be served concurrently and Count IV to be

consecutive thereto. The defendant filed a timely

notice of appeal, and is at large on bail pending the out-

come of this proceeding.

B. Statement of Facts Relevant to Issues

Presented

(The following statement of facts is presented as a

summary of the evidence, in chronological order, that

was presented to the trial court. jIt includes “facts”

which were unknown to the jury as a result of voir dire

examinations which took place outside of the hearing

of the jury.)

(1) Prosecution’s case in chief:

Ms. Jamie Smith

Jamie Smith testified that she is an assistant man-

ager at the Holiday Inn in Itasca, Illinois, and has care,

custody and control over the records of that establish-

ment [Tr. 62]. She identified government's exhibits 8A

through 8F as being business records of Holiday Inn,

and indicated that they represented registration slips

and copies of a bill [Tr. 63, 64]. The relevant portion of

her testimony dealt with the fact that on May 5, 1977, a

Richard Silva apparently registered as a guest at that

hotel and checked out on May 7, 1977 [Tr. 66]. It also

indicated that on April 10 and 11, 1978, a Joe Silva

registered as a guest at that hotel [Tr. 67].

+

On cross-examination by counsel for WEGNER, it

was established that Itasca, Illinois has a substantial

Mexican-American population, and that the Holiday

Inn in Itasca was contiguous to a major thoroughfare,

which could be seen from its premises, and was one and

one-half (1%) miles from the ingress/egress thereto

[Tr. 70, 71]. She also testified that whenever phone

calls were made from the rooms, the operator would

ask for the identity of the room number and would

make a charge slip indicating what number was called

and how long the parties talked [Tr. 78]. It was also

established that in the May, 1977 registrations there

was one adult staying in Room 223, and two adults and

two children in Room 221 [Tr. 79].

John Connolly

Mr. Connolly testified that he was employed by Illi-

nois Bell Telephone Company as a security represen-

tative in Chicago, Illinois, and part of his duties was to

be keeper of the records. Mr. Connolly testified that

government's exhibits 11 and 12 were made in the ordi-

nary course of business of Illinois Bell Telephone, and

that they were original records [Tr. 82, 83]. He further

testified that government's exhibit No. 11 indicated

that the subscriber was the Defendant RICHARD

WEGNER; and with respect to government's exhibit

No. 12, the subscriber was Gates Washer & Manufac-

turing Company. The witness indicated that RICH-

ARD WEGNER was listed as the general manager of

that company [Tr. 83, 84]. The witness testified as to

how the records should be interpreted with respect to

the telephone calls listed thereon [Tr. 85]. Under cross-

5

examination, the witness testified that it was im-

possible to tell from the records who made the call-or

who received the call [Tr. 98]. The witness was unable

to testify as to the nature of the computer system, al-

though he did indicate that there were two different

systems used (one for each exhibit). He was unfamiliar

with the programming and indicated that there may be

as many as one hundred (100) people responsible for

the programs. He did not enter the order for these

print-outs, did not retrieve them himself, and did not

see them made [Tr. 101, 102].

Richard Froehlich

Richard Froehlich testified that he was security

supervisor with Southwestern Bell in San Antonio, and

that he was responding to a subpoena. He identified

government's exhibits Nos. 9, 10, and 13 as the rec-

ords of Southwestern Bell. He indicated that govern-

ment’s exhibit No. 9 was a telephone listed to Jose Silva;

government's exhibit 10 was a telephone subscribed to

by Frank Acosta; and that government's exhibit 13 was

listed to Ysidro Rodroquez, all of San Antonio [Tr. 106-

109].

Frank Acosta

Frank Acosta testified that his name is Francisco

Acosta, that he was forty (40) years old, had been the

beneficiary of a tenth grade education, has been mar-

ried eleven (11) years, and had two children. He was

last employed doing body work on automobiles, when

he owned his own shop [Tr. 318, 319]. On August 23,

1977, he was arrested in Jim Hogue County, Texas, and

6

charged with an offense involving marijuana. He testi-

fied that Richard Silva was his partner in the mari-

juana and body shop business [Tr. 324]. He further

testified that he delivered marijuana in October, 1977,

to a man he knew as “Big Rich” in Chicago, Illinois. He

also testified that Juventino Rodriguez and Steve Romo

drove the load of marijuana to Chicago [Tr. 325, 326].

The marijuana was delivered to a place that was held

out to Frank Acosta to be the home of RICHARD

WEGNER, whom he identified in open court [Tr. 326,

327].

Acosta started in the marijuana business in 1976

with Richard Silva, when he started allowing the latter

to unload marijuana at the body shop [Tr. 341, 342]. He

flew to Chicago and met Romo and Rodriguez when he

got there [Tr. 349, 350]. He collected $18,000 from

Defendant WEGNER in exchange for the marijuana

(Tr. 352]. He had traveled to Chicago on an earlier oc-

casion with Richard Silva, when the latter said that

they met with and received $8,000 from RICHARD

WEGNER [Tr. 353]. He has been incarcerated for one

year on a sentence of forty-five (45) years, and was told

by the government that if he would cooperate, there

was a chance that his sentence would be reduced be-

cause the government would speak with the judge to

see if he would grant the reduction [Tr. 354]. He had

previously signed a sworn statement within which he

said that he had delivered more than one load to RICH-

ARD WEGNER, because he did not want the govern-

ment to know “what was going on out there,” (Tr. 355-

357].

7

Richard Silva had told him that he was delivering

marijuana to “Big Rich” in Chicago before he and Acos-

ta started doing business [Tr. 358]. He previously testi-

fied before the grand jury that he delivered the mari-

juana to a warehouse in Chicago, but that statement

was false and had been made because he didn’t want the

grand jury to know that it was delivered to WEGNER’s

house [Tr. 360, 361]. He also stated before the grand

jury that he did not see the $18,000 because, “I just

didn’t feel like saying .. . . I mean, I lied about it,” [Tr.

362]. He also testified before the grand jury that he

took some marijuana to Chicago with Mauricio Gutier-

iez, but that also was not true [Tr. 362]. On cross-

examination, Acosta admitted that he confessed to

crimes carrying amaximum aggregate sentence of over

two hundred (200) years during his conversations with

the D.E.A. [Tr. 375].

Acosta admitted that prior to testifying he had been

shown papers indicating the deal on marijuana, how

many times and loads the other witnesses said were un-

loaded in Acosta’s shop, who was involved with each

deal. These documents were prepared by other people,

and were shown to Acosta the day before he testified as

well as a couple of other times. They were shown to

him every time the D.E.A. went over the statements

and the story with him [Tr. 388, 390]. Acosta met with

Agent John Wolken in December of 1977, and five or

six times between then and the time of his arrest. He

was shown reports during these meetings that were

prepared by other people, and that related deals that

Acosta had made. These reports also mentioned the

names of Juventino Rodriguez and Esteban Romo,

8

along with the name of Richard Silva [Tr. 394, 395].

They also went over it since August 30, 1978 on sev-

eral occasions [Tr. 396]. He has been incarcerated at

Uvalde County Jail since April of 1978. He was arrest-

ed with Esteban Romo, and both of them were trans-

ferred to Uvalde County Jail at the same time.

Acosta did not know the name, RICHARD WEG-

NER until the D.E.A. told him that that was “Big

Rich’s” name [Tr. 402]. Richard Silva had promised

Acosta that he would make a lot of money dealing in

heroin and marijuana, but he lied to Acosta (Tr. 404]. In

December of 1977, Agent Latson of the D.E.A. told

Acosta that if he cooperated with the D.E.A. he would

not get into any trouble. Eight months later, he was

sentenced to forty-five (45) years [Tr. 406]. Acosta be-

lieves this is because he wasn’t “cooperating fully” with

the D.E.A. [Tr. 406].

Government exhibit No. 2, which is a telephone

book, belongs to Yolanda Silva and was given to Acos-

ta, but he does not recall when [Tr. 409]. Acosta testi-

fied that he was probably in Chicago the week be-

tween October 18 and 25, 1977 [Tr. 415].

In addition to fixing and painting automobiles, Silva

and Acosta also sold some ona lot next door to the body

shop. RICHARD WEGNER sold automobiles to Silva,

and Acosta had never met WEGNER but had seen him

once in San Antonio [Tr. 421, 422].

On June 7, 1978, Acosta gave a statement to D.E.A.

agents Latson and Wolken, indicating that he had made

9

deliveries to Chicago in February of 1976 for $8,000

and in April of 1976 for $18,000. He also indicated a de-

livery in April of 1977 for $18,000, and never men-

tioned any trip in October of 1977 [Tr. 423, 424]. He did

not want to start telling the truth until after he re-

ceived his forty-five year sentence (Tr. 427]. He be-

lieved Defendant WEGNER to be between six feet (6’)

and six feet-two inches (6’2”) in height (Tr. 428]. He be-

lieved that the reason he got: forty-five years is be-

cause he did not cooperate [Tr. 431, 432].

When the D.E.A. agents were debriefing Acosta,

they told him how many times he had delivered heroin,

and they came up with a figure; he then agreed to it [Tr.

437]. That was the general manner in which inter-

views took place betweeen Acosta and the D.E.A. [Tr.

438]. He had spoken with D.E.A. agents approximate-

ly fifteen times between December of 1977 and March

of 1979, but refused to speak to an investigator for the

Defendant WEGNER who came to visit him while at

Uvalde County Jail [Tr. 439, 440]. He had been advised

by the prosecutor and the D.E.A. agents that he did not

have to talk to Defendant WEGNER, or his investi-

gators or lawyers [Tr. 440].

He was represented by counsel after being arrested

on the federal charge, and he discussed the matters in-

volved therein truthfully with his counsel. After their

discussion, his lawyer filed motions in his behalf, and

based those motions upon what Acosta told him [Tr.

440, 441].

Frank Acosta refused to answer questions asked of

him on cross-examination by counsel for WEGNER re-

10

lating to :atements made by him to his counsel and in-

corporated in a Motion to Suppress filed in his behalf in

the case for which he was sentenced to his forty-five

years (Indictment S.A. 78-CI-122). He denied having

told his attorney that prior to being arrested on the fed-

eral charges, he was working for the D.E.A. and trying

to assist the agents. He refused to answer as to

whether he told his attorney that he was conducting a

joint operation with the D.E.A. to arrest various per-

sons involved in the narcotics business [Tr. 459]. He re-

fused to say whether he told his attorney in a conver-

sation at the Uvalde County Jail, that he was working

for the D.E.A. [Tr. 460]. He then stated that he told his

attorney that he was not working for the D.E.A. when

he conferred with him at the Uvalde County Jail. [Tr.

452).

He refused to answer whether he told his attorney,

while conferring with him at the arraignment, that the

seven ounces of heroin which he purchased from

George Escamilla on April 25, 1978, was an attempt to

set-up Escamilla at the direction of the D.E.A. [Tr. 463].

He also refused to answer as to whether he said that to

his attorney at the Uvalde County Jail [Tr. 463]. He re-

fused to answer as to whether he told his attorney,

either at the arraignment or at the Uvalde County Jail,

that the seven ounces of heroin he delivered to Albert

Castro on April 27, 1978, was part of a D.E.A. opera-

tion [Tr. 464, 465]. He refused to answer as to whether

he told his attorney at the arraignment that the D.E.A.

was intimidating, threatening, and coercing him to

assist them, or that he was being coaxed and bribed by

the D.E.A. to do so [Tr. 465, 466]. He did tell his attor-

-_—_—— oe *

— ae eee a

11

ney that the D.E.A. was forcing him to “cooperate” [Tr.

466]. He continued to refuse to respond to questions of

this nature, or to deny having said them to his attor-

ney [Tr. 466-473]. On being presented Defendant

WEGNER’s exhibit No. WC, and having had an oppor-

tunity to examine it [Tr. 474], he recognized it as a

Motion to Suppress filed on his behalf by his attorney

after he discussed the facts with him [Tr. 475].

When the testimony resumed in the presence of the

jury, Acosta admitted that he told things to his attor-

ney which could be interpreted as his attorney did in

the Motion to Suppress (exhibit WC) filed on his be-

half [Tr. 485, 489]. He also admitted that he lied to his

attorney at that time as tosome other things [Tr. 490].

When Acosta was sentenced on August 30 of 1978,

he was informed that he had one hundred twenty (120)

days to seek a reduction of his sentence, or until

December 10, 1978. He filed a motion on November 29,

1978, and he knew that on December 6 of 1978, the

government filed a motion asking the judge not to rule until after he

testified [Tr. 491]. He is aware that over two hundred

(200) days have passed since his sentencing and that the

judge has still not ruled, but expects that the government will

make his cooperation known to the judge after this trial (Tr. 492].

The government agents told Acosta that they had an

airline ticket showing that he flew to Chicago in

October, of 1977, and motel records. At first Acosta

said they showed him these tickets, but later recanted

this testimony and denied it (Tr. 495, 497].

ee

12

Upon being cross-examined as to the amount of

-money which was received for the one hundred-three

(103) ounces of heroin (for the purpose of establishing

inducements, bias, motive, etc., for testifying falsely),

Acosta refused to answer and the trial court refused to

permit cross-examination, holding that such ques-

tions as to any deals made with the government, or

Acosta’s expectations, regarding charges of failing to

file income taxes were “extraneous offenses” and im-

permissible cross-examination for these purposes [Tr.

500]. Acosta also refused to answer as to whether it

took $.25 million to run his drug dealing operations

[Tr. 503]. The government objected to this question

later, and the Court sustained it [Tr. 504].

Acosta sold a lot of automobiles while he was run-

ning the garage, and at least one of them went to

Mexico. At the time that he and Steve Romo were ar-

rested, Romo was in possession of a gun given him by

Acosta [Tr. 509, 510].

Juventino Rodriguez

The witness stated that he is twenty-eight (28) years

old, was born in San Antonio, and had a tenth grade

education. He was honorably discharged from the U.S.

Marine Corps, and served in Viet Nam one year. He

stated he has one child, has been married four and one-

half (4%) years, and started using heroin when he was

in Viet Nam. He was addicted to heroin while he was in

the service, and last used heroin in June of 1978. He

knows Richard Silva because his sister married Rich-

ard Silva’s brother. He was involved in the marijuana

ee

13

business in 1977 with Richard Silva, when the latter

asked if he would go to Chicago with him [Tr. 555-557].

He was in the Holiday Inn in Chicago, Illinois on May

5, 6 and 7 of 1977, and went there with Richard Silva

and his family. He did not register as a guest at that

time [Tr. 560, 561]. On that trip to Chicago, he took

marijuana in the trunk of an automobile and delivered

the marijuana along with a man named Mescla, to a

nuts and bolts warehouse belonging to Defendant

WEGNER [Tr. 562, 563]. He identified government’s

exhibits 30A and 30B as photographs of the ware-

house that he went to to deliver the marijuana. He

stated that “Big Rich” was there at the time [Tr. 563,

564]. He further testified that “Big Rich” was standing

at the dock watching the marijuana being unloaded,

and later saw money in the possession of Richard Silva,

which the latter said “Big Rich” had given him [Tr. 564,

565].

He knows a man named Steve Romo, and went to

Chicago with him in October of 1977, “when Leonard

Skinnard died” [Tr. 565]. He and Romo went to Chi-

cago to leave a truckload of marijuana at the orders of

Richard Silva. They picked up the marijuana from

Frank Acosta’s house in San Antonio [Tr. 566]. He was

instructed by Richard Silva that Frank Acosta would

meet them (Rodriguez and Romo) in Chicago [Tr. 567].

At this time, the government produced its exhibit 24,

which was a San Antonio newspaper dated October 21,

1977, reporting the “Leonard Skinnard air crash,” (Tr.

570].

14

Rodriguez stated that he made an additional de-

livery of marijuana to Defendant WEGNER at his

home, along with Joe Silva, and identified govern-

ment’s exhibit 7B as a photograph of that home [Tr.

571, 572]. He also delivered three hundred pounds of

marijuana to Defendant WEGNER’s “pottery shop,”

which he identified in government’s exhibit 7A [Tr.

578}.

He has entered a plea bargain, and has pleaded guilty

to a single count “of marijuana” and is testifying as part

of that plea bargain. He is under the impression that

the maximum sentence that he will get will be five

years if he cooperates with the government, but he has

not yet been sentenced [Tr. 584].

The only other time he met Defendant WEGNER

was at Richard Silva’s house in San Antonio, when

Defendant WEGNER was bringing back some mari-

juana that was no good and was going to Mexico to buy

some pottery [Tr. 585-586]. On cross-examination,

Rodriguez stated that when driving to Chicago, he

knows that you have to go through Dallas but does not

remember what cities in Oklahoma. He does not know

what freeway is taken, but it goes through St. Louis

and Springfield, Illinois, then to Chicago [Tr. 617,

618]. He drove “as many miles as I had to drive” to get

to Chicago. He would call Richard Silva whenever he

got to Chicago, but one time called him from Spring-

field, Illinois [Tr. 626].

wane

15

He testified that when he delivered the Marijuana to

the “nuts and bolts warehouse,” he backed the car into

the dock area [Tr. 630, 631].

He made a delivery of marijuana on October 20, 1977

to Defendant WEGNER [Tr. 632]. He does not recall

what time he made the delivery, but remembers that a

telephone call was made after the delivery (Tr. 632,

635]. All of the trips for the delivery of marijuana in-

volved the same person in Chicago [Tr. 635].

When he met Defendant WEGNER in San Antonio,

it was a “little bit important” day because he was plan-

ning to go to a dance that night with a girlfriend (Tr.

636]. He remembers that Defendant WEGNER sent

him out to buy beer and asked him to go to the races,

but he declined because he had a date with his girl-

friend (Tr. 637].

He testified that he was transferred to Uvalde Coun-

ty Jail the day after he was arrested (September 14,

1978), and remains at the Uvalde County Jail as of the

time of his testimony during this trial [Tr. 639-640]. He

was in Uvalde County Jail about three weeks before he

signed his statement. The D.E.A. agents talked to him

about the statement before he signed it [Tr. 640]. When

he was in Uvalde County Jail, he knew that Acosta had

received forty-five (45) years, and that each count

against him could bring fifteen (15) years (Tr. 641].

He made Five Hundred Dollars ($500) for each of

three trips to Washington, five trips to Chicago, and

twelve trips to Mexico [Tr. 645]. He left his wife three

i, a

16

months before his daughter was born, and didn’t move

back in with her until a couple of months before he was

arrested on the instant charge. Only one time did he

buy his daughter some clothes out of the money that he

made, he paid no taxes on the money, filed no tax re-

turns, has not been told by the government that he will

not be prosecuted for his tax violations or fraud on the

Public Aid Department but has not told them about it

(Tr. 647, 648].

His daughter, April Lynne, was born April 28th. Not-

withstanding the fact that he testified on direct exami-

nation that he had one child, he has two additional chil-

dren, Rita Rodriguez and Reuben Rodriguez. He does

not remember the ages of either child [Tr. 651]. He has

been using one and one-half (1%) grams of heroin a day

from the time he left his wife in 1977 (notwithstand-

ing the fact that he said on direct examination that he

did not use drugs after leaving Viet Nam) [Tr. 652]. He

left his wife three months before April 28, 1977, which

was the date that his daughter was born. When he was

in Viet Nam, he would use heroin when he was on

MED-EVAC duty (i.e., where he picked up wounded

soldiers) [Tr. 656].

Steven Romo

The witness is thirty-one (31) years old; he is a high

school graduate with forty-one (41) college credit

hours, and makes his home town in San Antonio,

Texas. He got an honorable discharge from the U.S.

Army, and while in the service was in Viet Nam as an

airborne infantryman. He became involved with opium

eee

17

and heroin while in Viet Nam, and used them until

April 23, 1978, which was the day that he was arrested

along with Frank Acosta for the sale of heroin to fed-

eral agents (Tr. 699-701].

In the third week of October in 1977, Richard Silva

offered him a job delivering marijuana to Chicago. He

was to receive $3.50 per pound for delivering it, and

took up two hundred fifty (250) pounds to a person

named “Big Rich” in Chicago. He was accompanied by

Juventino Rodriguez (Tr. 701, 702]. He picked up the

marijuana at Frank Acosta’s house, and drove non-stop

to Chicago. He had never met “Big Rich” before this oc-

casion [Tr. 703, 704]. Richard Silva told him that “Big

Rich” could move five hundred (500) pounds of mari-

juana in a week [Tr. 705]. Richard Silva told them to

take a cut-off at the “Old Chicago Building” and take

the long road to Itasca, Illinois, a trip that would be

twenty (20) or thirty (30) miles [Tr. 706]. He testified to

having some conversation with “Big Rich” at that time

[Tr. 707, 708].

He has been convicted of four felonies: illegal impor-

tation of controlled substance in 1973 (cocaine), for

which he received a ten (10) year sentence; carrying a

prohibited weapon (sawed-off shotgun), for which he

received a two-year sentence; another charge for

carrying a prohibited weapon (a .32 cal. Derringer), for

which he received a two-year sentence; and using the

telephone to commit a felony (a sale of heroin), for

which he received a four-year sentence, and for which

he has been incarcerated since April 27, 1978. He is

18

testifying in court because of a plea bargain with the

government in exchange for which they would dis-

miss charges against him [Tr. 713].

On cross-examination, the witness testified that he

was arrested along with Frank Acosta, and became

addicted to heroin while in Viet Nam after he had been

there only two weeks [Tr. 718, 719]. His total tour of

duty in Viet Nam was one month.

On his trip to Chicago in October, the route was

from San Antonio through Austin and Dallas, Texas,

Oklahoma City and Tulsa, Oklahoma, Springfield and

St. Louis, Missouri, Springfield, Illinois, and through

Joliet to Chicago [Tr. 720]. When Romo testified at an

earlier hearing, he said that Defendant WEGNER was

six feet (6’) or six feet-one inch (6’1”), but at the time

the defendant was not in the courtroom. Now that he

has seen him, he says that Defendant WEGNER is “well

over six feet” [Tr. 740].

John Wolken

The witness testified that he was a Special Agent,

Department of Justice, Drug Enforcement Adminis-

tration, and has been there since 1973. Prior to that he

was with the Department of Treasury since 1967, and

has been part of the investigative unit in this case along

with Special Agent Skip Latson. The witness identi-

fied government’s exhibits 9, 10, 11, 12, and 13, and

testified that he examined those records in depth and

prepared from them government's exhibits 18 and 33A

through E [Tr. 756-766].

19

(2) Defense case:

Ralph Cofield

The witness is employed at LaQuinta Motor Inn, a

motel on Route 35 and U.S. Military Highway, San An-

tonio, Texas, and has been employed there for two

years, the last four months of which has been as man-

ager. He is the custodian of the business records, and

the method of registering guests at the hotel has not

changed in the two years that he has been there [Tr.

1023, 1024]. He identified defendant’s exhibits WJ,

WK, and WL as registration slips filled by guests and

records of billing from the motel (Tr. 1025]. On April

26, 1978, Alamo Drag Raceways guaranteed two

rooms for four people for two nights. Alamo Drag

Raceways has a monthly billing account [Tr. 1026]. On

April 26 of 1978, a Mr. Scott Collins filled out the regis-

tration slip, indicating that he intended to depart on

April 28, 1978. He registered for two persons at that

time, but did not indicate the name of the other person

[Tr. 1028]. According to defendant’s exhibit WK, the

people who occupied the room from April 26 did not

check out until April 30 at 12:47 p.m. [Tr. 1029].

Alice Armstrong Jorgensen

The witness lives in Gurnee, Illinois, and has two

children, a boy age twenty (20) and a girl age eighteen

(18). She has been employed by Gates Washer & Man-

ufacturing for almost six years. The business was

established by her father fifty-one (51) years ago [Tr.

1034-1036]. Gates Washer is in the business of making

specialty washers and stampings (Tr. 1036]. When she

20

joined Gates Washer, she held the post of vice presi-

dent and became president one and one-half (14%) years

later. She employs between thirty (30) and forty (40)

people (Tr. 1037-1038]. She is also president of Super-

ior Fastener Corporation, which shares space with

Gates Washer. Both companies are located at 9536

West Foster Avenue in Chicago. Superior Fastener

makes wood joiners [Tr. 1038-1040]. Gates Washer has

never been equipped to make nuts or bolts, and never

has made any, nor has it ever stocked any (Tr. 1041,

1042]. Neither has Superior Fastener.

The witness knows Defendant WEGNER, and met

him in July of 1974 while he was working as a tool and

die maker in the tool room at Gates Washer [Tr. 1044,

1045]. Defendant’s exhibit WN are the employment

records of Gates Washer & Manufacturing as they re-

late to Defendant RICHARD WEGNER’s employ-

ment. The witness is the keeper of the records, and

transported them to Court. They indicate that Defend-

ant RICHARD WEGNER started his employment July

23, 1973 (Tr. 1045, 1046].

Defendant RICHARD WEGNER became general

manager of Gates Washer on March 11, 1975. The wit-

ness has never been a social friend of Defendant WEG-

NER, and her knowledge of him is limited to his work-

ing with her [Tr. 1051]. As part of his duties as general

manager, Defendant WEGNER was required to travel

all over the country. As part of his duties as general

manager, he also acted as sales manager [Tr. 1051,

1052]. Prior to leaving his employment at Gates Wash-

- ne ee ee ee a ee

21

er, Defendant WEGNER, the witness, and another per-

son, formed a corporation known as Progressive De-

sign. Defendant WEGNER ultimately bought out the

other two and at the time he was leaving Gates Wash-

er, told the witness that he was going to use Pro-

gressive Design for the export and import of dec-

orative art. [Tr. 1055].

When he left Gates Washer, RICHARD WEGNER

agreed to remain as a consultant and a salesman for the

southwest territory, which includes San Antonio (Tr.

1056, 1057]. The witness placed an ad in the San An-

tonio telephone directory three or four years ago and it

has been in there constantly, advertising Gates Wash-

er & Manufacturing with a telephone number 312/992-

3737 (Tr. 1057, 1058]. -

The witness testified that in May of 1977 she had a

1974 Mustang, and it would have been impossible to

have backed that Mustang into the loading dock area of

Gates Washer & Manufacturing and close the over-

head door without it landing on top of the car. This was

due to the fact that large dumpster-type steel garbage

containers have always been kept in the loading dock

area for the purpose of discarding the sheet metal rolls

after the washers have been stamped out of them (Tr.

1065-1070].

The witness has occasion to, go to the dock area

described by Rodriguez every day, and has never seen

any marijuana in that location, nor has she seen it any-

where in the factory in May of 1977 or any other time

22

(Tr. 1074]. The witness cannot recall ever having given

employees a Friday off, other than during the past

winter with the bad snowfalls, and if two hundred

pounds of marijuana were sitting on the dock any

employee in the factory would have seen it. The

witness personally makes a tour of the premises at least

once a day to check its cleanliness [Tr. 1074, 1075].

RICHARD WEGNER is six feet-eight inches tall, and

drives a 1977 Lincoln [Tr. 1085, 1086]. On cross-exam-

ination, the witness said that people sometimes call the

defendant “Big Rich” because of his size, and he made

trips to San Antonio, Texas at her direction. When the

garbage dumpers are removed by the scrap metal com-

pany, an empty hopper is brought the same day. It has

never occurred where an empty hopper was not

brought back the same day [Tr. 1093, 1094].

If someone were to have visited Gates Washer &

Manufacturing within the last six months prior to trial

and looked through the windows, they would not have

seen garbage hoppers and would have been able to see

the rails that operate the overhead door. They also

would have had no way of knowing that this was not

the condition of the premises in May of 1977 [Tr. 1104,

1105].

Lucille Hernandez

This witness lives in San Antonio, and owns a 1965

Chevrolet which she received from her boyfriend in

1977. Whea her boyfriend brought her the car, he was

with a man named “Richard Wegner.” Her boyfriend

ve

~ eens — + 2

es il tr ee

23

brought her the car in the afternoon of a day in March

of 1977. On that day she went with RICHARD WEG-

NER to a notary named Eugene Hernandez, WEGNER

signed the title over to her, and he left.

When she applied for a Texas title, she had a prob-

lem because her name was not correctly typed on the

paper (Tr. 1110, 1111]. This required her to once again

execute the transfer of title and have it notarized. Her

boyfriend contacted WEGNER, and in October of 1977

WEGNER went with her to the same notary’s office.

He followed her to the notary’s office in his Lincoln

automobile [Tr. 1112-1114].

The witness identified one of the signatures on

defendant’s exhibit WQ as hers. She identified the one

beneath hers as that of a notary. The witness was pres-

ent on the 20th of October, 1977 at the office of Eugene

Hernandez, the notary, when RICHARD WEGNER

signed the document that was notarized on that day.

To the best of the witness’ recollection, this event took

place between 1:30 and 2:00 in the afternoon of

October 20, 1977 [Tr. 1119].

Eugene V. Hernandez

The witness lives in San Antonio, Texas, and is a

used car dealer anda notary public. He also prepares in-

come tax returns and does bookkeeping. He has been

doing this for approximately nine years, and is located

at 3501 West Commerce, where he has been since April

of 1976 [Tr. 1128-1129]. The witness remembers

meeting RICHARD WEGNER in March of 1977. He

24

seemed to recall that the defendant had more hair on

his face, perhaps a beard, and remembers him because

ninety-nine per cent (99%) of the people he does busi-

ness with are Mexican/Americans and he does not nor-

mally have a tall Anglo walk into his office. (“It is very

rare.”) (Tr. 1130]. He does not recall the exact date or

time when he met him, however, but the papers he

notarized would help him.

After examining defendant's exhibit WQ, he recalls

that he met the defendant on two occasions. On

October 20, 1977, the defendant and Lucille Hernan-

dez came into his office to transfer a vehicle that had a

title from Illinois. The defendant seemed to be in a

hurry, and he had him sign the papers so he could leave.

While he does not recall the exact time of day this hap-

pened, he opens at 10:00 a.m. and closes at 6:00 p.m.

and most of, his business is done after 12:00, so he be-

lieves it was in the afternoon [Tr. 1132, 1133]. The

witness recognizes his signature on the document, and

definitely notarized it on October 20, 1977, because “I

wouldn’t put my seal on it unless that was the correct

date,” [Tr. 1134]. The witness has never been ac-

quainted with RICHARD WEGNER, and never saw

him on other than the two occasions on which the

defendant came to the witness’ office [Tr. 1134].

On cross-examination the witness testified that he

does not know Lucille Hernandez’ boyfriend, nor does

he know Richard Musquiz Silva. He does not recall how

much the car was sold for because the tax affidavit is

not among the documents in.exhibit WQ, and he has no

independent recollection |Tr. 1135]. The acknowl-

ea

ee —

25

edgement book which he is required to keep by law was

destroyed along with other records, so he does not have

it [Tr. 1136]. He lost it when arsonists broke into his

office and set fire to it [Tr. 1138].

Ruth Thompson Foiles

The witness resides in San Antonio, and has for the

last nine years. She is married and has one daughter,

and is a real estate sales person for Century Twenty-

One, Howard Tate Realty. She has worked there for

the past five years, and it is located at 103 Biltmore in

San Antonio [Tr. 1139, 1140]. She knows RICHARD

WEGNER because she sold him a five-acre parcel in a

subdivision. At the time that she sold it to him, he indi-

cated that he wanted to move from Chicago to San An-

tonio and build a home [Tr. 1141]. WEGNER bought

the property on February 12, 1977, and called her sev-

eral months later to sell it.

In August of 1977, she listed the five acres owned by

WEGNER as being for sale [Tr. 1142, 1143]. In October

of 1977, she saw WEGNER again when he came into

the office to chat with her. He said he had come down to

sell a car, and asked if she would go to lunch with him.

She recalls that it occurred around 4:30 in the after-

noon, but does not recall the specific date. She does re-

call that he was driving a Lincoln automobile in

October of 1977 when he came to see her [Tr. 1145-

1147]. She does also recall that he said to her on that

date, “I am selling a car and I’ve got some papers... . |

had to get papers signed,” (Tr. 1147].

OO Eee eee

26

She recalls that the reason for the meeting in

October of 1977 was because the listing contract was

about to run out. The contracts are good for ninety (90)

days, and are automatically renewed unless a letter is

received from the seller. She recalls that it was getting

close to the time when he would have to cancel the list-

ing, and that became a subject of the discussion. She

also recalled that November 17, 1977, would have been

the date that the listing would lapse if it were cancelled

(Tr. 1148].

Barbara Vidmar

The witness lives in West Chicago, Illinois, is di-

vorced and has three children, ages twenty, nineteen,

and sixteen. She is employed by the Addison Leader

Newspaper Corporation, which publishes four sep-

arate newspapers. She is both an ad salesperson, and

works in the editorial department writing a column

known as “Barbara and Business,” [Tr. 1155-1157]. She

met RICHARD WEGNER at his store in Wooddale at

Irving Park Road. The store contains, “unique, very dif-

ferent types of things,” and perhaps a thousand differ-

ent items, all of which were made in Mexico and South

America [Tr. 1159-1161].

The witness identified defendant’s exhibit WB as a

photograph which she took in June or July of 1978 of

RICHARD WEGNER in his store (Progressive De-

sign) [Tr. 1164]. The witness testified that there is a

substantial Mexican/American population in the

Wooddale/Itasca, Addison and Bensonville areas. She

also testified that English is taught as a second

F

ie Oe RE ee ee ee

27

language in the pre-school program in that school dis-

trict, and that she knows many Mexican/American

businessmen in the area [Tr. 1170, 1171].

Daide Diduet

The witness lives in Laredo, Texas, and is in the im-

port business. She first met RICHARD WEGNER

eighteen months ago in the summer of 1977; he came

to her shop and bought a lot of things for his business,

and he was with a man of Mexican ancestry [Tr.

1173, 1174]. After the first time he came to her store,

he would return every three to six weeks, buy more

merchandise and ship it back to his store. From time to

time he came in a pick-up truck and a trailer, and eight

or nine months later he bought a new, larger truck [Tr.

1175, 1176]. He would buy wooden furniture, iron

works and ceramics, and all kinds of assorted types of

Mexican items [Tr. 1176]. He would occasionally tell

her that he had driven straight through from Chicago

(Tr. 1177].

On cross-examination, the witness testified that

RICHARD WEGNER was one of her biggest custom-

ers, but not the biggest (in the sense of the amount of

merchandise he bought). The witness requires all of

her customers to pay her in cash, and she does not

accept checks from anyone [Tr. 1178, 1179]. He would

purchase between $2,000 and $3,000 worth of

merchandise, and sometimes more. Sometimes

merchandise had to be shipped to his store by Allied

Van Lines Company [Tr. 1180].

yw. .-.

t <

whence «cates: ----0- 2

28

Richard Wegner

Defendant WEGNER testified in his own behalf that

he has been known as “Big Rich” ever since he was in

grammar school. He is between six foot-seven to six

foot-eight in height, and lives in Itasca, Illinois. He is

married, and has one child with his current wife and

one from a previous marriage [Tr. 1181-1184].

The first time the defendant came to San Antonio

was in the winter of 1974-75. He came to town witha

man named Harry Walker, who had friends in San An-

tonio [Tr. 1198, 1199]. At that time, he was introduced

to Saul Sanchez and Richard Silva. He met them ata bar

in San Antonio [Tr. 1199, 1200]. In speaking with Silva,

he learned that the latter had a body shop anda used car

lot. He was informed by Silva that used cars brought a

better price in San Antonio than they did in Chicago.

Between 1975 and the time of the trial, he has been in

San Antonio twenty times [Tr. 1200, 1201]. He would

pass through San Antonio every three or four weeks,

once he started making trips to Laredo for his business

(Tr. 1202]. He sold four cars to Richard Silva and his

friends: a 1971 Lincoln, a 1972 Lincoln, a Jaguar, and a

1965 Chevrolet [Tr. 1204]. When he did not come to.

San Antonio to sell cars, he would go to the El Mer-

cado, a Mexican-type market located in San Antonio, to

get ideas as to how to lay out his store {Tr. 1204]. The

defendant said that he met Frank Acosta at Richard

Silva’s body shop, and that that was the only time or

place he had ever met him. He had only small talk with

him, and never really conversed about anything [Tr.

1207].

EE a ee

_

a

. ne

ae

29

In May of 1977, it was impossible to back a 12- or 14-

foot Mustang into the loading dock area of Gates

Washer & Manufacturing without having the over-

head door hit part of the car if an attempt was made to

close the door [Tr. 1212-1215]. The scrap steel con-

tainer which was located in the dock area, was never

missing overnight [Tr. 1216, 1217]. The defendant

never received a load of marijuana at the Gates Wash-

er & Manufacturing warehouse on May 5, 1977 from

Juventino Rodriguez [Tr. 1217-1218].

The first time he met Juventino Rodriguez was in

April of 1978. At that time, he asked Richard Silva if he

knew anyone who would drive a truck from Laredo,

Texas to his store in Chicago. At that time, Silva rec-

ommended Juventino Rodriguez. At that time, he paid

Rodriguez $120 to bring a load of wrought iron fix-

tures from Laredo to Chicago. He had never met Rod-

riguez until after the truck had already reached an area

between fifty and sixty miles from the defendant’s

house. At that time, he had received a telephone call

from Richard Silva indicating that the people who were

driving the truck had broken down fifty or sixty miles

from WEGNER’s house, and were out of gas. Silva de-

scribed the truck as a green Chevy, three-quarter ton

pick-up, with a big, homemade camper, At that time, he

had the truck follow him to the gas station at the Joliet

area exit. He paid to have the truck filled up, and the

truck then proceeded to the store Wooddale where it

was unloaded [Tr. 1219-1223].

At this time he had a conversation with Rodriguez,

who indicated that he and the person with him were on

30

their way to Wisconsin to do some fishing. When the

merchandise arrived, it was badly damaged [Tr. 1223,

1224]. When the truck was unloaded, the defendant did

not smell any marijuana, but did see a mattress and

fishing poles in the back of the truck. No marijuana was

delivered to his store by Juventino Rodriguez, Jr., and

the man with him on April 10, 1978 [Tr. 1225, 1226].

After they unloaded the truck, he invited Rodriguez

and his friend to his home to give them something to

eat. When they got to the house, it was about 10:30 or

11:00 o’clock, and he offered to make them breakfast.

Junior took out a bottle that looked like a beer bottle,

and began drinking some orange or yellow liquid that

was in it. WEGNER asked what it was, and Rodriguez

said it was methadone. He asked him why he had it, and

Rodriguez said it was because he was going through

withdrawal symptoms for heroin addiction. At that

time, he called Richard Silva and told him that he did

not want Rodriguez and people like him in his house,

and complained about the condition of the wrought

iron. He indicated that he and Silva had somewhat of an

argument [Tr. 1227-1228].

The next time he saw Rodriguez was on April 28,

1978. He remembers this because it is his birthday

(RICHARD WEGNER’s), and not because it is Juven-

tino Rodriguez’ daughter’s birthday. He did not know it

was Rodriguez’ daughter’s birthday until Rodriguez

testified to that in open court [Tr. 1228, 1229]. He was

in San Antonio on April 28, 1978, on his way to Laredo.

He was in town at the time, staying at the La Quinta

Motor Inn with his friend, Warren Tratt, who races a

jet automobile and was racing at the San Antonio Drag-

31

way (Tr. 1229-1231]. He arrived on April 27, 1978 [Tr.

1233].

On October 20, 1977, he was in San Antonio be-

cause he had sold an automobile earlier that year, and

there was a mutilation on the certificate of title that

had to be corrected and which required his signature

(Tr. 1234, 1235]. He had been told by Richard Silva that

something was wrong with the title, and that it re-

quired that he come to San Antonio to see the sheriff,

or somebody. It turned out that what he had to do was

see a notary [Tr. 1235]. On that trip he left Chicago

October 18, 1977, and arrived in San Antonio on

October 20. He drove a Lincoln automobile down to

San Antonio at the time. He came to San Antonio

alone, and it took two days to drive. He stayed in

Austin, Texas the night before, and arrived in San An-

tonio approximately 10:00 or 11:00 a.m. on the 20th of

October. When he arrived in San Antonio, he called his

wife in Itasca from Richard Silva’s house. He met with

Lucille Hernandez a few hours after arriving in San

Antonio, and went with her to the notary [Tr. 1237,

1238]. Eugene Hernandez and Lucille Hernandez were

both present when he signed the document contained

in defendant’s exhibit WQ on October 20, 1977 [Tr.

1238-1240].

After he signed the document, he went to see Ruth

Foiles to speak to her about the sale of his property in

San Antonio. He believes this took place sometime be-

tween 3:00 and 4:00 o'clock on October 20, 1977. When

he left her, he took a ride to see his property [Tr. 1240,

1241]. After looking at his property, he went back to

ee eee

32

Illinois and arrived there about two days later, or

October 22, 1977. The defendant denied each and

every specific allegation against him in the indictment

(Tr. 1242-1244].

On cross-examination, the defendant testified that

he is thirty-eight years old; that in addition to working

for Gates Washer & Manufacturing and conducting

Progressive Design, he has been an investor in the

stock market. The defendant voluntarily produced at

that time and tendered to the government records of

stock transactions which the government used in

cross-examining the defendant [Tr. 1245, 1289]. The

defendant was also cross-examined based upon tax re-

turns which he tendered to the government [Tr. 1290-

1296]. When he had come to San Antonio, he did not

bring either his wife or his child [Tr. 1298].

Of the twenty trips he made to San Antonio, none of

them involved the business of Gates Washer, al-

though he should have been doing that. On a few of his

visits he just came to observe the El Mercado, but most

times he would just stop in San Antonio on his way to

or from Laredo [Tr. 1300, 1301].

When he first met Richard Silva, he considered hima

friend. He hasn’t talked to him since April 28, 1978. At

that time, there were a lot of people at Silva’s home. He

does not know why Richard Silva calls him so fre-

quently, and does not recall actually having spoken

with Silva or what they talked about [Tr. 1301-1304].

He does recall that the conversations between he and

33

Silva which took place about April 9, 1978, related toa

shipment of wrought iron which Silva was going to

have sent up to him [Tr. 1308, 1309]. During this

period, the government used government’s exhibits 18

and 33A through E to cross-examine WEGNER [Tr.

1303-1311].

It was not a goal of his life to become National Presi-

dent of Hell’s Henchmen Motorcycle Club, but he is

currently the national president. It is the responsi-

bility of that office to act as coordinator of the presi-

dents of other chapters.

On redirect examination, the witness testified that

he has been involved in the stock market as an investor

for over twenty (20) years, and that he carries a mar-

gin account [Tr. 1324, 1325]. The defendant is con-

vinced that when Acosta, Romo, and Rodriguez were

together (at Uvalde County Jail), they “got together

and compared notes and made this story up,” [Tr.

1329]. He has never said that the Drug Enforcement

agents or the U.S. Attorney instructed the witnesses to

do that [Tr. 1329].

On re-cross-examination, the prosecutor asked the

defendant if he, “never bought or sold or participated in

marijuana transactions?” This question was objected to

and the objection was sustained. The prosecutor then

asked the defendant if he ever bought, sold, or partici-

pated in marijuana transactions during the course of

the conspiracy, and the defendant said that he did not.

The defendant also said that he did not know that the

ee AE OE ee nee an ee ae

34

people he was meeting in San Antonio were in the busi-

ness of selling marijuana [Tr. 1330, 1331].

(3) Rebuttal

Juventino Rodriguez (recalled)

Rodriguez testified in rebuttal that RICHARD

WEGNER aever kicked him out of WEGNER’s house,

and that he had been in WEGNER’s house twice. He

also testified that he lived with Richard Silva for three

and one-half years, and that Richard Silva is an un-

educated man. He also said that Richard Silva made his

living by selling drugs [Tr. 1388-1389]. He denied ever

having made a delivery of wrought iron to RICHARD

WEGNER in Chicago, he does not go fishing around

the country, and he has never gone to Wisconsin fish-

ing [Tr. 1389-1390].

Having been shown defendant’s exhibit WR, the wit-

ness testified that he was able to pull acar into the dock

area at Gates Washer by backing the car in. He also

stated that the overhead door closed with the car in the

dock area, and that there were no garbage bins in the

dock area at that time. He does not remember what

kind of a car he was driving at that time [Tr. 1392,

1393]. He does remember that it was green.

Melvin Schabillion

The witness testified that he is an agent for the Drug

Enforcement Administration. On September 15, 1978,

he arrested RICHARD WEGNER in Chicago, Illinois,

and read him Miranda warnings [Tr. 1394, 1395]. He

35

said that at that time the defendant asked him what the

nature of the offense was that he was being charged

with, and the witness told him he didn’t know the ex-

act nature as he had not read the indictment, but it in-

volved receiving marijuana from Texas (Tr. 1395]. He

said that the defendant said at that time that there

must be some mistake because he didn’t know any-

body in Texas as he had only been in Texas on his way

to Mexico to pick up items for his store [Tr. 1396].

Schabillion further stated that when he went to Gates

Washer to photograph what is now government's ex-

hibit 30A and 30B, there were no other agents with him

and he took the photographs from his car. He has never

been inside Gates Washer & Manufacturing Com-

pany, and he has never looked inside the windows [Tr.

1397-1398].

On cross-examination he admitted working with

Richard Honner, another agent of D.E.A. He also ad-

mitted that he has discussed this case with Richard

Honner. He knows that Honner spoke with Alice Jor-

gensen over the telephone, but Honner did not tell him

that he went to interview Alice Jorgensen. He does not

know that Honner went to interview Alice Jorgensen

personally [Tr. 1399, 1400]. He does know that Honner

never told him about it, and that he did not go with

Honner [Tr. 1401].

Skip Latson

Witness testified that his real name is Albert B. Lat-

son, and he is a Special Agent for the Drug Enforce-

ment Administration in San Antonio, Texas. He stated

ee

ee RN Se

36

that he showed government’s exhibits 30A and 30B to

Juventino Rodriguez at the Uvalde County Jail, and

asked him if these were the buildings that he had men-

tioned earlier. He said that Rodriguez said that they

were. He also indicated that he showed government’s

exhibits 7A and 7B to Rodriguez and Frank Acosta, sep-

arately, at the Uvalde County Jail in an interview room.

He did not tell them what the photos were before he

showed them, and when they were displayed to Rod-

riguez and Acosta, the latter identified them as the

photographs of the home and shop of RICHARD

WEGNER [Tr. 1403, 1404].

SUMMARY OF THE ARGUMENT

The defendant, RICHARD WEGNER, presents two

distinct and yet inter-related arguments to this Court

as to why his conviction should be reversed and re-

manded for a new trial. The first of these deals with the

basic and fundamental right that a defendant in acrim-

inal case has to confront and cross-examine the evi-

dence and witnesses against him. In the trial of this

case, the government offered and the court admitted

over the defendant's objection, computer print-outs of

telephone records which were later used as the predi-

cate for testimony of other government witnesses and

which were heavily relied upon by the government in

its summation. The defendant argued that the govern-

ment failed to lay a proper foundation for the admis-

sability of this evidence under Federal Rules of Evi-

a ee —

-_

37

dence 901(a) and 901(b)(9). As a result of this failure

the defendant was deprived of an opportunity to mean-

ingfully test the veracity, reliability and probity of this

evidence.

In his second argument, the defendant submits that

his Constitutional guarantees of due process of law,

vis-a-vis a fair trial, were violated as a result of the

court’s charge to the jury to the extent that it was based

upon language in Count X of the indictment, which un-

fairly and prejudicially permitted the jury to consider

evidence not in the record and contrary to what was

produced by the government. This deprivation of fun-

damental due process was exacerbated by improper and

prejudicial tactics used by the prosecutor in obtaining

testimony, during cross-examination of defendant's

witnesses, and in summation.

ARGUMENT

I

The Defendant Was Deprived Of His Right

Of Confrontation And Cross-Examination

As Guaranteed By The Sixth Amendment To

The United States Constitution When The

Court Admitted Computer Print-Outs Of

Telephone Records Into Evidence.

In its case in chief, the government produced John

Connolley as a witness in its behalf. Mr. Connolley

38

testified that he was employed at the time of trial by Illi-

nois Bell Telephone Company as a security represen-

tative in the Chicago, Illinois area [Tr. 82]. He testified

that as part of his duties he is “keeper of records,” and

identified government’s exhibits 11 and 12 as “a tele-

phone bill furnished to a subscriber from our com-

pany” (Tr. 83]. Hestated that government’s exhibits 11

and 12 were “made in the regular course of the busi-

ness,” and “kept in the regular course of business of IIli-

nois Bell.” He further stated that they were Original

records, and then proceeded to state that govern-

ment’s exhibit No. 11 indicated that telephone number

733-1270 was subscribed to by Defendant-Appellant

RICHARD P. WEGNER (hereinafter referred to as

“Defendant WEGNER”) [Tr. 83]; that government’s

exhibit No. 12 was subscribed to by Gates Washer &

Manufacturing Company at 9536 West Foster Avenue,

Chicago, Illinois; and that government's exhibit No. 11

indicated that Richard P. Wegner was General Man-

ager for Gates Washer & Manufacturing Company

[Tr. 84]. Connolley then proceeded to testify as to what

the information on the face of government’s exhibits

11 and 12 indicated with respect to the nature of the

equipment used and the charges for local calls and toll

calls [Tr. 84]. He also testified as to how this informa-

tion should be interpreted by the jury [Tr. 85-86].

Counsel for Defendant WEGNER objected to the ad-

mission into evidence of government’s exhibits 11 and

12 “with respect to the computers and their operation

39

and their programming” [Tr. 87], and with respect to

the materiality and relevancy of government’s exhibit

12. At this juncture, the following occurred:

THE COURT:

All right.

Do you care to respond to that, Mr. Pierce?

MR. PIERCE:

Yes, sir.

With regards to the foundation, Mr. Con-

nolley testified these are the original records

and I am sure either through Voir Dire, or I

will take Mr. Connolley on Direct and estab-

| lish the difference between the records. These

are not copies. These are the original records,

as best as the original records can be pro-

: duced. These are the result of microfilm, but

these are the original records of Illinois Bell.

He can explain the difference in the type of

paper it is printed on. We went through this in

a previous trial.

With regards to materiality and relevancy,

the Government will connect this up through

the other telephone tolls subscribed to and by

Richard Silva and Frank Acosta and where

phone numbers were made from those phone

calls to the number at Government Exhibit

No. 12.

THE COURT:

All right. You establish your further

foundation when the jury is brought back in

here.

Le hee ke

|

40

MR. PIERCE:

Fine.

THE COURT:

And I will admit them subject to them be-

ing connected up. If they are not connected up

as to the telephone number, counsel, you may

make a motion to strike.

As the dialogue continued between the Court and

the prosecutor, the following occurred:

THE COURT:

Well, suppose then you just go on and estab-

lish your foundation and — well, he can have

his Cross Examination as to them, each one of

them, and I will carry the actual admission in

evidence when it is tendered, when the other

telephone number is established.

I see no problem really. It just depends on

how it is approached. They will come in evi-

dence under the conditic s I have outlined

there as to all Defendants, but at the present

time they could be admitted for a limited pur-

pose as to this Defendant only, I suppose, but I

will carry it. I will just carry it. I won’t admit

them in evidence now. I will just let you finish

your examination. I don’t want any post-ob-

jections that the proper predicate hasn’t been

established after I have excused this witness

to go back to Illinois. | want to make counsel

keenly aware of that because if you are going

7s

© ree ees aos Os

41

to require additional foundation later on, the

jury is going to know that you brought the

witness back because I intend to afford you

the opportunity now of challenging in every

way the proper foundation; and if you don’t, if

you don’t urge your objection then and I later

find that the witness must be returned, why,

you know what you've done.

I don’t think a keeper of the records should

be jousted around like that. Any fundamental

rights will be protected, but the keeper of the

records, he can only testify what these rec-

ords show here, that they are the usual cus-

tomary records kept in the course of busi-

ness. No one challenges that I suppose. You

don’t have to prove good or bad. That’s what

he has. It goes to the official records. That’s all

you have, isn’t it?

MR. PIERCE:

The Government would prefer to move

them into evidence now so that this witness

can be excused.

THE COURT:

All right. All right. Well, I want to give

counsel his opportunity to Cross Examine the

witness further in regard to the computer lay-

out. I want him to have his day in Court even

though it may just minutely drag out the trial

on all these things, but I will give him his day

in Court. I will give you your day in Court.

Everybody gets their day in Court, but I will

42

point out to you gentlemen that authenticity

is a matter that good lawyers can stipulate to

and save time for everyone, even saving this

man coming down here, as far as that goes. It

could have been done. It’s usually done in my

trials, but if you want to, you have a right to

have it done the hard way.

Bring the jury in, please.

(Tr. p. 90, li. 8 to p. 91, li. 12]

When the jury was returned to the courtroom, the

prosecutor proceeded to establish through the witness

what the Illinois Bell computers register on magnetic

tape each time a telephone call is made, and that during

the period of time of the billing involved in govern-

ment’s exhibits 11 and 12, the computer system was

changed [Tr. 93-94]. The government then passed the

witness for cross-examination.

Counsel for Defendant WEGNER established during

cross-examination of the witness that the witness

himself neither developed the print-outs from the com-

puter that was being offered as government’s exhibits

11 and 12, nor did he personally initiate the request for

the print-outs, nor was he present when the request:

was initiated and did not know what was requested (Tr.

100-101]. During the cross-examination, the follow-

ing took place:

Q Now, you say that the reason that these

are on different kinds of paper is that you

eee

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ORE ce atte

~~ ee ee

43

changed computer systems. Could you tell us

what the first system was?

A The blue copies that you have there?

Q_ I don’t mean what paper was produced

by it, sir. Could you explain the nature of the

process?

A The type of the automatic message

accounting system?

Q Yes, sir. Who manufactured it, sir?

A The computer system?

QO Yes, sir.

A_ I don’t know, sir.

Q Who programs it, sir?

A Our telephone company controllers

department.

Q You have spoken with the program-

mer?

A That might be 100 people, sir.

QO I see.

Would it be fair to say that the Govern-

ment Exhibit 11 and Government Exhibit 12

reached this Courtroom today as a result of

someone other than yourself making what

you believed to have been a request of an-

other person making what you believed to bea

request of a computer to print out what you

believed to be the original on the microfilm?

A I couldn’t agree with your word “be-

lieve,” sir. All the rest I would agree to.

Q fam sorry, sir. I didn’t hear you.

A I don’t agree with your belief. I do not

believe, but I do agree how the copies were ob-

tained.

Se Se ee ee

44

MR. GENTILE:

I have nothing further.

MR. GARCIA:

I have no questions on behalf of Mr. Cruz.

MR. GENTILE:

I stand on my earlier statement to the

Court.

[Tr., p. 101, li. 24 through p. 103, li. 9.]

The Court admitted government’s exhibits 11 and 12

into evidence [Tr. 103]. At this point, defense counsel

objected under Federal Rule of Evidence 901-A that the

exhibits were not properly authenticated, and further

called the Court’s attention to F.R.E. 901-b(9).

Assuming that the prosecutor overwhelmingly

established that government's exhibits 11 and 12 were

business records of Illinois Bell Telephone Company,

computer data derives reliability as evidence only from

the system by which it is produced. If the original data

fed in is not accurate, or if the machine and its program

are not well designed and operated, or if the data pro-

duced is not properly evaluated, such data has no re-

liable probitive force. The person who provides the

foundation for the admission of electronically pro-

duced data must be familiar with the operation of the

equipment used, and should describe the computer’s

operations with enough detail to support a finding that

the result is accurate and reliable. 5 Weinstein, Evidence,

paragraph 901(d)(9)(02), page 901-109. This objection

45

could not have been more clearly raised, as is reflected

in the report of proceedings at page 87, where the

following occurred:

THE COURT:

All right, do you say the proper predicate

has not been laid?

MR. GENTILE:

With respect to the computers and their

operation and their programming.

Thus, the issue as presented to this Court is not

whether government’s exhibits 11 and 12 were the rec-

ords of Illinois Bell, but whether the government met

the requirements of Federal Rule of Evidence 901-A as

outlined in Rule 901(b)(9), which dictatse that when a

computer “process or system” is relied upon to estab-

lish the accuracy of the assertion which makes its

proffer relevant, then the proponent must produce

“evidence describing a process or system used to pro-

duce a result and showing that the process or system

produced an accurate result.” F.R.E. 901(b)(9). To fail to

do so is to ignore the concept of meaningful confronta-

tion and cross-examination.

There is a glowing absence of any understanding of

or compliance with Federal Rule of Evidence 901 on the

part of the prosecutor in this case; this in spite of a

clear, concise, and direct objection setting forth not

only the grounds for the objection but also the specific

rule involved. Therefore, this case comes before this

46

Court ina posture far different from United States v. Fend-

ley, 522 F.2d 181 (Sth Cir. 1975), as the record in that

case was interpreted by the majority. Therefore, this

Circuit must come to grips with the question of

whether it will establish a policy of dispensing with the

requirements of F.R.E. 901 when “computer evidence”

is being proffered by the government ina criminal case.

Stated differently, the question becomes one of

whether the government witness who is being relied

upon to lay the proper predicate for the admission of

“computer evidence” must be able to be cross-exam-

ined with respect to knowledge of the computer pro-

gram that produced the evidence, and whether the

defendant’s Sixth Amendment right to counsel, con-

frontation and cross-examination of witnesses, and his

rights.to due process and a fair trial include the right to

have the government bear the burden of establishing

that computers which were used to produce the “busi-

ness records” were functioning properly.

In United States v. Russo, 480 F.2d 1228 (6th Cir. 1973),

the Court of Appeals for the Sixth Circuit stated:

[Nlo court could fail to notice the extent to

which businesses today depend on computers

for a myriad of functions. Perhaps the great-

est utility of a computer in the business world

is the ability to store large quantities of infor-

mation which may be quickly retrieved on a

selective basis. Assuming that properly func-

tioning computer equipment is used, once the

47

reliability and trustworthiness of the infor-

mation put into the computer has been estab-

lished, the computer print-outs should be re-

ceived as evidence of the transactions cover-

ed by the input. 480 F.2d 1228, at 1239-40.

The Court, in Russo, admitted into evidence the com-

puter print-out that was in question, but there the

government introduced evidence underlying and veri-

fying the reliability of the output of the computer. The

Court noted that the procedures for testing the accur-

acy and the reliability of the information fed into the

computer were detailed at great length by the witness

proffered by the government. In fact, the government

produced the vice president of Blue Shield of Michigan

in charge of all computer functions to describe the com-

puter equipment used by the employer, and the com-

puter’s particular functions in the claims processing

procedures. He described the verification which takes

place of the input to the computer; he stated that new

programs are pre-tested before adoption for use in the

computers; and he generally went on to testify with di-

rect knowledge susceptible of cross-examination with

respect to “describing a process or system used to pro-

duce a result, and showing that the process or system

produced an accurate result.” United States v. Russo, supra,

at pp. 1233-1234, 1240-1241. See, F.R.E. 901-A.

In United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977),

the Court of Appeals for the Eighth Circuit, citing Linit-

ed States v. Fendley, stated:

¥%

48

Even where the procedure and motive for

keeping business records provide a check on

their trustworthiness, the complex nature of

computer storage calls for a more compre-

hensive foundation. Assuming properly func-

tioning equipment is used, there must be not

only a showing that the requirements of the

business records act have been satisfied, but in

addition the original source of the computer program

must be delineated, and the procedures for input control

including tests used to assure accuracy and reliability

must be presented [citations omitted]. 533 F.2d

1109, 1125 (emphasis added).

The Court in Scholle admitted into evidence a com-

puter print-out reflecting drug analysis computerized

routinely during the regular course of business at the

Drug Enforcement Administration. However, the wit-

ness through which this evidence was introduced was

the founder of the program, and was in a position to

testify about the system. Noting that the government

“presented very little evidence concerning the mechan-

ics of how input from eight widely disbursed labora-

tories is controlled or tested for its accuracy and relia-

bility,” the Court held that on the facts of this case

there was sufficient “proof of its trustworthiness as

well as an adequate opportunity for rebuttal.” 553 F.2d

1109, 1125S. In light of the fact that John Connolley in

the instant case had no knowledge whatsoever with re-

spect to the computer programming and testing for its

accuracy, Defendant WEGNER was in no way able to

confront, cross-examine, or rebut his testimony.

|

|

49

Therefore, the test established and adhered to by the

Eighth Circuit in Scholle was not met in the case before

this Court.

In United States v. DeGeorgia, 420 F.2d 889 (9th Cir.

1969), the Ninth Circuit Court of Appeals established a

test which antedated, but recognized, what were then

proposed Federal Rules of Evidence as they related to

the introduction of “business records” that were in the

form of “computer evidence.” In that case, the court

stated:

While, .. . it is immaterial that the business

record is maintained in a computer rather

than in company books, this is on the assump-

tion that: (1) The opposing party is given the

same opportunity to inquire into the accur-

acy of written business records, and (2) The

trial court, as in the case of challenged busi-

ness records, requires the party offering the

computer information to provide a founda-

tion therefor sufficient toward a finding that

such information is trustworthy. 420 F.2d

889, 893, fn. 11.

In DeGeorgia, the government carried the day with re-

spect to providing the defendant a full opportunity

upon cross-examination to inquire into the company

practice of feeding information as to all car rentals and

leases into the computer, and as to the accuracy of the

computer in retaining and retrieving such informa-

tion. The government presented foundation evidence

50

as to input procedures used. While the Ninth Circuit

did not decide the issue as to whether the government

should have produced expert testimony as to the

mechanical accuracy of the computer, it reserved this

foundation question, as this Circuit did in Fendley, be-

cause the defendant did not raise this question in the

trial court. 420 F.2d 889, 893, fn. 11, 9 2.

It is important to note that in United States v. Fendley,

supra, this Court cited DeGeorgia as authority, and in

neither case did defense counsel specifically raise the

issue now before this Court when the case was still at

the trial level.

The right of Defendant WEGNER to confront and

cross-examine and challenge the credibility and relia-

bility of the “computer witness” has never been de-

cided by this Circuit or the United States Supreme

Court, but has been clearly decided in United States v. Lie-

bert, 519 F.2d 542 (3rd Cir. 1975). There, the Court

stated:

Included within the constitutional right of

confrontation is the ability to cross-examina-

tion to challenge the credibility and reliability

of the witnesses testifying against a defend-

ant.... A major ‘witness’ confronting Lie-

bert. will be computer print-outs indicating

that the IRS has no record of having received

his returns... . The introduction of a com-

puter print-out is admissable in acriminal trial

provided that the party offering the com-

eS ons a

S1

puter information lays a foundation suffi-

cient to warrant a finding that such informa-

tion is trustworthy and the opposing party is

given the same opportunity to inquire into the

accuracy of the computer and its input pro-

cedures as he has to inquire into the accuracy

of written business records [citations

omitted]. 519 F.2d 542, 547.

In United States v. Weatherspoon, 581 F.2d 595 (7th Cir.

1978), the Court of Appeals for the Seventh Circuit

permitted introduction of “computer evidence”

through the testimony of a Veterans Administration

supervisory employee who was familiar with the prep-

aration and use of the print-outs where the govern-

ment showed to the satisfaction of the trial court (1)

what the input procedures were, (2) that the input pro-

cedures and print-outs were accurate within two (2)

per cent, (3) that the computer was tested for internal

programming errors on a monthly basis, and (4) that

the print-outs were made, maintained, and relied upon

by the V.A. in the ordinary course of its business activi-

ties. The Court found that the defense in that case had

an adequate opportunity to inquire into the accuracy of

the input procedures and programming used as a re-

sult of the nature of the witness proffered by the

government. 581 F.2d 595, 598.

In United States v. Fendley, supra, this Court relied upon

United States v. Miller, 500 F.2d 751 (Sth Cir. 1974), com-

bined with an improperly interposed objection by de-

fense counsel for affirming the conviction of Fendley

52

over his objection that the “computer evidence” should

not have been admitted. There is a dispute between the

majority and Justice Godbold’s dissent as to whether

the Miller tests had been met. Defendant WEGNER

submits to this Court that they were clearly not met by

the government in the case sub judice. John Connolley

made no reference to any procedure, routine or other-

wise, designed to assure the accuracy of these records.

While he did testify that the purpose for making the

records was so that billing could take place, this Court

could take judicial notice that telephone bills are not al-

ways accurate. And, finally, there is nothing in the rec-

ord to indicate whether the calls “declared” by the

“computer evidence” were mere accumulations of

hearsay or uninformed opinions.

Furthermore, the introduction of government's ex-

hibits 11 and 12 into evidence in this case permitted the

prosecutor to introduce “summary evidence” of what

was portrayed therein through Special Agent John

Wolkin, D.E.A., [Tr. 756-778], and’charts prepared by

him from the records indicating the number of calls

made and their correlation to calls made from other

telephones (government exhibits 18 and 33A-E) [Tr.

778]. It also permitted the government to cross-exam-

ine the defendant [Tr. 1303, et seq.] as to the exhibits,

and to argue in summation, in the face of an alibi

proffered by the defendant which was strong of its

own right (see Argument II, infra), that the defendant

would not have any legitimate reason for calling his al-

leged co-conspirator, Richard Silva (Tr. 1478]. These

records were also used to corroborate the testimony of

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the accomplice witnesses, which testimony was direct-

ly contradicted by both the defendant and other wit-

nesses called on his behalf and was vigorously argued

by the prosecutor in summation [Tr. 1552-54, 1563,

1575, 1581]. Therefore, the defendant was substan-

tially prejudiced by the admission of the “computer evi-

dence,” and was deprived of basic constitutional rights

designed to ensure a fair trial.

I].

The Defendant Is Being Deprived Of His

Liberty Without Due Process Of Law, As —

Guaranteed By The Fifth Amendment To The

United States Constitution, As A Result Of

Having Been Denied A Fair Trial.

Incidents occurring during the proceedings in the

court below have combined to deprive RICHARD

WEGNER of fundamental fairness and due process of

law in the trial of this case. In Rochin v. California, 342

U.S. 165, 97 L.Ed. 183, 72 Sup.Ct.Rep. 205 (1952), the

Supreme Court stated:

Regard for the requirements of the due

process clause ‘inescapably imposes on this

Court an exercise of judgment upon the whole

course of the proceedings [resulting in a con-

viction]-in order to ascertain whether they of-

fend those canons of decency and fairness

which express notions of justice of English-

speaking peoples even toward those charged

54

with the most heinous offenses.’ (Citations

omitted.) 342 U.S. 165, 169.

it is submitted that if this Honorable Court scruti-

nizes the entire proceedings in the trial court, it will

find that Defendant RICHARD WEGNER was not

given a fair trial primarily because the use of “on or

about” in Count X of the indictment permitted the

prosecutor to have unfair advantage in debilitating

RICHARD WEGNER’s defense as to its strongest

point, i.e., alibi. The prosecutor’s entire case rested

upon the testimony of three witnesses who were ac-

complices with strong motivation for testifying false-

ly. The only event common to the testimony of the ac-

complices was the one involved in Count X. Had the

defendant been afforded the proper opportunity to

hold the government to its proof vis-a-vis the date of

the occurrence, the strength of the alibi defense as to

that Count would have resulted in acquittal on all

Counts. However, because the Court permitted the

jury to consider other dates, not in evidence as to the

date of the Count X occurrence, the prosecutor was

given unfair advantage. To this extent, the defendant

was so prejudiced by the inclusion of the words “on or

about” in Count X that it mandates a reversal and new

trial.

This Court will also see that the prosecutor used im-

proper and prejudicial tactics in obtaining testimony,

cross-examination and summation, which were de-

signed to prejudice the defendant and inflame the jury.

This fact alone, without the others even being con-

sidered, is enough to require reversal and anew trial.

Se eee

Se eee

55

A. The Indictment

We commence by making it clear to this Court that

the defendant is not complaining of a variance be-

tween the indictment and the proof as that term is used

in Federal Rule of Criminal Procedure 7. The elements

of the crime charged in Count X were not different

from the elements proven by the government at the

trial if the evidence is viewed most favorably to the

prosecution. Furthermore, the defendant does not be-

lieve, and is not urging this Court, that a double jeop-

ardy problem would arise as a result of the verdict in

light of Count X of the indictment. See, Berger v. United

States, 295 U.S. 78 (1935); Kotteakos v. United States, 328

U.S. 750 (1946). The question of prejudice to the

defendant is grounded in due process of law and depri-

vation of a fair trial.

The rationale for permitting “on or about” language

to be used in an indictment differs from that underly-

ing the use of such language in a charge to a jury.

Where an indictment is concerned, if a grand jury has

heard no evidence as to a specific date, it may use the

phrase “on or about” to indicate its unwillingness to

pinpoint the date of the offense charged. It has been

held that under those circumstances, the phrase may be

used without vitiating the indictment per se or elevat-

ing a minor grievance to reversible error. United States v.

Somers, 496 F.2d 723 (3rd Cir. 1974); Russell v. United

States, 429 F.2d 237 (Sth Cir. 1970); United States v. Duran,

411 F.2d 275 (Sth Cir. 1969). However, this Court has

recognized that the date alleged in an indictment can be

56

used as a deliberate strategem by the government, and

without deciding the point, has indicated that under

such circumstances an exception to the general rule

may exist. United States v. Owens, 431 F.2d 349 (Sth Cir.

1970). This Circuit has also recognized that deviations

between the indictment and proof adduced at trial can

be prejudicial to a defendant, even where the indict-

ment is drafted in general terms. United States v. Mala-

testa, 583 F.2d 748 (5th Cir. 1978).

In United States v. Arteaga-Limones, 529 F.2d 1183 (Sth

Cir. 1976), this Court was confronted with an indict-

ment which contained the “on or about” language com-

plained of herein and, in addition thereto, indicated

that “the exact date [of the occurrence] was unknown

to the grand jurors.” 529 F.2d at 1192. From the out-

set, the primary government witness acknowledged

that he was unable to recall the exact dates during

which the charged drug offenses occurred, and testi-

fied at the trial that he did not remember the exact

dates. The Court held that the government need not

prove the exact date of a drug offense with precision so .

long as it clearly established that the offenses occurred

before the return of the indictment and within the stat-

ute of limitations, relying on Russell v. United States, supra.

However, Arteaga-Limones prayed that because his de-

fense was that of alibi and it was dependent upon a

showing that he was nowhere near the place where the

offense occurred on the dates alleged, he was preju-

diced by the government's failure to prove the exact

dates of the offenses charged. This Court found, how-

ever, that Arteaga-Limones did not rely upon an alibi, and

ote

—

57

in fact relied upon the government witnesses’ failure of

memory as to the date to support the contention that

the witnesses’ account of the criminal transactions

were fabricated and calculated to secure leniency at the

future sentencing procedure of that witness. 529 F.2d

at 1193-1194.

The case sub judice comes before this Court with a dif-

ferent posture from Arteaga-Limones. Throughout his

cross-examination of accomplice-witnesses Acosta,

Romo, and Rodriguez, counsel for the defendant re-

peatedly was successful in establishing that October

20th was the date upon which they allegedly distrib-

uted marijuana to someone in the Chicago area, whom

they identified as Defendant RICHARD WEGNER [Tr.

632, 635, 715-16]. He also established on cross-exami-

nation that the person they delivered to as charged by

Count X was the same person that they delivered toon

the other occasions recited in their testimony.

At the Instructions Conference, counsel for Defend-

ant WEGNER objected to a government proposal to

modify the language of the defendant’s proffered

“contention” instruction, and further moved the Court

to strike from the indictment and the charge to the jury

the use of the phrase “on or about” and its implica-

tions, calling to the Court's attention that it gave the

government the “best of both worlds” with respect to

being able to avoid its own proof and still be successful

in obtaining a conviction. The Court overruled the ob-

jection and denied the motions [Tr. 1437-1444].

« Fair =

nes ae

Oe Se ee

7

58

During his summation, counsel for Defendant WEG-

NER never waivered from his attack upon the credi-

bility of the three accomplices based upon their bias,

motive for testifying falsely, prior criminal records,

etc., coupled with and given emphasis by the proof of an alibi which

clearly showed that the accomplices were lying as to Count X [Tr.

1503-1506, 1517, 1518, 1520, 1523, 1525], and there-

fore in toto.

In its charge to the jury, the Court emphasized reli-

ance upon the language of the indictment [Tr. 1585],

and the fact that the government need not prove a

specific date when the indictment reads “on or about”

(Tr. 1607, 1608]. The prosecutor seized upon this in

summation [Tr. 1450, 1473]. The Court further erred

by charging the jury that the alibi defense of Defend-

ant WEGNER was only to Count X [Tr. 1629, 1630].

This is particularly unfair and prejudicial to the defend-

ant in this case, where if the jury believed that Count X

was not proven because the accomplices had lied, it

should also have been permitted to apply the con-

clusion as to their credibility to the remaining ac-

counts of the indictment involving Defendant RICH-

ARD WEGNER.

Allowing a defendant to be charged and prosecuted

pursuant to an indictment which permits the prose-

cutor to avoid being bound by his proof, and which per-

mits the theory of the prosecution to be amorphous,

runs afoul of the concept of fair trial. If allowed to stand .

here, it will spread. No principle of procedural due

process is more clearly established than the notice of

ee eee

- eS eee

tr ee ee ee

59

the specific charge, and a chance to be heard ina trial of

the issues raised by that charge, if desired, are among

the constitutional rights of every accused in a criminal

proceeding in ali courts, state or federal. Cole v. Arkan-

sas, 333 U.S. 196, 92 L.Ed. 634 (1948); Ungar v. Sarafite,

373 U.S. 575, 11 L.Ed.2d 921 (1964); United States v. Gar-

ner, S81 F.2d 481 (Sth Cir. 1978). As Justice Douglas so

aptly put it in his dissent in Jayv. Boyd, 351 U.S. 345, 100

L.Ed. 1242, 76 Sup.Ct. 919 (1956):

Fairness, implicit in our notions of due

process, requires that any ‘hearing’ be full and

open with an opportunity to know the charge

and the accusers, to reply to the charge, and to

meet the accusers. 351 U.S. 345; 375.

Such fundamental notions of fairness are an in-

tegral part of the American way of life, and always have

been. Even in times of relative lawlessness, such as

during that period of American history when the West-

ern frontier was being settled, this notion of being

given an opportunity to meet accusatory allegations

head on was considered one of the great benefits of be-

ing in America. Our Supreme Court, through a dissent

by Justice Frankfurter, acknowledged this in citing the

code of Wild Bill Hickock, by which he conducted his af-

fairs in Abilene, Kansas:

.... [M]eet anyone face to face with whom

you disagree. You could not sneak up on him

from behind, or do any damage to him, with-

out suffering the penalty of an outraged citi-

60

zenry. If you met him face to face and took the

same risks he did, you could get away with al-

most anything, as long as the bullet was in the

front. Jay v. Boyd, supra, at 373.

In United States v. Prejean, 494 F.2d 495 (Sth Cir. 1974),

this Court recognized the need to prevent amorphous

indictments and prosecutions from taking place, and

held that “neither the prosecution nor the trial judge

can alter the charge to fit the proof; to do so would be

usurping the function of the grand jury.” 494 F.2d at |

497.

The essence of alibi is the impossibility of the defend-

ant’s guilt based on his physical absence from the locus

of the crime. Roper v. United States, 403 F.2d 796, 798 (Sth

Cir. 1968). Evidence of alibi should come intoa case like

any other evidence, and must be submitted to the jury

for consideration of whether the evidence as a whole

on the issue of presence proves the defendant’s guilt

beyond a reasonable doubt. Smith v. Smith, 454 F.2d 572,

578 (Sth Cir. 1971). Logically, an alibi is not an excul-

patory defense; it is merely a method of disproving the

prosecution's casé. United States ex rel. Waters v. Bensinger,

507 F.2d 103, 105 (7th Cir. 1974). A defense of alibi

properly shows that the defendant could not have com-

mitted the crime because he was elsewhere at the time of

the offense. United States v. Beaver, 524 F.2d 963, 966 (Sth

Cir. 1975).

Whenever the evidence proffered by the govern-

ment on the issue of the date and time of the offense is

ee

——

61

clear and uncontradicted, the defense of alibi is not

only proper but is in fact the strongest that can be

offered where it is corroborated by disinterested wit-

nesses, as it was in the case sub judice. To permit the

government an escape valve simply because the words

“on or about” were used in the indictment, deprives the

defendant in such a case of a fair means for presenting

the strongest and most convincing defense that can be

interposed. Therefore, in light of the facts of the case

before this Court, a reversal and remand for new trial is

in order.

B. The Prosecutor’s Misconduct |

As this Court has recently stated in United States v.

Bourg, 598 F.2d 445 (Sth Cir. 1979):

“It should be unnecessary to say again that ina

criminal prosecution a United States attor-

ney has a double burden: he has the obliga-

tion to prosecute the government's case zeal-

ously and the obligation to try the case fairly

and with due regard for the rights of the per-

sons accused. Berger v. United States, 295 U.S. 76,

78;” 598 F.2d at 450.

In the case before this Court, the prosecutor did not

conduct himself within the framework of this stand-

ard. Even assuming that the drafting of the indictment

and the use of the words “on or about” were done in

good faith, the pro$ecutor’s conduct in knowingly de-

)

—-, —

62

parting from the evidence in the record during sum-

mation and using tactics calculated to inflame and stim-

ulate passion in the jury, warrant reversal if anything

more than lip service is to be paid to the concept of a fair

trial and due process of law as applied to this case.

Defendant RICHARD WEGNER testified in hisown

behalf at the trial of this case (Tr. 1181-1331]. During

his direct and re-direct examinations, the defendant

never waivered from denying involvement in the

transactions alleged in the indictment, and his testi-

mony closely followed the dates and occurrences in the

indictment. No general denial of involvement in drug

trafficking was ever brought up by the defendant

during direct and re-direct examinations. The prose-

cutor conducted his recross-examination as follows:

QUESTIONS BY MR. PIERCE:

Q Last question, Mr. Wegner.

You are telling us then that you have

never bought or sold or participated in mari-

juana transactions?

MR. GENTILE:

Objection. The indictment covers specific

dates, Your Honor. I don’t know what the

answer to this is, but he’s got a limited right.

THE COURT:

All right, sustained.

MR. GENTILE:

Thank you.

ee eee oe ~

63

If you will make a specific date he will

answer the question.

© During the course of this conspiracy,

Mr. Wegner, then it is your testimony you

have never bought, sold or participated in

marijuana transactions?

A_ No, sir.

Q You do not associate with such people

who do?

A I in all truthfulness can’t answer that

because I thought I associated with people that

did not. All of a sudden I saw a man here that

said he did, and I didn’t know it.

MR. PIERCE:

Thank you.

THE COURT:

Thank you. You may step down.

This Circuit has recently held in United States v. Havens,

592 F.2d 848 (Sth Cir. 1979), that the door may not be

opened by the prosecutor on cross-examination for the

purposes of introducing rebuttal evidence which was il-

legally seized. The defendant must lay the predicate for

such introduction during his direct or re-direct exami-

nation. While it is true that illegally seized evidence was

not introduced in rebuttal against Defendant RICH-

ARD WEGNER, and it is also true that the prose-

cutor’s attempt to show RICHARD WEGNER’s in-

volvement in extraneous offenses were not permitted

by the trial judge (Tr. 1331-1369], the prosecutor's con-

duct in putting such a question to Defendant WEG-

64

NER in the presence of the jury, and requiring the ob-

jection to be made at all, caused immeasurable preju-

dice to Defendant WEGNER in this case. Such conduct

has repeatedly been condemned by this Circuit. See,

Jackson v. United States, 311 F.2d 686 (Sth Cir. 1963); Unit-

ed States v. Gonzalez, 491 F.2d 1202 (Sth Cir. 1974).

In his summation, the government lawyer making

preoration almost immediately seized upon the bene-

fits that were to enure to the prosecution by the “onor

about” language in instructions stating to the jury that

the prosecution did not need to prove the exact date of

any Count, notwithstanding the fact that the October

20, 1977, date was proven without variation in the rec-

ord [Tr. 1450].

The prosecutor, making the closing part of the sum-

mation, continued and exacerbated the inflammation

of the jury. Within the first minute of his argument, he

stated:

And, last, quite honestly, 1am going to make a

plea for law enforcement because that is one

word that has not become a dirty word in the

San Antonio community yet. Transcript, p.

1547.

The prosecutor continued in his summation to attack

the alibi defense proffered by Defendant WEGNER by

calling upon the jury to make inferences from the rec-

ord that were totally impermissible and not substan-

tiated by any evidence whatsoever [Tr. 1570, 1571]. He

65

continued to urge the jury to require the production of

evidence by the defendant, and to shift the burden of

proof, both with respect to persuasion and production

(Tr. 1570, li. 10-12].

Throughout his summation, the prosecutor repeat-

edly used the word “we” when speaking of the actions

of the D.E.A. agents in the investigation of the case.

Such a use of language can only be interpreted by a jury

as testimonial in nature, and it was clearly wrong and

unethical for the prosecutor to utilize this type of an

argument.

Finally, in urging his “plea for law enforcement” to

the jury the prosecutor stated:

I want to walk up to you and shake you by the

shoulders and say, ‘Can’t you see, can’t you

see what’s going on here?’ Transcript, page

1579, li. 8-10.

In Dunn v. United States, 307 F.2d 883 (Sth Cir. 1962),

this Court recognized that where a prosecutor utilizes

tactics and techniques which are akin to testifying, zeal

outruns fairness. Here, where the prosecutor know-

ingly asked an impermissible question with respect to

Defendant WEGNER’s general history of involve-

ment in illegal activities related to marijuana, the

prosecutor intentionally created the need for an objec-

tion which he knew would be forthcoming and would

be prejudicial to the defendant simply because it was

made at all. Such conduct was wholly unwarranted,

oe

66

and could not be cured by any instruction. In light of

the fact that in both peroration and summation, the

prosecutor urged interpretations of facts which would

be given credence only if the jury believed that the

prosecutor had information which was not permitted

to be before them, such conduct on the part of the

prosecutor requires reversal even without additional

misconduct.

This Court has reversed other cases for the same

type of conduct, even where it was “instigated by de-

fense tactics,” a condition not present in the case sub

judice. Dugan Drug Stores, Inc. v. United States, 326 F.2d 835

(Sth Cir. 1964). The summation by the prosecutor in

this case was clearly “undignified and intemperate,

containing improper insinuations and assertions cal-

culated to mislead the jury.” Berger v. United States, 295

U.S. 78, 85, 79 L.Ed. 1314 (1935). Here the prosecutor

clearly violated the American Bar Association’s stand-

ards for the administration of criminal justice, the

prosecution function, §5.8(a) through (d). He also did

untold damage to the defendant asa result. See, United

States v. Corona, 511 F.2d 1386 (Sth Cir. 1977).

Finally, the prosecutor utilized a tactic to obtain the

cooperation and testimony of Frank Acosta that has

probably never been used before, and certainly should

not have been permitted by the trial judge. Frank Acos-

ta was sentenced on August 30, 1978, to a period of

forty-five (45) years’ incarceration (fifteen years on

each of three counts to run consecutive to each other).

Ninety-one days thereafter, on November 29, 1978, a

eh A ee

» a =

67

Motion for Reduction of Sentence filed under Rule 35

of the Federal Rules of Criminal Procedure was filed on

Acosta’s behalf by his attorney. On December 6, 1978

(or the ninety-ninth day of the Rule 35 period), the

prosecutor filed a response to this motion, asking that

no ruling take place until after the trial of the case sub

judice. [Both of these documents are set out in the

appendix to this brief.] No ruling under the Rule 35 motion

had taken place as of the date of Acosta’s testimony, i.e., March 21,

1979, more than two hundred days after he had been sentenced, and

more than eighty days after the period established by Rule 35.

In United States v. Mendoza, 565 F.2d 1285 (Sth Cir.

1978), an Opinion of this Court interpreted Rule 35 to

permit a ruling on a motion for reduction of sentence

beyond the one hundred twenty (120) day period,

where a strict adherence to the one hundred twenty

day time limitation would result in an injustice, and

where it was necessary to effectuate the overall pur-

poses of Rule 35. This Opinion and its rationale were

adopted as to all aspects relevant to the case sub judice by

this Circuit en banc in United States v. Mendoza, 581 F.2d 89

(Sth Cir. 1978). There can be no question that this Cir-

cuit never contemplated that such an interpretation of

the one hundred twenty day time limitation pre-

scribed in Rule 35 as was applied by the prosecutor and

the sentencing judge in this case should ever take place.

Such a manipulation of Rule 35 as took place here can

only result in prosecutors using Rule 35 as a means of

strongarming testimony from witnesses such as Frank

Acosta.

68

Such a tactic is rank misconduct and highly unethic-

al, and this Court should not place its imprimatur on

such conduct by the prosecutor. The only way of avoid-

ing this type of conduct in the future is to immediately

recognize it as violative of due process and reversible

error per se.

CONCLUSION

RICHARD D. WEGNER respectfully prays this

Honorable Court to vacate the judgment of conviction

and sentence, and to remand this case to the District

Court with an Order granting him a new trial.

Respectfully submitted,

DOMINIC P. GENTILE, ESQ.

1200 South Maryland Parkway

Las Vegas, Nevada 89104

701/382-7755

Attorney for Defendant-

Appellant

«

3 eee - earnest grees. aoemen aii.

‘

69

CERTIFICATE OF SERVICE

I hereby certify that I served two copies of the follow-

ing defendant-appellant’s brief upon the following,

postage prepaid:

eo tee

+ enlace At i a

Ms. LeRoy Jahn

Assistant U.S. Attorney

United States Courthouse

San Antonio, Texas

Philip D. Clark, Esq.

523 South Main Street

San Antonio, TX 78204

Ramon Garcia, Esq.

Garcia, Garcia & Allee

107 North Tenth Street

Edinburg, TX 78539

This —_ day of January, 1980.

DOMINIC P. GENTILE, ESQ.

1200 South Maryland Parkway

Las Vegas, Nevada 89104

702/382-7755

_

Se ee eee

ee ee eee

~ ee

la

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

versus No. SA-78-CR-122

FRANK ACOSTA, ET AL,

Defendant.

Filed: Nov. 29, 1978

MOTION FOR REDUCTION OF SENTENCE

| FILED UNDER RULE 35 OF THE

“FEDERAL RULES OF CRIMINAL PROCEDURE

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes FRANK ACOSTA, Defendant in the

above numbered and entitled cause, represented by his

attorney of record, ABRAHAM D. RIBAK, and files

this his Motion for Reduction of Sentence Under Rule

35 of the Federal Rules of Criminal Procedure and in

support thereof would show unto the Court the

Following:

2a

I

That on the 30th day of August, 1978, Defendant

appeared with his counsel for sentencing after Defend-

ant had plead guilty to Counts 1, 2 and 3 of the indict-

ment pending in the above cause at a re-arraignment

on July 17, 1978. The Court found the Defendant

guilty and accepted his pleas of guilty of the following

offenses as set out in the indictment in the above num-

bered and entitled cause, to-wit:

Unlawfully, wilfully and knowingly combin-

ing, conspiring & confederating & agreeing

together & with others to possess heroin, a

Schedule I Narcotic Drug Controlled sub-

stance, with intent to distribute the same con-

trary to Title 21, U.S. Code, Sec. 841(a)(1) & in

vio. of Title 21, U.S. Code, Sec. 846, begin-

ning on or before April 11, 1978 & continuing

until April 27, 1978, in the West. District of

Tex. & divers other places to the Grand Jurors

unknown in Count 1 of the Indictment,

possessing with intent to distribute heroin, in

vio. of Title 21, U.S. Code, Sec. 841(a)(1) in

County 2, unlawfully possessing with intent

to distribute heroin in vio. of 21, U.S. Code,

Sec. 841(a)(1) in Count 3 of Indictment.

I]

The Court entered the following sentence and sen-

tenced the Defendant to be committed to the custody

of the attorney general or his authorized representa-

—

3a

tive for a period of fifteen (15) years on Count 1 of the

Indictment, to be followed by a special parole term for

the remainder of his life. On Count 2 of the Indict-

ment, the Defendant was sentenced to fifteen (15)

years to also be followed by a special parole term for the

remainder of his life. Further, the sentence on Count 2

is to run consecutively to the sentence on Count 1. On

Count 3 of the Indictment, the Defendant was com-

mitted to the custody of the attorney general! for a

period of fifteen (15) years to be followed by a special

parole term for the remainder of his life. The sentence

<a Count 3 is to run consecutively to the sentence on

Count 2. The total sentence is for forty-five (45) years

to be followed by a special parole term for the remain-

der of his life.

II]

That since the date of sentencing, Defer.dant has

been held in a county jail outside of Bexar County for

his own protection. That during this period of time,

Defendant has cooperated with agents of the Drug En-

forcement Administration and the Assistant US.

Attorneys in the investigation and prosecution of var-

ious criminal defendants, all to the benefit of the U.S.

Attorney, the Drug Enforcement Administration and

the welfare of the general public. That his services in

behalf of the Government have been invaluable, of

great personal risk and harmful to the Defendant and

have been carried out in the spirit of cooperation to aid

the Government in an effort to cut down on the nar-

cotics traffic.

4a

IV

That the U.S. Attorney for the Western District of

Texas along with the agents of the Drug Enforcement

Administration will not oppose this Motion for Reduc-

tion of Sentence and will strongly support and joininin

this request to the Court for reduction of Defendant's

sentence. That although the U.S. Attorney and the

Drug Enforcement Administration will not make a

specific recommendation as to the amount of reduc-

tion, it is this Defendant’s position supported by the

Motion of his attorney of record that his sentence be

reduced to a reriod of four (4) years confinement, this

being the type of sentence to which the U.S. Attorney

had previously agreed to in previous plea bargaining

discussions and agreements prior to Defendant enter-

ing his plea of guilty and which sentence would have

normally arisen out of Defendant’s plea to a criminal

information charging him with violation of 21, U.S.C.

Section 843(b) — use of communication device to facili-

tate the commission of a felony which plea bargaining

agreement would have resulted in dismissal of the in-

dictment in the above cause.

WHEREFORE, PREMISES CONSIDERED, the

Defendant prays that the Court set his Motion for Re-

duction of Sentence Under Rule 35 of the Federal Rules

of Criminal Procedure and that upon said hearing that

said Motion be granted.

Sa

Respectfully submitted,

LAW OFFICES OF

ABRAHAM D. RIBAK

630 GECU Executive Building

6061 NW Expressway

San Antonio, Texas 78201

(512) 734-6608

ls) ABRAHAM D. RIBAK

ABRAHAM D. RIBAK

Attorney for Defendant

[Certificate of Service omitted in printing]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Number and Title Omitted)

Filed: Dec. 6, 1978

GOVERNMENT’S RESPONSE TO

DEFENDANT’S MOTION FOR

REDUCTION OF SENTENCE

Comes now the United States by and through the

United States Attorney for the Western District of

Texas and in response to Defendant's Motion for Re-

duction of Sentence would respectfully show the Court

as follows:

6a

On August 30, 1978, Defendant was sentenced to 45

years imprisonment after pleading guilty to a three

count indictment. Since that time, the Defendant has

debriefed and agreed to testify for the Government in

the case of United States v. Silva, SA-78-CR-238. This

case is presently scheduled for trial in Judge Suttle’s

Court on January 15, 1978 [sic]. The Government

would be in a better position to comment on the extent

of Defendant’s cooperation after he has testified in that

case.

Wherefore, premises considered, the Government

prays that the Court carry the motion of Defendant for

reduction of sentence until the conclusion of the trial in

United States v. Silva, supra.

Respectfully submitted,

JAMIE C. BOYD

United States Attorney

ls) ARCHIE CARL PIERCE

Archie Carl Pierce

Assistant United States

Attorney

[Certificate of Service omitted in printing]

79-5262

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WEGNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

REPLY BRIEF FOR DEFENDANT-APPELLANT WEGNER

DOMINIC P. GENTILE

1200 South Maryland Parkway

Las Vegas, Nevada 89104

702/382-7755

Attorney for Appellant

TABLE OF CONTENTS

PINE voici vntcccndscceveastesncesscesvees 1

I. The Defendant was Deprived of His

Right of Confrontation and Cross-

Examination as Guaranteed by the

Sixth Amendment to the United

States Constitution when the Court

Admitted Computer Print-Outs of

Telephone Records Into Evidence ......-- 1

Il. The Defendant is Being Deprived of

His Liberty Without Due Process of

Law as a Result of Having Been De-

ONE ES” ES ar 5

ee. lia aed an eee veseerseoses 6

RR TIPICATE OF SERVICE cc cece cccccccccsenes 7

TABLE OF AUTHORITIES

Douglas v. Alabama, 380 U.S. 514, 13 L.Ed.2d

934, 8S S.Ct. 1074 (196S) 2... cccccccces cveece 5

Evalt v. United States, 359 F.2d 534 (9th Cir.

ee eee CK ESSEC RH OES 600 eRe 5

McDaniel v. United States, 343 F.2d 785 (Sth Cir.

US een ars See eee ee ee ee 3

Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1966) ....5

Sanchez v. United States, 293 F.2d 260 (8th

(4 Og er ee eee oe 5

ii

TABLE OF AUTHORITIES (Continued)

Page

United States v. Allsup, 485 F.2d 287 (8th

ee 5

United States v. Bell, 506 F.2d 207 (D.C.

I 5

United States v. Garza, 608 F.2d 659 (Sth

ee dlccccceee 6

United States v. Peden, 556 F.2d 278 (Sth

lew eee 3

Federal Rule of Criminal Procedure 25 ........... 6

Federal Rule of Evidence 104(b) .................. 3

Federal Rule of Evidence 401 .................5.. 3

Federal Rule of Evidence 402 .................5-. 3

Federal Rule of Evidence 803(6) ................ a3

Federal Rule of Evidence 901(a) .............. 2,3,4

Federal Rule of Evidence 901(b)(9) ........... 2,3,4

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WEGNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

REPLY BRIEF FOR

DEFENDANT-APPELLANT WEGNER

ARGUMENT

The Defendant was Deprived of His Right of

Confrontation and Cross-Examination as

Guaranteed by the Sixth Amendment to the

United States Constitution when the Court

2

Admitted Computer Print-Outs of Tele-

phone Records Into Evidence.

In the Appellee’s Brief, the Government demon-

strates that it is not able to perceive the distinction be-

tween Federal Rule of Evidence 803(6) and Federal Rule

of Evidence 901(a) and (b)(9). Without discussing the

issues of confrontation or cross-examination, the

Government argues to this Court that compliance with

F.R.E. 803(6) somehow automatically includes compli-

ance with F.R.E. 901(a) and (b)(9). It suggests that

F.R.E. 901(b)(9), if given recognition and effect, would

“negate the intent of Rule 803(6) to allow the intro-

duction of business records without the necessity of

calling those who at all stages had part in the transac-

tion.” (Appellee’s Brief, p. 22).

The Defendant WEGNER does not need to reiterate

the argument made in his opening brief, nor is it

necessary to cite again the authority for that argu-

ment. The drafters of the Federal Rules of Evidence did

not include F.R.E. 901(a) and (b) without a specific pur-

pose, and without recognizing the necessity to articu-

late a special rule dealing with a special problem in-

volving conditional relevance. It recognizes that under

some circumstances, which it attempts to treat by its

terms (albeit not exhaustively and exclusively), a great-

er quantum of proof is required for authentication and

identification of certain types of evidence than is gen-

erally required. This is because under some situations,

like the one illustrated by F.R.E. 901(b)(9), unless an

3

essential fact upon which logical relevancy is based is

proven bya means and through a witness capable of be-

ing cross-examined as to the existence of the essential

fact, important constitutional rights are violated.

Under these circumstarices there is a grave danger of a

jury being misled, and the burden of going forward

with contradictory evidence is placed upon the defend-

ant in acriminal case in a manner inconsistent with the

burden of proof in a criminal trial. Were this not so,

F.R.E. 104(b), 401, and 402 would have been sufficient

to cover all questions of relevancy. This is the problem

that is recognized in the cases cited in Appellant's Brief

under Argument I.

It should be noted that this Court has recognized in

the past that the fact that a piece of evidence falls with-

in an exception to the hearsay rule does not necessarily

mean that it satisfies the Sixth Amendment right to

cross-examination and confrontation. United States v.

Peden, 556 F.2d 278 (Sth Cir. 1977); McDaniel v. United

States, 343 F.2d 785 (Sth Cir. 1965). In light of the fact

that the cases cited in the Appellant’s Brief (Argument

I) all deal with computer evidence and that none of the

cases cited in the Appellee’s brief under Argument II

do, it becomes obvious that this type of evidence does

not fall within the purview of F.R.E. 803(6) unless it has

been submitted in a manner consonant with F.R.E.

901(a) and (b)(9) so as to permit adequate confronta-

tion and cross-examination to ensure that the jury will

not be misled as to its trustworthiness. Any other

interpretation of the relevant case law and F.R.E.

901(a) and (b) would inevitably result in the conclusion

4

that the drafters of the Federal Rules of Evidence per-

formed a useless act by including the latter Rules.

The Government also seems to argue that even if the

admission of this evidence is improper, it does not

affect a “substantial right” of the Defendant WEG-

NER, and/or the issue was not properly preserved. The

Government seems to emphasize that the defendant

did not object to the admission of the same type of evi-

dence from a subsequent government witness, and

that this has some significance in determining whether

reversible error occurred here. This argument fails

upon examination of the facts of thecase, and in light of

the relevant federal case law dealing with the need to

make repetitive objections to the same type of evi-

dence offered and admitted into evidence after the trial

court has been advised of the objection earlier and has

made a clear ruling as to its admissibility.

An examination of the record will disclose that at no

time during the testimony of Government witness

Froehlich did counsel for Defendant WEGNER indi-

cate that he had “no objection” to the admissibility of

Government’s Exhibits 9, 10, and 13. In fact, an earlier

objection was noted by the trial court at the time it

ruled on the admissibility of these Exhivits (Tr., p. 120).

But most importantly, the recognized federal practice

under the circumstances of this case does not require

that the objection interposed by Defendant WEGNER

as to the admission of Government's Exhibits 11 and 12

be repeated at the time that Exhibits 9, 10, and 13 were

5

admitted into evidence. United States v. Bell, 506 F.2d 207,

213, fn. 23 (D.C. Cir. 1974); United States v. Allsup, 485

F.2d 287, 290 (8th Cir. 1973); Evalt v. United States, 359

F.2d 534, 542 (9th Cir. 1966); Sanchez v. United States, 293

F.2d 260, 265 (8th Cir. 1961); cf., Douglas v. Alabama, 380

U.S. 514, 13 L.Ed.2d 934, 85 S.Ct. 1074 (1965); Powell v.

Zuckert, 366 F.2d 634 (D.C. Cir. 1966).

The Appellant RICHARD WEGNER has demon-

strated to this Court that the admissibility of these Ex-

hibits had a profound effect upon the evidence con-

sidered by the jury, both in terms of the Exhibits them-

selves and what they allowed the prosecutor to intro-

duce by way of attempting to corroborate otherwise

suspect testimony of the accomplices. The effect car-

ried through up to and including the summation of the

prosecutor, and it cannot be said that this was harm-

less beyond a reasonable doubt.

‘ I]

The Defendant is Being Deprived of His Lib-

erty Without Due Process of Law as a Result

of Having Been Denied a Fair Trial.

The Defendant RICHARD WEGNER relies upon his

opening brief and the cases cited therein in support of

this argument. However, a fair reading of the record of

the instant case with the conduct of the prosecutor be-

ing scrutinized under the proper standard, must lead

this Court to conclude that the governmental mis-

conduct so permeated this trial that reversal is man-

6

dated. In a recent Opinion of this Court, United States v.

Garza, 608 F.2d 659 (Sth Cir. 1979), this Court re-

versed a conviction in a case that is factually so close to

the one sub judice that they are substantially indis-

tinguishable. If anything, the conduct of the prose-

cutor in the instant case with respect to the offer made

to the accomplice witness Acosta and the acting in con-

cert with the district court to subvert the intent of Fed-

eral Rule of Criminal Procedure 35, makes the argu-

ment for reversal in the instant case even stronger than

in Garza.

CONCLUSION

The briefs of both sides now having been filed, and

the issues and written arguments now having been

closed, on the record before this Court justice can only

be done by an Order reversing the judgment of the

United States District Court for the Western District

of Texas, vacating the sentence imposed pursuant

thereto, and remanding this case for a new trial.

Respectfully submitted,

DOMINIC P. GENTILE, ESQ.

1200 South Maryland Parkway

Las Vegas, Nevada 89104

702/382-7755

Attorney for Defendant-

Appellant

7

CERTIFICATE OF SERVICE

I hereby certify that | served two copies of the fore-

going Reply Brief for Defendant-Appellant Wegner

upon the following, postage prepaid:

Leroy Jahn, Esq.

Assistant U.S. Attorney

United States Courthouse

San Antonio, Texas

Philip D. Clark, Esq.

523 South Main Street

San Antonio, TX 78204

Ramon Garcia, Esq.

Garcia, Garcia & Allee

107 North Tenth Street

Edinburg, TX 78539

Dated this day of April, 1980.

DOMINIC P. GENTILE, ESQ.

1200 South Maryland Parkway

Las Vegas, Nevada 89104

702/382-7755

Attorney for Defendant-

Appellant

id

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WEGNER, et al.

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas

PETITION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

DOMINIC P. GENTILE, ESQ.

DOMINIC P. GENTILE, LTD.

Circle Park Lawyers Building

1200 S. Maryland Parkway

Las Vegas, NV 89104

(702)382-7755

Attorney for Defendant-Appellant-RICHARD WEGNER

CERTIFICATE OF INTERESTED PERSONS

The undersigned, counsel of record, certifies that the

following listed persons have an interest in the outcome of this

case. These representations are made in order that the Judges of

this Court may evaluate possible disqualification or recusal.

Richard Wegner, Defendant-Appellant herein.

,

Attorney of Record for

RICHARD WEGNER

wie

STATEMENT OF COUNSEL

PURSUANT TO LOCAL RULE 16.2.2

I expressly believe, based upon a reasoned and studied

professional judgment, that this Appeal involves one or more ques-

tions of exceptional importance:

1. Whether or not a Defendant-Appellant appealing from

a judgment of conviction in a criminal case entered in a United

States District Court nas a constitutional rignt to demand the

conscientious judgment of a United States Court of Appeals on

every assignment of error properly raised before that Court in ac-

cordance with the Federal Rules of Appellate Procedure?

2. Whether or not the Defendant was deprived of his

liberty without due process of law and a fair trial in light of

the prosecution's misconduct in obtaining testimony, cross-examin-

ation and summation, and the Court's charge to the jury?

3. Whether or not RICHARD WEGNER was deprived of his

rights to confrontation, cross-examination and effective assis-

tance of counsel by the admission into evidence, without proper

foundation, of computer printouts of telephone toll records?

I further express the belief, again based upon a reason-

ed and studied professional judgment, that the panel decision is

contrary to the following decisions of the United States Court of

Appeals for the 5th Circuit, and that consideration by the full

Court is necessary to secure and maintain uniformity of decisions

in this Court: United States v. PFendley, 522 F.2d 181 (5th Cir.

1975), United States v. Miller, 500 F.2d 751 (Sth Cir. 1974),

aS

United States v. Arteaga-Limones, 529 F.2d 1183 (Sth Cir. 1976),

United States v. Prejean, 594 F.2d 495 (Stn Cir. 1974), United

States v. Bourg, 598 F.2d 445 (Sth Cir. 1979), Dunn v. United

States, 307 F.2d 883 (Sth Cir. 1962), United States v. Mendoza,

$65 F.2d 1285, affirmed en banc, 581 F.2d 89 (Sth Cir. 1978),

United States v. Garza, 608 P.2d 9 (Sth Cir. 1979).

L ’ ESQ.

Attorney of Record for Defendant-

Appellant-wEGNER

ARGUMENT

Ze

The Panel Deprived RICHARD WEGNER of His Rights

Under the Fiftn Amendment to tne Constitution of

the United States of America to Due Process and

ua rotection o e Law en It Failed to

Consider an ASSignment of Error Properly Raised

Brieted, and Presented to It.

The United States Supreme Court nas held that there is no

constitutional right to an appeal from a criminal conviction.

Abney v. United States, 431 U.S. 656, 52 L.Ed.2d 651 (1977). How-

ever, in the federal system, it is clear that 28 U.S. Code §1291

provides a statutory right to appeal from a criminal conviction.

Carroll v. United States, 354 U.S. 394, 1 L.Ed.2d 1442 (1957);

Coppedge v. United States, 369 U.S. 438, 8 L.Ed.2d 21 (1962), that

this right should not be frustrated, see Rodriquez v. United

States, 395 U.S. 327, 23 L.Ed.2d 340 (1969), and that it carries

with it both the right to counsel and concomitant duties upon

counsel. These are the examining of the trial court record for

errors and urging the reviewing court to grant relief therefrom.

See Hardy v. United States, 375 U.S. 277, 11 L.Ed.2d 331 (1964).

As long ago as it's decision in Post v. Jones, 19 How.

150, 15 L.Ed. 618 (1856) the United States Supreme Court held that

where the law gives a party an appeal, he has a rignt to demand

the concientious judgment of the appellate court on every question

arising in the cause. Post, supra, 60 U.S. at 160. This Circuit

has likewise acknowledged that an appeal is an integral part of

the trial system for finally adjudicating the guilt or innocence

of a defendant. Thomas v. United States, 368 F.2d 941, 945 (5 Cir.

1966). It is therefore axiomatic that where alleged errors of the

~5-

trial court have been properly preserved and urged upon a United

States Circuit Court of Appeals it has a duty to consider eacn of

them before rendering judgment.

In the instant case RICHARD WEGNER presented two issues

for review to this Court. The first was whether or not ne was de-

Pprived of his rights to confrontation, cross-examination, and ef-

fective assistance of counsel by the admission into evidence with-

out proper foundation, of computer print-outs of telephone toll

records. In its per curiam opinion decided pursuant to Local

Court Rule 21, the panel disposed of this issue by stating:

"“Defendant-Appellant WEGNER alleges that he

was denied a fair trial, because he was deprived

of his right to confrontation and cross-examina-

tion as guaranteed by the Sixtn Amendment to the

United States Constitution, when the court admit-

ted computer print-outs of telepnone toll records

into evidence, and we find this allegation of er-

ror to be without merit, and we affirm his con-

viction." Opinion of July 17, 1980 p. 2

The second issue presented to this Court Dy RICHARD WEGNER

was whether or not the defendant was deprived of his liberty with-

Out due process of law and a trial in light of the prosecution's

misconduct in obtaining testimony, cross-examination and summa-

tion, and the Court's charge to the jury. The argument in support

Of RICHARD WEGNER'S contention encompassed sixteen (16) pages of

the Appellant's Brief and two additional pages in his Reply Brief.

Two of his primary contentions in regard to that argument but were

of such a nature as to require this Court to clarify the question

as to whether United States v. Mendoza, 565 F.2d 1285, affirmed

en_ banc, 581 F.2d 89 (5 Cir. 1978) permitted a trial judge to

forestall ruling on a motion made pursuant to Rule 35 of the Fed-

eral Rules of Criminal Procedure until after tne Movant testified

-6-

on behalf of the Government, at the Government's request, some 210

days after sentence was imposed and some 90 days beyond the 120

Gay limitation on Rule 35 Motions. The second contention would

have required this Court to either reverse or to distinguish the

closing argument in the instant case from that of the United

States v. Garza, 608 F.2d 659 (5 Cir. 1979). It was submitted in

the Appellant's Brief and it is submitted in this Petition that

the summation of the prosecutor in the instant case was even more

Predjudicial and inflamatory than that in Garza.

An examination of the three page opinion of the panel

which is attached hereto and incorporated herein by reference as

"Exhibit A" should quickly lead this Court to grant this Petition

for Rehearing as it clearly demonstrates that the second issue

Presented for review was not given any consideration whatsoever by

the panel and therefore deprived RICHARD WEGNER of due process of

law and equal protection of the law as is guaranteed to him by the

United States Constitution, Amendment 5. Surely if the Supreme

Court's decision in Post, supra, is to be given any credence at

all it must apply equally to all members of the class to which it

is directed. This was not done in the instant case.

II.

RICHARD WEGNER was Deprived of His Liberty With-

Out Due Process of Law and a Pair Trial in Light

of tne Prosecutor's Misconduct in Obtaining Test-

imon Cross-Examination and Summation, and the

ourtts Charge to the Jury.

AS nas been stated in Argument I above the panel of this

Honorable Court that rendered the decision ane entered an order

pursuant to Local Court Rule 21 in this case gave absolutely no

=

attention to tne above captioned contention. Briefly stated,

RICHARD WEGNER submits that his Constitutional guarantee of due

process of law as provided by the Sth Amendment to the United

States Constitution was violated as a result of the trial court's

charge to the jury to the extent that it was based upon language

in Count X of the indictment which unfairly and prejudicially per-

mitted the jury to consider evidence not in the record and con-

trary to what was produced by the Government. This deprivation of

fundamental due process was exacerbated by improper and prejudi-

cial tactics use by the prosecutor in obtaining testimony, during

cross-examination of the defendant's witnesses, and in summation.

It is submitted that the prosecutor's misconduct alone was suffi-

cient to require reversal and remand for a new trial.

The Defendant, RICHARD WEGNER asserted an alioi defense at

his trial. Through the witnesses produced by the Government it

was undisputed that October 20, 1977, was the date that the accoim-

plices allegedly distributed marijuana to someone in the Chicago

area whom they identified as the defendant. The accomplices also

testified that the person they delivered to on October 20, 1977,

was the same person that they delivered to on all the other occas-

sions in the indictment. The defendant, RICHARD WEGNER called

three disinterested witnesses to establish that on the date and

time in question he was in fact in San Antonio, Texas and produced

a public record which was signed by RICHARD WEGNER in the presence

of two of the witnesses and notarized by one of them on the after-

noon of October 20th, 1977, in San Antonio, Texas. The third

alibi witness established that RICHARD WEGNER was in San Antonio

that afternoon negotiating a real estate sale and that she saw nim

=-g-

driving his car on that date.

RICHARD WEGNER submits tnat allowing the Government to use

"on or about" language in an indictment and permitting the Court

to instruct the jury that the Government need not prove the speci-

fic dates of an occurrance, in light of the facts of the instant

case, resulted in a deprivation of due process and miscarriage of

justice. This Court has previously recognized that said circum-

Stances can exist. cf. United States v. Arteaga-Limones, 529 F.2d

1183 (5 Cir. 1976); See United States v. Prejean, 494 F.2d. 495 (5

Cir. 1974).

With respect to the prosecutor's misconduct RICHARD WEGNER

submits that a practice which occurred in this case wherein the

Government filed a motion before the sentencing judge in response

to one of their witnesses' motion pursuant to Rule 35 of the Fed-

eral Rules of Criminal Proceedure, and requested of the judge that

he not rule on the witness's Rule 35 request until after it had a

chance to evaluate his testimony at the instant trial, resulted in

a gross violation and misreading of this Court's opinion in United

States v. Mendoza, 565 F.2d 1285, affirmed en banc, 581 F.2d 89 (5

Cir. 1978). While this Court sitting en banc gave some discretion

to the district court in retaining jurisdiction beyond the 120 day

limit established in rule 35, in tne instant case the prosecutor

utilized this as a tool to delay the ruling until after a trial

which took place more than 80 days after the period establisned by

Rule 35 has expired. Purthermore, this manipulation of Rule 35,

with the sentencing court's cooperation, lead to a gross injustice

and is a practice which should be quickly condemned and terminated

by this Court.

Finally, the summation of tne prosecutor in this case was

-9-

far worse than that in United States v. Garza, 608 F.2d 659 (5

Cir. 1979) wherein this Court reversed a conviction on tnat ground

alone. Not only did the prosecutor call upon tne jury to make in-

ferences from the record that were totally impermissible and not

substantiated by any evidence whatsoever, but through out nis sum

mation he utilized the word “we" when speaking of the actions of

_ the DEA Agents in the investigation of the case and concluded such

inflamatory comments as:

And, last, quite honestly, I am going to make

a plea for law enforcement because that is one

word that has not become a dirty word in the San

Antonio community yet. (Tr. p. 1547]

And also:

I want to walk up to you and shake you by the

shoulders and say, “can't you see, can't you see

what's going on here?" (Tr. p. 1579, ln. 8-10].

It is respectfully submitted that this argument should not

only have been considered by tne panel but justice would require

that it result in reversal and remand for a new trial.

IIl.

The Defendant was Deprived of His Right to Con-

frontation and Cross-lxamination as Guaranteed

by the Sixth Amendment to the United states con-

Stitution When the Court Admitted Computer Print-

Outs of Telepnone Records into evidence.

The opinion of the panel in this case is difficult to un-

derstand in light of the fact that they did not articulate a rea-

son for finding the argument without merit. However it is re-

spectfully submitted that reconsideration be given to it in light

of the fact that computerized business records present a problem

different from tne ordinary business records situation. An addi-

tional factor is present in these cases because the entry into the

"books" is not made directly by a human and the accuracy of the

program and of the record depends upon the working condition and

accuracy of the equipment both at the time that the entry is first

recorded and at the time that it is recalled. At the trial of

this cause the witnesses used to lay the foundation for the admis-

sibility of this evidence were unable to give first hand testimony

as to the the foregoing and therefore did not comply with Federal

Rule of Evidence 901 (a) and (b) (9) which dictates that when a

computer "process or system is relied upon to establish the accu-

racy of the assertion which makes it's proffer relevant, then the

proponent must produce evidence describing a process or a system

used to produce a result and showing that the process or system

produced an accurate result."

While this Circuit has never spoken directly to this issue

and has obviated the need for making a decision on at least two

cases, See United States v. Miller, 500 F.2a 751 (5 Cir. 1974)

and United States v. Fendley, 522 F.2d 181 (5 Cir. 1975), it is

respectfully submitted that evidence such as this is introduced in

far to many criminal trials for it to continue to be ignored as an

important issue. It is further supmitted that in this particular

case the introduction of such evidence permitted the prosecutor to

introduce further “summary exhibits" by way of charts and otner

graphic representations and to make comment in summation calling

for an explanation on the part of the defense.

-ll-

CONCLUSION

For the foregoing reasons, RICHARD WEGNER prays tnis

Honorable Court to grant tnis petition, to rehear the matter and

to grant nim a new trial. de further suggests that the issues are

of sufficient importance to warrant consideration en banc.

Respectfully submitted,

o L ’ SQ.

1200 S. Maryland Parkway

Las Vegas, NV 89104

(702)382-7755

Attorney for Defendant-Appellant,

RICHARD WEGNER

I hereby certify that I deposited in the United States

Mail a copy of the foregoing PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC, postage prepaid, first class, addressed as

follows:

Leroy Jahn, Esq. Ramon Garcia, Esq.

Assistant U.S. Attorney Garcia, Garcia & Allee

United States Courthouse 107 North Tenth Street

San Antonio, Texas Edinburg, TX 78539

Philip DO. Clark, Esq.

523 Main Street

San Antonio, TX 78204

Dated this 13th day of August, 1980.

i / 2 °F Ly,

employee of DOMINIC ENTILE,

LTO.

012

A Se

BO KoT

IN THE UNITED STATES COURT OF APPEALS

PUDLISH

FOR THE FIFTH CIRCUIT at em wad

No. 79-5262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE M. MALDONADO, FEDERICO CRUZ, and

RICHARD WEGNER,

, Defendants-Appellants.

Appeals from the United States District Court for the

Western District of Texas

(JULY 17, 1980)

Before CHARLES CLARK, TJOFLAT and GARZA, Circuit Judges.

PER CURIAM:

Defendant-Appellant Joe M. Maldonado was convicted by

a jury of conspiracy to possess marihuana, with intent to dis-

tribute, and possession of marihuana, with intent to distribute.

Defendant-Appellant Richard Wegner was convicted by

a jury of conspiracy and aiding and abetting the possession of

marihuana, with ‘atent to distribute.

Defendant-Appellant Federico Cruz was convicted by a

jury of conspiracy to possess marihuana, with intent to enswstneen,

and of aiding and abetting the possession of marihuana, with

intent to distribute.

EXHISIT "A"

ee es

They have appealed their convictions, and oral argu-

ment was heard by the Court in New Orleans, Louisiana, on

July 16, 1980.

Defendant-Appellant Maldonado alleges that the trial

court erred in over-ruling his motion to suppress the marihuana

that was seized from him at the time of his arrest, at a 24-hour

roadblock, which had been set up by the Department of Public

Safety officers of the State of Texas, for license and safety

checks; and, further, that after his stop, the officers had no

probable cause to search. Pinding that the 24-hour systematic

roadblock was not pretextual and his initial stop legal, and

that probable cause thereafter existed for the search which re-

vealed the marihuana in question, we affirm his conviction.

See Delaware v. Prouge, ___ U.S. ___, $9 L.Ed. 2d 660 (1979).

Defendant-Agpel lant Wegner alleges that he was denied

a fair trial, because he was deprived of his rights of confronta-

tion and cross-examination, as guaranteed by the Sixth Amendment

to the United States Constitution, when the Court admitted compu-

ter print-outs of telephone toll records into evidence, and we

find this allegation of error to be without merit, and we affirm

his conviction.

Defendant-Appellant Cruz complains that the trial

court erred in allowing into evidence before the jury evidence

of an extraneous offense in its case in chief, and in allowing

the prosecutors to argue and allude to this extraneous offense

in his closing argument; further that the Court erred in not

holding that he had standing to suppress evidence seized from

other persons; that his rights were violated when the Govern-

ment's evidence established the existence of multiple conspiracies

Je

7 oe

vee tn ee

rather than the single conspiracy alleged in the indictment,

and that his constitutional guarantee of confrontation of all

adverse witnesses was violated when the trial court unduly

restricted his cross-examination of a witness by the name of

Acosta, when he testified for the Government. We find all of

the contentions to be without merit, and, therefore, affirm

his conviction.

1

AFFIRMED. See local Rule 21.

1 See NLRB v. Amalgamated Clothing Workers of America,

5 Cir. 1970, 430 F.2d 966.

=

me

linited States Court of Appeals

FIFTH CIRCUIT

TEL 504-569-6514

Gilbert F. Ganucheau OFFICE OF THE CLERK 600 CAMP STREET

NEW ORLEANG, LA. 701

Clerk December ll, 1980

\\

TO ALL’ PARTIES LISTED BELOW:

NO, 79-5262 - U. S. A. -vs- Joe M. Maldonado, et al

Dear Counsel:

This is to advise that an order has this day been

; entered denying the petition( ) for rehearing, and

no member ef the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate,

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

eputy er

Mr. Philip D. Clark

Mr. Ramon sarcia

Mr. Dominic P. Gentile

Mr. Philip D. Clark |

This text is long and has been trimmed here. Open the source document for the complete record.