Petition — Torres-Torres v. United States

ALEXANDER

No. t. GTEVAS,

CLERK

In Tur

Supreme Court of

Che Hniteh States

JESUS TORRES-TORRES

Petitioner

vs.

THE UNITED STATES OF AMERICA,

Respondent

PET:,10N FOR A WRIT OF CERTIORARI 7fO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL M. STEIN

(Counsel of Record)

JENNINGS §& JENKS

3435 American River Drive

Suite C

Sacramento, CA 95825

Telephone: (916)482-4910

i

QUESTIONS PRESENTED

I

WHETHER THERE WAS PREJUDICIAL ERROR IN THE

ADMISSION OF A STATEMENT BY A THIRD PARTY

RESULTING IN AN ERRONEOUS INSTRUCTION TO

THE JURY.

II

WHETHER THERE WAS SUCH PREJUDICE IN THE

JURY INSTRUCTIONS THAT PETITIONER IS

ENTITLED TO A REVERSAL.

INDEX

PAGE

Questions Presented..... YT TTYT TTT TT i

GREMSCRS BORG e ccc ccccsecsccescccses 1

ss 6:6. 66 664 66 O66 6O4S bE OC CS 2

RR PTT TTT Terre 2

SEROGOES CE GOR sccccccvcoscvesseces 2

Statement of Facts...... be6e nba seeees 5

Reasons For Granting Writ............ 7

Sac 6 Ko hho ese desecseeseseecoees 25

Appendix A

Order of MERRILL and KENNEDY,

Circuit Judges, and KING, Chief

District Judge

United States Court of Appeals

for the Ninth Circuit

OF Jume 26, 32068. cccces rire TTT TTT A-1

Opinion of MERRILL and KENNEDY,

Circuit Judges, and KING, Chief

District Judge

United States Court of Appeals

for the Ninth Circuit

OF Fame BO_, BOGS c csc cscoecsscce ie a seuel A-3

iii

TABLE OF CASES

PAGE

Mutual Life Insurance Co. v. Hillmon

; » 295- DEISas 6a6+ 12,16,

19,A-15

United States v. Pheaster,

th Cir. 1976)

cert. ‘denied, 429 U.S. 1099 (1977)..13,14,

19,A-15,

A-16

United States v. Jenkins,

4th Cir.)

cert. denied, 439 U.S. 967 (1978)...13,A-15

Nash v. United States

37 F.2d 1006, 1007 (2nd Cir. 1932)..15,A-17

Vacaro V. United States

461 F.2d 626 at 635 (Sth Cir. 1972).22

Chapman v. California

36 U.S. 18 at 44, 87 S.Ct 824

at 838 17 L.Ed.2d 705 at 721-22..... 22,24

Kottemkos v. United States

i. Ci hon cide 6666 656000000648 23,24

Beck v. Ohio

BTe Gobe She B82 (19664). cccccsccccess A-10

United States v. Gardner .

62? F.2d 900, S11

(9th Cir. 1980)...A-11

United States v. Coates

: . .C. Cir. 1974)..A-11

Michigan v. Tyler

U.S. " CEOTS) coceseces saocenne

Coolidge v. New Hampshire

403 U.S. 443, 465-66 (1971)......... A-12

iv

PAGE

United States v. Jewell

ir.)(en banc)

cert. “denied, 426 U.S. 951 (1976..... .A-19

United States v. Erwin

" . th Cir. 1980)... A-20

United States v. Batimana

‘ : Cir.)

cert. denied, 499 U.S. 1038 (1980)....A-20

United States v. Heiden

. th Cir) 1974...... A-21

STATUTES

Fifth Amendment of the Constitution

Of the United States... .cccccccsccsees 2

Title 28 U.S.C. Section 1254(1)......... 2

Title 21 U.S.C. Section 846...........0.6. 2

wacse 22 U.S.C. Section S41 (a)... cescess 3

Title 18 U.S.C. Section L11.........200. 3

Title 18 U.S.C. Section 924(c)(2)....... 3

Federal Rules of Evidence, Rule 803..... 12

Federal Rules of Evidence, Rule 803(3)..19,A-22

Federal Rules of Evidence, Rule 801..... A-14

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

NO.

JESUS TORRES-TORRES, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable, the Chief Justice and

Associate Justices of the Supreme Court

of the United States:

Jesus Torres-Torres, the Petitioner

herein, prays, that a Writ of Certiorari

issue to review the denial of appeal by the

United States Court of Appeals for the

Ninth Circuit entered in the above entitled

case on July 26, 1982 and the Court's de-

nial of Petitioner's petition for rehearing

and suggestion for rehearing en banc on

September 20, 1982.

OPINIONS BELOW

The opinions of the Court are printed

in Appendix A hereto, infra, pages A-1

through A-24.

2

JURISDICTION

The United States Court of Appeals

for the Ninth Circuit denied Petitioner's

timely appeal on July 26, 1982 (Appendix A,

infra, page A-1). A timely petition for

rehearing was denied on September 20, 1982.

The jurisdiction of the Supreme Court is

involved under Title 28 U.S.C. Section

1254(1).

STATUTE INVOLVED

The Fifth Amendment of the Constitu-

tion provides in pertinent part:

"(No person shall) be deprived of

Life, Liberty or property, without

due process of law... ."

STATEMENT OF THE CASE

This is an appeal by Jesus Torres-

Torres from a conviction of conspiracy to

unlawfully distribute heroin, a violation

of Title 21, United States Code, Section

846; a conviction of possession with intent

to distribute heroin, a violation of

3

Title 21, United States Code Section 84l(a);

a conviction of assaulting with deadly

weapons special agents of the Drug Enforce-

ment Administration, a violation of Title

18, United States Code Section III; and a

conviction of unlawfully carrying a firearm

during the offense of possession with intent

to distribute heroin, a violation of Title

18, United States Code, Section 924(c)(2).

An indictment was filed on June 19,

1980, with the Clerk of the United States

District Court for the Eastern District of

California.

On June 23, 1980, appellant was

arraigned and entered a plea of not guilty.

On November 12, 1980, jery trial

commenced.

On November 25, 1980, the jury returned

a guilty verdict on all four counts.

On December 19, 1980, the Court oee-

tenced appellant to twelve years on Counts

I and II each to be served concurrently and

4

to three years on Counts III and IV each,

said three years to be consecutive to the

twelve years’ sentences.

Appellant is currently incarcerated.

On January 19, 1981, petitioner filed

a Notice of Appeal to the Ninth Circuit

Court of Appeals.

On March 15, 1982, a panel of the

Ninth Circuit Court of Appeals reversed

petitioner's conviction of Counts I and II

and remanded the case for a new trial.

On March 27, 1982, the government

filed a Petition for Rehearing and Sugges-

tion for Rehearing en banc.

On May 21, 1982, a panel of the Ninth

Circuit Court of Appeals directed petitioner

to respond to the issue of whether a certain

statement was inadmissible hearsay.

On July 26, 1982, the same three judge

panel of the Ninth Circuit reversed its own

opinion of March 15, 1982. The court with-

drew its March 15, 1982 opinion, affirmed

5

petitioner's conviction of Counts I, III

and IV and reversed petitioner's conviction

of Count II.

On August 9, 1982, petitioner filed

a Petition for Rehearing and Suggestion

for Rehearing en banc.

On September 20, 1982, the Ninth

Circuit Court of Appeals denied this peti-

tion and rejected the Suggestion for

Rehearing en banc.

STATEMENT OF FACTS

On June 11, 1980, Petitioner, along

with Rafael Astorga-Torres, was arrested

at the Sky Ranch Motel in Tulare County,

California.

The three men had driven up on that

day from Los Angeles and had been under

government surveillance during their entire

trip.

Agent Delgado testified that on

June 10, 1980, he had entered into an agree-

ment with Mr. Ambriz to purchase fifteen

ounces of heroin.

Agent Delgado further testified that

Ambriz said he would be bringing someone

to guard him.

Despite objections by the defense,

Agent Delgado was allowed to testify as to

his previous heroin dealings with Ambriz.

Agent Delgado met with Ambriz in

front of Room 7 at the motel where Ambriz

showed him a bag containing heroin.

Subsequently, Ambriz was arrested.

A gun battle erupted between govern-

ment agents and an occupant or occupants

in Room 4 where Petitioner and Rafael

Astorga-Torres were staying.

Petitioner and Rafael Astorga-Torres

came out of Room 4 with Petitioner crawling

as a result of his wounds.

Agent Delgado further testified that

appellant told him that the appellant had

thought that the iaw enforcement officers

were robbers and that Delgado thought

7

appellant was going to die.

Appellant's room was searched without

a warrant.

The car in which appellant had driven

from Los Angeles revealed no heroin.

On or about August 8, 1980, Agent

Delgado searched the motel septic tank

system, in which Room 4 along with three

other rooms emptied, and retrieved two

torn condoms tied at the top and one untorn

condom containing one ounce of heroin.

REASONS FOR GRANTING WRIT

At the conclusion of the trial, the

judge instructed the jury, not once, but

twice, over the objections of trial counsel,

as follows: |

"So, if you find that a defendant

now on trial was not in possession

of the heroin when it was brought

to Tulare County -- I think that I

am gOing to make it. If you find

that a defendant now on trial was

8

not in possession when it was

brought to Tulare County, but you

find that the defendant was present

to guard Ambriz, you may still find

the defendant guilty as to the

offense charged in Count II of the

indictment if you find beyond a

reasonable doubt that the defendant,

one, acted with a conscious pur-

pose to avoid learning that Ambriz

was going to be selling heroin,

and, two, was subjectively aware

of a high probability that Ambriz

was to sell some heroin.

"I am to read this to you again

because its -- you've got to deal

with this instruction carefully

and deliberately. If you find

that a defendant now on trial

was not in possession of the

heroin when it was brought to

Tulare County but you find that

9

the defendant was present to guard

Ambriz, you may still find the

defendant guilty as to the offense

charged in Count II of the indict-

ment if you find beyond a reasonable

doubt that, one, the defendant

acted with a conscious purpose to

avoid learning that Ambriz was

going to be selling heroin, and

two, was subjectively aware of a

high probability that Ambriz was

to sell some heroin.

"Thus, actual or positive knowledge

is not necessary to convict the

accused if he was subjectively

aware of a high probability of

the crucial fact, namely that Ambriz

was to sell some heroin, even

though he consciously or deliber-

ately disregarded that probability

in an effort to remain ignorant

of the fact."

10

In its opinion dated March 15, 1982,

the Ninth Circuit of Appeals panel reversed

Appellant's conviction on Counts I, II and

IV, affirmed the convicticn on Count III

and remanded the case to a new trial.

The Ninth Circuit reversed on Count II

(possession) on the correct conclusion that

the trial court's instruction on possession

by using the so-called Jewell Instruction

was "....far from harmless...." (Court's

opinion, page 8, dated March 15, 1982).

The Ninth Circuit reversed on Count I

(conspiracy) again in the correct conclusion

that the trial court erred in admitting

certain statements and concluded reversible

error as follows:

"As to Ambriz's earlier statements,

only his comment that he intended to

bring guards with him to Tulare was

really prejudicial. That statement

could properly be admitted in a

preliminary hearing before the

11

judge to establish that the agents

had probable cause to suppose that

appellants were parties to the

action and subject to arrest. How-

ever, upon the issue of guilt of

conspiracy the statement was in-

admissible as hearsay since it was

made prior to the existence of any

conspiracy so tar as the record

has established. The judge ac-

knowledged this state of the

record, but nonetheless invited

the jury to find that such a con-

spiracy existed, and instructed

that if they did so find they might

consider the statement for any

purpose. We agree with appellants

that this constituted reversible

error.” (Court's opinion, page 7

dated March 15, 1982).

The government filed a petition for

rehearing and argued that the statements of

12

Ambriz were properly admitted.

On July 26, 1982, the same panel of

the Ninth Circuit Court of Appeals reversed

itself and, while acknowledging error was

"harmless" and held as follows:

"As to Ambriz's earlier statements,

only his comment that he intended to

bring guards with him to Tulare was

really prejudicial. That statement

was properly admitted as evidence

of Ambriz's intent under Rule 803,

Fed.R.Evid. Rule 803 follows the

holding in Mutual Life Insurance

Co. v. Hillmon, 145 U.S. 285, 295-96

(1891), to the effect that a state-

ment of the declarant's intent to

do something is competent "not

as (a) narrative() of facts com-

municated to the (declarant) by

others, nor yet as proof that he

actually (did as he intended,)

but as evidence that * * * he had

13

the intention of (so doing)."

Evidence of that intent can then be

considered by the jury in deter-

mining whether the declarant

subsequently performed the in-

tended act. To the same effect,

United States v. Pheaster, 544

F.2d 353, 374-80 (9th Cir. 1976),

cert. denied, 429 U.S. 1099 (1977)

(applying Hillmon before Federal

Rule of Evidence were in effect);

United States v. Jenkins, 579

F.2d 840, 842-44 (4th Cir.) cert.

denied, 439 U.S. 967 (1978). Here

‘an appropriate limiting instruction

was given. Accordingly we conclude

that Ambriz's statement was prop-

erly admitted not as proof in fact

he did bring guards with him to

Tulare (or that appellants were

those guards) but as evidence that

he had the intent to do so, from

14

which evidence inferences could

properly be drawn by the jury.

For this purpose the statement was

admissible and relevant as to the

other defendants. See United States

v. Pheaster, supra. With respect

to the same statement of Ambriz,

the judge further instructed the

jury that if they found that a

conspiracy existed between Ambriz

and Appellant Astorga-Torres at the

time the statement was made, then

as to that appellant they could

consider the statement "for all

purposes" as the declaration of

a co-conspirator. Arguing that the

record is devoid of any evidence

from which it could be concluded

that a conspiracy existed at that

time, Appellant Astorga-Torres

assigns the giving of this instruc-

tion as error. We accept, arguendo,

15

this contention of error but hold

it to have been harmless. The line

between use of a statement as

proof that the intended act was in

fact ultimately performed (improper

use) and its use as basis for an

inference to that end (proper use)

is at best tenuous. Cf. Nash v.

United States, 54F.2d 1006, 1007

(2nd Cir. 1932) (such limiting

instructions demand of jury "men-

tal gymnastic(s)"). If indeed the

jury understood the instructions

as an invitation to take the short

step from permissible inferences

to impermissible deduction, its

limited impact was overshadowed by

the abundant evidence that appellant

was engaged in some sort of joint

enterprise with Ambriz - evidence

from which it could be inferred

that appellant's function in that

16

enterprise was such as to

call for him to be armed and ready

to use armed force to protect against

instrusion into the affairs of the

enterprise. In our view the more

probable effect of the instruction,

however, was to call the attention

of the jury to the fact that Ambriz's

statement was not entitled to con-

clusive weight as proof of anything.

Under these circumstances, we con-

clude that any error in the in-

struction was harmless."

The Ninth Circuit therefore concluded

that the United States Supreme Court in its

decision of Mutual Life Insurance Co. v.

Hillmon, (1891) 145 U.S. 285, 295-96 per-

mitted such jury instructions and evidence

to come in.

Appellant argued that this is simply

an incorrect reading and application of the

Hillmon Doctrine.

17

It has already been demonstrated that

the jury was invited to convict appellant

of possession of heroin based on the jury

finding that appellant knew or should have

known what a third party (Ambriz) was

doing. The Ninth Circuit has already re-

versed that conviction.

Now the issue is whether it was proper

to invite the jury to convict appellant of

conspiracy based on a statement made by

Ambriz that he intended to bring unnamed

guards with him and further inviting the

jury to find that petitioner was one of the

guards.

As pointed above, the Ninth Circuit

was compelled to acknowledge that the

record shows no evidence that a conspiracy

existed at the time the statement was made.

(Ninth Circuit Court of Appeals Opinion

dated March 15, 1982, page 7, lines 9-17).

In its second opinion, the Ninth

Circuit concluded that the statement was

18

properly admitted to show Ambriz's intent

but not as proof that Ambriz brought guards

(Ninth Circuit Court of Appeals Opinion

dated July 26, 1982, page 7, lines 23-27).

Yet it was precisely to show that

Ambriz brought guards with him and precisely

to show that petitioner was one of the guards

that the jury was invited to find based on

the trial judge's instructions:

"The statements may, however, be

used by you to assess the conduct

of Ambriz afier he made the state-

ments and may be considered by you

to determine if he carried out his

expressed intention to bring guards

with him to Tulare on June 11, and

did in fact have guards with him on

that day in the persons. of defendants

here on trial.

The jury was told it could use the

statements to find that he brought guards

with him in the persons of appellants.

19

This is contrary to both Mutual Life

Insurance Co. v. Hillmon, supra, and United

States v. Pheaster, supra.

As earlier pointed out, the editorial

comments contained in the United States

Code Services Annotations regarding Section

803(3) pointed out:

"However, the House Committee intends

that the Rule can be construed to

limit the doctrine of Mutual Life

Insurance Co. v. Hillmon (1891) 145

U.S. 285, 36 Lawyer's Edition 706,

12th Supreme Court 909, so as to

render statements of intent by a

declarant admissible only to prove

his future conduct, not the conduct

of another person."

In the instant case, the trial judge

instructed the jury not only as to the fu-

ture conduct of Ambriz, but also as to the

future conduct of appellant.

It is finally submitted that there

20

was extreme prejudice to appellant in the

givirg of the so-called Jewell instruction

and that that instruction not only prevented

appellant from receiving a fair trial on

Count II (possession), but also on Count I

(conspiracy).

There is, of course, no way of deter-

mining which Count the jury decided first

or whether the jury did, in fact, use the

Jewell instruction in connection with Count

I as well as Count II. It would appear,

however, that a jury could well find them

inseparable.

What is certain is that both the

government and the trial court felt that

the Jewell instruction applied to both

counts:

"On page 1414 of the reporter's

transcript (Volume 8) even Mr.

Leighton concedes that the Jewell

instruction applies to the con-

spiracy count. . . “because if the

21

defendants got together with Ambriz

and talked about them guarding him,

then the -- they cannot cleim lack

of knowledge of what they were to

guard Ambriz for to negate the fact

that they were co-conspirators if

there was a high probability that

they were subjectively aware of the

high probability that when they

met with Ambriz and decided what they

were to do that they were going

to be guarding Ambriz for the

purpose of him consummating a

heroin transaction. . ." and on

page 1415 (Volume 8) the court

agreed with Leighton and said:

"I can't -- I really don't see the

difference between the aiding and

abetting count and the conspiracy

count as it may be affected by this

instruction. I think the two will

go hand in hand, if the facts go

22

hand in hand. . . so what's the

difference? If they are both the

same. And I don't think that you

can limit it just to count two.

If you're going to use -- I think

it applies to count one as much

as it does to count two."

The law in this area is very clear

regarding both constitutional errors and

non-constitutional errors.

FIRST it is well settled that errors

involving an instruction which state an

unconstitutional presumption are "harmful

per se". See Vacaro vy. United States, 461

F,2d 626 at 635 (Sth Cir. 1972). "When a

jury is instructed in an unconstitutional

presumption, the conviction must be over-

turned, though there was no ample evidence

apart from the presumption to sustain the

verdict." Chapman v. California, 386 U.S.

18 at 44, 87 S. Ct. 824 at 838, 17 L.Ed.2d

705 at 721-22; Vacarro v. United States,

23

supra, at 635.

SECONDLY in Kottemkos v. United States,

328 U.S. 750, the United States Supreme Court

held that a trial court's non-constitutional

error will be considered harmless only when

the court is sure that the error did not

influence the jury or "had but very slight

effect. . ." (emphasis added) at 66 S.Ct

1248. The court stated:

"But if one cannot say, with fair

assurance, after pondering all that

happened without stripping the

erroneous action from the whole,

that the judgment was not substan-

tially swayed by error, it is inm-

possible to conclude that substan-

tial rights were not affected.

The inquiry cannot be merely whether

there was enough to support the

result, apart from the phase af-

fected by the error. It is rather,

even so, whether the error itself

24

had substantial influence. If so,

or if one is left in grave doubt,

the conviction cannot stand."

supra at 66 S.Ct. 1248

The Ninth Circuit, in its opinion of

July 26, 1982, suggested that any error was

cured by the "abundant evidence that appel-

lant was engaged in some sort of joint

enterprise”. (Court's Opinion, page 8,

dated July 26, 1982)

The United States Supreme Court has

held that the fact that the appellate Court

believed the appellant guilty is not enough

to casually dismiss an error as harmless.

See Kottemkos v. United States, (1946) 328

U.S. 750, 763.

One inevitably returns to this court's

opinion in Chapman v. California, >upra, and

the constitutional questions whether the

error or errors were harmless beyond a

reasonable doubt.

It is submitted that the answer must

25

be no and Petitioner is entitled to a new

trial free of constitutional error.

CONCLUSION

For all the foreclosing reasons it is

submitted that Petitioner is entitled to

a reversal on Counts I, II and IV.

Respectfully submitted,

CARL M. STEIN

26

CERTIFICATE OF SERVICE

I, Deborah A. Appel, a resident of the

County of Sacramento, State of California

and over the age of eighteen (18) years,

hereby certify that on this 18th day of

November, 1982, I served three (3) copies

of the foregoing "Petition For A Writ Of

Certiorari To The United States Court Of

Appeals For The Ninth Circuit" by placing

said copies in the U.S. Mail, upon the

Solicitor General, Rex E. Lee, Department

of Justice, Tenth and Constitution Avenue,

Washington, D.C. 20530.

27

I, Deborah A. Appel, do hereby say

as follows:

1. That on November 18, 1982, I de-

posited in a United States Post Office

with first class postage prepaid, and

properly addressed to the United States

Supreme Court, I mailed this Petition

for Writ of Certiorari. Said mailing

was done at the Federal Post Offices,

2000 Royal Oaks Drive, Sacramento,

California.

Dated: November 18, 1982.

Sworn to and subscribed before me on the

above written date.