# Petition — Torres-Torres v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1189%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1108

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1189%3A1. Public record. Not legal advice.