Petition — Rodriguez-Ramos v. United States

Office - Supreme Court, U.S.

¢ FILED

No. WAY 28 1965

ER L. STEVAS.

CLERK

In THE

Supreme Court of the United States

Octroser Term, 1982

AMADOR RODRIGUEZ-RAMOS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

MICHAEL J. GUINAN®

39 South LaSalle Street

Suite 1100

Chicago, Illinois 60603

(312) 236-2803

Attorney for Petitioner

GEORGE E. BECKER

ALPHONSE C. GONZALES

39 South LaSalle Street

Chicago, Illinois 60603

Of Counsel * Counsel of Record

PARENT LNA ANTE LS ERE OLEAN NEC IEE SSSI OMG HELLER NEE LEE ELLIS

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED

Did the United States Court of Appeals for the First

Circuit err when it dismissed the Petitioner’s, Amador

Rodriguez-Ramos’, appeal from a jury verdict and judg-

ment entered in a conspiracy case brought under 21

U.S.C. Sec. 841(a)(1) and 846 when the Petitioner alleged

constitutional violations of his right to counsel, of his

right to be free from unreasonable searches and seizures

and of his due process rights?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ............ccccescorecncceeeeees

TAT OE ATES cccccceccsccsesscseceessnceessss

Oe NI vrcesetinttansinsascascenscscsesosssscescenneses

EI RE aii epcersisremorisecoranensenvecersnnnassacenesene

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ...........ccccceceeees

STATEMENT OF THE CASE. ............cccccoccsssescees

Ur ee CI RES aiccccncscccssnccccsecsesceneconnsees

REASONS FOR GRANTING THE WRIT:

i.

The Trial Court Violated Appellant’s Consti-

tutional Rights By Denying His Request For

Continuance And The Denial Caused Him To

Be Inadequately Represented At Trial .........

II.

The Trial Court Error In Denying Appellant’s

Motion To Suppress Evidence Was A Vio-

lation Of His Fourth Amendment Constitu-

EES LL ELAS COE IE OD

III.

The Unreasonable Courtship Of The Appellant

By Government Agents Violates Fundamental

Fairness And Due Process Principles Of The

Te i ccrsccrnensnencenanconscsonenah

Ce occa tcetncscesscencesnsonsnesnentnpanoncesees

14

ili

APPENDIX

1—Opinion of Court of Appeals ............ccccceeeees App. l

2—Trial Court’s Judgment and Sentence ......... App. 12

3—Trial Court’s Docket Entries. ............ccccccessees App. 14

TABLE OF AUTHORITIES

Cases

Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586,

Oe a aie beceonctnnnrcereveransence

Brown v. United States, 411 U.S. 228, 93 S.Ct.

RI, Oe ee Ge CEE cesicncccenctcccnscccscccesenss

Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed.

ets ecenconcaesnnes

Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287,

i MF CINE vise icenecencacecceceronccensencescsmes

Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978) .

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457,

Oe ie re arr ectereseteceerccessens

Hampton v. United States, 425 U.S. 484, 96 S.Ct.

PE, Oe Fae BE CREED wencnccccccccsecescesssesneenss

Harrison v. United States, 7 F.2d 259 (2nd Cir.

i ececccannsenanentnsnnactnnions

Krulewitch v. United States, 336 U.S. 440, 69 S.Ct.

Te Oe i Fe a hccecse cn eevercseseeeeneenes

Lee v. United States, 98 U.S. App. D.C. 274 (1956) ..

Olson v. United States, 2368 U.S. 323, 87 S.Ct. 429,

Be i I cirri tnscccenncncasccccceneesacs

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77

BT ira eetnnccecncstesenncorecnenees

Rakas v. Illinois, 489 U.S. 128, 99 S.Ct. 421, 58

De i eicseetecinnaenemmscenonene

19

10

18

iv

Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2565,

Ee i NE I CE ore ceecsccncccnecsscrecesncreesnsecsees

Simmons v. United States, 390 U.S. 377, 88 S.Ct.

BF i ee BIE CED cvvccedisossscnceisccsececesnce

Sherman v. United States, 356 U.S. 369, 78 S.Ct.

Be ee ee I rcctenscceracccsnessnceccensenscncesece

Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981) ......

Sorrells v. United States, 287 U.S. 435, 53 S.Ct.

Be Bt Be FD vescesicccccecccceccosncecasscensnsens

United States v. Brown, 495 F.2d 593 (1st Cir.

oon sveecctttentoteccnrtecson niece

United States v. Burton, 384 F.2d 485 (D. of C. Cir.

Ti ah vecntconecieacosencsasan 8, 9,

United States v. Chadwick, 433 U.S. 1, 97 S.Ct.

Bey Oe ET e Ge CSTE) ocncaccssscccrcccercccscansasee

United States v. Cleary, 656 F.2d 1327 (9th Cir.

oi, sa cceansuneonavaanadesncabscien

United States v. Correia, 531 F.2d 1095 (1st Cir.

oo evtcannnssccroemdsauncainesnn

United States v. Dall, 608 F.2d 910 (1st Cir. 1979) ...

United States v. Dilworth, 524 F.2d 470 (5th Cir.

sc csnsacenindecsnanececnandonnia

United States v. Lespier, 558 F.2d 624 (lst Cir.

one neaninaeaceoveccstnconns

United States v. Mitchell, 354 F.2d 767 (2d Cir.

ieee es etisesetsensscaeamnnnc

United States v. Poulack, 556 F.2d 83 (1st Cir.),

cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.

Me ica iicccacstreteenecnccers

United States v. Rodriguez, 612 F.2d 906 (5th Cir.

icc iscks cosecscoeenenncans

United States v. Rodriguez- Vallejo, 496 F.2d 960

ia sccinscniechcacenectscinsinstecncoucs

United States v. Russeil, 411 U.S. 423, 93 S.Ct.

PE Ue Ci, Ge CITE enncicccscncsccsencisescccreesonenee

10,

13

10

18

Vv

United States v. Salvucci, 448 U.S. 83, 100 S.Ct.

BT, Gio Ee ee Gh CED vevcicsesccescnsncoccssusccsuces 14

United States v. Waltham, 579 F.2d 64 (lst Cir.

a isis cieelvecpecrccvacavcnn 9

Constitutional Provisions and Statutes

ESS ES NOOSE SANRIO 2

ee i vvveneeaceneresccamn 8, 9

RO OD Oe G0 ori lrcicicises censecckncnccsnecacanens 2. a

I rarer irtaststnntesecnscencincensnenn 2, 19

In Tue

Supreme Court of the United States

Octoser Term, 1982

AMADOR RODRIGUEZ-RAMOS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

mere cen ita ae Nc

egret tenses ann Arie tes annette ee

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Amador Rodriguez-Ramos hereby petitions that a writ

of certiorari be issued to review the judgment and opin-

ion of The United States Court of Appeals for the First

Circuit entered on April 1, 1983.

OPINION BELOW

The judgment and opinion of The United States Court

of Appeals for the First Circuit was entered on April 1,

1982 (No. 82-1128). The opinion is attached hereto as

Appendix 1.

a ee

JURISDICTION

een smn

The judgment of The United States Court of Appeals

for the First Circuit (App. 1) was entered on April 1,

1983, affirming the Petitioner’s conviction dated Janu-

ary 21, 1982. The jurisdiction of the court is invoked

under and pursuant to 28 U.S.C. Sec. 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitution of The United States, Amendment V,

which provides in pertinent part:

“No person shall . . . be deprived of life, liberty or

property, without due process of law . . -

Section 841(a)(1) of Title 21 U.S.C. provides:

“(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or inten-

tionally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a counterfeit

substance”.

Section 846 of Title 21 U.S.C. provides:

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not ex-

ceed the maximum punishment prescribed for the

offense, the commission of which was the object of

the attempt or conspiracy”.

a

STATEMENT OF THE CASE

a rina

This is an appeal from a conviction for conspiracy to

violate the federal narcotics control laws. The appellant

was charged along with Freddie Mercado and John Doe,

a/k/a Israel, in a one count indictment with conspiracy to

possess with intent to distribute cocaine in violation of

Title 21 U.S.C. Sec. 841(a)(1) and 846.

The appellant was arrested on September 17, 1981 in

Ft. Lauderdale, Florida. After posting bond and waiving

a removal hearing, the defendant was ordered to appear

in San Juan, Puerto Rico on October 29, 1981. Indicted

co-defendant, Freddie Mercado was arrested in Arecibo,

Puerto Rico on the same day. John Doe, a/k/a Israel, was

never arrested and did not appear at trial.

The case was assigned to Judge Carmen Cerezo for

trial and on motion of appellant the arraignment was reset

for November 10, 1981. (R-1). At a pretrisi conference,

the trial court set a trial date of December 21, 1981. (R-

5). Without any notice to the parties, the case was trans-

ferred to Judge Jose Torruella on December 4, 1981, (R-

2) who advanced the trial date to December 14, 1981.

Attorneys for appellant learned of the advancement of

the case for trial on December 7, 1981. Appellant im-

mediately filed a motion to continue the trial date, but

that motion was denied on December 10, 1981. (R-6). On

December 14, 1981 lead counsel, Michael J. Guinan, and

local counsel, Scott Kalisch, could not be present due to

trial commitments in other courtrooms. Over objections

of appellant that his attorneys did not have sufficient

time to prepare for trial and that the attorney of his

choice was not present, the appellant was ordered to trial.

When Judge Jose Torruella threatened to revoke bond if

sosinllie

appellant did not start the trial, the appellant agreed

to start the trial represented by co-counsel, Alphonse

C. Gonzales. Gonzales was recently retired from public

office, had no trial experience and was hired solely to aid

the lead counsel in communication problems with the

Spanish speaking appellant.

The trial commenced on December 15, 1981. Co-defen-

dant, Israel, was a fugitive and was not present for trial.

Defendant, Freddie Mercado, was found not guilty by

the jury and discharged. On December 20, 1981 a jury

verdict of guilty was returned against the appellant,

Amador Rodriguez.

On December 28, 1982 appellant filed motions for a

new trial and judgment notwithstanding the verdict. The

court denied all post-trial motions, and on January 21,

1982 sentenced the appellant to ten (10) years in the

custody of the U.S. Attorney General. Appellant filed

notice of appeal on January 27, 1982. The First Circuit

affirmed the petitioner’s conviction on April 1, 1983.

STATEMENT OF FACTS

On August 17, 1982 Appellant, Amador Rodriguez,

was arrested by U.S. Drug Enforcement agents in the

parking lot of the Fort Lauderdale airport. He had just

traveled by commercial airline from Chicago, Illinois

with a female companion, Iris Ruiz. The appellant was

met in the airport terminal as he deplaned by DEA

undercover agent Jorge, and was taken to a car where he

was shown a cardboard box that contained sham cocaine.

As the appellant and agent Jorge stood at the open trunk

a oa

of the car allegedly looking at a substance that resembled

cocaine, an arrest signal was given.

The appellant was charged with conspiring with two

others to buy the sham cocaine by agreeing to give a deed

to a house he owned in Arecibo, Puerto Rico. (T-310).

During the trial, a paid informer and two drug agents

testified to the development of the sting operation. Jose

Roman Velez, a paid government informant since Janu-

ary, 1980, testified he had been a neighbor of co-defen-

dant, Freddie Mercado, in Arecibo, Puerto Rico for five

years, and learned through him that Mercado’s cousin,

the appellant, was in the process of selling a house

located in Arecibo for $150,000.00. (T-68-76). The inform-

ant, a/k/a Tito, was instructed by agent Jorge to set up a

meeting between Mercado and drug agents. (T-99).

The first meeting concerning the sale of appellant's

house was held between the informant, Mercado and

drug agents Jorge and Fernandez in Arecibo, Puerto

Rico on December 12, 1980. There was no conversation

concerning the transfer of the house for drugs at this

meeting. The drug agents were then taken to the house

and shown through it. During the tour there was conver-

sation concerning controlled substances, but no con-

versation :bout exchanging drugs for the house. (T-335-

378). Co-d2fendant Mercado wanted to help sell the house

because he was promised a commission if his help re-

sulted in a sale. (T-382).

In January, 1981, appellant arrived in Puerto Rico, and

when agent Jorge was informed of this, he ordered Tito

to set up a meeting with the appellant. On January 5,

1981 a meeting was held between appellant, co-defen-

dants Mercado and Israel, Tito, and drug agents Jorge

and Fernandez. Agents Jorge and Fernandez testified

ae

that the appellant was interested in accepting money

or drugs in exchange for his house that was valued at

$150,000.00. (T-119-143).

Subsequent to the meeting, Tito learned that the ap-

pellant was leaving Puerto Rico and reported this infor-

mation to agent Jorge. Tito was instructed to set up

another meeting. On January 8, 1981, agent Jorge met

appellant and co-defendant Israel at the airport in Areci-

bo, and during that meeting the appellant told Israel to

give agent Jorge a sample of cocaine. (T-181). After ap-

pellant left, Israel took agent Jorge to his car in the park-

ing lot where he gave him a small quantity of cocaine.

(T-182).

Both meetings, January 5, 1981 and January 8, 1981 be-

tween the appellant and drug agents were conceived and

solicited by the drug agents, and the conversations con-

cerning the sale of the house for drugs were always insti-

gated and prodded on by the drug agents. (T-140-276).

After leaving the airport in Arecibo, the appellant re-

turned to Chicago, Illinois where he resided with his wife

and family. Neither the appellant nor co-defendant Mer-

cado made any effort to contact the drug agents again.

(T-144-288). However, the drug agents began a series of

telephone calls from San Juan to Chicago and relent-

lessly and persistently badgered the appellant to seli his

house for drugs. (T-120). From January 8, 1981 to Au-

gust 17, 1981, the agents called the appellant five times;

four of the five telephone calls were recorded. (T-146).

Agent Fernandez testified that he placed a telephone

call to Chicago on August 10, 1981 and that he discussed

heroin and cocaine, but Fernandez was not certain he

spoke with the appellant. (T-138). This call was not

recorded due to a recorder malfunction. During the

ee

September 3, 1981 recorded telephone conversation, ap-

pellant agreed to travel to Fort Lauderdale to meet the

drug agents and discuss selling his house for drugs.

(T-138-145).

On September 17, 1981, when appellant and Iris Ruiz

arrived at the Fort Lauderdale airport terminal, the ap-

pellant handed his travel bag to Ms. Ruiz so that he could

carry a large blue suitcase that had been checked with

the airlines in Chicago. (T-315). Agent Jorge had met the

appellant and Ms. Ruiz as they deplaned and while wait-

ing for the suitcase at the baggage claim area, the ap-

pellant told agent Jorge that he had the house deed with

him. (T-261 and 318). As they walked from the terminal,

Ms. Ruiz carried appellant’s travel bag and appellant

carried the large blue suitcase. (T-306 and 315). Agent

Jorge led them to the car that had been planted by the

DEA agents with a cardboard box containing three kilo-

grams of “sham cocaine.” (T-226). At the car, agent Jorge

opened the trunk and showed Rodriguez-Ramos the box.

Rodriguez-Ramos raised his arms and asked if agent

Jorge was “crazy”. (T-263). Agent Jorge then moved the

box which was the signal for the other agents to move in

for the arrests. The agents moved in quickly as appellant

stood with his arms raised, arrested the appellant and

Ruiz and seized the two pieces of luggage. (T-312). The

travel bag was taken to DEA headquarters in Fort

Lauderdale and opened without a search warrant. The

agents opened a sealed envelope found inside the travel

bag and found a deed to the appellant’s house in Arecibo,

Puerto Rico. (T-308-324). The appellant filed a motion to

suppress the admission of the deed into evidence. The

trial court denied the motion and admitted the deed into

evidence.

ai.

REASONS FOR GRANTING THE WRIT

I.

THE TRIAL COURT VIOLATED APPELLANT'S CON-

STITUTIONAL RIGHTS BY DENYING HIS REQUEST

FOR CONTINUANCE AND THE DENIAI. CAUSED

HIM TO BE INADEQUATELY REPRESENTED AT

TRIAL.

In all criminal prosecutions the accused shall enjoy the

right to have assistance of counsel for his defense. United

States Constitution Amendment VI. The Sixth Amend-

ment guarantees that a person brought to trial in any

Federal Court be offered the right to assistance of coun-

sel before he can be validly convicted. United States v.

Burton, 384 F.2d 485 (D. of C. Cir. 1978). The impor-

tance of counsel’s function to the effective operation of our

adversary system is unquestioned. Glasser v. United

States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

An essential element of the Sixth Amendment’s pro-

tection of the right to the assistance of counsel is that a

defendant must be afforded a reasonable opportunity to

secure counsel of his own choosing. Powell v. Alabama,

287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The Su-

preme Court has held on numerous occasions that:

“it is hardly necessary to say that, the right to coun-

sel being conceded, a defendant should be afforded a

fair opportunity to secure counsel of his own choice.”

Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2

L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 75

S.Ct. 1, 99, L.Ed. 4 (1954); Powell, supra.

The appellant concedes that the right to retain counsel

of one’s own choice is not absolute. The right cannot be

insisted upon in a manner that would obstruct an orderly

silos

procedure in courts of justice, and deprive such courts of

the exercise of their inherent powers to control the same.

Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978); United

States v. Poulack, 556 F.2d 83 (1st Cir.), cert. denied, 434

U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977).

It is axiomatic that the district court has the inherent

power to control its own docket to ensure that cases

proceed before it in a timely and orderly fashion. The

power to grant or deny a continuance is a basic tool

which is committed to the discretion of the trial court to

effectuate this purpose. United States v. Correia, 531

F.2d 1095 (1st Cir. 1976).

This discretion in controlling its own docket gives the

trial court the power to set cases for trial and to grant or

deny continuances. The court’s power is such due to the

public’s strong interest in the prompt, effective and ef-

ficient administration of justice. The public’s interest in

the dispensation of justice that is not unreasonably de-

layed is great. Burton, supra. There are no mechanical

tests for deciding when a denial of a continuance is an

abuse of discretion. Each case must be evaluated on its

own facts. Poulack, supra; United States v. Waltham, 579

F.2d 64 (1st Cir. 1978).

When a continuance is sought to replace or retain coun-

sel the defendant’s Sixth Amendment rights to assistance

of counsel is implicated. The right of choice of counsel is

related to the right to adequate time to prepare for trial.

While counsel is not entitled to unlimited preparation

time, he is entitled to reasonable preparation time. The

question of reasonable preparation time is closely related

to the issue of inadequate assistance of counsel. If prepa-

ration time is unreasonably short, counsel cannot com-

petently represent his client, and may make negligent

10.

omissions or acts that deprive the defendant of his con-

stitutional right to assistance of counsel for his defense.

Burton, supra.

The question of a reasonable delay depends on the cir-

cumstances of each case. Factors to be considered by the

trial court are:

1. Whether other continuances have been granted or

requested; United States v. Brown, 495 F.2d 593

(1st Cir. 1974);

29 The balanced convenience or inconvenience to

the litigants, witnesses, counsel, and the court,

Brown, supra;

3 Whether the delay is for legitimate reasons, or

whether it is dilatory, purposeful, or contrived;

United States v. Dilworth, 524 F.2d 470 (5th Cir.

1975); United States v. Rodriguez-Vallejo, 496 F.2d

960 (4th Cir. 1974);

4. Whether the defendant contributed to the circum-

stances which gave rise to the request for continu-

ance; Rodriguez-Vallejo, supra, Lee v. United States,

98 U.S. App. D.C. 274 (1956);

5. Whether the defendant has other competent coun-

sel prepared to try the case including the consider-

ation of whether other counsel was retained as lead

or associate counsel; Brown, supra;

6. The complexity of the case; United States v. Mitchell,

354 F.2d 767 (2d Cir. 1966).

In the instant case, Judge Cerezo, set a December 21,

1981 trial date on November 30, 1981. (R-24). On Decem-

ber 4, 1981 the case was transferred without reason to

Judge Torruella’s docket. (R-25). On December 4, 1981,

Judge Torruella advanced the trial to December 14, 1981.

The appellant filed for a continuance upon receiving

notification of the transfer of case and change of trial

date upon the court’s own motion. (Appendix 16-19) The

“a

appellant was out on bond and had been arraigned on

November 10, 1981 only 34 days prior to the trial date.

(R-17).

The appellant also filed a second motion for a continu-

ance on December 14, 1981. (R-26). The motion included

the appellant’s affidavit which requested Mr. Michael J.

Guinan to represent him at trial. The motion and affi-

davit set out the basis for the continuance and the cir-

cumstances surrounding the multiple counsel represent-

ing the appellant in the case.

The appellant had retained Mr. Michael J. Guinan as

lead counsel at trial. Mr. Alphonse Gonzales had been

retained to aid Mr. Guinan with his communication dif-

ficulties with the Spanish speaking appellant. Mr. Scott

Kalisch was retained as local counsel solely to comply

with the Federal Rules of Procedure for District of

Puerto Rico.

On December 14, 1981, Mr. Kalisch was on trial in

another case. Mr. Guinan was in Los Angeles litigating a

different case. Mr. Gonzales, an attorney who was

recently retired from public office and had no trial!

experience went to Puerto Rico to seek a continuance for

the defendant. The court ordered Mr. Gonzales to begin

trial for the appellant.

The government argues that the appellant agreed to

have Mr. Alphonse C. Gonzales, argue pretrial motions.

It is true that the appellant agreed to have Mr. Gonzales

argue his pretrial motions, but he only did so after the

trial judge threatened to revoke his bond and incarcer-

ate him if he did not begin trial with Mr. Gonzales as his

attorney.

Unfortunately, the transcript which contains this por-

tion of the trial apparently does not exist. The appellant

a,

requested all portions of the transcript relating to the

pretrial motions be prepared for his appeal, on February

1, 1982. (R-80). Despite numerous telephone calls and

letters to the court reporter the transcript has mysteri-

ously never been prepared.

A review of the transcript in this case shows errors

made by Mr. Gonzales, but also raises the question of the

accuracy of the transcript itself. According to the tran-

script, Mr. Maldonado (who represented 2 co-defendant

at trial) made a motion “on behalf of his client, Amador

Rodriguez”, the appellant in this case. (T-60). Later in the

trial Mr. Maldonado apparently raised another motion on

behalf of Rodriguez, who he did not represent at trial.

(T-64).

Apparently, Mr. Gonzales did have some difficulty in

making objections at trial. On numerous occasions the

trial judge informed him to make proper objections, once

even holding a side bar on the issue. (T-68, 69, 93). This is

not the type of conduct that gives rise to adequate repre-

sentation of a client.

More is involved in this case than some mistakes by an

inexperienced attorney. A question of reasonable prepa-

ration time for the appellant’s lead counsel is also in-

volved. Mr. Guinan, the lead counsel was litigating a case

in Los Angeles on December 14, 1981. He was forced to

fly all night and begin trial on December 15, 1981.

The lack of reasonable preparation time is readily ap-

parent from these facts. If preparation time is unrea-

sonably short, counsel cannot competently represent his

client, and may make negligent omissions or acts that

deprive the defendant of his constitutional right to assist-

ance of counsel for his defense. United States v. Burton,

384 F.2d 485 (D. of C. Cir. 1978).

i.

In reviewing the trial judge’s activities in this case, the

court should look to the case of United States v. Lespier,

558 F.2d 624 (1st Cir. 1977) for guidance. The Lespier

case had been pending on the court’s docket for over

three years. The charges were for misdemeanor assault.

A September trial date was set on April 1, 1975. Yet,

counsel for defendant filed a motion for a continuance in

order to attend a political seminar. The motion for a con-

tinuance was denied and an inexperienced associate

attorney was forced to trial. This court reversed and

remanded the Lespier case for a new trial because of

the above stated facts.

Certainly, the situation in the instant case deals with

a much harsher set of facts. Additional consideration

should be given to the fact that the appellant only sought

a court order returning this case to the original trial date

of December 21, 1981. This would have given appellant’s

lead counsel time to prepare for the trial. The trial judge

never considered this factor and never inquired as to the

probable length of the unavailability of the appellant’s

counsel of choice. The failure to make such an inquiry

was held to violate the Sixth Amendment’s right to coun-

sel in Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981).

This was a felony case of great magnitude involving a

novel theory of law enforcement tactics. The case had

only been pending on the criminal docket for a short

time. The appellant was out on bail. An obvious legiti-

mate reason existed for the trial court to grant a short

continuance, especially in light of the fact that it ad-

vanced trial one week prior to the litigation commencing.

When all the factors are considered by this court there

can be no doubt that the trial judge abused his discre-

tion when he denied appellant’s request for a continuance

and that said denial was a violation of appellant’s Sixth

oe, ae

Amendment rights to effective counsel as well as Fifth

Amendment due process rights because his counsel could

not properly defend him at trial. This violation of rights

mandates a reversal of defendant’s conviction.

II.

THE TRIAL COURT ERROR IN DENYING APPEL-

LANT’S MOTION TO SUPPRESS EVIDENCE WAS A

VIOLATION OF HIS FOURTH AMENDMENT CON-

STITUTIONAL RIGHTS.

In order to challenge on Fourth Amendment grounds

the introduction of evidence at one’s trial, that person

must demonstrate a legitimate expectation of privacy in

the area searched. United States v. Salvucci, 448 U.S. 83,

92, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The proponent of a motion to suppress has the burden

of establishing that his own Fourth Amendment rights

were violated by the challenged search and seizure.

Rakas v. Iilinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d

387 (1978); Simmons v. United States, 390 U.S. 377, 88

S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The trial court must consider a number of factors to

determine if a defendant can establish the standing

prerequisite before deciding if an illegal search took

place. Ownership alone is not enough to establish a rea-

sonable and legitimate expectation of privacy. Rakas,

supra; Brown v. United States, 411 U.S. 223, 93 S.Ct.

1565, 36 L.Ed.2d 208 (1973). It is the totality of the cir-

cumstances which determines whether one has a legiti-

mate expectation of privacy in the locus of the search.

Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2565, 65

L.Ed.2d 633 (1940); United States v. Dall, 608 F.2d 910

(1st Cir. 1979).

in

When looking at the totality of the circumstances, the

court must look to the area searched and the type of item

searched. As the Supreme Court held in Arkansas v.

Sanders, 422 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 235 (1979):

“The guarantee of freedom from unreasonable

searches and seizures by the Fourth Amendment

has been construed, practically since the beginning

of government, as recognizing the difference be-

tween the search of a store, dwelling house or other

structure in respect of which a proper official war-

rant may be readily obtained, and a search of a ship,

boat, automobile. . .”

The difference between warrantless searches of auto-

mobiles and other types of private property lies in the

inherent mobility of automobiles, United States v. Chad-

wick, 433 U.S. 1, 97 S.Ct. 2476, 538 L.Ed.2d 538 (1977),

and the lack of reasonable expectation of privacy with

respect to such property. Rakas, supra.

Luggage on the other hand has traditionally received

the same warrant protections that homes have received.

The Supreme Court has recognized that luggage is a

common repository for one’s personal effects, and there-

fore is inevitably associated with the expectations of priva-

cy. Arcansas v. Sanders, supra. The critical factor relied

on in Arkansas v. Sanders was the objective nature of

the suitcase as personal luggage, i.e. the inherent nature

of the container itself rather than the behavior of its

owner. United States v. Cleary, 656 F.2d 1327 (9th Cir.

1982). A lawful search of luggage may be performed only

pursuant to a warrant. Chadwick, supra.

In this case a travel bag was seized from the appellant

at the time of his arrest. The bag was being carried by

his female companion. A warrantless search of the bag

turned up the deed to a house which the government

sought to introduce as evidence at trial. The tria! court

se, | ae

denied appellant’s motion to suppress the evidence seized,

holding that he did not establish standing because the

travel bag was being carried by another person. The

government then introduced the deed as evidence of the

conspiracy at trial.

Unrebutted evidence was presented by the appellant

which showed the bag contained several of his personal

items, his money, and an envelope containing the deed to

his house. The appellant also testified that the female was

carrying his light travel bag, while he carried her heavier

Suitcase. The appellant did not deny ownership of the

travel bag at the time of his arrest. Clearly, the appellant

presented prima facie evidence that he had a legitimate

expectation of privacy in the travel bag and its contents.

When the travel bag was seized, no evidence and/or

probable cause existed to believe that the luggage con-

tained contraband. As in Chadwick, supra, and Sanders,

supra, the officers had the luggage exclusively within

their contro] at the time of search. No exigent circum-

stances existed in this case yet, the law enforcement au-

thorities conducted a warrantless search of the luggage

after it was under their complete control. There can be no

question the search violated the Fourth Amendment of

the United States Constitution.

Additionally, the evidence adduced at the hearing on

the motion to suppress showed appellant’s deed to a house

was contained in a sealed envelope in the luggage that

was searched. Even if this court were to find that the

appellant had no expectation of privacy in the travel bag,

he clearly has an expectation of privacy in an envelope

that contains the deed to his house. No exigent circum-

stance existed which would have allowed the law en-

forcement officials to search the envelope without a war-

a i

rant. Therefore, the warrantless search of the envelope

which contained the deed violated the appellant’s Fourth

Amendment freedoms.

By allowing the two warrantless so2rches the trial

court abrogated the appellant’s constitutional right to be

free from unreasonable searches and seizures. The drug

agents clearly exceeded their powers by unreasonably

searching both the appellant’s luggage and envelope

when they could have easily obtained a warrant.

Il.

THE UNREASONABLE COURTSHIP OF THE AP-

PELLANT BY GOVERNMENT AGENTS VIOLATES

FUNDAMENTAL FAIRNESS AND DUE PROCESS

PRINCIPLES OF THE FOURTH AMENDMENT.

The rash of drug cases over the last decade have caused

the courts to focus on virtually novel defenses, that if

successfully raised, bar a conviction. These defenses

allege, in essence, that the crime charged would not have

been committed except for the unreasonable conduct of

the arresting law officers. In the instant case, the conduct

of the drug agents did not constitute “entrapment” nor

“outrageous police conduct”, but did violate the “funda-

mental fairness” principal of due process.

Entrapment, which has been defined as the conception

and planning of an offense by an officer of the law and

his procurement of its commission by one who would not

have perpetrated it except for the trickery, persuasion

and fraud of the officer. Sorrells v. United States, 287 U.S.

435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). If a defendant is

induced by government agents to engage in a prescribed

activity, no conviction may be had against him. Sherman

v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed. 848

(1958).

on Sh

Since United States v. Russell, 411 U.S. 423, 93 S.Ct.

1637, 36 L.Ed. 366 (1973), the defense of entrapment has

focused on the predisposition of the defendant. Where the

subjective mental state of predisposition existed at the

time of the crime’s occurrence no entrapment defense can

exist.

The defense of entrapment must be raised by the de-

fendant, and he must take the stand at trial and admit to

doing the acts alleged in the indictment. The issue of en-

trapment then becomes a fact question for the jury to

resolve. Olson v. United States, 388 U.S. 323, 87 S.Ct. 429,

17 L.Ed. 394 (1966).

Another defense is outrageous police conduct. This

conduct can bar a conviction even though the defendant

had a predisposition to commit a crime, if the over-

involvement of the police officers reached a demonstrable

level of outrageousness. Hampton v. United States, 425

U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1978). The de-

fense of outrageous government conduct is a question of

law. The defense arises when the court is presented with

a situation in which the conduct of law enforcement

agents is so outrageous that due process principles are

violated, and this conduct would absolutely bar the gov-

ernment from invoking the judicial process to obtain a

conviction. Russell, supra.

This case is neither one of entrapment nor outrageous

police conduct. The unreasonable courtship of the ap-

pellant by government agents fails somewhere in be-

tween the two recognized defenses.

A review of the facts in a light most favorable to the

government could indicate that the appellant had the

predisposition to violate federal narcotics laws. There-

fore, the defense of entrapment should be ruled out by

ti.

this court. The conduct of drug agents in the instant case

was not outrageous, as in Hampton, supra. In fact, the

government used a well planned sting operation to in-

volve the appellant in the crime.

The evidence adduced at trial showed that the two

meetings between drug agents and the appellant as well

as the five telephone conversations between the parties

were instigated and prodded on by the drug agents. (T-

140-276). The appellant never called the drug agents or

contacted them to set up a meeting. Without the illicit

courtship of the government agents over a nine month

period of time, no crime would have occurred.

The unreasonableness of a conviction based on the in-

stant set of facts violates the fundamental fairness and

the due process principles of the Fourth Amendment of

the United States Constitution.

The ease with which a modern day conspiracy charge

can be proven spotlights the inherent danger in allowing

unreasonable police conduct. “The looseness and pliabili-

ty of the (conspiracy) doctrine present inherent dangers

which should be in the background of judicial thought

whenever it is sought to extend the doctrine to meet the

exigencies of a particular case.” Krulewitch v. United

States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949)

(concurring opinion).

One of the major factors contributing to these dangers

is the fact that the conspiracy charge has become the

“darling of the modern prosecutor’s nursery” and that

defendants charged with such a crime can be easily

convicted even if iiinocent. Harrison v. United States, 7

F.2d 259, 263 (2nd Cir. 1925) (L. Hand, J.). Additionally,

the courts have now held that conspiracy indictments

brought under 21 U.S.C. Sec. 846 do not require proof of

eee

an overt act. United States v. Rodriguez, 612 F.2d 906

(5th Cir. 1980).

Due to the related burden the government must meet

to prove an agreement between individuals as an element

of conspiracy, it should not be allowed to take affirmative

Steps to cause that agreement to come about. In the in-

stant case no crime would have occurred without the plan

being conceived by the drug agents and persistent pur-

suit of the appellant by the drug agents who were bent on

inculpating the appellant in a crime.

The fact that the drug agents actions violated constitu-

tional provisions of fundamental fairness and reasonable-

ness make the issue one of law rather than fact. In this

respect the facts in the instant case are more like out-

rageous conduct than entrapment. The unreasonableness

of the drug agents conduct should obviate the need of the

appellant to plead and prove “unreasonable courtship” as

a defense.

The “unreasonable courtship” by the government

agents and resulting denial of due process mandates

reversal of the conviction of the appellant.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Court should grant the Petition for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the First Circuit.

Respectfully submitted,

MICHAEL J. GUINAN*

39 South LaSalle Street

Suite 1160

Chicago, Illinois 60603

(312) 236-2803

Attorney for Petitioner

GEORGE E. BECKER

ALPHONSE C. GONZALES

39 South LaSalle Street

Chicago, Illinois 60602

Of Counsel *Counsel of Record

App. 1

APPENDIX 1

Se ceeeetaeenemenmemtmmeeammerel

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 82-1128

UNITED STATES OF AMERICA,

Appellee,

Vv.

AMADOR RODRIGUEZ-RAMOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

For THE DISTRICT OF PUERTO RICO

[Hon. Juan R. Torruella, U.S. District Judge]

Before

Coffin, Chief Judge,

CAMPBELL and BOWNES, Circuit Judges.

Michael J. Guinan, with whom George E. Becker, and

Alphonse C. Gonzales were on brief, for appellant.

Everett M. De Jesus, Assistant United States Attor-

ney, with whom Daniel Lopez Romo, United States

Attorney, was on brief, for appellee.

April 1, 1983

App. 2

CoFFIN, Chief Judge. Appellant, Amador Rodriguez-

Ramos, was convicted of conspiracy to possess with the

intent to distribute cocaine in violation of 21 U.S.C.

§§ 841(a) and 846. He argues four bases for reversal: (1)

the district court violated his Sixth Amendment right to

assistance of counsel when it denied his request for a

continuance; (2) it erred in denying his motion to sup-

press certain evidence; (3) it erred when it denied appel-

lant’s motion to dismiss the indictment as based on

improper grand jury testimony; and (4) “unreasonable

courtship” by government agents violated his Fifth

Amendment rights to due process and fundamental fair-

ness. We affirm the conviction.

I. Request for a Continuance

At a November 2, 1981 status conference appellant’s

trial was set for December 8, 1981 with a pretrial con-

ference on November 30, 1981. On November 12 appel-

lant filed a motion to continue the trial date, alleging

that discovery had not been completed, thus delaying

the preparation of pretrial motions, and that lead coun-

sel for appellant was expected to be in trial on Decem-

ber 8 in Brownsville, Texas. Appellant further alleged

in that motion that postponement of the trial would

“create no difficulty under provisions of the Speedy

Trial Act.” The motion was granted on November 24,

the court noting that “[t]he prior setting of this case con-

flicts with two other criminal cases set for December 9

and 10, 1981 before the undersigned”; the trial date was

reset for December 21, 1981.

Appellant’s case was subsequently transferred to an-

other judge who, on December 4, reset the case for trial

on December 14, 1981. According to an affidavit of one

of appellant’s counsel, his office received notice of the

transfer of the case and the change of trial date on

the previous afternoon, December 3. Appellant’s coun-

sel aver on appeal, however, that they did not learn

personally of the advancement of the trial date until

December 7.

App. 3

On December 8 appellant filed a “motion to modify

the trial date” which was signed by his local Puerto

Rico counsel, averring that his local counsel was sched-

uled to begin trial in another case on the same date,

that appellant’s lead counsel was scheduled to appear on

December 14 at a suppression hearing in Los Angeles,

and that a third, associate, counsel did not have the

necessary experience to try the case. That motion re-

quested that the trial be put off until December 16 or,

alternatively, that jury selection begin on December 15

but that the trial thereafter not be resumed until De-

cember 16. That motion was denied in a handwritten

order at its foot.

“Denied. This is a criminal trial in which the Speed

[sic] Trial Act date is about to expire and this takes

precedence over all matters. Considering that at

least one of defendant’s multiple counsel are availa-

ble for trial on December 14, 1981, that trial set-

ting stands firm.”

On December 10 appellant also filed a “motion for

continuance”, which was signed by his lead counsel, re-

questing “a continuance in this cause [sic] because his

attorney will be involved with another case on the trial

date set by this court and to order Defendant to go to

trial on that date or any date before December 21, 1981

would violate his due process rights because his attor-

ney will not be adequately prepared for his defense.”

We find no indication in the record of separate action by

the court on that motion.

On December 14 the case was called for trial. Appel-

lant’s associate counsel appeared on his behalf and

renewed his motion for a continuance. The court put off

selection of a jury and commencement of trial to the fol-

lowing day, but heard argument on pending pretrial

motions. The trial commenced the following day with

appellant’s lead counsel, associate counsel, and _ local

counsel all present. Lead counsel reiterated that he was

not prepared for the case.!

1 cag gg gg motion for a continuance was joined at that

time by his codefendant.

App. 4

Appellant argues that the trial court abused its dis-

cretion in denying his request for a continuance, thus

unconstitutionally burdening his right to representation

by counsel. Though appellant’s request for a continu-

ance appears to have had sufficient merit to warrant

the trial judge’s reasonable scrutiny, and though the

trial judge’s stated reason for denying the motion may

have been in error, any burden on appellant’s right to

counsel did not reach constitutional dimensions.

In denying appellant’s motion to modify the trial date,

the trial judge indicated that “the Speed [sic] Trial Act

date is about to expire and this takes precedence over

all matters.” Since appellant was not arraigned until

November 10, only 35 days before the scheduled trial

date, the requirements of the Speedy Trial Act would

not appear to have been pressing. See 18 U.S.C. § 1361.

In addition, delay resulting from a continuance when

the court finds “that then ends of justice served by such

action outweigh the best interest of the public and the

defendant in a speedy trial”, is excludable from the time

requirements of the Act. 18 U.S.C. § 1361(h)(8)(A).

Nonetheless, we find that any burden on appellant’s

right to representation by counsel resulting from the

2 Appellant’s codefendant was arraigned at an earlier date—

October 1. But any time vroblem with respect to him would

seem to be cured by 18 U.S.C. § 3161(h)(7), which excludes

“(a] reasonable period of delay when the defendant is joined

for trial with a co-defendant as to whom the time for trial has

not run and no motion for severance has been granted.”

Indeed, the codefendant, at the commencement of trial on

December 15, joined appellant’s motion for continuance, plead-

ing lack of adequate preparation time.

Despite his several motions for continuance and his affir-

mations in so moving that continuance would create no

Speedy Trial Act problems, ap llant, with formidable te-

merity, filed a written motion on ecember 17, the third day of

trial, moving for dismissal of the indictment on the grounds

that the Speedy Trial Act had been violated. That motion was

denied without comment. That denial has not been appealed.

App. 5

denial of his motion for a continuance was minimal.

Trial in the case was originally set for December 8.

Appellant was represented by three attorneys. Appel-

lant’s lead counsel and associate counsel filed a notice of

appearance on November 12. He was also represented

prior to that time and throughout by local counsel. Open

file discovery was given in the case, and full disclosure

had been made to appellant by November 30. Appel-

lant’s associate counsel was present on December 14 to

argue pretrial motions. All three of appeliant’s counsel

were present on December 15 when jury selection and

trial began and for the remainder of the trial.

Appellant argues that his rights were prejudiced by

having oniy inexperienced counsel present to argue pre-

trial motions and because his lead counsel did not have

adequate time to prepare for trial. He does not, how-

ever, point to specific ways in which his defense might

have been improved by more time or the presence of

lead counsel at argument on pretrial motions. See

United States v. Waldman, 579 F.2d 649, 653 (1st Cir.

1978).

In extreme circumstances it can be assumed that a

combination of inadequate time to prepare and inexpe-

rienced counsel! will result in ineffective assistance. We

found such circumstances in Rastrom v. Robbins, 440

F.2d 1251 (1st Cir.), cert. denied, 404 U.S. 8638 (1971),

when counsel without prior trial experience was called

upon to begin trial in four hours. There are no such

extreme circumstances here.?

Appellant’s “motion to modify trial date”—made by

experienced, local counsel—asked that the trial begin on

3 Appellant’s reliance on United States v. Lespier, 558 F.2d

624 (Ist Cir. 1977), is misplaced. In that case the associate

counsel’s “refusal to undertake the most ordinary tasks of

advocacy” at trial “left the defendants without even the pre-

tense of a competent defense.” 558 F.2d at 629. Here, as we

have noted, any impact on the defense was much less severe.

App. 6

December 16 in order that appellant’s lead counsel

could return from Los Angeles. Lead counsel was in fact

present on December 15. Only jury selection and open-

ing arguments took place on that day. It is true that

appellant’s concurrent “motion for continuance”—made

by lead counsel—asked for a continuance to December

21 in order to allow adequate preparation time. But we

cannot say, in the face of such contradictory motions

from multiple counsel, that the trial judge erred either

in not responding to that motion or in concluding that

appellant would be adequately represented on the sched-

uled trial date.

In addition, there is no indication in the record that

appellant was not adequately represented by associate

counsel at argument on pretrial motions. On the motion

perhaps most crucial to appellant’s defense (and which

is made a subject of this appeal), his motion for suppres-

sion of evidence, the trial judge reserved his ruling and

allowed for further testimony and argument, which was

conducted by appellant’s lead counsel on the third day

of trial.

We conclude that the court’s denial of appellant’s

motion for continuance of the trial date did not violate

his Sixth Amendment right to counsel.

II. Motion for Suppression

The prosecution presented evidence at appellant’s trial

to show that appellant conspired to exchange a house

that he owned in Puerto Rico for a quantity of cocaine

which he intended to distribute. It introduced a deed to

appellant’s house which appellant allegedly brought to a

meeting with undercover drug agents and intended to

exchange for cocaine.

That deed was discovered through the warrantless

search of a travel bag which was carried by appellant’s

female companion at the time of his arrest. Finding that

the travel bag belonged to appellant’s traveling compan-

App. 7

ion, the trial court ruled that appellant had no standing

to seek suppression of the deed.

Appellant bears the burden of showing that he had an

expectation of privacy in the travel bag and thus stand-

ing to challenge the legality of its search. Rawlings v.

Kentucky, 448 U.S. 98, 104 (1980). Appellant testified

that the bag belonged to him and that he gave it to his

traveling companion to carry so that he could carry a

larger piece of luggage also belonging to him. In the

ease of luggage—“a common repository for one’s per-

sonal effects, and therefore . . . inevitably associated

with the expectation of privacy”, Arkansas v. Sanders,

442 U.S. 753, 762 (1979)—an expectation of privacy can

be inferred based on assertion of ownership. United

States v. Goshorn, 628 F.2d 697, 700 (1980). Nor is the

expectation of privacy defeated by giving luggage to a

traveling companion to carry. See United States v. Can-

ada, 527 F.2d 1374, 1378 (9th Cir. 1975), cert. denied,

429 U.S. 867 (1976); United States v. Lonabaugh, 494

F.2d 1257, 1262 (5th Cir. 1973).

But the trial judge here did not credit appellant’s tes-

timony and concluded that the bag belonged to his com-

panion. We cannot say that the conclusion was clearly

erroneous. Fed. R. Civ. P. 52(a). Appellant admitted on

cross examination that the travel bag contained per-

sonal belongings “such as cosmetics and items of femi-

nine use” belonging to his companion. Though claiming

that he also had personal belongings in the bag other

than the deed, when asked what they were, appellant

could only identify, “Two thousand dollars and a camera

belonging to Ms. Ruiz [his traveling companion].” Based

on that testimony and on the fact that she was carrying

the bag, the trial judge could conclude, as he did, that

the bag belonged to appellant’s traveling companion and

that she was using it at the time to carry her personal

belongings.

That does not in itself make an end of the matter.

There are circumstances in which the relationship be-

App. 8

tween the traveling companions, the conditions of the

bailment, or the precautions taken to maintain privacy

could substantiate an expectation of privacy on the part

of a traveler who deposits personal possessions in a com-

panion’s traveling bag. See Rawlings v. Kentucky, supra,

448 U.S. at 105. But the burden is on appellant to estab-

lish such circumstances. He has failed to carry that

burden.

Appellant argues further that even if he did not have

an expectation of privacy in the travel bag, he had an

expectation of privacy in the envelope containing the

deed. Testimony showed, however, that appellant had

previously shown the envelope to undercover agents

indicating that the deed was inside and that the enve-

lope was not sealed. We cannot say under these circum-

stances that appellant had an expectation of privacy in

an unsealed envelope contained in a bag in which he

had no expectation of privacy.

III. Grand Jury Testimony

After jury selection but before the presentation of any

evidence, appellant moved to dismiss the indictment as

based on misleading hearsay testimony. Arguing that

the grand jury was misled by the testimony of a drug

enforcement agent into believing that that agent had

eyewitness knowledge of the events about which he tes-

tified, appellant contends that that motion should have

been granted. He relies on a supervisory rule to that

effect announced by the Second Circuit in United States

v. Estepa, 471 F.2d 1182, 1136-37 (2d Cir. 1972). Cf.

United States v. Cruz, 478 F.2d 408, 411 (5th Cir.), cert.

denied, 414 U.S. 910 (1973) (in absence of some showing

that integrity of grand jury proceedings has been com-

promised indictment will not be overturned on appeal).

But even were we to adopt such a supervisory rule,

we would find no application in this case. Reviewing the

entire testimony of the drug enforcement agent, we

simply find no implication that he was giving an eyewit-

App. 9

ness account. The agent was, in fact, careful to identify

by name those agents upon whose eyewitness informa-

tion his testimony depended.

IV. Governmental Involvement and Due Process

Although appellant concedes that a review of the evi-

dence in the light most favorable to the government

indicates his predisposition to commit the crime charged

and that he may not, therefore, raise the defense of

entrapment, see Hampton v. United States, 425 U.S. 484,

489-90 (1976); United States v. Russel, 411 U.S. 423, 435-

36 (1973), he argues that “unreasonable courtship” on

the part of government agents violated his right to due

process and fundamental fairness under the Fifth

Amendment. He points to the fact that his meetings and

telephone conversations with government agents which

formed the basis of the conspiracy charges against him

were instigated by the agents, and argues that such

affirmative steps by government agents to bring about

an unlawful agreement should bar a conviction for con-

spiracy.

It is true that the decisions of the Supreme Court

have left open the possibility that “outrageous” police

involvement in a crime may violate a defendant's right

to due process despite his predisposition to commit the

crime. See Hampton, supra, 425 U.S. at 492-93 (Powell,

J., concurring); see also United States v. Johnson, 565

F.2d 179, 181 (1st Cir. 1977), cert. denied, 434 U.S. 1075

(1978) (interpreting the effect of the multiple opinions in

Hampton). In taking that position in his concurrence in

Hampton, Justice Powell emphasized, however, that,

“(T]he cases, if any, in which proof of predisposition

is not dispositive will be rare. Police overinvolve-

ment in crime would have to reach a demonstrable

level of outrageousness before it could bar convic-

tion. This would be especially difficult te show with

respect to contraband offenses, which are so diffi-

cult to detect in the absence of undercover Govern-

App. 10

ment involvement.” Hampton, supra, 425 U.S. at

495 n.7.

This is not such a case.‘

Post-Hampton cases finding government involvement

so pervasive or outrageous as to violate due process have

indeed been rare. We are aware of only one—United

States v. Twigg, 588 F.2d 373 (8rd Cir. 1978). In that

case government agents suggested the establishment of

a drug laboratory, provided all necessary equipment

and expertise, and ran the operation with some assist-

ance from the defendants. Another court has suggested

that an “inactive participant” in a government-insti-

gated scheme, though predisposed, might successfully

raise a due process defense. United States v. Tobias, 662

F.2d 381, 387 (5th Cir. 1981), cert. denied, 102 S. Ct.

2908 (1982).

Here there was ample evidence that appellant actively

and eagerly conspired with government agents and oth-

ers to obtain cocaine with the intention of distributing

it. We do not find indicia of government involvement

more pervasive or outrageous than that which has

passed muster in Hampton itself (government both sup-

plied and purchased contraband substance) and subse-

quent cases. See, ¢.g.. United States v. Parisi, 674 F.2d

126 (1st Cir. 1982) (illegal purchase of discount food

stamps made from government agents); United States v.

Gray, 626 F.2d 494 (5th Cir.), cert. denied, 449 U.S.

4 Appellant, in fact, concedes that this is not a case involving

outrageous police conduct, but argues that the involvement of

police in the charged crime nonet eless violated his due proc-

ess rights: “This case is neither one of entrapment nor out-

rageous police conduct. The unreasonable courtship of the

appellant by government agents falls somewhere in between

the two recognized defenses.” Whatever is meant by “unreason-

able courtship”, if it does not constitute “police overinvolve-

ment im crime” which “reachfes] a demonstrable ievel of

outrageousness” it will not bar a conviction even in the view

of the concurrers in Hampton.

App. li

1038 (1980) (government agents suggested smuggling

scheme to defendants and provided them with repair

services, an airstrip and a crew); United States v. Leja,

565 F.2d 244 (6th Cir. 1977), cert. denied, 434 U.S. 1074

(1978) (government provided necessary chemicals and

technical instruction for manufacture of controlled sub-

stance); United States v. Johnson, supra (defendant sold

cocaine in response to agents demands and threats per-

sisting over a period of months).

Appellant's conviction is affirmed.

App. 12

APPENDIX 2

IN THE UNITED STATES DisTRICT COURT

For THE DISTRICT OF PUERTO RICO

United States of America vs.

AMADOR RODRIGUEZ-RAMOS

Defendant

Docket No. Cr. 81-0261

JUDGMENT AND

PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government the

defendant appeared in person on this date January 21,

1982.

Counsel: With counsel Michael J. Guinan, Alphonse

C. Gonzalez and Scott Kalisch, Esqs.

Plea: Not guilty.

Finding and Judgment: There being a verdict of

guilty.

Defendant has been convicted as charged of the of-

fense(s) of knowingly, intentionally and unlawfully, pos-

sess with the intent to distribute Cocaine II, Conspiracy.

(Count One) (Viol. T. 21, U.S.C., Section 841(a)(1), 846.

Sentence or Probation Order: The court asked

whether defendant had anything to say why judgment

should not be pronounced. Because no sufficient cause to

the contrary was shown, or appeared to the court, the

court adjudged the defendant guilty as charged and

convicted and ordered that: The defendant is hereby

committed to the custody of the Attorney General or his

authorized representative for imprisonment for a period

of ten (10) years.

As required by statute, a special parole term of three

(3) years is also imposed.

App. 13

Additional Conditions of Probation: In addition to

the special conditions of probation imposed above, it is

hereby ordered that the general conditions of probation

set out on the reverse side of this judgment be imposed.

The Court may change the conditions of probation,

reduce or extend the period of probation, and at any

time during the probation period or within a maximum

probation period of five years permitted by law, may

issue a warrant and revoke probaticen for a violation

occurring during the probation period.

Commitment Recommendation: The court orders com-

mitment to the custody of the Attorney General and

recommends,

It is ordered that the Clerk deliver a certified copy of

this judgment and commitment to the U.S. Marshal or

other qualified officer.

Signed by J. R. TORRUELLA

U.S. District Judge

Date: January 21, 1982

App. 14

APPENDIX 3

IN THE UNITED STATES DISTRICT COURT

For THE DISTRICT OF PUERTO Rico

No. Cr. 81-261

UNITED STATES OF AMERICA,

Appellee,

Vv

AMADOR RODRIGUEZ-RAMOS,

Defendant, Appellant.

TRIAL COURT'S

DOCKET ENTRIES

DATE PROCEEDINGS

— ee filed. (Ct.1) (Alma Torres-fore-

ady)

9-16-81—Arraign. set upon arrest. Warrant of arrest to

be issued. Bond fixed at :Deft. #1: $200,000

cash, #2: $100,000 cash and deft. #3: $100,000

cash. (Mag. Castellanos)

9-17-81—John Doe: Warrant of arrest issued and Temp.

Comm. issued.

9-17-81—Rodriguez-Ramos: Warrant of arrest and

Temp. Comm. issued to US Marshal.

9-17-81—Mercado: Warrant of Arrest and Temp. Comm.

issued to USM.

9-22-81—Mercado: Warrant of Arrest ret’d and fid.

exec. on 9-22-81.

9-23-81—Govt.’s mot. requesting that indict. be unsealed,

fld. 9-25-81 Order: Granted. The Clerk is

authorized to unseal the indictment in this

case. (J. Cerezo)

App. 15

DATE PROCEEDINGS

9-25-81—Mercado: Deft.’s mot. for red. of bail, fld.

Order: The stip. into by the parties for the

red. of bail of deft. is hereby approved by the

undersigned. (Mag. Castellanos)

9-25-81—Appearance of atty. Juan Maldonado as coun-

sel for deft. Mercado, fld.

9-25-81—_Mercado: BRAF #1, filed.

9-25-81—_Mercado: Appearance Bond in the amt. of

aa secured by real estate property,

iled.

9-25-81—Mercado: BRAF #2, filed and ent’d. (Mag.

Castellanos) Usual cs. issued.

9-29-81—Mercado: Temp. Comm. ret’d. and fld. exec.

on 9-22-81. Govt.’s mot. in re: trial setting, fld.

10- 1-81—Mercado: Deft. arraigned. PONG ent’d. as to

only ect. OR cont. (Mag. Cast.)

10- 9-81—-Rodriguez, Mercado & Doe: Order that case is

set for S/C on 11-2-81 at 1:30 PM before J.

CC, fid.

10-14-81—Rodriguez, Amador: Letter enclosing docs.

pertaining to and ent’d. Mag.’s proceedings,

w/att/e of docket, of the order of removal,

appearance bond for $100,000 cash, ree’d.

from the SD of Fla., fid.

10-23-81— Rodriguez: Case set for Oct. 29/81 at 9:30 AM

for arr. before Mag. Simonpietri. (Clerk) s/c

AUSA, USM, deft. s/e M. Guinan w/copy of

indictment.

10-28-81— Rodriguez: Deft.’s mot. for continuance of ar-

raignment, fld.

10-28-81—Rodriguez: Mot. of atty. Scott Kalisch as coun-

sel for deft., fld. 10-30-81 Noted. (Mag. Simon-

pietri) s/e: Kalisch and AUSA.

10-30-81—Order at margin of Mot. #15: Since deft. does

not need his state side counsel for arraign.

and could have today requested until Nov. 10,

1981 to meet w/ the Govt.’s counsel and 10

days thereafter to file motions, this mot. is

App. 16

DATE PROCEEDINGS

granted subject to the following conditions:

that deft. will be arraigned on 11-10-81 at

9:30 AM before the undersigned; that deft.’s

counsel are to complete all informal discovery

conferences with counsel for the Govt. by

11-10-81; and that deft. will be granted until

Nov. 23 to file all necessary motions. Counsel

Kalisch is hereby ordered to appear at the

S/C set by J. Cerezo for 11-2-81. (Mag. Simon-

pietri) s/c: Kalisch and AUSA.

11-10-81—Rodriguez: Deft. arraigned. PONG ent’d as to

all counts. Deft. remains on bond. (Mag.

Simonpietri)

11-10-81-—Rodriguez: Arraign. held. Govmt.’s counsel

informed the ct. that the pretrial has been set

for 11-30-81 at 1:30 P.M. and the Trial for

11-08-81. Deft. was ordered as part of his con-

ditions of release not to leave the State of

Illinois except to travel to P.R. in ct. related

bus. or in matters related to this case and to

turn in any passport he may possess. He

under oath declared he has never been issued

one. Deft.’s counsel Michel Guinan and Alfonso

Gonzalez were gtd. 48 hrs. to file their ap-

arances and one additional day to meet

with U.S. Attys. Counsel for defts. expressed

that May tapes need to be transcribed and

examined, for which reason the time to file

mots. given in the Order of 10-29-81 should

be extended. They were instructed to see that

counsel for the govmt take efforts for a

prompt transcription and to file, if necessary

a written mot. addressed to J. Cerezo. (mag.

Simonpietri) s/cs to AUSA.

11-12-81—Rodriguez: Counsel for deft. Michael J. Guinan

and Alphonse Gonzalez’s notice of appearance,

filed.

App. 17

DATE PROCEEDINGS

11-12-81—Rodriguez: Deft.’s mot. to continue trial date,

filed.

11-17-81—Rodriguez: Temp. commitment ret’d. and fld.

unexecuted.

11-23-81—Rodriguez: Order at foot of mot. #20: Granted.

The prior setting of this case conflicts with

two other criminal cases set for 11-9-81 and

12-10-81 before the undersigned. Cr. Nos.

81-272 and 81-279. Trial date in this case is

reset for 11-21-81 at 8:30 AM Pretrial shall

be held as scheduled. (J. Cerezo) s/es to AUSA

S. Kalisch, J. Maldonado, M.J. Guinan, and

A. Gonzalez on 11-25-81

11-25-81—Rodriguez: Status Conference held on 11-2-81.

Statements of counsel heard on discovery and

pretrial set for 11-30-81 at 1:30 PM and the

trial for 12-8-81 at 8:30 AM. Parties notified.

(J. Cerezo)

11-30-81—Mercado: Defts. informative motion, filed.

12- 2-81—Pretrial Memo that at P.T. held on 11-30-81,

full discov. has been made to defts., trial has

been rescheduled to 12-21-81 at 8:30 AM fld.

and ent’d. (J. Cerezo) s/es to AUSA, Kalisch,

Guinan, Gonzalez, Maldonado.

12- 4-81—Order transferring case to J. Torruella, fld.

and ent’d. (J. Cerezo s/es to AUSA, S. Ka-

lisch, M. J. Guinan, A. Gonzalez, and J. Mal-

donado Torres.

12- 4-81—Case is reset for trial for 12-14-81 before J.

Torruella at 9:00 AM. s/es to AUSA, S. Ka-

lisch, M. J. Guinan, A. Gonzalez, and J. Mal-

donado Torres, and deft.

12- 8-81—Deft.’s mot. to modify trial date, filed.

12-10-81—Deft.’s mot. for continuance, with affidavit in

support thereof, filed.

12-10-81—Deft.’s mot. for severance, filed.

oo mot. to quash w/a & supp. of evidence,

iled.

App. 18

DATE PROCEEDINGS

12-10-81—Deft.’s mot. to dismiss, filed.

12-10-81—Order at foot of mot. #27: Denied. This is a

criminal case in which the speed Trial Act

date is about to expire and thus take prece-

dence over all matters. Counting that at least

one of deft.’s multiple counsel are available

for trial on 12-14-81 that trial setting stands

firm. (J. Torruella) s/es S. Kalisch, M. J.

Guinan, A. Gonzalez, J. Maldonado Torres, on

12-22-81 Previously counsel notified orally by

Ct. in open ct.

12-10-81—Order at foot of mot. #30: Denied. (J. Tor-

ruella) s/es to USA, Kalisch, Guinan, Gon-

zalez, and Maldonado on 12-22-81. Counsel

also notified personally by ct. orally.

12-11-81—Govt.’s oppos. to deft.’s motions, filed.

12-14-81—Order at foot of mot. #29: Denied. (J. Tor-

ruella) s/es to USA., Kalisch, Guinan, Gon-

zalez, and Maldonado on 12-22-81. Counsel

notified personally by ct.

12-14-81—Deft.’s mot. for severance of defts., filed.

12-14-81 Denied. (J. Torruella) s/es to USA..,

Gonzalez, Guinan, and Kalisch on 12-22-81.

Counsel notified personally orally by ct.

12-14-81—Rodriguez: Deft.’s mot. to cont. trial until

or Poaataee filed with affidavit in support there-

of.

12-14-81—Rodrigquez: Deft.’s mot. to dismiss indict., filed.

12-14-81—Rodriguez: Deft.’s mot. to dismiss indict., filed.

12-14-81—Rodriguez: Deft.’s mot. to quash arrest & sup-

press evidence, filed.

— Deft.’s mot. to suppress statements,

12-14-81—Rodriquez: Deft.’s mot. to suppress tapes for

lack of authentication and foundation, filed.

12-14-81—-Rodriguez: Deft.’s mot. to suppress tape re-

corded conversations & any transcripts which

might be made of said conversations due to

their unreliability, filed.

App. 19

DATE PROCEEDINGS

12-14-81— Rodriquez: Deft.’s mot. in limine for order

prohibiting introduction and admission of co-

— hearsay statements into evidence,

iled.

12-14-81—Rodriguez: Deft.’s mot. for discovery, filed.

12-14-81—Rodrigquez: Jury trial cont. to 12-15-81. Hrg.

on various motions called, etc. 1) motion for

cont.—court makes findings for record and

revokes bail of deft. until such time as trial

starts. Deft. moves for reconsideration. Ct.

leaves matter pend. 2) Three mots. to dis-

miss—Ct. inquires from deft. as to matter of

representation. Deft. agrees to having Atty.

Gonzalez represent him in the arguing of

mots. until Mr. Guinan is here. Both mots.

for severance are denied. 3) Mot. to Quash

Arrest and Suppress Evidence is denied. 4)

Mot. for discovery is tardy. 5) Mot. to Sup-

press Statements denied. 6) Mot. to quash

Arrest and suppr. evidence is left pending

until such time as at trial deft. presents evi-

dence if he wishes to do so. 7) Mot. to Sup-

press Tapes, etc., denied. 8) mot. to suppress

tape, etc., considered premature. 9) Mot. in

limine—denied. 10) Three mots. to dismiss

denied. Ct. grants reconsideration on matter

of revocation of bail. (J. Torruella).

12-15-81—Jury instructions, filed.

12-15-81—Mercado: Counsel for deft. appears for a COP.

Plea bargaining stated for record. Deft. denies

govt.’s evidence Ct. states it cannot accept

Guilty Plea of deft. and that deft. will go to

trial with other deft. this afternoon at 2:00

PM. (J. Torruella)

12-15-81—Two jury notes, filed.

12-15-81—Jury list, filed.

12-15-81—Rodriguez & Mercado: Jury duly impaneled.

Prel. instr. given by Ct. to jury. Opening

statements by counsel heard. Trial adj. until

12-16-81 at 9:00 AM. (J. Torruella)

App. 20

DATE PROCEEDINGS

12-16-81—Rodriguez & Mercado (Bond): Case called for

further jury trial. Counsel for deft. is granted

leave to file written mot. Testimony for govt.

hrd. Trial adj. to 12-17-81 at 9:00 AM. (J.

Torruella)

12-16-81—Govt.’s exhs. 2a, 2b, 3, 3a, 1. and 4, filed.

12-17-81—Rodriguez & Mercado: Case called out of hrng

of jury Mot./Dismiss, Memo of Law in Sup-

port of deft.’s Mot. to Quash Arrest, etc., Mot.

to Dismiss Indict. & Discharge Deft., Ct. states

are tardy. Stip of parties is accepted. Id. 8 is

marked exh. 8. Ct. makes findings for record

after parties submit matter of suppression

and finds that deft. does not have standing to

seek suppression of document. Id. 9 for govt.

is marked as exh. 9. Trial adj. to 12-18-81 at

10:00 AM. (J. Torruella).

12-17-81—Rodriguez & Mercado: Govt.’s exhs. 5, 6, 7, 8,

4a, 5a, 6a, 7, and 9, filed.

12-17-81—Rodriguez & Mercado: Proposed jury instruc-

tions, fld.

12-17-81—Rodriguez: Deft.’s mot. to dismiss indict., with

memo in support thereof, filed.

12-17-81—Rodriguez: Govt.’s answ. to deft.’s mot. for dis-

missal filed.

12-17-81—Rodriguez: Memo of Law in support of deft.’s

a to quash arrest and suppress evidence,

iled.

12-17-81—Rodriguez: Deft.’s mot. to dismiss indict. &

discharge deft. fld. 12-17-81 Denied. (J. Tor-

ruella) s/es to AUSA, Guinan, Kalisch, and

Gonzalez.

12-18-81—Rodriguez: Transcript of Ct. reporter of testi-

mony of Alan J. Bachelier dated 09-16-81, fld.

12-18-81—Rodriguez & Mercado: Case called for trial

out of hrg. of jury. Ct. rules denying deft.

Rodriguez’s motion to Dism. Ct. also makes

findings for record re; Petrozziello findings.

App. 21

DATE PROCEEDINGS

to the effect that Govt. has established exist-

ence of conspiracy, incl. all three defts. Rod-

riguez, Mercado & Israe! aka John Doe. Defts.

mots. u. R.29 previously made at bench are

denied. Jury comes into courtroom. Closing

arguments of counsel heard. Jury gives “guil-

ty” as charged as to deft. Mercado. Verdicts

are read outloud at request of counsel for deft.

Rodriguez, jury is polled and all answer in

the affirmative. Verdicts are ordered to be

filed. Govt. req. that bond for deft. Rodriguez

be raised to $10,000. cash. Deft. gtd. until

Mon. 12-21-81 at 5:00 PM to post same. He is

to report twice to Marshal in manner satisfy-

ing to Marshal. Deft. is prohibited to enter

any airport or its premises or any place where

he can leave the jurisdiction of P.R. incl.

marinas or docks until he posts bond on Mon.

(J. Torruella)

12-18-81—Nine jury notes, filed.

12-19-81—Three jury notes, filed.

12-19-81—Rodriguez: Guilty verdict, as charged, filed.

12-19-81—Mercado: Not guilty verdict, filed.

12-21-81—Rodriguez: ORDER that the sentencing of

deft. Rodriguez is set for 01-21-82 at 9:00 AM.

U.S. P/O shail prepare the corresponding

pre-sentencing report, filed and entered. (J.

Torruella) s/es to AUSA, Kalisch, Guinan,

Gonzalez, Deft., and U.S. Prob. on 12-21-81.

12-19-81—Mercado: JUDGMENT OF DISCHARGE as

to deft. Mercado, fld.

12-21-81—Usual att. copies issued. Bond for $150,000.

(100,000 dep. in Fla.)

12-28-81—Rodriguez: Deft.’s mot. for new trial and judg-

ment notwithstanding the verdict, filed. 12-

31-81 This motion is denied for failure to

comply in local R. 8(E), and or the merits.

“ — s/es to AUSA. Guinan, on

App. 22

DATE PROCEEDINGS

1- 7-82—Mercado: Deft.’s mot. for return of bonds, fld.

1-8-82 Granted. (J. Torruella) s/es to AUSA,

Mercado on 1-11-81.

1-13-82—Rodriguez: Deft.’s mot. for ext. of time for

memo to be considered in support of deft.’s

mots., fld.

1-13-82—Memo in support of deft.’s mot. for new trial

& judgm, fid.

1-15-82—Order at foot of Memo: Denied. (J. Torruella

s/es to AUSA & Kalisch.

1-15-82— Rodriquez: order at foot of mot. #65: Granted

(J. Torruella) s/es to Kalisch and AUSA.

1-18-82—Rodriguez: Letter from the Southern Dist. of

Florida dated 1-5-82 forwarding copy of the

Appearance Bond for the amt. of $100,000.

plus the interest earned in the amt. of $1,453.81.

Said amounts were received in cash in our

court.

1-19-82—Rodriguez: ORDER that cash bail of the deft.

in the amt. $101,453.81 received from the

Southern Dist. of Florida is to be deposited

in the registry account of Clerk’s office of this

Ct., filed and entd. (J. Torruella)

1-19-82—Rodriguez: Receipt #16044 for the amt. of

$101,453.81 deposited as cash bail by AMA-

DOR RODRIGUEZ.

1-21-82—-Rodriguez: Case called for sent. and same is

imposed. Deft. is present in ct. and assisted

by counsel and Court interpreter. Bond on

appeal is set at $250,000.00 cash and what-

ever he has now will be credited to the total

amt. Ct. grants deft. until Mon. at noon time

to post bail and instructs him to report

personally twice a day to the marshal. Ct.

instructs deft. to make arrangements with

the Marshal’s office so as to comply w. re-

porting twice daily, by having him report to

someone at Arecibo etc. Deft. is also instructed

by Ct. not to change his place of residence in

App. 23

DATE PROCEEDINGS

PR w/o prior obtaining Ct.’s permission; not

to enter any airport for whatever reason or

any place where he can take a ship leaving

PR; if he has any passport he should surrender

it immediately to the Marshal’s Office. (J.

Torruella) s/es to U.S. Marshal. Masini and

Sarita.

1-21-82—Sentence: Count 1: impris. for 10 yrs. & SPT 3

yrs. (J. Torruella) Usual A

1-25-82— Rodriguez: Deft.’s mot. for ext. of time to post

cash bail, filed.

1-25-82—Footnote order on copy of above mot.: Granted.

(J. Torruella) s/es to AUSA and S. Kalisch.

1-25-82—Mot. of petitioner Porfirio Torres for return

of bond, filed.

1-25-82—Mot. of petitioner Ana Iris Mercado Rivera

for return of bond, filed.

1-25-82—Mot. of petitioner Angel del C. Mercado Torres

he ap Torres Lucena for return of bond,

iled.

1-26-82—Rodriguez: Appearance bond for the amt. of

$250,000.

1-26-82—Rodriguez: ORDER that if deft. having posted

bail on appeal he is to comply with the fol-

lowing: 1) if deft. chooses to leave the juris-

diction of this Ct. in order to go to his home

in Chicago, IIl., he is to inform this Ct. and

the Marshal’s Office the date and the carrier

by which he will travel, as well as the address

at which he will be while there. 2) Deft. is to

surrender his passport; 3) Deft. is to report

twice a week to the USM Office in Chicago,

until further order of this Ct. 4) That deft. is

to provide the USM’s Office in Chicago w.

the address at which he will be staying in

Chicago and any further changes of address

are also to be notified to said Marshal’s Office

and to this Ct. before they take place, Filed

and ent’d. (J. Torruella) s/es to AUSA, Kalish,

Deft., and USM, and Sarita.

App. 24

DATE PROCEEDINGS

1-26-82—Rodriguez: The sent. imposed to deft. in this

case is hereby amended nunc pro tunc to

vacate the SPT of 3 yrs., fld. and ent’d. (J.

Torruella) att. s/es to US PROB., USM.., Chief

of Police AUSA, and Kalisch.

1-26-82—Govt.’s mot. req. a “Nebbia” hrg., with memo

in support thereof, filed. 1-27-82 Hearing is

set for 2-5-82 at 9:00 AM. (J. Torruella) s/cs

AUSA. M. J. Guinan, Kalisch, Mr. Amador

Rodriguez Ramos, and U.S. P/O.

1-29-82—Rodriguez: Deft.’s Notice of appeal of judg-

ment ent’d. on 1-21-82, filed. Filing fees and

docket fees pending 1 s/c Appeals Clerk, 1

s/e Clerk, 1 transcript/e of order to attys.

2- 1-82—Rodriguez: Deft.’s notice of filing notice of

appeal filed.

1-82—Rodriguez: Deft.’s notice of appeal of judgmt.

ent’d on 1-21-82, filed. s/c to appeals Clerk,

Clerk, and Staff atty. Filing fees and docket

fees pending. Docket fees pd. on 3-3-82.

1-82—Rodriguez: Description of parts of transcript

appellant intends to include in the record and

statement of the issues he intends to present

on appeal, filed.

4-82—Rodriguez: Deft.’s mot. for ext. of time for the

Nebbia hrg. until 2-10-82, filed.

4-82—Order at foot of mot. #70: Granted. (J. Tor-

ruella) s/es to AUSA, Porfirio Torres and

Mrs. Generosa Santiago on 2-5-82.

4-82—-Order at foot of mot. #71: Granted. (J. Tor-

ruella) s/es to AUSA and ANA Iris Mercado

on 2-5-82.

4-82—Order at foot of mot. #72: Granted. (J. Tor-

ruella s/es to AUSA, Angel del C. Mercado

and Elidia Torres Lucena on 2-5-82.

5-82—Hearing called on Govt.’s mot. for Nebbia hrg.

Mot. for ext. filed by deft. is w/drawn. Stats.

for record made. Ct. states there is nothing

further to do at this time. (J. Torruella)

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App. 25

DATE PROCEEDINGS

3- 3-82—Order ent’d by CCA on 2-23-82 enlarging

time to pay the $65.00 docket fee including

3-5-82, filed and ent’d. s/cs to Alfaro; Masini,

Staff Atty., and appeals clerk.

3-10-82—Record on appeal mailed to CCA on 3-10-82.

3-30-82—Transcript of ct. reporter of jury trial held on

12-15-81, filed.

4-21-82—Transcript of ct. reporter of 2nd. day of jury

trial heid on 12-16-81, at 9:00 AM. filed.

4-21-82—Transcript of ct. reporter of 3rd day of jury

trial held on 12-17-82, filed.

4-21-82—Transcript of ct. reporter of 4th day of jury

trial held on 12-18-82, filed.

4-26-82—Rodriguez: Supplemental record on appeal

mailed to CCA on 4-26-82.

1-26-83—Transcript of Ct. reporter on Hearing on

Govt.’s mot. Req. a Neba.