Petition — Rey v. United States

83-356

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JOSEPH J. REY, SR.

Petitioner

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RAYMOND C. CABALLERC

BARBARA MASSE

521 Texas Avenue

El Paso, Texas 79901

(915) 542-4222

ATTORNEYS FOR PETITIONER

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JOSEPH J. REY, SR.

Petitioner

vs.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RAYMOND C. CABALLERO

BARBARA MASSE

521 Texas Avenue

El Paso, Texas 79901

(915) 542-4222

ATTORNEYS FOR PETITIONER

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JOSEPH J. REY, SR.

Petitioner

Vs.

UNITED STATES OF AMERICA

Respondent

PITITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

QUESTIONS PRESENTED

1. Whether it is required that a

defendant admit every essential element

of the crime, including mens rea, in

order to raise the defense of

entrapment.

y Whether the failure of the

Government to produce any evidence of

predisposition on the part of Petitioner

to sell drugs constituted entrapment as

a matter of law.

3. Whether, given the lack of

predisposition on the part of Bwti-

tioner, the Government denied Petitioner

due process by making repeated and

insistent contacts with a petitioner

who, the Court of Appeals conceded, had

a "lukewarm" attitude toward the

transaction.

ii

TABLE OF CONTENTS

Page

Questions Presented ..cccecscvesese i

List of Authorities ..... coccccece iv

Oe: MRO oo kd ire é Sauna baw eeaes 2

PUREE ROREON bacovl wan vets Vageckas 2

Constitutional and Statutory

PEUVASLORE INVOLVE | 6ciccccidese 2

Beeuement Of £86 Case .ccisccenses 3

Reasons for Granting the Writ .... 16

PEPE ROEOON 'csevect cet vehisnise we vans 21

Appendix A

Appendix B

Appendix c

iii

LIST OF AUTHORITIES

Cases: Page

Hampton v. United States,

S23 U.B. G66 CLEC) cédecsesvos Eran

Henderson v. United States,

237 F.2d 169

(Sth Cir. 1956) wrrve er ees 15

Sears v. United States,

343 F.2d 139

[Sen Cary Sees we cosewe a ie 15

Sherman v. United States, 17,18

See UcS. Jen CLeeel .«eeedens 19

Sorrells v. United States,

a0? UsB. Zoe USSSE) ceddecisuh. area

Tatum v. United States,

190 F.2d 612

«Ce Car. 1950) “eer eoeeeeeee ll

United States v. Brooks,

611 F.2d 614

(Sth Gir. 1980) *“enereeneeeeeeee 15

United States v. Demma,

523 F.2d 981

(9th Cir. 1975) *enereneeeeeenete eee 15

United States v. Hammons,

566 F.2d 130

(5th Cir. 1978) *enreenerteeeeeeee 10

United States v. Harrell,

436 F.2d 606

(5th Csr. 1970) *enereeeeteeeeeee 15

iv

United States v. Mayo,

705 F.2d 62

en Cae.) SPOS cosecevere eee 14

United States v. Nicoll,

664 F.2d 1308

(Sth cist. 1982) “ese ee ee eeeee 15

United States v. Rey,

641 F.2d 222

(Sth Cir. 1981) eft eeeeeeee#ee##s# 5

United States v. Rey,

7060 F.2d 145 (1983) weccces . 2

United States v. Rey,

Sos UsSs S61 (1963) cccssecce 5

United States v. Russell,

Bae Sita Gas AB0te) dseseer » 18,439

United States v. Valencia,

645 F.2d 1158

ioe Carts SOG): vcecos sees ee 264,85

United States v. Young,

464 F.2d 160

Pn Cee REO e eenk ee cess en 11

Statutes:

21 WemeGes §841 “eer eeee ee eee eeee 3,10

. §843 *_s\et @*eeneeeeneeeee#ee« 3

§846 ef fe eeeeneeeeeeee#e« 3

28 U.5.C.> §1254 “eer neeeeeeeeeeeee 2

Ue 6. Const., Amend, V ne eeeeeeee 2

IW THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JOSEPH J. REY, SR.

Petitioner

vs.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, JOSEPH J. REY, SR.,

petitions for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Fifth Circuit

in this case.

OPINIONS BELOW

The opinion of the Court of Appeals

(Appendix A, pp. Al-8) is reported at

706 F.2d 145. There was no opinion

issued by the District Court.

JURISDICTION

The opinion of the Court of Appeals

was entered on May 16, 1983 (Appendix A,

pp. Al-8). The Court of Appeals denied

the application for panel rehearing and

rehearing en banc on July 26, 1983

(Appendix B, pp. Bl-2). This Court has

jurisdiction to consider the case under

Section 1254(1) of Title 28, United

States Code.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The fifth amendment to the United

States Constitution provides in part as

follows: "No person shall ... be

deprived of life, liberty, or property,

without due process of law....

STATEMENT OF THE CASE

1. Petitioner JOSEPH J. REY, SR.,

a 63-year-old immigration lawyer, and

codefendant Edmundo Lozano were indicted

jointly for conspiracy to possess with

the intent to distribute heroin, a

Schedule I controlled substance, in

violation of Sections 841 and 846, Title

21, United States Code (Count 1). REY

was also charged alone with the use of a

telephone to facilitate the commission

of a felony, namely possession with the

intent to distribute heroin in violation

of Section 843(b), Title 21, United

States Code (Counts 2 through 5).

Lozano was charged alone in three

additional telephone counts (Counts 6

through 8).

Lozano entered a plea to one of the

telephone counts and thereafter testi-

fied in the cases for the Government.

The other charges against him were

dismissed.

Petitioner proceeded alone to jury

trial on the five counts of the indict-

ment pertaining to him. The Honorable

William § sS. Sessions, United States

District Judge, presided. The trial

court granted Petitioner's motion for

judgment of acquittal on Count 2 before

the case went to the jury. The jury

then found Petitioner guilty on the

remaining counts, but the trial judge

entered a judgment of acquittal, post

verdict, on Counts 4 and 5, leaving the

conviction as to Counts 1 and 3, the

conspiracy and one telephone count.

Thereafter, on motion of Petitioner

with the Government's concurrence, a new

trial was granted as to Counts 1 and 3.

Petitioner thereafter filed a plea in

bar and motion to dismiss which the

court denied. An appeal was perfected,

and in United States v. Rey, 641 F.2d

422 (Sth Cir. 1981), a panel of the

Court of Appeals dismissed the appeal in

part and affirmed the decision of the

trial court in denying motions for

judgment of acquittal on two counts.

The Supreme Court denied a petition for

writ of certiorari. 454 U.S. 861.

Thereafter, in August, 1982,

Petitioner was retried on Counts 1 and

3. The trial court, now the Honorable

Harry Lee Hudspeth, granted the motion

for judgment of acquittal on Count 3.

The jury was unable to reach a verdict

on Count 1 and a mistrial was declared.

Petitioner was then retried on Count 1

in October, 1982, and was convicted.

The court sentenced Petitioner to serve

four years in prison and to pay a fine

of $5,000.00. On May 16, 1983, the

Court of Appeals affirmed the judgment

of the district court and rehearing was

denied.

2. In affirming the conviction the

Court of Appeals held that an accused

may not raise the defense of entrapment

unless each and every essential element

of the crime, including mens rea, is

admitted. The court then refused to

consider Petitioner's complaints

regarding the entrapment case.

3. The evidence at all three

trials essentially showed without

dispute that Petitioner had no prior

relationship to drug trafficking in any

r spect. The Government informer had

been working on and off for’ the

Government for many years. The informer

had in 1971 sought Petitioner's services

in an unsuccessful attempt to secure

lawful residence in the United States

for the informer and his family. It

seems that the file simply needed

further documentation. According to the

evidence, the informer made his living

by being an unofficial police employee >

and informer in Mexico, where he engaged

in bribery and extortion.

In June, 1979, the informer

contacted REY ostensibly to work on

securing immigration permits. According

to the transcripts of tape recorded

conversations, the informer then stated

that he called Petitioner and told him

he, the informer, had some "chiva" (a

slang word for heroin) .? REY, who did

not know the slang term for heroin,

thought it meant cocaine. REY then told

an employee of his, codefendant Edmundo

Lozano, to look into the matter so they

could furnish the information to the

lat trial the informer contradicted

what he said several times on tape and

contended that REY was the one who first

mentioned the heroin transaction.

Government. REY pretended to be an

interested purchaser. REY did make

several attempts at that time to contact

the United States Attorney, all without

success. At that point, after the

delivery by the Government of a minute

sample of heroin to Lozano, REY

attempted to terminate the transaction.

Nevertheless, the informer called REY

more than 20 times. All REY did was to

give Lozano's home phone number to the

informer and warn Lozano that he could

get into serious’ trouble. With no

further communication from him, Lozano,

a former addict, under continuous

pressure from the informer agreed to

take delivery of some four ounces of

heroin in return for a $500 check on a

Mexican bank, a deal Lozano did not feel

he could refuse. The "heroin" delivered

by the Government was bogus. (A

detailed factual statement is attached

hereto as Appendix C, pp. C1-45.)

3. The evidence in the case was

largely undispute?. Petitioner did

contend lack of criminal intent in this

attempt by the Government to sell

heroin, but he did not dispute the

remainder of his involvement.

4. Apparently because of its

holding regarding the necessity of

admitting the offense before entrapment

could be raised, the Court of Appeals

did not address the fact that the

informer admitted, more than once, that

it was he who first mentioned heroin.

Nor did the Court of Appeals address the

total lack of evidence as to Peti-

tioner's alleged predisposition

regarding drugs.

5. The federal court here had

jurisdiction to hear the case by virtue

of a federal indictment alleging the

a) Se

Pages misnumbered in original copy.

violation of Section #84l(a)(1) of Title

21, United States Code.

REASONS FOR GRANTING THE WRIT

l. This case presents, squarely,

the question whether an accused must be

obligated to admit all essential

elements of the crime, including mens

rea, in order to rely on the defense of

entrapment.

It has long been the case, in state

as well as federal trials, that if the

evidence raised any theory upon which a

defense could be based, then a court,

upon reguest, was obligated to instruct

a jury on the defensive theory. In

United States v. Hammons, 566 F.2d 130i,

1302 (5th Cir. 1978), vacated in 439

U.S. 810, the court stated the general

principle relating to instructions on

defensive theories:

We must view this case

under defendant's version of

the facts, for "defendant

-10 -

[was] entitled to have pre-

sented instructions relating

to a theory of defense for

which there is any foundation

in the evidence, even though

the evidence may be weak,

insufficient, inconsistent, or

of doubtful credibility."

(Emphasis added]

See also United States vy. Young, 464

F.2d 160, 164 (Sth cir. 1972); and Tatum

Vv. United States, 199 P.24 612, 617

(D.C. Cir. 1950),

It is not uncommon in a criminal

case for the evidence to Provide more

than one alternative for the fact

finder: for example, in a murder case,

for the accused to argue that he did not

commit the murder, but if he did, that

it was done in self-defense,

The defense of entrapment is

nonconstitutional and is rooted in

notions of fair play, estoppel, and

public policy. tt is possible for the

State of the evidence in a case to

Provide the basis for the defense of

-ll-

entrapment without the admission’of each

and every essential element by the

accused. This is so simply because by

pleading not guilty, each and every

essential element is disputed as a

matter of law.

In this case there were three

trials. At each trial the informer was

recorded as having admitted that it was

he in effect who first proposed the drug

transaction. On the stand the informer

said it was Petitioner's idea. Under

those circumstances, the evidence

supports the defense even though the

evidence was inconsistent. Petitioner

testified at his first two trials, but

not at the third. Whether he testified

Or not does not alter the fact that

evidence, apart from his’ testimony,

could support the theory of entrapment.

This Court has never written on

this issue, and the Courts of Appeal are

-12-

divided and undecided on the issue. In

the words of the Court of Appeals for

the Second Circuit, after noting its own

conflicting decisions on the issue:

Subsequent cases in this

circuit have treated this as

an open question. * * *

The other circuits are both

literally and figuratively

spread all over the map on

this question. Indeed,

several circuits have either

modified or completely changed

their positions during the

last decade. The First,

Third, Seventh, and Tenth

Circuits have never permitted

a defendant to raise inconsis-

tent defenses, while the

District of Columbia and

Fourth Circuits have consis-

tently permitted such

defenses. The Ninth Circuit

used to prohibit inconsistent

defenses, but now permits

them. The Sixth Circuit has

gone in the opposite direc-

tion, since it used to allow

them, but now apparently

prohibits’ them. The Fifth

Circuit generally does not

permit inconsistent defenses,

but has created several excep-

tions and has begun to ques-

tion the propriety of the

general ban. Finally, the

Eighth Circuit like the Second

leaves the question undecided

-13-

despite earlier cases indica-

ting inconsistent defenses

were impermissible.

In this situation, where

the circuits appear to be in

conflict, our own cases are

not altogether consistent, and

the Supreme Court cases do not

address the question, we hold

that William Valencia, having

put the Government on notice

in counsel's opening statement

of the assertion of the dual

defenses of entrapment and

non-involvement, is entitled

to raise the defense of

entrapmment since he did not

take the stand to deny person-

ally his participation in the

transaction and did not

affirmatively introduce = any

other evidence that he was not

involved.

United States v. Valencia, 645 F.2d 1158

(2nd Cir. 1960). Three years after

Valencia the Second Circuit is still

undecided about the necessity of giving

an entrapment instruction where it is a

consistent defense. United States v.

Mayo, 705 F.2d 62, 73 (2nd Cir. 1983).

There are therefore three different

lines of authority. First, under one

a

line of cases a defendant may raise

entrapment even if it is inconsistent.

United States v. Demma, 523 F.2d 981

(9th Cir. 1975) (en banc). Second is

the line that one may raise the defense

of entrapment without admitting all

elements of the crime and so long as the

denial is not inconsistent. Valencia,

supra, and several Fifth Circuit cases,

including Henderson v. United States,

237 F.2d 169 (5th Cir. 1956); Sears v.

United States, 343 F.2d 139 (5th Cir.

1965); and United States v. Harrell, 436

F.2d 606 (5th Cir. 1970), cert. denied,

409 U.S. 846. The third line is those

cases which require a defendant to admit

every essential element before entrap-

ment may be raised. United States v.

Nicoll, 664 F.2d 1308 (5th Cir. 1982);

and United States v. Brooks, 611 F.2d

614 (5th Cir. 1980). As this Court can

see, the Fifth Circuit clearly falls

wife

into the second and third lines of

cases.

2. This case is the appropriate

vehicle to settle this very unsettled

area of the law on a very important

issue. This is, therefore, a case of

national importance. This case provides

the perfect vehicle to settle the law in

this area for several reasons. One is

that because there were three trials

involved, in one case there is presented

to the Court facts under which all lines

of authority may be settled, for we have

in this case both a consistent and a

possible inconsistent defense raised.

36 Moreover, this is a case in

which the Government concedes that it

was the seller of heroin. This is not a

case where the accused simply made the

assertion that the contraband was sup-

plied by the Government or its informer.

-l6-

Entrapment was established as a

defense in federal courts not as a

constitutional principle, but rather as

an exercise of the supervisory power of

the courts over federal conduct in

federal prosecutions. Sorrells Vv.

United States, 287 U.S. 210 (1932). The

law of entrapment in federal courts is

established on the basis of the decision

of the Supreme Court in Sherman v.

United States, 356 U.S. 369 (1958), and

it remains unchanged to this day. In

Sherman this Court held that a person

would be entrapped if the crime was the

creative activity of the Government and

a person was not predisposed to commit

the act. Predisposition must be proven

by the Government.

It is often erroneously held that

the law of entrapment as set out in

Sorrells and Sherman has been changed by

the later decisions of this Court in

-17-

United States v. Russell, 411 U.S. 423

(1973); and Hampton v. United States,

425 U.S. 484 (1976). But Russell and

Hampton were not entrapment cases. In

both Russell and Hampton this Court held

that the defense of entrapment was

unavailable because both defendants

conceded that they were predisposed to

commit the crime. The decisions of

Russell and Hampton concern claims that

even if entrapment was unavailable,

prosecution in those cases should be

barred on due process grounds.

Some ccurts have misunderstood

Russell and Hampton to dilute the

holdings of Sorrells and Sherman. They

do not. Some have read Russell and

Hampton to relieve the prosecution of

its burden to prove’ predisposition.

They do not.

The courts below need the guidance

of this Court. Because Hampton was such

-16=

a divided decision, no clear direction

has been given to the courts since the

Sherman decision in 1958, a period of

some 25 years during which all the drug

laws and drug investigations have

undergone drastic change.

4. In Russell and Hampton, supra,

this Court left open the question

whether in the future there might arise

a case where the Government so

overreached that its conduct would

constitute a due process violation.

In this case Petitioner submits

that the following factors establish

this as a case in which, either under

due process or under the court's

supervisory powers, prosecution should

be barred:

1. This was a defendant with no

indication of any prior

involvement;

2. The Government produced no

evidence of predisposition;

The Government at all, times

was to be the seller of drugs;

Defendant did not know the

difference in slang terms

between heroin and cocaine;

The informer in this case made

his living some of the time

extorting the public in

Mexico;

Petitioner tried to avoid the

informer and the transaction;

The informer and the agent

attempted to contact Peti-

tioner more than 20 times

after Petitioner clearly

expressed his disinterest in

the case;

The evidence shows that

Petitioner did not authorize

the purchase of any drugs;

The Government virtually

thrust fake drugs into the lap

of a codefendant in return for

a $500 Mexican check.

-20-

CONCLUSION

For all the foregoing reasons, the

Petition for Writ of Certiorari should

be granted.

Respectfully submitted,

RAYMOND C. CABALLERO

BARBARA MASSE

521 Texas Avenue

El Paso, Texas 79901

(915) 542-4222

ATTORNEYS FOR PETITIONER

By:

RAYMOND C. CABALLERO

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 82-l622

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH J. REY,

Defendant-Appellant.

-

Appeal from the United States

District Court for the

Western District of Texas

(May 16, 1983)

Before THORNBERRY, GEE, and WILLIAMS,

Circuit Judges.

PER CURIAM:

The case presented is hard, though

not difficult. Joseph J. Rey, Sr., a

veteran El Paso attorney and minor civic

leader, stands convicted of conspiracy

to possess heroin with intent’ to

Appendix A

A-1

ww

distribute it. For this crime, he has

been sentenced to a term of four years

imprisonment and a substantial fine.

His most serious complaint is that he

was entrapped, or perhaps incriminated

as a result of outrageous conduct, by

government agents. We affirm.

Viewed most favorably to the

verdict of conviction, the evidence

established that in 1979 Rey received a

telephone call from one Uranga, a former

client and sometime government infor-

mant. Uranga, a shady character with

police connections on both sides of the

Border, was seeking assistance with

immigration problems, Rey's legal

specialty. In the course of this

conversation, Rey inquired whether

Uranga "could get ahold of any drugs for

him," later specifying heroin. ?

A-2

: Uranga's testimony on this point

at Rey's two earlier trials, of which

more later, was to the same effect.

Uranga replied that he could do so,

would get in touch with an unnamed drug

source, and would call Rey later.

Instead, he reported their coavenssthen

to the Drug Enforcement Administration,

later agreeing to cooperate in its

investigation of Rey. In the days

ensuing, Uranga nagged Rey with many

telephone calls, met with him on one

occasion, and agreed to another meeting.

It is fair to say that Rey's attitude

appears to have been lukewarm. After

postponements, a meeting took place at

the Border. In a recorded conversation,

Rey asked about the drugs, Uranga

replying that two kilograms of 65

percent purity were available at $45,000

each. To this Rey responded that he

A-3

knew nothing of drug quality and was

only someone who had purchase money.

Arrangements were made for further nego-

tiations to be carried on between Uranga

and a trusted employee of Rey's, more

knowledgeable in such matters. In due

course, a drug transaction occurred.

Suffice it to say that the evidence

of these later doings and of Rey's

indirect participation in them is ample

but does not bear significantly on Rey's

entrapment/outrageous conduct defense

except, perhaps, in one particular.

Rey's agent testified that Rey directed

him to determine whether Uranga actually

had drugs and what their quality was,

expressing an intention to turn the

information over to the authorities.

The record also indicates that he may

have entertained thoughts of doing so,

but he never did. This is the pertinent

evidence.

On it, Rey's claim of entrapment

must fail. In the first place, the

defense was not available to Rey. It is

the law of this circuit that one may not

claim he was entrapped into a criminal

act without first admitting that he did

in fact commit it. United States v.

Nicoll, 664 F.2d 1308 (5th Cir. 1982).

A criminal prosecution such as this is

not a game. It incorporates a moral

content and an ultimate concern with

guilt or innocence that are inconsistent

with permitting the accused to say, "I

didn't do it, but if I did, the govern-

ment tricked me into it." United States

v. Brooks, 611 F.2d 614 (5th Cir. 1980).

Rey made no such admission. In the

second, even were the defense available,

the evidence set out above is sufficient

to support a rational conclusion that

this crime had its birth in the mind of

Rey, not in any design implanted there

A-5

by the government. This is fatal to

Rey's contention, since that is_ the

test. United States v. Webster, 649

F.2d 346 (5th Cir. 1981) (en banc).

The claim of outrageous conduct on

the government's part likewise lacks

merit. To be sure, once the government

learned that Rey was seeking to buy

drugs, it pursued offering him an

opportunity to do so assiduously. Yet

though he appeared tc blow hot and cold

during that pursuit, Rey -- having

broached the matter at the outset -- met

with the informant Uranga, procured an

agent to pursue negotiations with him,

expressed concern and the need for

expert advice regarding price and

quality of the drugs, and followed the

transaction through conferences with his

agent. We perceive no outrage. Cf.

Rochin v. California, 342 U.S. 165

(1952).

A-6

Rey's next contention is that since

the evidence at one or both of two

inconclusive earlier trials for this

offense was insufficient, his third

trial and conviction constituted double

jeopardy. In this connection, he claims

that our decision of his earlier appeal

incorrectly denied him an opportunity to

make this claim before being retried.

United States v. Rey, 641 F.2d 222 (5th

Cir. 1981), following United States v.

Becton, 632 F.2d 1294 (5th Cir. 1980).

Whenever and however made, the conten-

tion fails. Rey does not_ specify

wherein he asserts that the evidence at

his earlier trials was insufficient;

indeed, he concedes on brief that it was

Similar in all three. We have examined

the three records; in none was it

insufficient.

We have also examined with care

Rey's other claims for reversal. Only

A-7

on merits discussion. Pursuant to

Local Rule 500-2, Rey sought to inter-

view his jurors in quest of information

upon which to predicate a claim of

misconduct. That rule requires leave of

court granted upon good cause _ shown.

Rey's motion for leave to do so asserted

merely that because he was a well-known

attorney there was reason to suspect the

introduction of prejudicial information

into the jury room. The trial judge

found this showing inadequate, and we

agree. Rey also attacks Rule 500-2 as

invalid on various grounds. We have,

however, recently upheld its validity

against such attacks as his. United

States v. Davila, .—s>—«sOoF.2ad i CS

Cir., April 25, 1983, sl. op. 4314).

AFFIRMED.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1622

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH J. REY, SR.,

Defendant-Appellant.

Appeal from the United States

District Court for the

Western District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 05/16/83, 5 Cir., 198 ,

F.2d )

(JULY 26, 1983)

Before THORNBERRY, GEE and WILLIAMS,

Circuit Judges.

PER CURIAM:

(X) Treating the suggestion for

rehearing en banc as a petition for

panel rehearing, it is ordered that the

petition for panel rehearing is DENIED.

No member of the panel nor Judge in

regular active service of this Court

having requested that the Court be

Appendix B

Pp Be

polled on rehearing en banc (Rule 16),

the suggestion for Rehearing En Banc is

DENIED.

/

( ) Treating the suggestion for

rehearing en banc as a petMtion for

panel rehearing, the petitign for panel

rehearing is DENIED. e judges in

regular active servic of this Court

naving been polled at/the request of one

of said judges and a majority of said

judges not havimwg voted in favor of it

(Rule 35, Federal Rules of Appellate

Procedure; Vocal Fifth Circuit Rule 16),

the suggestion for Rehearing En Banc is

DENIED,’

CLERK'S NOTE:

ENTERED FOR THE COURT: SEE RULE 41 FRAP

AND LOCAL RULE

17 FOR STAY OF

S/Thomas G. Gee THE MANDATE

United States District Judge

B-2 i)

III. FACTUAL STATEMENT

JOSEPH J. REY, SR., was born on

February 9, 1920. He worked as a police

officer from 1941 to 1944. From 1944 to

1945 he served in the Navy. Upon

discharge he attended law school at

Southern Methodist University. He was

licensed to practice law in December,

1949, and has been in practice since

that time (Tz 195-198). REY has

limited his practice solely to immigra-

tion work since around 1976 (TI 199).

The events in question took place

during June and July, 1979. The

principal players in the drama were REY,

just introduced, his codefendant Edmundo

Lozano-Alvarez (Lozano), and Alonso

lor refers to the transcript of the

first trial. TII is a reference to the

second trial, and T is for the tran-

script of the third and last trial.

Appendix C

C-1

Uranga-Salas (Uranga), the Government

informant.

Lozano is 51] years old (T 157). He

was represented by REY on two drunk

driving charges during the mid-1960's

(TI 199). Lozano had two prior felony

convictions, one for possession of

heroin and another for mail fraud in

1978. He was not represented by REY on

either charge. In early 1979 Lozano

called REY for representation in a

deportation action initiated by

Immigration to deport Lozano on the

expiration of his prison sentence.

Lozano was at FCI La Tuna near El Paso

(tT 159). As the events in this case

were to unfold, Lozano was released from

prison on June 12, 1979, and was taken

to the Immigration camp in El Paso for

deportation, at which place REY obtained

Lozano's release. Lozano was in need of

employment, and REY offered Lozano

c-2

part-time work as an investigator

(T 160). Actually, such work consisted

of assisting REY in gathering necessary

immigration-type documentation for

clients. Lozano's probation officer was

informed of the arrangement (T 160-161).

Uranga, though attempting to claim

employment as a farm hand and mechanic

(T 114, 738, 745), actually was a semi-

official employee of various Mexican

police agencies as well as an informant

for U. S. Immigration and Customs on

immigration and drug cases (T 117, 118,

657). Uranga, on direct, claimed to be

a legitimate law enforcement officer,

showing to the court purported creden-

tials from (1) the Mexican Department of

Interior (Gobernacion), an agency

involved in investigating alien

smugglers (GX 20A), (2) the local police

of Guadalupe, Chihuahua, a small Mexican

town around 30 miles south and east of

c-3

El Paso (GX 20B), and (3) ths Chihuahua

state rural police (GX 20C). On

examining the credentials, the DEA

supervisor Robinson agreed the creden-

tials did not appear legitimate to him

(T 660). Uranga had been Robinson's

informant for about 16 years (T 657).

Robinson knew little about Uranga except

that Uranga was around Mexican police

agencies (T 662).

As early as 1964, Uranga was

documented as an informant by JU. S.

Immigration (DX B). In terms of

payment, apparently Uranga was allowed

to enter the United States on a parole.

Uranga's file contains Immigration

paroles for August, 1964 (DX B), March,

1966 (DX A), September, 1969 (DX C), and

October, 1978 (DX D).

In 1977, Immigration documented an

attempt by Uranga to use a fraudulent

credential (DX O). Uranga requested

C-4

Pa

entry to the United States, claiming to

be a reporter for Prensa Mexicana. On

questioning, Uranga admitted that he was

illiterate but then said that he did the

investigating and another person did the

writing. He said he covered basically

the "criminal elements," writing

sensationalist-type articles (DX O).

The Immigration inspector wrote: "As

both subjects (Uranga and his brother

Adan) have a very peculiar background,

and seem very enigmatic in their

dealings with law enforcement agencies,

they both appear to be in positions of

having dealings with the ‘underground’

ee wor (DX O). Uranga claimed in

court that he had been a commissioned

law enforcement officer of several

agencies by 1977 but only claimed to be

a press reporter to Immigration, never

holding himself out to Immigration as a

law enforcement officer. Actually, on

C-5

¥”

questioning Uranga admitted that even

the press pass was bogus. He admitted

that he had never worked as a reporter

Or journalist, and that the press pass

was not real but that he simply used it

so he would not be “harassed by traffic

cops" (T 755). In court, under oath he

testified that he had never held himself

out to anyone as a reporter (T 755).

Indeed, at trial Uranga claimed that he

had worked every day before 1979 as a

mechanic for his brother in Juarez

(T 745).

Instead of working as a mechanic,

Uranga worked mostly indirectly for

police agencies. The nature of his work

was explained. Although Mexican police

officers were notoriously low salaried

persons, they personally would hire

individuals like Uranga as assistants of

sorts (T 753, 666). DEA supervisor

Robinson explained that such an

C-6

assistant is commonly referred to as a

"“madrina" (godmother). They are paid

either by sharing the proceeds of

bribery and extortion generated by their

police officer employer, or they

actually perform the bribery and

extortion (T 667) by holding themselves

out as officers. In this regard Uranga

later admitted that of the three police

credentials he _—icihad, Only one was

legitimate, that being for the town of

Guadalupe. The second was a courtesy

pass so that he would not be bothered by

other police agencies (T 748), and the

third was just not real (T 752).

When asked if the bogus police

credentials were the type of police

credentials carried by a "madrina,"

Uranga's response was:

Q. Is this what a madrina

would carry? You are not

a real agent but you are

kind of an agent?

C.7

Yes, this is the kind of

thing you get when you go

get a job, they give you

this kind of things for a

few days. (T 752)

Uranga was also asked of his knowledge

of the word "mordida," literally "bite,"

but a commonly used slang term in Mexico

for a bribe:

Do you know what a

Madrina is?

Yes, sir.

Is that what you were?

It could be.

Don't you know?

It could be because we

were not regular

officers.

You don't know whether

you were a madrina or

not?

Yes, because -- that

could be so because we

weren't regular officers

under him.

Do you know what mordida

is?

Sir?

C-8

Q. Do you know what a

mordida is?

A. Gee, I don't know what it

is. I don't know what a

mordida would be.

x~ * *

Q. Has no relation to police

work? I'm not talking

about a dog bite--

x * &

THE WITNESS: A mordida is a

mordida. I wouldn't know what

you're talking about.

Although Uranga testified that he

had not worked for any Mexican police

agenc*es since 1979, not even once

(T 741), and during the time he was

allegedly living in El Paso working as a

farm hand or as a mechanic (T 741),

Uranga was actually in Juarez working

once again as a madrina. Jose Ramon

Pina-Torron (Pina), a bill collector and

former madrina himself, testified that

in early 1979 Uranga and one Fernando

Macias (also a madrina) went to Pina's

C-9

ORT VLA 2 @ os wowed BS

home, holding themselves out to _ be

Mexican Federal Judicial Police. They

arrested Pina, accusing him falsely of

smuggling aliens (T 776, 777). When

they took Pina to jail, Uranga and

Macias then took Pina's wallet which

contained 2,300 pesos (about $100 then)

so they could "give it" to Pina's wife

(T 778). Then Uranga and Macias went to

Pina's house and told Pina's wife that

they, as Mexican Federal Judicial Police

officers, needed 3,000 pesos to release

Pina from jail. Pina's wife gave them

the money and Uranga never mentioned or

returned Pina's billfold (T 785).

Although Uranga denied doing any kind of

police work after 1979, he admitted on

cross examination being present when

Pina was arrested (T 757).

Candelario Cardenas~-Rodriguez

(Cardenas) is a street vendor in Juarez.

He sells from a pushcart and has been so

C-10

employed for 17 years. He has’ known

Uranga for about 10 years, during which

time Uranga has_ been representing

himself to be a police officer

(T 788-790). Uranga had on numerous

occasions threatened Cardenas and did

extort money from Cardenas (T 792). On

January 15, 1982, Uranga and others

again threatened Cardenas, this time

brandishing pistols.” Uranga falsely

accused Cardenas of being an alien

smuggler. Cardenas complained to the

press, and at trial Cardenas identified

a newspaper article regarding the

incident (T 793 and Tender 3).° Uranga

2uranga had previously denied

carrying a handgun in his work as a

madrina, but did admit carrying a

submachinegun for his "employer"

(T 747).

3on Government objection the

newspaper article was not admitted into

evidence but is among the exhibits in

this record.

C-11

was supposedly fired from his "job" as a

result of the article (T 793).

DEA supervisor Robinson did not

look into Uranga's background, and what

little he did know he did not pass along

to DEA case agent Licon (T 662).

DEA agent Joaquin Legarreta

testified that in 1977 REY attempted to

give information to DEA. A person had

given REY information, and REY reported

to Legarreta the information and wanted

the persons arrested. Legarreta told

REY that mere information was insuffi-

cient and that he needed to have the

persons cross into the United States

with the drug so that they could be

arrested (T 818, 819).

In May, 1971, REY filed with

Immigration a petition to classify

Uranga's status as a permanent resident

(DX O). The petition was approved by

Immigration in June, 1971, and was

C-12

referred to the U.S. Consulate in

Cd. Juarez. The record shows that the

State Department at the Consulate held

up the issuance of the visa to Uranga

pending visa applications for Uranga's

children (DX O and TI-206). Although

all Uranga needed to do was to file some

applications for his children, Uranga

became dissatisfied with REY, thought

REY had not done anything for him, and

no longer communicated with REY except

to ask for a refund of the $325 fee he

paid and issue an occasional threat

against REY (TI 207, 208). The last

contact REY had was a call from Uranga

in 1977 (TI 208). REY was still willing

to finish the work, but Uranga would not

listen to REY (TI 209).

With all the foregoing as_ the

background, this case began during the

week of June 10, 1979. Due to the fact

that Uranga's testimony of what occurred

C-13

is inconsistent with what Uranga

actually stated in taped conversations,

REY's version which is in agreement with

the taped Uranga version will be set out

as well as the version Uranga gave on

testifying.

REY version of initial contacts.

REY testified that he had not heard from

Uranga for some two years and that

Uranga telephoned him during the week of

June 10, 1979. Uranga wanted, finally,

for REY to finish the immigration work

which had been started in 1971 (TI 210).

REY agreed to meet Uranga at the port of

entry, since Uranga had no permit to

cross (TI 211). REY told Uranga to take

the documents and papers REY needed to

complete the work. REY met Uranga at

the international border on June 14 or

15, 1979. Uranga told REY that he,

Uranga, was in dire financial straits

due to having an injured son in the

C-14

hospital. REY asked whether Uranga had

the documents and Uranga stated that he

forgot because of preoccupation over his

son (TI 211, 212). At that meeting,

according to REY, Uranga said: "Do you

have a man that would be willing to buy

chiva so that I can make some money and

get my kid out of the hospital?"

(TI 212). REY did not know the meaning

of the word "chiva" and thought it meant

cocaine. Actually, the word "chiva" is

a slang term in Spanish for heroin

(TI 213). Uranga called the next day

and wanted to meet again. They made

arrangements to meet on June 20 at the

bridge (TI 213-215). When they met, REY

again asked Uranga for the immigration

papers and Uranga again said he forgot

them.

Uranga's Version. Uranga stated

that after a number of years of not

seeing REY, he called REY on June 14,

C-15

1979, in order to have REY arrange for a

local border crossing card (T 120).

Uranga said REY agreed to arrange for a

card but then asked Uranga whether

Uranga could obtain drugs for REY. REY

said he wanted "heroin" (T 122). Uranga

told REY he, Uranga, would have to go to

a particular person (T 122).

The basic and critical discrepancy

was whether REY mentioned heroin first.

We now continue with the factual

statement.

June 15, Friday. Uranga called his

DEA handler, supervisor J. T. Robinson.

Uranga told Robinson that REY wanted

heroin. Robinson then arranged for

Uranga to meet in Juarez with Agents

Licon and Aleman. Licon met with Uranga

and was told that REY was interested in

purchasing heroin. Licon told Uranga

not to contact REY. In spite of ‘the

clear instructions, Uranga called REY

C-16

after the 15th in order to arrange a

meeting on June 20.

Around this time REY told Lozano

that a man by the name of Uranga wanted

him to purchase cocaine. He wanted

Lozano to investigate the matter to the

end that they could give the information

to the Government to help the Government

make a case (T 162). Lozano was to

check into the quality and quantity of

the drug and to see whether Uranga and

his people even had the drug (T 162,

164).

Uranga, without knowledge or

permission of Agent Licon, called REY

again and arranged for a meeting at the

bridge on June 20 at around 6:00 p.m.

Agent Licon made arrangements so that he

and agent Aleman could surveil the

meeting, but no attempt was made to

record the meeting (T 512, 520, 521).

Agent Licon also instructed Uranga not

C-17

to take any immigration papers with him

to the meeting (T 524).

June 20, Wednesday. Around 6:00

p.m. Uranga waited at the bridge for REY

as Licon and Aleman stood watch from

afar. When REY had not appeared by 6:30

p.m., the agents decided to call it a

day. Aleman walked to the bridge and

told Uranga to go _ home. As Aleman

walked back the block or so distance to

the place where Licon waited, Licon saw

Uranga "headed south," "crossing the

bridge" (T 525, 526).

Unknown to the agents Uranga did

not immediately return to Mexico, for

although Licon saw Uranga "crossing the

bridge" into Mexico, Uranga must have

returned to the port of entry station,

because he met at 6:45 that evening with

REY (T 528). At that unrecorded meeting

REY asked for the papers, which Uranga

Cc-18

did not have, and then he and Uranga

discussed drugs, so said Uranga.

June 21, Thursday. That morning

Licon and Aleman discovered that,

contrary to their explicit instructions,

Uranga had not gone to Mexico but had

actually met with REY once again.

Uranga said he had been “confused” by

Aleman's instruction to leave the bridge

(fF 330).

9:11 a.m. Uranga calls REY's office.

An attempt was made to record the

call but the recorder malfunc-

tioned. Nothing of any substance

was discussed except a plan to meet

that evening (T 535, 536, and

DX A).

6:17 p.m. This was the first recorded

contact. Uranga was apparently

waiting for REY, who did not

appear. REY said he was busy with

people in his office. They agreed

Cc-19

that Uranga was to call the next

morning from the bridge. Uranga

stated: "Yes, at the bridge

because this thing is all set and

I'm getting anxious" (T 536 and

GX 5).

June 22, Friday. Apparently there

was a call in the morning but there is

no record of it.

3:24 p.m. Uranga calls’ REY. Uranga

said he called but REY was in

court. Portions of the

conversation were as follows:

REY: Say, is there a way

that you may be able

to come over?

URANGA;: Well, how?

REY: Did you get your

wife's papers and

all that?

URANGA: Everything.

REY: Alright, do you have

all those papers?

URANGA: Yes, also.

C-20

URANGA:

They then agreed to meet at 6:00 p.m.

that evening at the bridge

GX 6).

3:37 p.m.

to cancel the 6:00 p.m.

OK, why don't you

take them over to

the bridge?

oS 2

Yes, ah, what would

be a good time?

At about 6:00, no?

At 6:00?

Yes. But take with

you all the papers

so that we can talk.

Yes.

For some reason Uranga called

REY was not in.

4:16 p.m.

4:28 p.m.

should call REY at 9:15 the next

REY in.

REY was still not in (T 537).

morning (T 537 and GX 6).

June 23, Saturday.

C-21

(T 536 and

meeting.

Agreed that Uranga

9:12 a.m. Uranga called REY and agreed

to meet REY at noon at the bridge.

REY said: "Take all the papers

with you, eh?" (T 538 and GX 7).

Noon. There was a meeting at the

bridge.

URANGA: Hello, how are you?

I just, I was in the

restroom.

REY: OK.

URANGA: What?

REY: Did you bring the

papers?

URANGA: I didn't bring one

paper.

REY: Goddamit.

URANGA: It's that, I came

for the, for the

thing in one trip,

for the, it's that

the, the -

REY: What is it that

we're going to do,

then, what do you

want to do? (T 538

and GX 8)

REY and Uranga then discussed a drug

transaction. REY never, ever proposed

C-22

either quantity, quality, or price.

Indeed, during this meeting the name of

the specific drug was not mentioned, an

omission which would become more

Significant later in the day. Uranga

discussed the sale of two kilos at a

price of $45,000 per kilo. REY stated

he knew nothing about drugs, that he

simply had the money, but that he had a

person he could trust. They agreed to

meet at the Fox Plaza Shopping Center at

4:00 p.m. that day (T 540 and GX 8).

At that time REY told Lozano that

Uranga was trying to sell a quantity of

cocaine and that Lozano should investi-

gate isteee Uranga actually had the

drug and determine the quality and

quantity. Lozano, a cooperating witness

for the Government, never said he was to

make a purchase (T 162, 164). REY

testified he had no money and ~*no

connection (TI 218), and there never

C-23

were any other persons besides Lozano

and REY. Lozano agreed that REY never

mentioned any other persons and that REY

never changed his story from being one

of an investigation to one of a

transaction for REY's benefit (T 208,

203, 215, 222). Lozano said REY knew

nothing about drugs (T 209).

4:00 p.m. - Fox Plaza. With REY

watching from a distance, Lozano

met with Uranga and undercover DEA

Agent Ramirez in the parking lot.

Ramirez and Uranga were ready to

complete a transaction. Of course,

Lozano had no money, REY had no

money, and Lozano simply wanted to

see what Uranga had, if anything.

DEA wanted to seize money in this

transaction. Lozano asked to see a

sample and Ramirez wanted to see

the money. When it became apparent

that Lozano had no money, Ramirez

C-24

began to be upset. Some of the

conversation is as follows:

RAMIREZ: Tell him that if he

wants to, that if he

wants to see the

merchandise, how

long will you take

to get the money?

LOZANO: What?

RAMIREZ: How long will you

take tor the money?

LOZANO: No, well what, one

day.

URANGA: Uff. That's what,

that's what the

lawyer said, I'll go

with the -- prepared

with the money and

everything, he said.

x * &

LOZANO: Monday we'll see

each other and then,

you'll give me time

to test it, to test

them?

RAMIREZ: Yes.

x *«

Lozano was asking to test the drug and

Ramirez was demanding money. They then

talked about waiting two days until

C-25

Monday the 25th to complete the

transaction. At this point Ramirez

shows Lozano the package and Lozano,

expecting to see cocaine, is surprised

to see that Ramirez had heroin instead.

RAMIREZ: The deal was with

that kid. How long

will you take? How

long will we take to

do it Monday?

LOZANO: What?

RAMIREZ: How long will we

take Monday to do

it?

LOZANO: No, well, what it

takes me to call

over there so that

they can come over

and when I find out

what, it's percen-

tage. Don't you

have a sample? It's

heroin ["carga,"

another word for

heroin. ]

RAMIREZ: What?

LOZANO: It's heroin

["“carga"], no?

RAMIREZ: Well that's what you

wanted, no?

C-26

LOZANO: Fucking mother, well

that one was talking

to me about coke

("coca").

RAMIREZ: No.

URANGA;: No, heroin

{"heroina"].

RAMIREZ: Heroin ["“carga"].

LOZANO: There it is, man,

then I have, a

little more time.

RAMIREZ: Goddamit.

LOZANO: Give me one, one,

one small sample.

Seeing that they were discussing two

different drugs, they agreed to meet

again Monday. Ramirez said he would

call REY on Monday (GX 8).

Lozano then reported to REY that

Uranga and Ramirez had heroin, not

cocaine (T 170).

June 25, Monday. That month U. S.

Attorney Jamie C. Boyd, an old

acquaintance of REY's, had issued a

personal call for citizens to report

C-27

criminal activity (T 473). It was well

known that some lawyers lacked confi-

dence in DEA (T 468). At any rate, REY

knew that Boyd was then involved in

El Paso in an unusually sensitive grand

jury investigation (the Judge Wood

case). REY called the district clerk's

office to determine when the grand jury

was to be in session and learned that

the grand jury was in session on the

26th through the 28th of June (TI 232,

233).

11:59 a.m. Uranga called REY. REY was

not in and his secretary said he

would return in an hour and a half

(GX 9).

4:20 p.m. Uranga called REY. During

the conversation they discussed

what Uranga thought was a misunder-

standing. Then Uranga reminded REY

that it was he, Uranga, who had

C-28

said "“chiva,”" or heroin. The

conversation:

URANGA: Yes, no, no. He I

had told you that it

was heroin

["“chiva"], lawyer.

REY: Oh, he also told me

that.

URANGA: Yes, that it was

heroin [("chiva"],

it's, it's heroin

{"heroina"], not

cocaine ["coca").

REY: Ah, I understood the

other one.

URANGA: No, heroin, heroin

("“chiva, chiva"]).

REY: Aha. No that's

another thing that

was also misunder-

stood.

URANGA: Yes, Z told you

heroin ["chiva"].

REY: Yes. (GX 9)

(Emphasis added)

They then agreed that Uranga would

furnish a sample to Lozano on Wednesday

the 27th at 4:00 p.m.

C-29

PEs we ww ee

June 26, Tuesday. REY testified

that he called Boyd's office and learned

that he was in El Paso. REY, who had

not talked to Boyd about a case for some

five years, was trying to see Boyd that

day. He went to the U. S. Attorney's

office on the third floor of the

courthouse and was unable to _ locate

Boyd. REY was told Boyd was busy with

the grand jury. REY was unable to see

Boyd on the 26th (TI 233, 234, 235).

Thinking, however, that he needed a

pretext to be in the U. S. Attorney's

office, REY told them that he was there

to discuss a Saucedo case with Boyd.

Saucedo was the only file REY had

pending with tthe JU. S. Attorney's

office. It was a civil case. REY was

directed to see Assistant U. S. Attorney

Mesa, which REY did, and told Mesa he

wanted to see Boyd (TI 234 and T 632,

636). Mesa admitted at trial that Boyd

C-30

was difficult to reach and that during

the three plus years Mesa was with the

office, REY only requested to see Boyd

on that occasion (T 631).

June 27, Wednesday. During the

morning REY learned that Boyd actually

kept his office apart from his staff and

had quarters on the fifth floor. REY

went to Boyd's private office and asked

to see Boyd. Boyd's secretary asked for

a reason and REY said Saucedo. The

secretary said Boyd was busy with the

grand jury. She told REY they would

call him (TI 238, T636). Later, when

Boyd was given the message by his

secretary, Boyd instructed the secretary

to tell REY to see Mesa about the case

(T 649). At 12:45 Boyd's office called

REY and told REY to see Mesa about the

case (TI 239 and DX N).

REY had already made arrangements

to have Lozano see about aie sample

C-31

(TI 240). After REY learned that he

could not see Boyd he decided that he

was no longer going to be involved in

the case and instructed his help not to

accept any further calls from Uranga for

him (TI 241, 244, 246).

4:00 p.m. The meeting was held at Fox

Plaza with Lozano and it is

follows in its entirety:

RAMIREZ:

LOZANO:

RAMIREZ:

LOZANO:

RAMIREZ:

LOZANO:

RAMIREZ:

LOZANO:

RAMIREZ:

LOZANO:

RAMIREZ:

Is the money ready?

What?

Is the money ready?

Yes.

Are you sure, I'm

not going to -

Yes, no, yes.

- wait one week, no.

What? Call hin,

call him.

No, when?

Tomorrow.

What do you mean,

tomorrow?

C-32

Alright, then, this

afternoon, then.

Well he said that -

Hey, we want to do

it today.

Alright, then, call

him this afternoon.

What, what, what,

how many minutes?

Twenty minutes.

Hey.

What?

Should I see you

here in thirty

minutes?

No, telephone him.

Where?

At his office.

Do you know the

number?

Yes.

Are you sure?

Yes.

Is the money ready?

Yes.

C-33

RAMIREZ: Tell him I'll call

him in thirty

minutes. (GX 10)

Although Lozano let Ramirez and

Uranga believe that they were about to

complete the transaction that day and

that they should call REY within one

half hour, the record reveals that REY

could not be reached by Uranga until

July 9, a period of 12 days, and then

only because on instructions of the

agents, Uranga made a pest of himself

and sat in REY's reception room. The

efforts to contact REY after 12:45 p.m.

on the 27th were as follows:

1:16 p.m. REY not in. Secretary said

REY would return in two hours.

2:17 p.m. REY not in. Secretary said

REY would return in two hours.

3:15 p.m. REY actually answers’ the

phone. The recording was then lost

but the agent noted that the

C-34

secretary still said REY was not in

(DX B and T 559).

p.m. REY not in. Secretary did

not think he would be back that

day. Uranga stated it was urgent

and that he would call back in 15

or 20 minutes (DX B, T 558).

p.m. REY not in. REY had not

called. Uranga said Lozano told

him to call in 25 or 30 minutes

(DX B, T 560).

June 28, Thursday.

a.m. REY not in. He was expected

9:59

to leave for Lubbock. Uranga

states again it was urgent he speak

to REY (DX C, T 560).

a.m. REY was on another line and

then talked to Uranga. REY said he

had not seen Lozano, that Lozano

was on his way and for Uranga to

call in 30 minutes (DX C_ and

T 561).

C-35

11:20 a.m. REY was not in. Office said

REY would return around 2:30 p.m.

(DX C, T 561).

2:21 p.m. REY not in. Left no

messages. Left for Lubbock (T 56l,

DX C) .

June 29, Friday.

11:15 a.m. REY not in. Was in Lubbock

(DX E, T 562).

July 2, Monday.

9:00 a.m. (T 562) (There was an error

on the times listed on GX 12.) REY

in. Says Lozano has not been in to

see him yet and that he expects to

see him at 10:00 a.m. Uranga even

offers to cross over. Uranga says:

"And I want something now, now I

have a problem _ now, lawyer."

Uranga explained that he needed

money because a child of his fell.

REY told Uranga to call before

C-36

11:00 a.m. as soon as he crossed

over. (DX 12, T 562)

10:12 a.m. (DX F states time of call

was 10:12 p.m. It was a.m.)

Uranga called REY as ietenoted.

REY was out and was not expected to

return until 2:00 p.m. (DX F,

T 567, 568)

p.m. REY in court. (DX F, T 567)

p.m. REY in court. (DX F, T 567)

p.m. REY in court. (DX F, T 567)

p.m. REY still out. Uranga says

it's urgent. (DX F, T 567).

July 3, Tuesday.

a.m. REY out. (DX F, T 567)

a.m. REY out. (DX F, T 567)

a.m. REY out. (DX F, T 567)

9:18

July 4, Wednesday.

a.m. Call forwarding puts call

into REY's home. He was not in.

(DX G, T 568).

C-37

July 5, Thursday.

> oom. REY not in. He was in Odessa

until Monday, July 9. as 8, 2

570)

July 9, Monday.

9:19 a.m. REY was in-but was on his way

to court. His secretary said that

REY said for Uranga to call at 3:00

p.m. that day. (DX H, T 570)

But rather than take a chance that REY

was going to continue to avoid Uranga,

Agent Licon testifi i that he decided to

send Uranga, uninvited, to REY's office

to be sure Uranga saw REY (T 571). In

addition, DEA apparently decided that

REY was unwilling or incapable of buying

kilo quantities of heroin, so they plan

to scale the sale down to one of four

ounces.

200 2.8. This was a face-to-face

meeting with REY. At this time

Uranga advised REY that his seller

C-38

had departed and had left him four

ounces to sell at $1,300 per ounce.

REY said four ounces was too little

and for Uranga to contact Lozano

directly. REY gave Uranga Lozano's

phone number. (GX 13, T 571-573)

This was the last contact REY had with

Uranga. Although REY said he had no

money to make a purchase on the 9th, he

had that morning deposited $4,240

(DX M).

Lozano testified that so far as he

knew, he was only to check on the

existence of the drug and on the

quantity and “that's all" (T 186).

Before he met with Uranga he could not

reach REY because REY was out of the

city (T 190).

4:11 p.m. As soon as Uranga left REY's

office, he wasted no time calling

Lozano. Uranga told Lozano that

REY had instructed him to cal’?

C-39

Lozano. Uranga said he would call

the next morning at 11:00 a.m. and

Lozano could pick him up (T 574 and

GX 14).

July 10, Tuesday.

10:57 a.m. Uranga called Lozano and

agreed to meet at the McDonald's at

Fox Plaza (T 575 and GX 15).

11:07 a.m. Lozano and Uranga meet at

McDonald's. Uranga was urging

Lozano to take a sample from the

four ounces, test it, then pay the

$1,300 per ounce. Lozano then

said: "Well, I need to talk to

[REY] ." Lozano needed REY's

authorization. Uranga then

discussed his misunderstanding with

REY and stated again that it was

he, Uranga, who had mentioned

heroin:

C-40

URANGA: But 4} called the

Lic. man, I called

the Lic. and told

him I've got some

"“chiva" - heroin.

* * * And I told him

I have this and that

and then he. said,

I'm going to take a

person and I _ said

no, strange persons

that I don't know,

no. You alone

directly with me.

Then when you went

there remember I

said.

Uranga then told Lozano to meet with REY

and that Uranga should call Lozano at

REY's office at 2:00 p.m. that day

(GX 16, T 575).

2:19 p.m. Uranga called Lozano. Lozano

Re

said he talked to REY, but that REY

was too busy. REY told Lozano to

go see him after 6:00 p.m. that day

(T 581 and DX I). At that point,

,

4eric.” is the abbreviation for the

Spanish word "licenciado," meaning

lawyer.

C-41

without waiting for REY's authorization,

Lozano stated that he had his own money

and that he had a truck, a pickup. They

then agreed to meet. Lozano said:

"Since you liked the truck, well we can

tie it up anyway" (T 581, DX I). Agreed

to meet at 5:00 p.m. that day at

McDonald's.

2:50 p.m. Uranga called Lozano, but

Lozano was out (T 584 and DX I).

2:53 p.m. Uranga called Lozano. Told

Lozano that they had agreed to meet

at 6:00 about the truck deal. They

then changed the meeting to the

next day at 11:00 a.m. (T 585,

DX I).

July 11, Wednesday.

9:49 a.m. Uranga called Lozano. They

agreed to meet. Lozano said he was

taking his pickup. Agreed to meet

at 11:00 a.m. at McDonald's.

C-42

Untortunately for Lozano, whoO was a

heroin user, the agents were getting

ready to sell him not heroin, but rather

sham heroin. The only actual drug in

the case was the one gram_ sample

delivered to Lozano on June 27.

10:46 a.m. This was the meeting at

McDonald's. The agents were

actually desperate to make some

sort of arrest, so they authorized

Uranga to sell the four ounces of

"heroin" for a $500 check written

by Lozano on a Mexican bank.

Lozano was then arrested. But

during that last meeting between

Lozano and Uranga it became clear

that Lozano never met with REY and

was entering into the transaction

on his own against REY's advice.

URANGA: Well, didn't the

lawyer lend you the

money ? Why didn't

he give it to you?

C-43

LOZANO: No, well, he told me

to go after six

o'clock in the

afternoon and I

don't like to be

given the run-around

and I don't like to

give it to other

people nor do I like

to get the heat. If

they catch me in

something like this

they're gonna give

me thirty years

x *

URANGA: Why didn't the Lic.

lend you the money?

LOZANO: Anyways, he said it

was very little, the

profit, and the risk

was great, including

for you, a damn big

risk, if they catch

you it's thirty

years. (T 589-592

and GX 19)

So rather than go see REY, Lozano

proceeded on his own. That is the only

evidence on the issue of authorization.

The next thing REY knew was that later,

on the llth, the agents went to REY's

office and arrested him on these charges

(TI 252, 594). REY testified that he

C-44

——- +

never dealt in drugs, never authorized

Lozano to enter into the deal with

Uranga, and never had illegal intent in

this case (TI 330, 337, TI 253).

C-45