Petition — Armando De La Cerra v. United States

83-1048

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

BERNARDO ARMANDO DE LA CERRA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

JOSEPH T. VODNOY,

Attorney at Law

316 West Second Street

Suite 1200

Los Angeles, CA 90012

(213) 627-1736; 627-4701

Attorney for Petitioner,

Bernardo Armando De La Cerra

The Brief Shop © Legal Printers * (213) 877-8620

QUESTIONS PRESENTED

1. Whether Federal Rules of Evidence,

Rule 104(a), has modified prior law to the

contrary and authorized the consideration

of challenged hearsay statements in deciding

the preliminary question of the admissi-

bility of those statements under the co-

conspirator exception to the hearsay

rule?

2. Whether a defendant's membership

in a conspiracy must be shown by a pre-

ponderance of the evidence or by mere prima

facie evidence, before hearsay statements

are admitted under the co-conspirator

exception to the hearsay rule?

3. Whether the hearsay statements

admitted against the Petitioner at his

criminal trial were properly admitted under

the co-conspirator exception to the hearsay

-i-

rule, and if they were not properly admitted,

is the remaining evidence sufficient to

convict the Petitioner of conspiracy and

possession of narcotics?

-ii-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES Vv

OPINIONS BELOW 2

JURISDICTION 2

STATUTES INVOLVED 2

STATEMENT OF THE CASE 3

STATEMENT OF THE FACTS 4

REASON FOR GRANTING THIS PETITION 9

Ze THERE IS A SPLIT OF AUTHORITY

AMONG THE CIRCUITS CONCERNING

WHETHER A COURT SHOULD CON-

SIDER THE CHALLENGED HEARSAY

STATEMENTS IN DECIDING THE

PRELIMINARY QUESTION OF THE

ADMISSIBILITY OF THOSE

STATEMENTS UNDER THE CO-

CONSPIRATOR EXCEPTION TO THE

HEARSAY RULE. 9

-iii-

Page

II. THERE IS A SPLIT OF AUTHORITY

AMONG THE CIRCUITS CONCERNING

WHETHER A DEFENDANTS'S MEM-

BERSHIP IN A CONSPIRACY MUST

BE SHOWN BY A PREPONDERANCE

OF THE EVIDENCE OR BY MERE

PRIMA FACIE EVIDENCE, BEFORE

HEARSAY STATEMENTS ARE ADMIT-

TED UNDER THE CO-CONSPIRATOR

EXCEPTION TO THE HEARSAY

RULE. 16

III. HEARSAY STATEMENTS ADMITTED

AGAINST THE PETITIONER AT HIS

CRIMINAL TRIAL WERE NOT PROP-

ERLY ADMITTED UNDER THE CO-

CONSPIRATOR EXCEPTION TO THE

HEARSAY RULE AND THE REMAIN-

ING EVIDENCE IS INSUFFICIENT

TO CONVICT THE PETITIONER OF

CONSPIRACY AND POSSESSION OF

NARCOTICS. 25

CONCLUSION 28

EXHIBIT "A"

MEMORANDUM, UNITED STATES

COURT OF APPEALS FOR THE NINTH

CIRCUIT, Filed Aug. 19, 1983

EXHIBIT "B"

ORDER, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

Filed Oct. 27, 1983

-iv-

TABLE OF AUTHORITIES

Page

Cases

Anderson v. United States (1974)

417 U.S. 211 19

Arnott v. United States

52 U.S. Law Week 3340 a

Carbo v. United States

314 F.2d 718

(9th Cir. 1963) 14, 18, 20

Glasser v. United States (1974)

315 U.S. 60 15

Lutwak v. United States (1953)

344 U.S. 604 20

United States v. Andrews

585 F.2d 961 (10th Cir 1978) 23

United States v. Enright

579 F.2d 980 (6th Cir. 1978) 23

United States v. Eubanks

591 F.2d 513 (9th Cir. 1979) 18

United States v. Gibbs

703 F.2d 683 (3rd Cir. 1983) 18, 23

United States v. James

590 F.2d 575 (Sth Cir. 1979) 23

United States v. Jones

542 F.2d 186 (4th Cir. 1976) 23

-Vv~=

5.2 F.2d 833 (9th Cir. 1976) 18

United States v. Morton

483 F.2d 573 (8th Cir. 1973) 23

United States v. Nixon (1974) 14

418 U.S. 683 21, 24-26

United States v. Perez

658 F.2d 654

(9th Cir. 1981) 14, 18, 22

United States v. Petrozziello

548 F.2d 20 (lst Cir. 1977) 23

United States v. Renda

56 F.2d 601 (2nd Cir. 1932) 21

Page

United States v. King

United States v. Santiago

582 F.2d 1128 (7th Cir. 1978) 23

|

United States v. Spanos |

462 F.2d 1012 (9th Cir. 1972) 23

United States v. Trotter

529 F.2d 806 (3rd Cir. 1976) 24

United States v. Vinson

606 F.2d 149 (6th Cir 1979) 10

-vi-

Page

Statutes

21 U.S.C. §841 (a) (1) 4

21 U.S.C. §846 4

28 U.S.C. §1254 (1) & (2) 2

Rules

Federal Rules of Evidence:

Rule 104 (a) re ae

Rule 801(d) (2) (E) 3, 16, 17

Texts

McCormick, Evidence, (2d Ed. 1972)

794 24

4 3. Weinstein & M. Burger,

Weinstein's Evidence (1981)

§ 800 (02) 16

-vii-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

BERNARDO ARMANDO DE LA CERRA, Petitioner,

vs.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, Bernardo Armando De La

Cerra, prays that a writ of certiorari issue

to review the judgment of the United States

Court of Appeals for the Ninth Circuit

entered in the above-entitled case on

August 19, 1983. A petition for rehearing

was denied by the Court of Appeals on

October 27, 1983.

OPINIONS BELOW

The Memorandum Opinion of the United

States Court of Appeals for the Ninth

Circuit is unreported and is attached as

Appendix "A" hereto. The order denying

the petition for rehearing is attached as

Appendix "B".

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit

was entered on Aygust 19, 1983. The order

denying a rehearing was entered on

October 27, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C.

§1254(1) and (2).

STATUTES INVOLVED

Federal Rules of Evidence, Rule 104(a)

provides:

(a) Questions of admissibility

enerally. Preliminary questions

concerning the qualification of

a person to be a witness, the

=-3-

existence of a privilege, or the

admissibility of evidence shall

be determined by the court, subject

to the provisions of subdivision

(b). In making its determination

it is not bound by the rules of

evidence except those with respect

to privileges.

Federal Rules of Evidence, Rule

801(d)(2)(E) provides:

(2) Statements which are

not hearsay. A statement is not

hearsay if --

* + *

(2) Admission by party-

Opponent. The statement is

offered against a party and

TT ae

(E) A statement

by a coconspirator of

a party during the

course and in further-

ance of the conspiracy.

STATEMENT OF THE CASE

The Petitioner, Bernardo Armando De

La Cerra, was convicted after a jury trial

in the United States District Court in

Arizona of two felony offenses. Count I

alleged conspiracy to distribute cocaine in

violation of 21 U.S.C., sections 846 and

841(a)(1). Count II alleged the crime of

possession with intent to distribute cocaine

in violation of 21 U.S.C., section 84l(a) (1).

The Petitioner was sentenced to six years

in custody concurrently on each count. In

his appeal to the United States Court of

Appeals for the Ninth Circuit, the judgment

of conviction was affirmed.

STATEMENT OF THE FACTS

The evidence established that Oscar

Montenegro and Hector Espinoza were involved

selling cocaine. Numerous meetings, dis-

cussions and telephone call conversatio:s

occurred between those two men and under-

cover Drug Enforcement Administration Agent

Victor Cortez. While negotiating the

sale of the cocaine, Oscar Montenegro

disclaimed any ownership of the cocaine,

-4-

stating that he was only a middleman and

that the cocaine would be flown in to

Tucson from Los Angeles.

Hector Espinoza made arrangements with

Alfredo Lucero in order to use Lucero's

residence at 4195 South Mountain in Tucson

as a place where the cocaine sale to Agent

Cortez could occur. On June 23, 1982,

Oscar Montenegro called Agent Cortez and

arranged for Agent Cortez to meet him at

the Mountain Street residence. The record

also establishes that June 23, 1982 was

also the day that the Petitioner flew

from Los Angeles to Tucson.

When Agent Cortez arrived at the

Mountain Street residence, he entered the

residence and went to a back bedroom where

he was shown the cocaine by Oscar Montenegro

and Hector Espinoza. On his way to the

back bedroom, Agent Cortez noticed that

Francisco Soto was in another bedroom and

-5-

that the Petitioner was in a third bedroom.

Other evidence in the case established that

the Petitioner had arrived shortly before

Agent Cortez and that the Petitioner was

carrying a suitcase when he entered the

residence.

While Agent Cortez was in the bedroom

with Oscar Montenegro and Hector Espinoza,

Agent Cortez asked Montenegro concerning

the precise weight and the quality of the

cocaine. Before answering each question,

Oscar Montenegro left the bedroom where

the cocaine and Agent Cortez remained. On

each occasion, after a short period of time,

Oscar Montenegro would return and provide

the answers to Agent Cortez' questions.

On one occasion, Montenegro stated that

the owner of the cocaine said that it was

of good quality.

The government offered no evidence

establishing who Oscar Montenegro spoke

-6-

with, or, indeed, if he spoke with anyone,

when he left the bedroom containing the

cocaine and Agent Cortez. After all of

his questions were answered, Agent Cortez

left the residence, gave the arrest signal,

and agents entered the residence and

arrested all of the occupants. Oscar

Montenegro and Hector Espinoza were

arrested as they attempted to run from the

residence. On the other hand, however,

Francisco Soto and the Petitioner were

arrested in their separate bedrooms without

any attempt on their part to run from the

agents. Neither resisted arrest.

Furthermore, no cocaine was found

on the person of the Petitioner or in the

bedroom where he was arrested. The govern-

ment offered no statement made by the

Petitioner in its case-in-chief. Ap-

parently through an oversight, the DEA

agents left the Petitioner's suitcase at

=~ >

the Mountain Street residence after arrest-

ing the Petitioner. Several days later, the

agents returned for the suitcase. The suit-

case was examined by a narcotics-sniffing

dog to determine whether or not cocaine had

been in the suitcase on any occasion. The

examination by the narcotics-sniffing dog

proved negative for the presence of cocaine

in the suitcase.

REASON FOR GRANTING THIS PETITION

I

THERE IS A SPLIT OF AUTHORITY AMONG

THE CIRCUITS CONCERNING WHETHER A

COURT SHOULD CONSIDER THE CHALLENGED

HEARSAY STATEMENTS IN DECIDING THE

~ PRELIMINARY QUESTION OF THE AD-

MISSIBILITY OF THOSE STATEMENTS

UNDER THE CO-CONSPIRATOR "EXCEPTION

TO THE HEARSAY RULE

The issue of whether a trial court

may consider the challenged hearsay state-

ments in deciding the preliminary question

of the admissibility of those statements

under the co-conspirator exception to the

hearsay rule was before this Court as

recently as October 30, 1983. On that

date in Arnott v. United States, 82-2028,

52 U.S. Law Week 3340, this Court denied

certiorari on this issue. However, Justice

White dissented, noting that the question

presented was one of substantial importance

and that the circuits are divided on this

question.

In Justice White's dissent in the

Arnott case, it was noted that the Sixth

Circuit under United States v. Vinson, 606

F. 2d 149, 153 (6th Cir. 1979) has abandoned

the pre-existing rule that co-conspirator

statements are admissible only after the

government establishes independent proof

of the conspiracy. In noting this major

departure from pre-existing case law, Justice

White stated:

Without commenting on the suf-

ficiency of the Government's inde-

pendent evidence, the Court of

Appeals simply reaffirmed its

previous holdings that Fed.Rule

Evid. 104(a) had modified prior law

to the contrary so as to authorize

the consideration of challenged

hearsay statements in deciding

the preliminary question of ad-

missibility, see, e.g., United

States v. Cassity, 631 F.2d 461,

464 (1980); United States v.

Vinson, supra, at 153, and re-

jected petitioner's contention.

704 F.2d 322, 325.

The rule adopted by the

Sixth Circuit and applied in this

case conflicts with the one enun-

-10-

ciated by every other Court of

Appeals that has addressed the

issue. Those courts have, almost

without exception, admitted

statements of co-conspirators

only upon a showing by a pre-

ponderance of independent

evidence that a conspiracy

existed in which the declarant

and the defendant were both

members and that the challenged

statements were made in further-

ance of the conspiracy. See,

United States v. Nardi, 633 F.

2d 972, 974 (CAl 1980); United

States v. Alvarez-Porras, 643

F. 20g 54, 56-57 (CA2), cert.

denied, 454 U.S. 839 (1981);

Government of the Virgin Islands

v. Dowling, 633 F.2d 660, 664

(CA3), cert. denied, 449 U.S.

960 (1980); United States v.

Gresko, 632 F.2d 1128, ll3l-

1132 (CA4 1980); United States

v. James, 590 F.2d 575, 580-581

(CA5) (en banc), cert denied,

442 U.S. 917 (1979); United

States v. Regilio, 669 F.2d

1169, 1174 (CA7 1981), cert.

denied, 457 U.S. 1133 (1982);

United States v. Bell, 573 F.

2d 1040, 1043-1044 (CA8 1978);

United States v. Andrews, 585

F.2d 961, 964-967 (CA1O 1978);

United States v. Monaco, 702 F.

2d 860, 876-880 (CAll 1983)

(stating standard in terms of

both substantial evidence and

preponderance of the evidence) ;

United States v. Jackson, 201

-ll-

U.S. App. D.C. 212, 227-234,

627 F.2d 1198, 1213-1220 (CADC

1980). The Ninth Circuit requires

independent evidence sufficient

to establish a prima facie case

that a conspiracy existed and

that the defendant was part of

it. See, United States v.

Miranda-Uriarte, 649 F.2d 1345,

1349-1350 (1981). See also,

United States v. Nixon, 418 U.S.

683, 701, and n.14 (1974) (dicta)

(52 U.S. Law Week 3340)

The identical issue exists in the

Petitioner's case because from the Ninth

Circuit's opinion it is clear that in

determining whether there was independent

evidence of the conspiracy, the Court

considered part of the hearsay statements

themselves. The Ninth Circuit opinion in

this case states:

Under the standard set forth

above, there is sufficient evidence

in the record to connect De La

Cerra to the conspiracy. De La

Cerra entered the house in which

the sale was to take place carry-

ing a suitcase. Since he was the

only one of four people to enter

carrying anything, the jury could

have concluded that he brought the

-12-

cocaine into the house. In

addition, De La Cerra had arrived

in Tucson less than an hour

before Montenegro called a

government agent to say "Every-

thing is here." This evidence

constitutes the "slight evidence”

required for connection to an

established conspiracy. (Slip

opinion, p.3-4)

In determining whether the Petitioner

was a member of the conspiracy, which was

a foundational fact for the admission of

statements of alleged co-conspirators

against him, the Court used evidence of the

statement of alleged co-conspirator

Montenegro in determining whether or not

there was evidence connecting the Petitioner

to the conspiracy. This clearly violates

existing law which requires that "In order

to prove the existence of conspiracy under

the third prong of the co-conspirator

exception, the prosecution must establish

a prima facie case through the introduction

of substantial independent evidence other

-13-

than the contested conspiracy." United

States v. Perez, 658 F. 2d 654, 658 (9th

Cir. 1981). Stated another way, hearsay

declarations of co-conspirators are ad-

missible only if there is proof independent

of the declarations themselves that the

defendant is connected with the conspiracy.

See, Carbo v. United States, 314 F. 2d

718-735 (9th Cir. 1963).

Even in the earlier opinions of this

Court on the hearsay rule, independent

proof of the conspiracy is required prior

to admitting co-conspirator statements. In

United States v. Nixon, 418 U.S. 683, 701

(1974), this Court stated:

The hearsay rule does not

automatically bar all out-of-court

Statements by a defendant in a

criminal case. Declarations

made by one defendant may also

be admissible against other

defendants upon a sufficient

showing, by independent evidence,

of a conspiracy among one or more

other defendants and the declarant

-14-

if the declarations at issue

were in furtherance of the

conspiracy. (Id., at 701)

Earlier, in Glasser v. United States,

315 U.S. 60, 74-75 (1974), this Court also

stated:

[DJeclarations [of co-

conspirators] are admissible...

only if there is proof aliunde

that he [the defendant] is

connected with the conspiracy.

Otherwise, hearsay would lift

itself by its own bootstraps

to the level of competent

evidence. (Id., at 74-75)

Nothing in Rule 104(a) of the Federal

Rules of Evidence appears to expressly or

directly modify existing laws pertaining to

conspiracy and the co-conspirator hearsay

exception. Petitioner, therefore, urges

that this petition be granted to resolve

this conflict of authority.

=15-

II

THERE IS A SPLIT OF AUTHORITY AMONG

THE CIRCUITS CONCERNING WHETHER A

DEFENDANT'S MEMBERSHIP IN A CON-

SPIRACY MUST BE SHOWN BY A PRE-

PONDERANCE OF THE EVIDENCE OR BY

MERE PRIMA FACIE EVIDENCE, BEFORE

HEARSAY STATEMENTS ARE ADMITTED

UNDER THE CO-CONSPIRATOR EXCEPTION

TO THE HEARSAY RULE

The Federal Rules of Evidence, Rule

801(d) (2) (E) provides in part that: "[A]

statement is not hearsay if...[t]he state-

ment is offered against a party and is...

a statement by a co-conspirator of a party

during the course and in furtherance of

the conspiracy."

The Federal Rules of Evidence carry

forward the common law policy against the

admission of hearsay testimony. See

generally, 4 J. Weinstein and M. Burger,

Weinstein's Evidence, §800(02) (1981).

Thus, a witness cannot testify in court

concerning someone else's out-of-court

-16-

statement to establish the truth of facts

asserted in that statement.

A major exception to this policy is

that the out-of-court statements of a party

to the case or his agent are considered

“admissions” and may be used as substantive

evidence. Federal Rules of Evidence, Rule

801(d) (2). One aspect of this admissions

exception to the hearsay rule is the co-

conspirator exception to the hearsay rule

which is set forth shove ‘in Rule 801(d) (2) (E).

The co-conspirator exception to the

hearsay rule provides that statements

offered against a party that are made "by

a co-conspirator of a party during the

course and in furtherance of the conspiracy"

are not hearsay and are admissible. "Essen-

tially, this provision treats a conspiracy

as a type of agency relationship and holds

a party vicariously responsible for the

~1J=

statements of his co-conspirators." United

States v. Gibbs, 703 F. 2d 683, 687 (3rd

Cir. 1983).

The co-conspirator exception to the

hearsay rule requires proof of three ele-

ments: (1) that the declaration be in

furtherance of the conspiracy; (2) that

the declaration be made during the course

of the conspiracy; and (3) that there is

independent proof of the existence of the

conspiracy and the connection of the

declarant and the defendant with it.

United States v. Perez, 658 F. 2d 654,

658 (9th Cir. 1981); Carbo v. United States,

314 F. 2d 718, 753 (9th Cir. 1963); United

States v. Eubanks, 591 F. 2d 513 (9th Cir.

1979). The determination of whether or

not a hearsay declaration is admissible

under the co-conspirator exception, is

resolved by the trial judge, and not the

jury. United States v. King, 552 F.2d 833,

-18-

848 (9th Cir. 1976).

The co-conspirator's exception to

the hearsay rule applies, as stated in

this Court's decision in Anderson v. United

States, 417 U.S. 211, 218 (1974), “if the

declaration was made during the course and

in furtherance of the conspiracy charged..."

As a practical matter, however, the ad-

missibility of the hearsay evidence does

not rest upon the fulfillment of the con-

ditions enunciated in the Anderson case.

More frequently, the admissibility of

hearsay statements under the co-conspirator

exception turns upon a determination of a

third criteria, namely, whether there is

sufficient evidence exclusive of the hearsay

to connect the defendant with the conspiracy.

As one Court stated "[S]uch declarations

are admissible...only if there is proof

independent of the declaration that he

[the defendant] is connected with the

-19-

conspiracy." Carbo v. United States, 314

F. 2d 718, 735 (9th Cir. 1963).

Unfortunately, the federal courts

have not formulated a uniform test to de-

termine the quantum of independent evidence

necessary to satisfy the third pre-condition

to the admission of a co-conspirator's

declaration. All of the federal court of

appeals have instructed trial judges in

the district courts that they must ignore

the hearsay itself, and concentrate solely

on the so-called independent evidence in

the case before determining whether there

is sufficient foundation to admit the

hearsay. See, Lutwak v. United States,

344 U.S. 604, 617 (1953). The reason for

this is that co-conspirator statements are

admitted on the basis of an agency theory.

And the existence of an agency cannot be

shown by the agent's own declaration; the

fact of the agency must be shown indepen-

-20-

dently. United States v. Renda, 56 F. 2d

601, 602 (2nd Cir. 1932)

The United States Supreme Court has

offered no definitive guidance in this area,

and has not adopted a standard for the trial

judges to use in determining whether or not

the independent evidence is sufficient to

connect the defendant to the conspiracy.

In United States v. Nixon, 418 U.S. 683,

701 (1974), the Court stated:

Declarations by one defen-

dant may also be admissible against

other defendants upon a sufficient

showing, by independent evidence,

of a conspiracy among one or more

other defendants and the declarant

and if the declarations at issue

were in furtherance of the con-

spiracy. (Id., at 701)

In a footnote to that statement, the

Court elaborated on its expression

“independent evidence" and suggested

that "as a preliminary matter, there must

be substantial, independent evidence of

the conspiracy, at least enough to take

-2l-

the question to the jury." Id., at 701

n.14. Clearly, if the Court meant to

equate substantial evidence with a reasonable

doubt standard, it could have done so ex-

plicitly. But on the other hand, if sub-

stantial evidence means something less than

reasonable doubt, it is difficult to under-

stand why the Court would not be more

specific concerning what that standard

should be.

Because of the lack of specificity,

the circuits are split concerning the

standard to be used by the trial court.

In the Ninth Circuit and the Eighth Circuit,

the trial judge merely must find that the

prosecution has established by prima facie

evidence that a conspiracy exists and that

the defendant is a member of the conspiracy

in order to allow the hearsay statements of

a co-conspirator to be admitted. United

States v. Perez, 658 F. 2d 654, 658 (9th

-22-

Cir. 1971); United States v. Spanos, 462 F.

2d 1012, 1014 (9th Cir. 1972); United States

v. Morton, 483 F. 2d 573, 576 (8th Cir.

1973).

On the other hand, in contrast to

this, the vast majority of federal courts

of appeals have held that "The prosecution

must lay a foundation for the admission of

co-conspirator hearsay by establishing the

existence of a conspiracy including the

defendant by a fair preponderance of inde-

pendent evidence." United States v. Gibbs,

703 F. 2d 683, 687 (3rd Cir. 1983); United

States v. James, 590 F. 2d 575 (5th Cir.

1979); United States v. Andrews, 585 F. 2d

961 (10th Cir. 1978); United States v.

Santiago, 582 F. 2d 1128 (7th Cir. 1978);

United States v. Enright, 579 F. 2d 980

(6th Cir. 1978); United States v.

Petrozziello, 548 F. 2d 20 (lst Cir. 1977);

United States v. Jones, 542 F. 2d 186 (4th

-23-

Cir. 1976). The preponderance of evidence

standard requires that the prosecution present

sufficient proof leading the trial judge to |

find that the existence of the contested fact

is more probable than its non-existence.

United States v. Trotter, 529 F. 2d 806,

812 n.8 (3rd Cir. 1976). See also, McCormick,

Evidence 794 (2nd Ed. 1972). In the Trotter

case, the Third Circuit refused to accept the

government's suggestion that a less rigorous

Standard requiring only prima facie proof was

appropriate in light of United States v.

Nixon, 418 U.S. 683 (1974).

@* Conspiracy prosecutions in federal

courts undoubtedly account for more than

half of the criminal prosecutions that are

brought. The rules governing the admissi-

bility of co-conspirator hearsay should,

therefore, be brought into uniformity by

a decision of the United States Supreme

Court.

-24-

Itt

HEARSAY STATEMENTS ADMITTED AGAINST

THE PETITIONER AT HIS CRIMINAL TRIAL

WERE NOT PROPERLY ADMITTED UNDER THE

CO-CONSPIRATOR EXCEPTION TO THE

HEARSAY RULE AND THE REMAINING

EVIDENCE IS INSUFFICIENT TO CONVICT

THE PETITIONER OF CONSPIRACY AND

POSSESSION OF NARCOTICS

In the present case, the only evidence

connecting the Petitioner to the conspiracy,

which is compietely independent of the

Statements of the co-defendants, is the

fact that the Petitioner carried a suitcase

into the house and that he was the only one

of four people to enter the house carrying

anything. From this, the Ninth Circuit has

concluded that the jury could have concluded

that he brought the cocaine into the house.

The Petitioner submits that this is not the

substantial independent evidence of the

Petitioner's membership in the conspiracy

required before such hearsay is admissible.

In a footnote in United States v. Nixon,

=25-

Supra, at 704 n.14, the Court elaborated

on its expression “independent evidence"

and suggested that "as a preliminary matter,

there must be substantial, independent

evidence of the conspiracy, at least enough

to take the question to the jury." There

was never any proof at the trial that

cocaine was ever inside Petitioner's suit-

case. Indeed, the Drug Enforcement

Administration attempted to prove that

cocaine was in the suitcase through the

use of specially trained dogs. However,

the dogs failed to alert on the suitcase

and proved precisely the opposite of what

the prosecution was contending -- namely,

that no cocaine had been in the suitcase.

On this record, therefore, for the jury

to conclude that Petitioner brought the

cocaine into the house merely because he was

carrying a suitcase, is a conclusion that

borders on speculation.

-26-

Essentially, the Petitioner is arguing

that the mere carrying of a suitcase into a

house is insufficient evidence to establish

that he was a member of the conspiracy. And

if this evidence did not establish that he

was a member of the conspiracy, then the

hearsay statements of the co-defendants,

especially Mr. Montenegro, should never

have been admitted during his case during

1/

the course of the trial. Furthermore, the

1/The trial court admitted the highly

prejudicial and inadmissible evidence con-

cerning the co-conspirator declaration of

Montenegro. For example, a government

agent testified that Montenegro stated

that co-defendant Soto had a pal in Los

Angeles who had one kilogram of cocaine

to sell. The government agent also tes-

tified that Montenegro called himself a

middleman and that Montenegro stated

that he had an associate flying to Tucson

from Los Angeles who had the cocaine.

Likewise, the government agent testified

that Montenegro stated that the connection

was arriving around 5:00 p.m. and after

5:00 p.m., Montenegro told the agent that

everything was ready for the transaction.

Finally, during the transaction itself,

Montenegro told the agents that (con't)

-27-

evidence would be legally insufficient to

sustain his conviction on appeal and this

Court should reverse that conviction for

insufficient evidence.

CONCLUSION

Based upon the foregoing, Petitioner

urges that this petition be granted.

Respectfully submitted,

Va see

“JOSEPH T. VODNOY

Attorney for Petitioner

BERNARDO ARMANDO DE LA CERRA

{footnote 1/ continued]

the source of the cocaine was in the house.

Since all of these statements of Montenegro

came as hearsay statements, testified to by

a government agent, their admissibility

depended upon a proper foundation being

laid under the co-conspirator exception

to the hearsay rule.

-28-

APPENDIX "A"

APPENDIX "A"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 82-1643 and 82-1644

USDC NOS. CR 82-139-3-ACM,

CR 82-139-4-ACM

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

vs.

FRANCISCO ARMANDO SOTO,

Defendant/Appellant.

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

vs.

BERNARDO ARMANDO DE LA CERRA,

Defendant/Appellant.

Appeal from the United States District Court

for the District of Arizona

Hon. Alfredo C. Marquez, Judge Presiding

Argued and Submitted Jume 14, 1983

MEMORANDUM

[Filed Aug. 19, 1983]

-la-

Before: WALLACE, TANG, and NELSON,

Circuit Judges

Appellants Soto and De La Cerra appeal

their convictions for conspiracy to distri-

bute cocaine, a violation of 21 U.S.C.

§§ 84l1(a)(1), 846, and possession with

intent to distribute cocaine, a violation

of 21 U.S.C. §84l1(a) (1). Soto challenges

the trial court's denial of a motion to

sever and the denial of motions for dis-

missal and for a judgment of acquittal

based on the sufficiency of the evidence.

De La Cerra claims 1) that there was not

sufficient evidence for his conviction,

2) that the trial court erred in ad-

mitting his post-arrest statements, and

3) that he was not allowed full cross-

examination. We find these contentions

without merit.

We review the decision on severance

for abuse of discretion. United States

-2a-

v. Abashi, 682 F. 2d 1289, 1296 (9th Cir.

1982). Soto argues that, under Bruton v.

United States, 391 U.S. 123 (1968), the

trial judge should have severed his trial

because De La Cerra's post-arrest statement

that Montenegro checked with Soto on the

quality of the cocaine was admitted into

evidence. We find no merit in this argument.

De La Cerra took the stand and Soto had full

opportunity to cross-examine him, making

Bruton inapplicable. See id. at 126.

Soto alternatively argues that he

should have been granted a severance be-

cause had there been separate trials, co-

defendants would have testified on Soto's

behalf. Soto made no showing, however,

that any of his co-defendants would testify

for him, though the trial court gave him

the opportunity to make such a showing at

any time. The unsupported assertion that

a codefendant would testify formally in

-3a-

a separate trial does not require reversal

of the denial of a motion for severance.

E.g., United States v. Hadnett, 638 F. 2d

1179, 1187 (9th Cir. 1980).

The standard of review for the suf-

ficiency of the evidence is "whether, after

viewing the evidence in the light most

favorable to the prosecution, any rational

trier of fact could have found the essential

element of the crime beyond a reasonable

doubt." Jackson v. Virginia, 443 U.S. 307,

314 (1979). Soto argues that the evidence

proves only his presence at the scene of

the crime, which is insufficient to connect

him with the conspiracy. See United States

v. Weaver, 594 F. 2d 1272 (9th Cir. 1979).

Once a conspiracy is established, only

Slight evidence is necessary to convict

a co-conspirator. E.g., United States v.

Ledesma, 499 F.2d 36, 40 (9th Cir. 1974).

In this case, there was substantial

-4a-

evidence to connect Soto to the conspiracy

in addition to his presence: a principal in

the conspiracy had introduced Soto to a

government informant as a cocaine seller;

Soto arrived at the house in Tucson on the

same night that other conspirators showed

cocaine and scales to a government agent;

and a federal officer testified that Soto

did not respond to a knock at the door

and the announcement of “federal offices.”

This evidence was sufficient to establish

Soto's connection to the conspiracy. See,

e.g., United States v. Brandon, 633 F. 2d

773, 780-81 (9th Cir. 1980); United States

v. De Jesus, 520 F.2d 298, 299 (lst Cir.)

cert.denied, 423 U.S. 865 (1975).

Under the standard set forth above,

there is sufficient evidence in the record

to connect De La Cerra to the conspiracy.

De La Cerra entered the house in which a

sale was to take place carrying a suitcase.

-Sa-

Since he was the only one of four people to

enter carrying anything, the jury could have

concluded that he brought the cocaine into

the house. In addition, De La Cerra had

arrived in Tucson less than an hour before

Montenegro called a government agent to say

"everything is here." This evidence con-

stitutes the "slight evidence" required

for connection to an established conspiracy.

De La Cerra claims that the district

court committed clear error in denying his

motion to suppress post-arrest statements

on grounds that he was not properly informed

of his Miranda rights. United States v.

Booth, 669 F. 2d 1231, 1238 (clearly

erroneous standard of review applies). We

find no merit in this contention. The

record indicates that De La Cerra was

adequately informed of his Miranda rights

at the time of his arrest, and waived those

rights before making his statements. See

-6a-

California v. Prysock, 453 U.S. 355, 359

(1981); United States v. Sanford, 673 F.

2d 1070, 1072 (9th Cir. 1982).

De La Cerra also argues that he was

denied the right to confront witnesses when

the court cut off cross-examination of

government witnesses on two occasions. On

the first occasion, the court ended the

examination of a government agent regarding

the government's failure to charge the

tenants of the house where the arrests

took place. The court later allowed a care-

ful cross-examination of the tenants thenm-

selves. We find that the credibility of

the tenants was of such "slight or marginal

relevance" that the court was not required

to permit further cross-examination of the

government witness. See Chapman v. Mercer,

628 F.2d 528, 530 (9th Cir. 1980). On the

second occasion, De La Cerra was stopped in

examining one of the tenants as to the time

-7a-

the cocaine and scales were brought in.

De La Cerra was later allowed to examine

this tenant fully on that question, so

that his cross-examination was not effec-

tively restricted. See United States v.

Cutler, 676 F. 2d 1245, 1249 (9th Cir.

1982) (test is whether the jury had

sufficient information on the issue).

Accordingly, the convictions of

Soto and De La Cerra are AFFIRMED.

-8a-

APPENDIX "B"

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 82-1644

DC No. CR 82-139-4-ACM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

BERNARDO ARMANDO DE LA CERRA,

De fendant-Appellant.

ORDER

Before: WALLACE, TANG and NELSON,

Circuit Judges.

[Filed Oct. 27, 1983]

The panel as constituted in the above

case has voted unanimously to deny the

petition for rehearing and to reject the

suggestion for a rehearing en banc.

The full court has been advised of

the suggestion for en banc rehearing and

no judge of the court has requested a vote

-lb-

on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is

DENIED and the suggestion for rehearing

en banc is REJECTED.

-2b-