# Petition — Armando De La Cerra v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1027

## Text

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0995%3A1. Public record. Not legal advice.