Petition — VALDES v. UNITED STATES (Nos. 83-1428, 83-1410, 83-1425, 83-1530)

. FILED

83-1428 FEB 14 1994

ALEXANDER L. STEVAS,

CLERK

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HECTOR THEODORE VALDES,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

MARC COOPER, ESQUIRE

500 Roberts Building

28 West Flagler Street

Miami, Florida 33130

Telephone: (305)371-1597

Counsel of Record for

Petitioner VALDES

February 13, 1984

II.

. ee. ae oie SR re aa ae eee

‘” ra fe -t i.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE DECISION BELOW PRESENTS

AN IMPORTANT QUESTION OF FEDERAL LAW

AND CREATES IRRECONCILABLE CONFLICT

WITH THE PRECEDENT OF THIS COURT BY

HERALDING THE END OF THE TIME HONORED

-» MERE PRESENCE RULE.

WHETHER THE DECISION BELOW CREATES

IRRECONCILABLE CONFLICT WITH VARIOUS

CIRCUIT COURT DECISIONS INCLUDING

UNITED STATES v. LOPEZ-ORTIZ, 492

F.2d 109 (5th Cir. 1974); UNITED

STATES v. REYES, 595 F.2d 275 (Sth

Cir. 1979); UNITED STATES v. PINTADO,

715 F.2d 1501 (llth Cir. 1983); UNI-

TED STATES v. PARDO, 636 F.24- 535

(D.C. Cir. 1980); and UNITED STATES

v. LAUGHMAN, 618 F.2d 1067 (4th Cir.

1980).

ya alll ” a

PARTIES TO THE PROCEEDING IN THE COURT BELOW

United States of America

Alberto Lopez-Llerena

Felix Parra

Jose Borges

Jose Delfin Mule Vasquez

Lazaro Cruz, Jr.

Hector Theodore Valdes

Fausto Manuel Sanchez

Raul Pinera

Carles Olivera-Chirino

Jose Luis Marino

Pe, Sr

oe,

INDEX

Questions Presented

Parties to Proceeding Below

Citations

Opinion Below

Jurisdiction

Constitutional Provisions and

Statutes Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

CITATIONS

Cases

Sibron v. New York,

392 U.S. 40 (1958)

Ybarra v. Illinois,

444 U.S. 85 (1980)

United States v. Blasco,

702 F.24 1315 (llth Cir.1983)

United States v. DiRe,

332 U.S. 581 (1948)

United States v. Laughman,

- 617 F.2d 1067 (4th Cir. 1980)

-iii-

iii

21

23

‘United States v. Lopez-Ortiz,

492 F.2d 109 (Sth Cir. 1974),

cert. den. 419 U.S. 1052 (1976)

United States v. Pardo,

2 636 F.2d 535 (D.C. Cir. 1980)

United States v. Pintado,

715 F.2d 1501 (llth Cir. 1983)

United States v. Reyes,

595 F.2d 275 (Sth Cir. 1979)

Other Authorities

_ Pifth Amendment, U.S.Const.

Sixth Amendment, U.S.Const.

21 U.S.C. § 846

| 28 U.S.C. § 1254(1)

28 U.S.C. § 1291

15,18

15,20

15,17,18,

19,20

15,17

a nN NY NHN BW

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HECTOR THEODORE VALDES,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

for the Eleventh Circuit

OPINION BELOW

The opinion of the lower court is repor-

ted in United States v. Lopez-Llerena, 721

F.2d 311 (llth Cir. 1983), rehearing denied,

- 721 F.2d 311 (llth Cir. 1983).

bit 5

JURISDICTION

The Judgment of the Court of Appeals for

the Eleventh Circuit affirming the Petition-

er's ‘conviction was entered on August 30,

1983. On December 16, 1983, the Eleventh Cir-

cuit denied the Petitioner's Petition for ke-

hearing. On January 6, 1984, the Eleventh

Circuit denied Petitioner's suggestion for Re-

hearing En Banc. */

The jurisdiction of the Court is invoked

pursuant to 28 U.S.C., § 1254(1) and Supreme

Court Rule 20.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Const., Amendment V:

No person shall .. . be deprived

of life, liberty, or property,

without due process of law; ....

U.S. Const., Amendment VI:

In all criminal prosecutions, the

accused shall enjoy the right to a

*/ he udgment and inion on reheari are

contain “ae the appendix to the brief of Pe-

titioner Alberto Lopez-Llerena, a codefendant,

which Petitioner VALDES adopts here. VALDES

a supplements that appendix with the order deny-

_ dng rehearing en banc

Mie * & 7 ‘ 4 . j P : . ig ia)

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—.

speedy and public trial, by an im-

partial jury .. . and to be in-

formed of the nature and the cause

of the accusation; to be confron-

ted with the witnesses against

him; to have a compulsory process

for obtaining witnesses in his fa-

vor, and to have the assistance of

counsel for his defense.

21 U.S.C. § 846, attempt and conspiracy:

Any person who attempts or con-

spires to commit any offense de-

vined in this subchapter is pun-

ishable by imprisonment or fine or

both which may not exceed the max-

imum punishment prescribed for the

offense, the commission of which

was the object of the attempt or

conspiracy.

a

STATEMENT OF THE CASE

The Petitioner HECTOR THEODORE VALDES was

arrested as a result of a law enforcement raid

on two neighboring houses in a residential

area in Key Largo, Florida, following an off-

load of marijuana from two vessels docked be-

hind the premises. He, along with ten code-

fendants, was charged in a two-count Indict-

ment with conspiracy to possess with intent to

Gistribute marijuana and with possession of

marijuana. After an initial trial, resulting

in a hung jury, each of the defendants was

ultimately found guilty of conspiracy and not

guilty of the possession count.

The evidence showed that when various po-

lice vehicles with flashing blue lights and

sirens sounding converged on the premises,

various suspects ran in different directions.

At least three people climbed an external

stairway and went into the upstairs portion of

one of the two neighboring houses raided.

Four persons were observed running toward a

cluster of sea grape bushes. Three persons

were eérrested after being observed running

towards a fence near a canal. A final person

was found hiding under a dock. None of the

eleven persons ultimately arrested was ever

identified as having participated in any way

in the off-load operation. Petitioner was

found in the cluster of sea grape bushes.

There were no fingerprints, no photo-

graphs, no evidence of recent exertion, no

marijuana residue, no statements, no contra-

band on any of the persons arrested.

There was, however, substantial evidence

to show that other people at the scene had

avoided detection and apprehension. Neverthe-

less, the Petitioner was arrested, charged and

convicted because of his proximity to the off-

load operation. By the agents’ own admission,

| they would have, and did, arrest everyone they

found. Because eleven people had been

observed participating in the off-load and

eleven people were ultimately arrested, each |

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—*

.

a of those srrested was tried and convicted

based entirely on his presence in the area,

despite the conceded inability of the

arresting officers to have apprehended all

those who participated. Such a result does

not comport with either the promise of a .fair

trial or the guarantee of due process afforded

by the Fifth Amendment to the United States

Constitution.

The Eleventh Circuit's jurisdiction to

entertain Petitioner's direct appeal was

predicated upon 26 U.S.C., Section 1291.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW PRESENTS AN

IMPORTANT QUESTION OF FEDERAL LAW

AND CREATES IRRECONCILABLE CON-

FLICT WITH THE PRECEDENT OF THIS

COURT BY HERALDING THE END OF THE

TIME HONORED MERE PRESENCE RULE.

The decision of the Eleventh Circuit Court

of Appeals affirming the Petitioner's convic-

tion for conspiracy to possess merijuansa

2 signals the death knell of the heretofore

established “mere presence doctrine” in this

) jurisdiction. It has long been the rule, 9s

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held by this Court in United States v. Die,

332 U.S. 561, 593 (1948), that mere presence

is insufficient, without more, to sustain a

conviction for conspiracy. Likewise, equally

well established is the doctrine repeatedly

expressed as in Sibron v. New York, 392 U.S.

40, 62-63 (1968), and Ybarra v. Illinois, 444

U.S. 8S, 91 (1980), that:

{A] person's mere propinquity to

others independently suspected of

criminal activity does not, with-

out more, give rise to probable

cause to search that person.

The decision of the Eleventh Circuit in

this case signifies an extraordinary and

irreconcilable departure from the time honored

rule that mere presence, even when coupled

with flight, is not alone enough upon which to

predicate criminal convictions.

In the case at bar, two vessels, the

"Sunshine" and the “Odette”, were observed by

police being unloaded of their cargoes of

marijuana during the early morning hours of

December 22, 1981. The “Sunshine” arrived

} first, docked behind a house in Key Largo,

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Florida, and approximately an hovr later,

after the “Sunshine” had departed, the

“Odette” docked behind a house next door.

(Tr. 82-84, 88). It appeared to surveilling

officers that eleven people, all together,

were involved in each off-load operation.

None of the defendants at trial were identi-

fied by any government witness as having been

involved in either off-load operation. None

of the government's witnesses could identify

any defendant as having been observed at any

specific location on the 2lst or 22nd of

December, 1981, prior to his arrest. (Tr.

4186-419). No surveilling officer was able to

see the faces of any of the people at the

scene. They could not describe what any of

the people were wearing. The individuals

involved could only be seen as silhouettes.

(Tr. 684-85). It was not known whether the

people seen were black or white. (Tr. 217,

454) .

There was no attempt to obtain

fingerprints in this case. (Tr. 124-126).

Although the “Sunshine” was later scized in

the Miami River, no evidence was presented

that it was tested for latent fingerprint

impressions so as to identify the people who

had been on board it. (Tr. 156-157). No

evidence was presented that any of the

suspects had marijuana residue on their cloth-

ing. Apparently, no attempt was made to

gather such evidence. (Tr. 218-222). Radio

broadcasts and communications related to the

investigation were monitored, however, none

were admitted into evidence or described by

any witness. (Tr. 150). No conversations or

interceptions were recorded. (Tr. 150).

No attempt was made to take photographs of

the off-loading operation. (fr. 183, 262).

No evidence was presented that any of the

defendants on trial owned either of the houses

or vessels involved in this case. (Tr. 193-

194). Later investigation revealed that one

of the houses was owned or rented by an

individual uncharged in this case. (Tr. 152).

Papers located on the vessel “Odette”

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indicated that its owner was also a person who

was not arrested. (Tr. 147).

The critical deficiency in the govern-

ment's case against the Petitioner involves

the fact that the prosecution was based solely

upon a “numbers game." All that was cercain

was that anyone on the premises or in the

immediate area would be arrested even though

the actual arresting officer had no knowledge

of how many people were involved in the off-

loading operation. (Tr. 301-302). However,

since eleven people were observed in the off-

loading operation, it was predistined that

eleven people would be arrested and face trial

in this case.

The defect in the government's theory of

the case, however, involved not only the

insufficiency of the evidence against the

Petitioner, but the fact that there was

evidence that guilty persons involved in the

off-load operation had escaped detection while

innocents were indiscriminately arrested and

charged. The undisputed evidence presented by

-10- —

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_F7

the government demonstrated that Drug Enforce-

ment Administration Agent William Simpkins

took possession of two wallets discovercd in

the first house. (Tr. 668-669). The two

people identified by documentation found with-

in the wallets were not arrested. (Tr. 669-

671). The wallets contained various checks,

bank deposit slips, documents, and approxi-

mately eight hundred to one thousand dollars

in cash. (Tr. 686).

In addition, the government's own evidence

established that one man observed during sur-

veillance carried a machine gun type weapon

described as an Uzi machine gun. (Te. 26,

371-372). None of the eleven defendants

arrested in this case possessed a weapon.

Despite an extensive search, no weapons were

found in either house, the surrounding canals

or grounds. (Tr. 306, 322).

In addition to the missing weapon, the two

people who abandoned their wallets, money, and

personal possessions at the scenc, and what-

_@ver unknown, unobservable people remained

within the premises and in the proximity of

the vessels, there existed the express admis-

sion by the government witnesses that more

than eleven people arrested may have been

involved. Prior to the raid, the roadway

coming into the area was not closed. (Tr.

207). Accordingly, after eleven people were

apprehended, a search was nevertheless con-

ducted of the area because it was unknown

whether or not more people were in front of

the house. (Tr. 209-210). One surveilling

officer expressly admitted he could not

testify whether or not any of the suspects had

escaped from the area and avoided apprehen-

sion. (Tr. 423).

Thus, the decision of the Eleventh Circuit

invites, if not compels, devotion to the idea

that one's suspicious mere presence at the

scene of a crime sustains proof beyond a

reasonable doubt of his guilt. In addition,

the departure of this case from established

United States Supreme Court doctrine is

| @ggravated by the court's misplaced reliance :

Se ee oe SS

upon the Eleventh Circuit's own prior decision

in United States v. Blasco, 702 F.2d 1315

(lith Cir. 1983), cert. denied, U.S. ‘

However, as set forth in the factual reci-

tation in Blasco at 1320-1321:

The Cohen estate is bordered by

water on two sides--the southern

end of the residence rests upon a

canal, and the western portion of

the property extends to the

Spanish Harbor Channel. The re-

maining two sides are enclosed by

a chain-link fence, and, on the

night in question, the gate

across the road leading to the

residence was padlocked.

Moreover, the Blasco court revealed that "the

officers moved. . .to. . .a point from which

they could see the entrance to the canal lead-

ing to the Cohen property.” aa,. Gt . 3988.

Also, the officers involved in the Blasco raid

were “instructed to shut off the possible

avenues of escape.” Id. Finally, regarding

the nature of the area involved in Blasco, the

court expressly noted: “The Cohen estate is

situated in a secluded area, the kind fre-

fl quently utilized for off-load operations.”

/ Id, at 1332.

tee,

In the case at bar, the undisputed testi-

mony of the arresting officers was that they

could not preclude the possibility that some-

one escaped from the resic*nces involved prior

to the time the officers reached the _ scene

from the surveillance point across the canal.

(Tr. 423). No officers were positioned to

prevent suspects from escaping via the canals

which ran along both sides of the area in

question. (Tr. 480). The photographic evi-

dence introduced at trial clearly revealed

that the area in which the residences were

located was not private and secluded, as in

Blasco, but rather contained dozens of nearby

homes into which any number of suspects could

have entered and hidden. In addition, the

record detects numerous escape routes along

hundreds of yards of seawall giving access to

both canals.

If the mere presence doctrine is to enjoy

further viability and if this Court's prece-

dent is to be honored, certiorari must be

granted to remedy the constitutional aberra-

:

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tion created by the Eleventh Circuit Court of

Appeals in this case.

Il.

THE DECISION BELOW CREATES IRREC-

ONCILABLE CONFLICT WITH VARIOUS

CIRCUIT COURT DECISIONS INCLUDING

UNITED STATES v. LOPEZ-ORTIZ, 492

: r. Z); UNITED

STATES v. REYES, 595 F.2

r. ; UNITED STATES v.

PINTADO, 715 F.2d 1501 (lith cir.

T9863); UNITED STATES v. PARDO,

636 F.2d 535 (D.c. cir. 19680);

AND UNITED STATES v. LAUGHMAN,

616 F.2d 1067 (4th Cir. 1960).

The decision of the Fifth Circuit Court of

Appeals in United States v. Lopez-Ortiz, 492

F.2d 109 (Sth Cir.), cert. denied, 419 U.S.

1052 (1974), is materially indistinguishable

from the case at bar. There, a nighttime sur-

veillance revealed numerous people unloading

large gunny sacks from a truck to the garage

of a residence. A raid was conducted on the

premises and the participants in the unloading

operation “broke and ran.” Two people were

taken into custody in the immediate vicinity

and Lopez-Ortiz was found hiding behind a rock

wall dividing the premises from the next door

property. Despite the fact that numerous

gunny sacks were in plain view and the odor of

marijuana was prevalent, the court reversed

the defendant's conviction for conspiracy to

possess marijuana with intent to distribute it

Since his presence and flight did not prove

the offense charged. Moreover, the court's

decision was not altered by its finding that

the defendant's story was impeached in at

least three ways and its conclusion that these

inconsistencies resulted in a jury verdict of

guilty. The court, noting that the issue

before it was not the credibility of the

defendant's story, held:

At best, the evidence establishes

only that he-was present in the

area and had fled from federal

officers. It does not show that

he actually participated in the

unloading operation, or began his

flight from near the truck.

Further, there was no testimony

reached by the Eleventh Circuit Court of

Appeals in this case.

That court's decision is equally irrecon-

Cilable with the decision of the court in

United States v. Reyes, 595 F.2d 275 (Sth Cir.

1979). In Reyes, the defendants were found in

a small airplane from which bales of marijuana

had been dropped. There was no evidence that

they pushed the bales out. Their convictions

were reversed since

there was no direct testimony

that any of them did so, much

less at all of them partici-

pated. Each of the defendants

was entitled to have his guilt or

innocence determined as an indi-

vidual; the government failed to

prove beyond a reasonable doubt

that each defendant or any

particular defendant partici-

pated. . .- $95 F.2d at 261

(emphasis by court).

The contrary result reached by the

Eleventh Circuit in this case, and even its

own internal conflict, is palably demonstrated

by its subsequent decision in United States v.

Pintado, 715 F.2d 1501 (11th Cir, 1963). The

_. Sasc at bar and Pintado ere remarkable for

their factual similarities. Both involved

Customs surveillances of houses bordering

canals in the Florida Keys. Both involved

marijuana off-load operations from a_ vessel

docked behind the premises involving numerous,

unidentified people. In each case, a raid by

mumerous Customs officials resulted in the

arrests of all the suspects they were able to

find at the scene.

In Pintado, after two suspects were

arrested outside, others ran into the house

and were followed by Customs agents:

Two agents climbed the stairs to

the second floor of the house and

were confronted with a pair of

locked. doors. An official

knocked on one of the doors,

announced in English "U.S. Cus-

toms” and asked whoever was in

the room to come out. When no

response was received, the door

was forced open. Appellant,

wearing a pair of pants and per-

haps a shirt, was found hiding in

the closet. 715 F.2d at 1503.

(Footnote omitted. )

The Pintado court, relying upon the Fifth

Circuit's United States v. Lopez-Ortiz, supra,

correctly applied the law that “neither mere

presence at the scene in conjunction with

fleeing or hiding from officers of the law

alone will support a conspiracy conviction."

715 F.2d at 1504. The court thus held:

The government provided no evi-

dentiary basis other than

{Pintado's) presence in the

house, hiding in the closet, from

which an ge of conspira-

torial participation could be

drawn. [Emphasis added. ]

Despite the graphic similarities in the

two cases, the Pintado court reversed the con-

spiracy conviction while the Lopez-Llerena

F 1

court in the case at bar affirmed.

The distinctions that do exist between

Pintado and Lopez-Llerena are noteworthy

because they demonstrate even more compel-

lingly that the conviction in the case at bar

cannot be sustained. In Pintado, security

lights in the rear of the house were lighted

and dock liights along the canal were iilumi-

_ The court's decision inthe case at bar

engages in obvious hair-splitting in its

_ attempts to reconcile the contrary result

~ reached in Pintado. See 721 F.2d at 313-314,

_€ notes 3 and 6.

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Saeed pie 3

nated. In the case at bar, the off-load

operation was conducted in the blackness of

night--so dark, in fact, that even with a

night scope all that could be seen by the

surveilling officers was silhouettes. (Tr.

169-170, 199). Thus, the conclusion reached

by the Pintado court that there were "no

objective facts or circumstances from which

Appellant's knowledge of the on-going opera-

tion could be inferred" is all the more com-

pelled here.

Finally, the Eleventh Circuit's abrogation

of the mere presence rule is at odds with the

decisions in United States v. Pardo, 636 F.2d

$35 (D.C. Cir. 1980), and United States v.

Laughman, 616 F.2d 1067 (4th Cir. 1980). As

stated by the Laughman court at 1075:

Simply proving the existence of a

conspiracy, however, cannot sus-

tain a verdict against an indi-

vidual defendant. There must

also be a showing of that defen-

dant's knowledge of the con-

spiracy's purpose and some action

°?

ye

wat cy

206-207, 85 L.Ed. 128 (1940).

(Emphasis added. )

The opposite conclusion reached by two

panels of the Eleventh Circuit within the

period of a month on the same issue and, for

| all intents and vereyye the same facts, is

utterly irreconcilable. Certiorari must be

granted to resolve the conflict created by the

Eleventh Circuit Court of Appeals as well as

to remedy the injustice suffered by JOSE LUIS

MARINO.

CONCLUSION

The case below characterizes a radical

departure from the substantive body of case 4

law déveloped by this Court as well as the

other Circuit Courts of Appeals regarding mere

presence at the scene of a crime. The matter |

: _

The unsettled state of the law does not

eppear to be unappreciated by the juries that "ae

_ tried either Pintado or the Petitioner here. er

_ Both juries failed to convict the defendants “Ria

_ on Count II of their Indictments charging ws

_ possesion of marijuana with intent to dis-

tribute while each, apparently compromising, ;

- rendered guilty verdicts solely on the con- |

_ Spiracy count. — Foe

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involved in this case is of extreme judicial

significance. The maintenance of uniformity

in the administration of criminal justice in

the federal courts is jeopardized by the deci-

sion below. For the reasons and authority ad-

vanced above, therefore, the Petitioner stren-

uously urges this Court to grant its Writ of

Certiorari in this case.

Respectfully submitted,

MARC COOPER, ESQUIRE

500 Roberts Building

28 West Flagler Street

Miami, Florida 33130

Telephone: (305)371-1597

Counsel of Record for

Petitioner VALDES

Mee:

By:

MARC COOPER

February 13, 1984

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 82-5916

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

ALBERTO LOPEZ-LLERENA,

FELIX PARRA,

JOSE BORGES,

JOSE DELFIN MULE VASQUEZ,

LAZARO CRUZ, JR.,

HECTOR THEODORE VALDES,

FAUSTO MANUEL SANCHEZ,

RAUL PINERA,

CARLOS OLIVER-CHIRINO and

JOSE LUIS MARINO,

Defendants-Appellants.

Appeal.from the United States District Court

for the Southern District of Florida

ON PETITIONS FOR REHEARING

AND _S NS REHEARING BAN

(Opinion August 30, 11 Cir., 1983,

F.2d ).

( JAN 6 1984 )

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Before, AY and KRAVITCH, Circuit Judges, and

ATKINS District Judge...

PER CURIAM:

( /) The Petitions for Rehearing are DENIED

and no member of this panel nor other Judge in

regular active service on the Court having re-

quested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the Sug-

gestions for Rehearing En Banc are DENIED.

( ) The Petitions for Rehearing are DENIED

and the Court having been polled at the re-

quest of one of the members of the Court and a

majority of the Circuit Judges who are in re-

gular active service not having voted in favor

of it (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the

Suggestions for Rehearing En Banc are also

DENIED.

( ) A member of the Court in active service

*/ Honorable C. Clyde Atkins, U.S. District

Judge for the Southern District of Plorida

sitting by designation.

-2a-

7 .«

having requested a poll on the reconsideration

of this cause en banc, and a majority of the

judges in active service not having voted in

favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/3s/ Phyllis Kravitch

United States Circuit Judge