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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984

## Text

. 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

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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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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 :

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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

°?
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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

---

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