Petition — Llaguno v. United States

é PILe

83 1263 P

APR 97 1984

SUPREME COURT OF THE UNI STATES

NOER L. STEVAS.

CLERK

OCTOBER TERM, 198

NO.

DAVID LLAGUNO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH

CIRCUIT

Burton Joseph

134 N. LaSalle Street

Chicago, Illinois 60602

(312) 346-9270

Joseph A. Ettinger

Rick M. Schoenfield

Ettinger & Schoenfield, Ltd.

180 N. LaSalle Street

Chicago, Illinois 60601

(312) 782-8435

Attorneys for Petitioner

QUESTIONS PRESENTED

I. Where the defendant was only told

that the government's witness took dyna-

mite from the coal company where the

witness worked was it improper for a

conviction to be rendered since it was

not proven beyond a reasonable doubt

that the defendant knew or had reason-

able cause to believe that the dynamite

was stolen which is an essential element

of the crimes charged?

II. Where the prosecution at trial

insinuated that the defendant was in-

volved in a bombing in Chicago, a crime

he was not charged with, was it improper

for a conviction to be rendered since the

defendant was prejudiced?

III. Where the district judge misstated

the law by implying that whether the de-

fendant was merely present during a con-

versation was crucial to deciding the

i

case, was it improper for a conviction

to be rendered since mere presence dur-

ing a conversation is insufficient to

support a conviction?

IV. Where the district judge clearly

indicated that he did not believe an

important witness whose testimony was

favorable to the defense, was it im-

proper for a conviction to be rendered

since those indications prejudiced the

defendant?

ii

TABLE OF CONTENTS

Page

REO BOROUs cc acccccsocsvvecssus 1

Rees, csetapawessaeand 2

Meese Presented... ..ccscccccss i,ii

Statutory Provisions.............. 2

Statement of the Case............. 4

Reasons for Granting the Writ..... 17

I. Was it error to convict the de-

fendant where the defendant was

only told that the government's

witness took dynamite from the

coal company where the witness

worked so that the evidence did

not prove beyond a reasonable

doubt that the defendant knew or

had reasonable cause to believe

that the dynamite was stolen which

was an essential element needed

for conviction under two of the

charges?

iii

II.

III.

IV.

Was it error to convict the defen-

dant where the government insin-

uated at trial that the defendant

was involved in a bombing in

Chicago, a crime that he was not

charged with, which prejudiced

the defendant?

Was it error to convict the de-

fendant where the district judge

stated during trial that whether

the defendant was merely present

during a conversation was crucial

to deciding the case where case law

clearly holds that»mere presence

during a conversation is insuffi-

cient to support a conviction?

Was it error to convict the de-

fendant where the district judge

clearly indicated that he did not

believe an important witness

whose testimony was favorable to

the defense which prejudiced the

iv.

defendant?

ee cw aeae ete 38

a ei ooh Eade n6.0.0 00 60s la

Opinion of the United States Court

of Appeals for the Fourth

TABLE OF AUTHORITIES CITED

CASES

United States, 256 F.2d

Finn v.

Ce CES, BOE cn dcdvscecs

Krulewitch v. United States, 336

U.s. 440, 69 §.Ct. 716, 93 L.Ed.

aaa ia oe ranma

Pons v. United States, 369

ite : S.Ct. 698 (1933)..

Russell v. United States, 369

AH ; S.Ct. 1038, 8 L.Ed

er

United States v. Behrman, 258

U.S. 280, 42 S.Ct. 303, 66 L.Ed.

PE Midis soak = @ a6 oe 6 64 a.0>

United States v. Chunn, 347 F.2d

TIT Cath Circ., 1965).......

United States v. DiZenzo, 500 F.2d

263 (4th Circ., 1974) ceeees

United States v. Harris, 331 F.2d

185 (4th Circ., 1964) eeoeses

United States v. Harris, 346 F.2d

182 (4th Circ., 1965).....

vi

PAGE

20

28

23

35

19

United States v. Honeycutt, 311

F.2d (Sth Cire., LISS) oscs-

United States v. Martell, 335

F.2d 764 (4th Circ., 1964)...

United States v. Paige, 324 F.2d

eo Ee. |) ee

United States v. Roach, 321 F.2d

E €OEG GEEC., POs} ccccccer

United States v. Silver, 374 F.2d

t rce., LIO/).....

United States v. Swann, 377 F.Supp.

. i: ee |) >

United States v. Vargas, 583 F.2d

380 (7th Circ., ae

Uphaus v. Wyman, 360 U.S. 72, 79

§.Ct. 1040 (1958) eee

CONSTITUTIONAL AND STATUTORY

PROVISIONS

18 U.S.C. § 371... eee,

18 U.S.C. § 842(a)(3) (A)...

vii

18,19

ae. 8.8.6. © GRO GB) «oc cesec.

oe es O Reem CEP éeveccce

Fed. R. of Ev. 404 (b)......

vili

23,24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

DAVID LLAGUNO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH

CIRCUIT

Petitioner, David Llaguno, respect-

fully prays that a writ of certiorari

issue to review the judgment and opinion

of the United Stetes Court of Appeals for

the Fourth Circuit.

OPINION BELOW

The opinion of the Court of Appeals below

(Appendix p.1la)

was not reported.

JURISDICTION

The judgment of the United States

Court of Appeals for the Fourth Circuit

was entered February 29, 1984. The jur-

isdiction of the Court is invoked under

28 U.S.C. § 1254(1).

STATUTES INVOLVED

The statutes under which Petitioner

was prosecuted were as follows:

1. Title 18, United States Code,

Section 371.

§ 371. Conspiracy to commit

offense or to defraud United States

"If two or more persons conspire

either to commit any offense against the

United States, or any agency thereof in

any manner or for any purpose, and one

or more of such persons do any act to

effect the object of the conspiracy,

each shall be fined not more than

$10,000 or imprisoned not more than five

-2-

years, or both...”

2. Title 18, United States Code,

Section 842(h).

"(h) It shall be unlawful for any

person to receive, conceal, transport,

ship, store, barter, sell, or dispose

of any explosive materials knowing or

having reasonable cause to believe that

such explosive materials were stolen."

Title 18, United States Code,

Section 842(a) (3) (A).

§ 842. Unlawful acts

(a) It shall be unlawful for any

person--(3) other than a licensee or

~ermittee knowingly---

(A) to transport, ship, cause to

be transported, or receive in interstate

or foreign commerce any explosive mater-

ials, except that a person who lawfully

purchases explosive materials from a

licensee in a State contiguous to the

State in which the purchaser resides may

o%e

Pt ripe

ship, transport, or cause to be trans-

ported such explosive materials to the

State in which he resides and may

receive such explosive materials in the

State in which he resides, if such

transportation, shipment, or receipt is

permitted by the law of the State in

which he resides.

STATEMENT OF THE CASE

A. Course of Proceedings

On March 10, 1983, in a cause then

pending in the United States District

Court for the Southern District of West

Virginia, Charleston, entitled United

States of America v. David Llaguno,

Criminal Number 83-20008-02, Petitioner

was found guilty by a jury on an indict-

ment of three counts charging violations

of 18 U.S.C. §§ 371, 842(a)(3) (A), and

also 842 (h). More specifically,

Count I of the indictment alleged a con-

spiracy to receive, concel, transport,

ie Xa

ship, store, barter, sell and dispose of

explosive materials knowing and having

reasonable cause to believe that such

explosive materials were stolen. Count

II alleged that petitioner and Roy

Maldonado aided and abetted by each

other, committed the substantive offense

referred to in the conspiracy charge.

Count III charged that the Petitioner

and Maldonado, aided and abetted by each

other, knowingly transported and caused

to be transported in interstate commerce

from West Virginia to Illinois ten

sticks of dynamite without a license or

permit.

The defendant sought a judgment of

acquittal notwithstanding the verdict

and, alternatively, a new trial. On

April 6, 1983, his motion was denied in

a written order.

On May 2, 1983, Petitioner was sen-

tenced to imprisonment for a period of

five years on Count I and a period of

five years probation on each of Counts

II and III. The probationary period im-

posed unde: Counts II and III are con-

current with each other, but consecutive

to the five year prison term. Defendant

appealed his conviction to the United

States Court of Appeals for the Fourth

Circuit.

On February 29, 1984, the United

States Court of Appeals for the Fourth

Circuit affirmed the District Court jud-

gment. (Appendix p.1la)

B. Relevant facts concerning the un-

derlying conviction.

Five witnesses testified at the trial.

The Daniels brothers, Charles and

William, were indicted as co-conspira-

tors, pled guilty and testified for the

government. (R. 6, 50 and 116) An Ind-

iana State Trooper also testified for

the government. David Llaguno testi-

o6<

fied on his own behalf. Both sides

called Louis Roy Roberts, Jr. to testi-

fy.

David Llaguno, his brother Roger,

Roger's girlfriend Sylvia, Roy Maldon-

ado, Maldonado's wife Cecillia, and

Charles Daniels drove from Chicago to

Bradshaw, Virginia. (R. 37) The

Llaguno's and the Daniels had grown up

in the same neighborhood in Chicago. (R.

36 and 103). According to Charles Dan-

iels, he, David and Roger Llaguno were

all at a party just before they went to

West Virginia. (R. 44) Roberts stated

that there were about 20 people at the

party, standing, talking and drinking

beer. (R. 213 and 215) Charles Daniels

claimed that David and Roger Llaguno

wanted dynamite and that he told them

that in exchange for a ride to West

Virginia he would get them dynamite.

(R. 44-45)

sD

In West Virginia the group went to the

Daniels' parents’ home. (R. 46-47)

William Daniels arrived there about an

hour later. (R. 47) According to

Charles Daniels when William arrived

Charles asked about getting dynamite and

the two of them drove to a barn with

David where William handed a bag of

dynamite to David and a bag of blasting

caps to Charles. (R. 47) According to

William, however, at first he did not

remember that he had any dynamite. (R.

110 and 121-122) He said that after he

remembered, he, Charles and David walk-

ed to a shed to see if the dynamite was

still there. (R. 111) William had put

the dynamite in a shed in August and he

did not even know if it was still there.

(R. 110-111) William mentioned only one

bag and said that he was holding it. (R.

111) Charles said that Roy Maldonado,

Roger and the two women drove over to

ae

the barn, but William said that he,

Charles and David walked to where the

others were. (R. 47 and 111) William

said that he gave the bag of dynamite to

either Maldonado or Roger. (R. 112)

William did not refer to them by name,

but as the two Spanish men who were with

David. (R. 112) Only Charles initiated

any talk about dynamite and only Charles

asked William for dynamite. (R. 127, R.

131 and 133)

William testified that David asked him

where he had gotten the dynamite. (R.

112) William's response was that, "I

took it from work."" (R. 112) William

Daniels never told the defendant that he

had stolen the dynamite. (R. 126) Nor,

did William tell David or the others the

nature of his job at the coal company.

(R. 126-127) William conceded that David

and the others had no way of knowing

whether William was the general manager,

ote

an underground foreman or the supply

house man. (R. 126-127) William admit-

ted that when he said that he took the

dynamite from work that David and the

others could have assumed that William

was permitted to take the dynamite from

work. (R. 127) Nor, did Charles Daniels

claim that he told the defendant that

the dynamite was stolen. Indeed,

William Daniels testified that his

brother did not even know that he had

any dynamite in his possession until he

came to their parents’ home and found

his brother and the others there. (R.

112-113) William Daniels testified that

the only reason he knew for David and

the others to come to West Virginia was

to bring Charles there because Charles

did not have enough money to get home.

(R. 137-138) William testified that he

left his parents’ home approximately 20,

and no more than 30 minutes after

°-10-

he arrived. (R. 109)

William Daniels stole ten sticks of

dynamite and blasting caps from the coal

company where he worked in August, 1979.

(R. 106) He explained that he took them

by chance one day instead of returning

them to storage after they had been

issued, but had not been used. (R. 106-

107) He testifed that he took the dyna-

mite so that his father could use it to

get coal out of the hill where they _.

lived for fuel. (R. 118-119) Obtaining

coal by dynamiting is a common

practice where the Daniels lived. (R.

142) William Daniels never spoke to his

brother, the defendant or anyone else

about stealing dynamite before he did

so. (R. 121) There was no plan or agree-

ment to steal dynamite until he saw his

brother and the others at his parents’

house. (R. 121) William had not seen or

talked to David in the previous nine

a3 1a

years since they had been in sixth

grade. (R. 121 and 138-139)

When Louis Roy Roberts, Jr. testified,

defense counsel expressed concern at a

sidebar conference that the government

intended to ask about other crimes. (R.

200) The district judge responded that

the government should ask about the

alleged plan of the conspiracy. (R. 200)

The government answered that it would

ask about statements made by the defen-

dant to the witness concerning the al-

leged conspiracy. (R. 200) Nevertheless,

the prosecutor asked Roberts if he re-

membered being asked in the Grand Jury,

“are you aware of a bombing on the South

side of Chicago in January?" (R. 206)

This was preceded by questions concern-

ing the last time that Roberts had seen

the defendant. (R. 206-207) An object-

ion was sustained and the jury was order-

ed to disregard the question. (R. 207 &

»$8.

219-220) Although a motion for a mis-

trial was denied, the court admonished

the prosecutors that they had violated

their agreement with the defense. (R.

209) The district judge also stated

that the subject was "highly prejudicial"

and of "very little probative value."

(R. 209)

David Llaguno testified and stated that

he did go to Bradshaw, West Virginia

with his brother, Roger's girlfriend,

Roy Maldonado and his wife, and Charles

Daniels. (R. 188 and 192) He stated that

for reasons unknown to him, his brother

Roger wanted dynamite. (R. 189) David

testified that William Daniels said that

the dynamite belonged to William. (R.

192) David stated that he was not told

that the dynamite was stolen and that he

had no reason to believe that it was

stolen. (R. 192) The defendant said that

no money rapa sair ini and that the dyna-

mite was given to Roger by William

Daniels. (R. 189)

David Llaguno testified that William

Daniels said that the dynamite was old,

sweaty and unstable so that it might

blow up without warning. (R. 190) Be-

cause of those statements David explain-

ed that after they had gone a short

distance, he insisted that they stop the

car and throw the dynamite away. (R. 190)

David said that they did throw the dyna-

mite away in the hills while they were

still in West Virginia. (R. 191)

One night in the fall of 1979 Louis

Roy Roberts, Jr., the defendant, Roger

Llaguno and Charles Daniels were among

a group of some twenty friends who were

in a park drinking beer. (R. 204-205 &

R. 215) At this time Charles Daniels

talked about going to West Virginia to

get explosives from his brother. (R. 204-

205 and R. —— Everyone was talk-

ing at the same time. (R. 215-217) Not

everyone was listening to Charles

Daniels. (R. 218) Roberts did not know

whether David Llaguno was involved in

the conversation with Charles Daniels.

(R. 213-215 and 217-218) Roberts never

saw the defendant with any dynamite. (R.

216) Roberts thought that he saw the

defendant the next day. (R. 205-206)

Roberts thought that dynamite had been

brought back from West Virginia, but all

of his information came from Charles

Daniels. (R. 212 and R. 215-216)

The district judge asked Roberts a

number of questions some of which con-

cerned the involvement, if any, of the

defendant in the conversation in which

Charles Daniels talked about going to

West Virginia to get dynamite. (R. 214-

215) The judge stated that whether

David Llaguno was part of that conver-

sation was important. (R. 214-215) At

aT

the end of Roberts’ testimony the dis-

trict judge also asked Roberts whether

he understood that he had sworn to tell

the truth, whether he understood that he

could be prosecuted if he lied and

whether he wished to reconsider or

correct or add anything to his testimony.

(R. 219-220)

REASONS FOR GRANTING THE WRIT_

A. WHERE THE DEFENDANT WAS ONLY TOLD

THAT THE GOVERNMENT'S WITNESS TOOK

DYNAMITE FROM THE COAL COMPANY

WHERE THE WITNESS WORKED, THE EVI-

DENCE DID NOT PROVE BEYOND A REA-

SONABLE DOUBT THAT THE DEFENDANT

KNEW OR HAD REASONABLE CAUSE TO

BELIEVE THAT THE DYNAMITE WAS

STOLEN.

It is clear that an essential element

of Counts I and II was that the Peti-

tioner knew or had reasonable cause to

believe that the dynamite was stolen.

18 U.S.C. § 842(h). Yet, there was no

evidence which proved that David Llaguno

knew that the dynamite was stolen.

Charles Daniels merely testified that

he told David, "If you give me a ride

I will get all the dynamite that you

want. My brother doesn't pay for it

anyway." (R. bg William Daniels test-

imony was equally vague. William Daniels

testified that he told David Llaguno

that he "took it (the dynamite) from

work."' (R. 112) William Daniels, him-

self, conceded that when he said that he

took the dynamite from work that it

might be assumed that he had legally

taken the dynamite (R. 127) No one

claimed that petitioner was ever told

that the dynamite was stolen. (R. 126)

Further, it should be noted that it is

not illegal to possess dynamite in West

Virginia. Moreover, where the Daniels

live, it is common for individuals to

possess and to use dynamite for legiti-

mate purposes. (R. 142) Thus, it was

entirely reasonable for David Llaguno to

believe that the dynamite was not obtain-

ed illegally.

As a matter of law, "took" does not

mean "stole". United States v. Harris,

346 F.2d 182 (4th Circ., 1965); United

ohhs a 5h

States v. Roach, 321 F.2d 1 (3d Circ.,

1963). In both Harris and Roach, the

indictment charged the defendant with

knowingly and unlawfully possessing and

concealing money knowing the money to

have been "taken" from a bank or savings

and loan. Consequently, the convictions

in Harris and Roach were reversed on the

basis that the indictment failed to

charge an offense.

The significance of Harris and Roach

is underscored by the fact that this

Court has held that convictions are not

reversed merely because indictments are

technically flawed. Russell v. United

States, 369 U.S. 749, 82 S.Ct. 1038, 8

L.Ed 240 (1962)

It is enough to sustain an indict-

ment that an offense be described

with sufficien: clearness to show

a violation of law, and to enable

the accused to know the nature and

e1@e

cause of the accusation and to

plead the judgment, if one be

rendered, in bar of further

prosecution for the same offense.

United States v. Behrman, 258

U.S. 280, 288, 42 §.Ct. 303,

304, 66 L.Ed. 619 (1922).

Thus, an indictment need not use statu-

tory language, but only has to use "words

of similar import". United States v.

Martell, 335 F.2d 764, 765 (4th Cir.

1964), quoting with approval, Finn v.

United States, 256 F.2d 304, 306 (4th

Cir. 1958); United States v. Chunn, 347

F.2d 717 (4th Cir. 1965).

Thus, the Fourth Circuit in Harris and

the Third Circuit in Roach have implic-

itly held that taken does not have a

similar import to stolen.

Since the only evidence regarding

Llaguno's knowledge of how the dynamite

was obtained would not be sufficient to

-20-

state an offense if alleged in the in-

dictment, then it cannot be sufficient

to prove the allegations of Counts I and

II in the present case. If saying,

"taken" in an indictment does not inform

a criminal defendant that something was

allegedly "stolen," then surely saying

"took" in a conversation could not, as

a matter of law, inform David Llaguno

that the dynamite was stolen. Accord-

ingly, the convictions under Counts I

and II should not be allowed to stand.

=e

B. THE DEFENDANT WAS PREJUDICED WHERE

THE PROSECUTION INSINUATED THAT HE

WAS INVOLVED IN A CRIME THAT HE WAS

NOT CHARGED WITH, A BOMBING.

When Roberts testified for the govern-

ment he was asked by the prosecutor

whether he had seen the defendant in Feb-

ruary and March of 1980. (R. 206) When

Roberts said no, the prosecutor attempt-

ed to get Roberts to change his testi-

mony by referring to what may have been

prior Grand Jury testimony by Roberts

regarding seeing David Llaguno at a

party during that time. (R. 207)

Roberts was then asked if that refresh-

ed his recollection and he said no. (R.

207)

At this point the prosecutor was in-

quiring into an irrelevant subject,

whether Roberts saw the defendant months

after the acts alleged in the indictment.

The prosecutor was also improperly try-

02%

ing to "refresh" the witness’ recollect-

ion without establishing that Roberts’

recollection was exhausted. See NLRB v.

Hudson Pulp and Paper Corp., 273 F.2d 660

(5th Cir. 1960). Moreover, the prose-

cutor did not establish that the ques-

tions and answers that he was reading

had in fact been asked and answered.

While the foregoing may have been

harmless error the prosecutor then ask-

ed if Roberts remembered being asked:

Are you aware of a bombing on

the South side of Chicago in

January? (R. 207)

This was clearly improper and extremely

prejudicial. The unmistakable implica-

tion was that David Llaguno was involved

in a bombing in Chicago.

Evidence that a defendant has committed

crimes other than what he is charged with

is normally not admissible. Fed. R. of

Ev. 404(b). Even if such evidence meets

a threshhold test of relevancy because

«23

it is probative of motive, opportunity,

intent, preparation, plan, knowledge,

identity, or absence of mistake or acc-

ident it is still not admissible unless

the probative value outweighs the risk

of substantial danger of undue prejudice.

Fed. R. of Ev. 404(b); United States v.

DiZenzo, 500 F.2d 263 (4th Cir. , 1974).

In considering whether the probative

value is outweighed by the danger of

prejudice, the relevance of the evidence,

the need for the evidence and the re-

liability of the evidence can all be

considered. DiZenzo, supra.

The question posed by the government

failed to meet even the threshhold test

of relevance, much less the second re-

quirement that probative value outweighs

the risk of prejudice. Linking the de-

fendant to a bombing that occurred

months after the occurrences alleged in

the indictment to refresh a memory that

o2he

was not shown to be exhausted or to in-

peach concerning a conversation which

purportedly also occurred months after

the alleged crimes has no relevance and

no probative value.

The district judge found that if there

was any probative value it was clearly

outweighed by the prejudicial effect.

He stated that:

(T)his has a highly prejudicial

effect to the defendant. It may

have some probative value, but

this is a rebutcal case on the

defendant charged for the three

crimes that he is here charged

on. (R. 209)

After the prosecutor informed the dis-

trict judge what the answer to the ques-

tion was supposed to be the judge found:

That it still has a great deal

of prejudicial effect and very

little probative value. (R. 209)

The impropriety of the prosecutor's

conduct was made even worse by the fact

that it violated an agreement not to

raise other crimes evidence. (R. 200)

a2S-

Although the prosecutor claimed that she

had misunderstood the ax,~eement, neither

defense counsel nor the district judge

had any doubt that the prosecutor had

agreed not to attempt to use other

crimes evidence. (R. 208)

The extreme prejudice caused by other

crimes evidence has been clearly estab-

lished. In United States v. Vargas, 583

F.2d 380, 387 (7th Cir. 1980) the court

stated that:

(I)t is well recognized that

evidence of a prior crime or of

criminal propensity is parti-

cularly prejudicial error....

Recognizing the uniquely harmful

aspects of such evidence, we have

found rcversible error based on

overemphasis of prior criminal

conduct even when that conduct

has been admitted for a proper

purpose.

In the present case, the seriousness of

the other crime as well as the fact that

the alleged crimes involved dynamite and

the other crime was a bombing also in-

crease the prejudicial effect. The re-

=26-

lationship between the alleged crimes

and the other crime is significant. For

example, in United States v. Harris, 331

F.Zd 185 (4th Cir. 1964) a conviction

for possession of untaxed whiskey was

reversed because of evidence of the de-

fendant's reputation as a liquor law

violator.

Although the district judge sustained

an objection to the prosecutor's question

and instructed the jury to disregard it,

that did not cure the prejudicial effect

of the question because the reference to

a bombing was so extremely prejudicial.

In United States v. Silver, 374 F.2d 828

(7th Cir. 1967) the court stated that:

(T)he general rule of course is

that evidence that an accused has

committed another crime is in-

admissible, and that any error in

admitting such evidence cannot

always be cured by sustaining

objections or by instructions.

374 F.2d at 830.

All experienced lawyers recognize that

once the jury has heard something inflam-

ot?

atory it cannot be erased from their

minds as if they were machines rather

than people despite instructions to dis-

regard and the jury's good faith efforts

to do so. This fact has long been recog-

nized by the Supreme Court. In Krule-

witch v. United States, 336 U.S. 440,

453, 69 S.Ct. 716, 723, 93 L.Ed 790

(1949) the court noted that:

The naive assumption that

prejudicial effects can be

overcome by instructions to

the jury...(citations omitted)

all practicing lawyers know to

be unmitigated fiction.

Given the totally improper suggestion

by the prosecutor that David Llaguno was

involved in a bombing and the extremely

prejudicial effect of that suggestion it

is clear that Llaguno's right to a fair

trial was prejudiced. Accordingly, his

convictions should not be permitted to

stand.

C. WHERE THE DISTRICT JUDGE MISLED THE

JURY INTO — THAT WHETHER THE

DEFENDANT WAS MERELY PRESENT DURING

A CONVERSATION WAS CRUCIAL TO DETER-

MINING GUILT OR INNOCENCE THE DEFEN-

DANT WAS PREJUDICED.

The district judge conducted his own

questioning of Louis Roy Roberts, Jr.

(R. 214-216 and 219-220) During his

examination of Roberts the district judge

commented that it was "very important"

whether the defendant heard and was part

of the conversation in the park in

Chicago in which Charles Daniels talked

about going to West Virginia to get

dynamite. (R. 214) The judge then ask-

ed whether Roberts wanted to leave the

impression that David Llaguno "was a

part of the plan to go to West Virginia

and pick up the dynamite.." (R. 214)

The judge also asked if the defendant

was in the park and part of the conver-

sation about dynamite with Charles

Daniels. CG. 33>? When Roberts re-

sponded that he "guessed so", the dis-

trict judge then said:

It is rather important. He

either was there or wasn't

there. If you are not certain

that he was there you shouldn't

say he was. (R. 215)

Roberts then said that he did not re-

member. (R. 215)

The district court's statements that

it was very important whether David

Llaguno was present when Charles Daniels

allegedly talked about going to West

Virginia to obtain dynamite made that

factual question crucial to the jury's

determination of the case. Those state-

ments said, in effect, that if the de-

fendant was present in the alleged con-

versation then he was guilty of Counts

I and II. This was totally incorrect

and prejudiced the defendant in two ways.

First, nothing was said in that alleged

conversation regarding the dynamite

being stolen. Thus, even if David

Llaguno participated in the conversation

and agreed to actively participate in

going to obtain dynamite he would not

have violated any law. See Section A,

supra. Accordingly, the jury was given

the impression that the defendant could

be found guilty in the absence of evi-

dence to prove an essential element of

the charges.

Second, when the district court stress-

ed the importance of the defendant's

mere presence at the alleged conversation

it totally misstated the law concerning

accountability. This subjected Llaguno

to being convicted based upon guilt by

association. That, of course, is "a

thoroughly discredited doctrine," Uphaus

v. Wyman, 360 U.S. 72, 79, 79 §.Ct. 1040,

1046 (1958). In reversing convictions

due to insufficient evidence Courts have

held that:

Mere presence at the perpetration

of a crime is not criminal.

United States v. Paige, 324 F.2d

3k 31 (4th Cir. Toehy”

and that:

To convict...as an aider or abet-

ter the prosecution had to show

conduct...amounting to counselling

or other assistance...United

States v. Honeycutt, 3I1 F.2d

660, 662 (4th aoe 1962).

Thus, in United States v. Swann, 377 F.

Supp. 1305 (D.Md. 1974) the court held

that mere association with a guilty

party or mere presence at the scene of

a crime does not prove aiding and abet-

ting.

David Llaguno was charged with aiding

and abetting. The district court's

comments misstated the law and erroneous-

ly encouraged the jury to find the de-

fendant guilty simply because he was

present during a conversation. The harn-

fulness of the error was compounded be-

cause, at the jury's request, Roberts’

testimony was read back to them during

their deliberations. (R. 289-290) Only

=32e

Roberts’ testimony was read back to the

jury.

D. WHERE THE DISTRICT JUDGE CLEARLY

INDICATED THAT HE DID NOT BELIEVE

AN IMPORTANT WITNESS WHOSE TESTI-

MONY WAS FAVORABLE TO THE DEFENSE,

THE DEFENDANT WAS PREJUDICED.

The government attempted to use Roberts

to show that David Llaguno was part of

a conspiracy and that he did obtain

dynamite. (R. 204-206 and 213-214)

Roberts, however, did not testify to

those facts. (R. 204-206 and 211-218)

At the conclusion of his testimony the

district judge asked him the following

questions:

You just came in before this

Court and this clerk administered

an oath to you and swore you to

tell the truth under oath, you

understand that? (R. 219) Do

you understand that if you lie

on this witness stand that you

can be separately prosecuted for

the crime of perjury or for the

crime of giving a false state-

ment to a federal official, that

federal = being me? Do

you understand that? (R. 219)

Now so I assume if you understand

that oath that your testimony here

today is the truth? (R. 219

Well, would you like to reconsider

any part of your testimony and

correct anything that you have

said? (R. 220) You don't have

anything else to say. You realize

that your testimony here is very

important...do you understand that?

(R. 220) And you are willing to

stand on the testimony that you

have told this jury and me? (R.220)

You understand that you have been

sworn to tell the truth? (R.220)

This series of questions clearly and in-

properly informed the jury that the

judge did not believe Roberts.

Roberts was an important witness.

Roberts impeached Charles Daniels for

perjurying himself during the trial by

denying that he had supplied dynamite to

anyone at any time other than in the

occurrence alleged in the present case.

(R. 82, 88 and 198-199)

Roberts was also important because he

did not corroborate that David Llaguno

participated in the alleged conspiracy.

Moreover, as noted above, Roberts'

o3he

testimony had special significance

because it is the only testimony which

the jury wanted to have read back during

its deliberations and because it was

read back as requested. (R. 289-290)

Although a judge may, in a limited

manner, comment on the evidence, he ex-

ceeds those limits when he does so in a

way which is "one-sided or which adds to

the evidence."' Quercia v. United States,

289 U.S. 466, 470, 53 S.Ct. 698, 699

(1933). A judge's privilege to comment on

the evidence has inherent limitations.

Quercia, supra. Nothing should be said

which would "preclude a fair and dis-

passionate consideration of the evi-

dence." Quercia, supra. (289 U.S. at

472, 53 S.Ct. at 700). In Quercia the

Supreme Court cautioned that a judge's

lightest word or intimation is received

with deference, and may prove control-

ling.” (289 U.S. at 470, 53 S.Ct. at

-~35-

699).

The series of questions that the trial

judge asked Roberts at the end of his

testimony left no ~-:1bt that the judge

did not believe Roberts. No other

witness received such treatment, or was

questioned at all by the district judge,

even though both of the Daniels brothers

admitted committing perjury. This in-

terfered with the jury's role to judge

credibility as the trier of fact and

thereby deprived David Llaguno of his

right to a fair trial by jury.

United States v. Kemp, 504 F.2d 421 (6th

Cir. 1974) presented a situation very

similar to that in the case at bar. In

Kemp a key government witness did not

testify as the prosecution had expected.

The witness was then impeached by a prior

inconsistent statement. When the witness

attempted to explain away the prior

statement the district judge commented

-36-

in the jury's presence that he did not

believe the witness’ explanation. The

Kemp Court's holding was clear and suc-

cinct. It stated that:

We, of course, find the Court's

comments to be oo ged improper

and hold that such conduct can

never be condoned. 504 F.2d

at 423.

Accordingly, the Kemp court reversed the

convictions on those counts which were

the subject of the witness’ testimony.

In the case at bar, as in Kemp, the

trial judge's actions improperly inter-

fered with the jury's decision making

process. Accordingly, the defendant was

denied a fair trial.

o37=

CONCLUSION

For these reasons, a writ of certiorari

should issue to review the judgment and

opinion of the ‘fourth Circuit.

Respectfully submitted,

Burton Joseph

134 N. LaSalle Street

Chicago, Illinois 60602

(312) 346-9270

Joseph A. Ettinger

Rick M. Schoenfield

Ettinger & Schoenfield, Ltd.

180 N. LaSalle Street

Chicago, Illinois 60601

(312) 782-8435

Attorneys for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee

-versus-

DAVID LLAGUNO,

Appellant

NO. 83-5128

United States Court of Appeals for the

Fourth Circuit

Appeal from the United States District

Court for the Southern District of West

Virginia, at Charleston. Charles H.

Haden II, District Judge.

(CR 83-20008-02)

Argued: January 13, 1984

Decided: February 29, 1984

-la-

Before RUSSELL and ERVIN, Circuit

Judges, and ROSENN, Senior Circuit

Judge for the Third Circuit, sitting

by designation.

Rick M. Schoenfield (Joseph A. Ettinger,

Donna R. Lipshutz, Ettinger & Schoen-

field, Ltd. on brief) for Appellant;

Larry R. Ellis, Assistant United States

Attorney (David A. Faber, United States

Attorney, Marye L. Wright, Assistant

Unitea States Attorney, Ruth Lynette

Ranson, Assistant United States Attorney

on briet) for Appellee.

PER CURIAM:

David Llaguno appeals his conviction

after a jury trial of one count of con-

spiracy to receive stolen explosives,

under 18 U.S.C. § 371; one count of

receiving stolen explosives, under 18

U.S.C. §§ 842(h) and 844(a); one count

of unauthorized interstate transportation

of explosives, under 18 U.S.C. §§ 842 (a)

(3) (A) and 844 (a), and with aiding and

abetting in the last two counts, under

U.S.C. § 2. 1 The grounds of his appeal

are insufficiency of evidence and certain

-2a-

trial rulings. We find no merit in

Llaguno's allegations that the evidence

was insufficient to convict him, or in

his claim of prejudicial error during

trial. We affirn.

The defendant's contention that the

evidence was insufficient to support his

convictions relates to the proof of his

knowledge that the dynamite he received

and transported was stolen and of the

interstate transportation of such dyna-

mite. The proof of these critical ele-

ments of his offenses was circumstan-

tial but the circumstantial proof was

clearly sufficient to sustain the con-

victions.

1

Roy Maldonado and Charles Daniels and

William Daniels were indicted with the

defendant. The Daniels defendants pled

guilty. Maldonado was a fugitive until

Lp een immediately prior to

Llaguno's trial. His case was, there-

fore, ene eee Llaguno's case.

_— a-

The proof of the conversation between

Llaguno and William Daniels who obtained

the dynamite for the defendant was in it-

self adequate to support a reasonable

inference that the dynamite was stolen.

Moreover, the dealings between William

Daniels, who worked for the Peter White

Coal Company, and Llaguno, were carried

on under suspicious circumstances. The

defendant drove 1600 miles (round trip),

through two or three States, beginning

his journey from Chicago at midnight,

to obtain, in a fairly remote village

in West Virginia, dynamite from a

miner who was not a regular dealer in

dynamite. All of these circumstances,

taken together, were sufficient to

support a finding of knowledge on the

part of the defendant.

The evidence of interstate transpor-

tation was even clearer. There seems

no dispute that the defendant had ac-

-4a-

quired the dynamite in West Virginia.

The defendant, however, testified that,

before he reached the State line on his

return to Chicago, he stopped and, afraid

of a possible explosion, removed the

dynamite from the trunk of his car and

threw it away. It is in the defen-

dant's argument that this evidence was

not contradicted and that it must be

accepted as true. However, there are

very definite circumstances in the

record which indicate that the defen-

dant's testimony was concocted and

lacked credibility. If the defendant

had been so frightened of traveling

with dynamite in his car, as he testi-

fied, it is difficult to understand why

he had determined incontinently at twelve

o'clock at night to travel 1600 miles to

procure the dynamite and, having pro-

cured it, boldly to have placed it in

the trunk of ae car and to have driven

- a-

to a point somewhere before the State

line, where something prompted him

suddenly to be so obsessed with fear and

foreboding that he hastened to throw

away the dynamite. Moreover, the de-

fendant's story fails to answer the

testimony of a witness that, when the

defendant returned from West Virginia,

he (the witness) received a stick of

the dynamite brought back from West

Virginia. Where did that dynamite come

from if not from West Virginia? There

was no evidence that defendant had

acquired dynamite other than that pur-

chased in West Virginia. It is only

reasonable to assume that the dynamite

which the defendant's friend in Chicago

received after the defendant's return

from West Virginia was a part of the

dynamite procured in West Virginia and

transported from West Virginia to

Illinois. There manifestly was

-0a-

sufficient evidence to support a finding

that the defendant had transported dyna-

mite across state lines.

Finally, Llaguno's contentions that

prejudicial error occurred when the

prosecutor and the district judge ques-

tioned a witness are entirely meritless.

The prosecutor's improper question was

corrected immediately by a strong cura-

tive instruction to the jury by the

court. The district judge's own ques-

tions to the witness were within his

discretion, but even if they did im-

peach the witness's credibility some-

what, it would not have prejudiced

Llaguno, since the witness's testimony,

if accepted, was in general more helpful

to the Government, whose witness he was.

The judgments of convictions are

accordingly

AFFIRMED.

-/a-