Appendix — Gonzalez-Calles v. United States
Supreme Court brief1987
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86 - 1580
MAR 26 198
_JOSEPH F. SPANIOL, JR.
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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986
ROBERTO ANTONIO GONZALEZ-CALLES,
Petitioner
Vv.
UNITED STATES OF AMERICA,
Respondent
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
JOSEPH A. CONNORS III
Counsel of Record
804 Pecan Blvd.
McAllen, Texas 78502-5838
(512) 687-8217
ATTORNEY FOR PETITIONER
——
a
BRF124
NO.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986
ROBERTO ANTONIO GONZALEZ-CALLES,
Petitioner
.
UNITED STATES OF AMERICA,
Respondent
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
JOSEPH A. CONNORS III
Counsel of Record
804 Pecan Blvd.
McAllen, Texas 78502-5838
(512) 687-8217
ATTORNEY FOR PETITIONER
TABLE OF CONTENTS TO APPENDIX
TO PETITION FOR WRIT OF CERTIORARI
Page
i EEE <. oc a pe eeseeeececoce 2
ORDER DENYING REHEARING ............... 3
GHEE, UPI cc ccccccceces 4
a Es tL 5
ey Bee ee) ehh Re) 8 5 41
ee Le Ct cee Ce ee eees 44
ALL DEFENDANTS MOTION IN LIMINE AND
FOR NOTICE BY THE GOVERNMENT OF
THE INTENTION TO RELY UPON OTHER
CRIMES EVIDENCE AND FOR A
CONTINUANCE UNTIL SUCH NOTICE IS
GIVEN WITH SUPPORTING MEMORANDUM ... 48
DISTRICT COURT'S ENTIRE FINAL
PTE MEE sceacececccssecese 66
RELEVANT JURY ARGUMENT ..........cccee0. 109
ro
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 86-2389
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO ANTONIO GONZALEZ-CALLES,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Texas
ON PETITION FOR REHEARING
(January 26, 1987)
Before BROWN, RANDALL and HIGGINBOTHAM,
Circuit Judges.
PER CURIAM:
IT JIS ORDERED that the petition for
rehearing filed in the above entitled and
numbered cause be and the same is hereby
denied.
ENTERED FOR THE COURT:
/s/ Carolyn Dineen Randall
United States Circuit Judge
wie
UNITED STATES COURT OF APPEAIS
FOR THE FIFTH CIRCUIT
No. 86-2389
D.C. Docket No. CR-B-86-049
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO ANTONIO GONZALEZ-CALLES,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Texas
Before BROWN, RANDALL, and HIGGINBOTHAM,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the
record on appeal and was argued by counsel.
ON CONSIDERATION WHEREOF, [Tt is now
here ordered and adjudged by this Court that
the judgment of the District Court in this
cause is affirmed.
IT Is FURTHER ORDERED that
defendant-appellant pay to plaintiff-
appellee the costs on appeal, to be taxed by
the Clerk of this Court.
December 17, 1986
ISSUED AS MANDATE:
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 86-2389
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO ANTONIO GONZALEZ-CALLES,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Texas
(D. C. No. CR-B-86-049)
(December 17, 1986)
Before BROWN, RANDALL and HIGGINBOTHAM,
Circuit Judges.
PER CURIAM: *
*Local Rule 47.5 _ provides: "The
publication of opinions that have _ no
precedential value and merely decide
particular cases on the basis of
well-settled principles of law imposes
needless expense on the public and burdens
on the legal profession." Pursuant to that
Rule, the court has determined that this
opinion should not be published.
in
Roberto Antonio Gonzalez-Calles
("appellant") appeals his conviction for
importation of cocaine and possession of
cocaine with intent to distribute it and for
conspiracy to import and possess’ cocaine
with intent to distribute it. For the
reasons that follow, we affirm.
ex
On January 18, 1986, shortly after 5:00
p.m., appellant and his brother arrived at
the public airport in McAllen, Texas aboard
a 1972 Cessna Skywagon Model 185, a
single-engine airplane. Appellant was the
pilot of the plane, and his brother was a
passenger. Appellant and his’ brother
disembarked, and brought their luggage to
customs for inspection. They made a
negative declaration, claiming that’ they
were not bringing anything into the United
States.
While appellant and his brother were in
the customs office, customs agent Louis D.
Hall bosxded dhe plane with his dog, Royker,
which was trained to detect narcotics, to
conduct a search of the plane. Royker
indicated that drugs were present in the
plane, and customs agents Andreas Funk and
Thomas J. DeMichelle entered the plane to
search it. After determining that _ no
contraband was visible, agent DeMichelle
noticed a hole in the rear bulkhead of the
plane. Upon enlarging the hole and shining
a flashlight inside, the agents were able to
see plastic bags in the compartment behind
the bulkhead. A knife was inserted into the
hole, and a white powder was on the knife
when it was withdrawn. This powder field
tested positive for the presence of cocaine.
The agents then removed the screws securing,
the bulkhead and discovered three large
plastic bags, weighing approximately 125
~~
pounds, and containing approximately 110
pounds net weight of cocaine. The bags were
tested for fingerprints, and some were
obtained, but these did not match the
fingerprints of either appellant or his
brother.
After the discovery of the cocaine,
appellant and his brother were arrested and
advised of their Miranda rights. Appellant
made statements to the effect that he did
not know that the cocaine was in the
airplane. Appellant claimed that the
airplane belonged to Victor, another of his
brothers, who intended to sell it, and that
he was taking it to Hobby airport in Houston
for repairs. Appellant had letters in his
possession authorizing him to take’ the
airplane to Houston for repairs, as well as
$700 in cash, supposedly for his expenses in
doing so.
Appellant and his brother were indicted
on four counts. Count one charged
conspiracy to import cocaine, in violation
of 21 U.S.C. §§ 952(a), 960 (b)(1), and 963.
Count two charged importation of cocaine, in
violation of 21 U.S.C. §§ 952(a) and
960(b)(1), and 18 U.S.C. §2. Count three
charged conspiracy to possess cocaine with
intent to distribute it, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
Count four charged possession of cocaine
with intent to distribute it, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and
18 U.S.C. § 2. As returned by the grand
jury, count two contained a _ typographical
error. While count two should have charged
importation of cocaine, it erroneously
charged importation of marihuana. With the
consent of the defendant, the word
“marihuana'’ was deleted and the word
"cocaine" was interlineated.
aie
Appellant and his brother were tried
before a jury. As both sides concede on
appeal, the principal issue in the case was
whether appellant had knowledge that the
cocaine was in the concealed compartment.
It was undisputed that the cocaine was not
visible to the pilot, and that it did not
emit an odor that was discernable to humans.
The only evidence connecting appellant with
the cocaine was the effect that the presence
of that much cocaine in the_- storage
compartment would have on the pitch of the
airplane. The compartment in which _ the
cocaine was found was a baggage compartment
designed to hold 50 pounds. As stated
above, the gross weight of the cocaine was
125 pounds, thus overloading the baggage
compartment by 75 pounds. The government
put on Louis L. Picciano, an experienced
customs pilot, as an expert witness. He
testified in response to a_ hypothetical
otha
question that the amount of cocaine loaded
in the airplane in question would require
the pilot on take-off to adjust the trim of
the airplane to compensate for the added
weight in the tail of the plane. Hence,
Picciano testified, the added weight would
definitely call a pilot's attention to the
fact that there was something in the rear
baggage compartment.
At the close of the government's
evidence, the district court granted
appellant's brother's motion for a directed
verdict of acquittal, but declined to grant
appellant's similar motion. At the close of
all of the evidence, appellant made a motion
for a directed verdict of acquittal, which
the district court also denied. The jury
convicted appellant on all counts, and the
court imposed’ sentence. Appellant was
sentenced to ten years on each of the four
counts, with the sentences to run
alia
concurrently. At the imposition of
sentence, the district court also imposed a
special parole term of seven years on each
of the substantive counts and an assessment
of $50 on each count. Although the district
court imposed the special parole term at
sentencing, it was not included in the
Judgment and Probation/Commitment Order
signed by the district judge.
Appellant appeals to this. court,
alleging that a variety of errors warrant
the reversal of his conviction.
Specifically, appellant argues that (1) the
evidence was insufficient to convict him on
either the substantive counts of importation
of cocaine and possession of cocaine with
intent to distribute it or the conspiracy
counts; (2) the conspiracy convictions
should be reversed because the only other
known conspirator was acquitted and there
was insufficient evidence from which the
ai
jury could have concluded that appellant
conspired with unknown others; (3) the error
in the indictment could not legally be
corrected by amendment, and therefore there
was a fatal variance between the indictment
and the proof as to count two; (4) the
district court erred in instructing the jury
that they could infer possession from the
fact that a person had control over an
airplane; (5) the district court erred in
failing to give an instruction on knowledge
requested by appellant; (6) reversible error
occurred because of references by the
prosecutor in his closing arguments to other
acts of the sppellent: and (7) the district
court erred in imposing a special parole
term. We address each of appellant's
arguments in turn.
x
bis
A. Sufficiency of the Evidence:
Appellant's major argument in seeking a
reversal of his convictions is that the
evidence was insufficient to support the
jury finding that he knowingly possessed the
cocaine. The test this court employs in
assessing the sufficiency of the evidence to
support a conviction is well-settled:
It is not necessary that the
evidence exclude every reasonable
hypothesis of innocence or _ be
wholly inconsistent with everv
conclusion except that of guilt,
provided a reasonable trier of
fact could find that the evidence
establishes guilt beyond a
_ reasonable doubt. The jury is
free to choose among’ reasonable
constructions of the evidence.
United States v. Bell, 678 F.2d 547, 549
(5th Cte. 1982) (en banc) (footnote
omitted), aff'd on other grounds, 462 U.S.
356 (1983). In applying this standard, ''we
must examine all the evidence and reasonable
inferences in the light most favorable to
atta
the government and determine whether a
reasonable trier of fact could find that the
evidence establishes guilt beyond a
reasonable doubt." United States v. Fortna,
796 F.2d 724, 740 (Sth Cir.), cert. denied,
107 S. Ct. 437 (1986). "We recognize that
possession may be actual or constructive,
joint among several people and proved by
circumstantial evidence."' United States v.
Moreno-Hinojosa, 804 F.2d 845, (5th
Cir. 1986). Although this is a close case,
applying the above principles convinces us
that the evidence was sufficient to convict
appellant.
In addition to the expert testimony
noted above that a pilot would definitely
notice the added weight of the cocaine in
the rear luggage compartment of the
airplane, there was other evidence from
which the jury could have found appellant
guilty. There was evidence that appellant
nthe
misrepresented the numbers on his airplane
when he filed his flight plan in Veracruz,
Mexico. Although appellant testified that
the numbers that. he supplied were those of
another airplane that he was used to flying,
the jury could easily have concluded that
appellant simply lied about the airplane's
numbers so as to avoid alerting United
States Customs of tthe arrival of that
particular airplane. In response to
questioning by the court, appellant
testified that the service that was to be
1 The flight plan that appellant filed
in Veracruz stated the registration number
of the airplane as TBGAF, while the actual
number painted on the airplane was TG-BEQ.
2 Appellant testified that he was aware
that the Mexican authorities would notify
the McAllen airport of his arrival. Hence,
the jury could well have concluded that
appellant had intentionally misrepresented
the registration numbers of the airplane, in
order to confuse United States Customs,
because he knew that the cocaine was in the
airplane.
«th.
performed on the airplane in Houston could
have’ been performed in El Salvador or
Guatemala. Based upon this testimony, the
jury could have concluded that appellant's
story that he was delivering the airplane to
Houston for pre-sale repairs and servicing
was simply not’ credible. Furthermore,
appellant arrived after 5:00 p.m., and
admitted knowing that the airport customs
office closed at 5:00. The jury could
easily have believed the government's theory
that appellant arrived after normal business
hours in the hope that United States Customs
would have only a reduced evening staff on
duty and would therefore not search his
airplane. Finally, when he was arrested,
appellant had in his possession a letter
from his brother, Victor, the owner of the
airplane, which, in addition to giving
appellant instructions as to who to deliver
the airplane to in Houston and what service
«i %e
the airplane needed, stated that Victor was
"already on [his] way out to do some jobs of
drilling for water at some town."
Appellant, however, testified that Victor
was with him in the morning on the day
before his departure. Given this apparent
inconsistency, the jury could have concluded
that the letter was simply a precaution that
would provide a legitimate excuse for the
flight in the event that the cocaine was
discovered. We conclude that the above
evidence, when viewed in the light most
favorable to the government, is sufficient
for a jury to find appellant guilty beyond a
reasonable doubt of knowingly importing
cocaine and possessing cocaine with intent
to distribute it.
In holding that the above evidence is
sufficient to sustain appellant's conviction
on the substantive possession and
importation counts, we are reminded that
-18-
this court has sustained convictions in
similar cases involving far less evidence to
convict. See United v. Aguila-Reyes, 722
F.2d 155, 156-58 (5th Cir. 1983). In
Aguila-Reyes, the defendant was the driver
of a_ truck. The truck contained a
factory-build compartment which was visible
only from beneath the vehicle. Upon
exossing the United States-Mexico border in
Texas, a customs dog signaled the presence
of narcotics. The compartment was searched
by removing the front seat, a rubber mat,
and a metal plate secured by screws, and
cocaine was discovered. As in the case sub
judice, the defendant claimed that he did
not know that there was cocaine in the
compartment. This court held that the jury
could infer from the value of the cocaine,
$5 million wholesale, that the defendant
would not have been entrusted with it if he
were without knowledge of its existence and
ite
importance.> In Aguila-Reyes, the defendant
claimed that th» purpose of his trip was to
pick up Toyota pick-up trucks in Miami,
Florida. This court stated that’ the
defendant must have been aware that Toyota
trucks could be purchased closer than Miami,
and that it was reasonable for the jury to
infer that the defendant should have known
that his trip "was prompted for some
additional, probably illegal, reason." Id.
at 157. The court also stated that a false
3 In the case sub judice, there was
testimony that the 110 pounds of 95 percent
pure cocaine had a retail value after
dilution of $30 million, but a wholesale
value of oniy $500,000. In contrast, in
Aguila-Reyes, the street, or retail value of
the 30 pounds of cocaine was claimed to be
$20 to $40 million, and the wholesale value
$5 million. The court in Aguila-Reyes
stated that this inference, although
permissible, would be insufficient alone to
support a finding of guilty knowledge. We
agree, and therefore give it little weight
in our evaluation of the sufficiency of the
evidence against appellant.
=~20<
statement made by the defendant to customs
officials could be considered by the jury in
determining whether the defendant had
knowledge of the presence of the cocaine.
Applying the same analysis to the case
sub judice, appellant admitted to being
aware that the airplane could have _ been
serviced in El Salvador or Guatemala, which
would have at least raised suspicion in his
mind were he without knowledge of the real
purpose of the _ trip. Appellant also
misrepresented the registration number of
the airplane to authorities in Veracruz.
The defendant's conviction in Aguila-Reves
was upheld on little more evidence than
this, whereas in appellant's case, there was
the significant evidence that 125 pounds of
cocaine in the airplane would have come to
the attention of the pilot. Although we
might have reached a different result had we
been the jurors in this case, the evidence
«$i~
was clearly sufficient for the jury to have
found appellant guilty beyond a reasonable
doubt on the substantive counts of
importation of cocaine and possession of
4
cocaine with intent to distribute it.
B. The Conspiracy Counts:
Appellant argues that the granting by
the district court of his brother's motion
for a directed verdict of acquittal requires
a reversal of his conviction on the
4 Although appellant does not attack
specifically his conviction of intending to
distribute the cocaine, we note that
"Ti]ntent to distribute a controlled
substance may be inferred solely from
possession of a large amount of the
substance. The purity and value of the
substance also are relevant to the
possessor's intent to distribute." United
States v. Prieto-Tejas, 779 F.2d 1098, 1101
(5th Cir. 1986) (citations omitted). Here,
appellant was in possession of 110 pounds of
95 percent pure cocaine with a retail value
of $30 million. The evidence amplv supports
a finding that if appellant possessed the
cocaine, he intended to distribute it.
x
conspiracy counts because his brother was
the only alleged known conspirator, and
there was not evidence from which the jury
could infer that unknown others’ conspired
with appellant. The indictment alleged that
appellant conspired with his brother and
"with other persons unknown.'"' We conclude
that there was evidence from which the jury
could have concluded that other persons
participated in loading the cocaine into the
airplane and that others would distribute
the cocaine. This evidence was supplied by
the appellant's own fingerprinting experts
who testified that they discovered
fingerprints on the bags containing the
cocaine, but that these fingerprints did not
match either appellant's or his brother's.
Hence, the jury could logically infer that
those unidentified fingerprints belonged to
an unknown conspirator who loaded the bags
onto the airplane. Furthermore, appellant
23a
testified that he was going to deliver the
airplane to Houston, and then proceed on a
commercial airline to Florida. The jury
could have inferred from this testimony that
the appellant was only the pilot in the
cocaine importation and distribution scheme,
and that once his role was completed, others
would attend to the distribution of the
drug. Given this circumstantial evidence
that others were involved in the scheme, we
think that the jury could conclude beyond a
reasonable doubt that appellant conspired to
import and possess cocaine with intent to
distribute it.
Appellant also argues that the evidence
was insufficient to support his conviction
on the conspiracy counts because it failed
to prove beyond a reasonable doubt that he
knew of the existence of each conspiracy and
voluntarily joined and participated in them.
"In drug conspiracy cases, the government
«Phe
must prove beyond a reasonable doubt that a
conspiracy existed, that the accused knew of
the conspiracy, and that he knowingly and
voluntarily joined it." United States v.
Williams-Hendricks, No. 86-2070, slip op.
1181, 1187 (5th Cir. Nov. 19, 1986). The
government need not prove the elements of a
conspiracy by direct evidence;
circumstantial evidence can be used to show
the existence of a conspiracy. Id. at 1188.
As we held above, there was evidence from
which the jury could have concluded that
others were involved in the importation and
distribution of the cocaine, so the jury
could have found the existence of a
conspiracy. Looking at the circumstantial
evidence in this case, and accepting the
jury's finding that appellant knowingly
imported and possessed the cocaine with the
intent to distribute it, we think that the
jury could have concluded beyond a
-2?5-
reasonable doubt that appellant knew of the
conspiracy and, by his conduct in importing
and possessing the cocaine, knowingly and
voluntarily joined it. Hence, we conclude
that the evidence was sufficient to support
appellant's conviction on the conspiracy
counts.
Cc. Amendment of the Indictment:
Appellant argues that at the time that
he agreed to amend the indictment, he
assumed that it could legally be done, but
that he held this assumption in error.
Appellant now argues that it was legally
impossible to amend the indictment, and
that, as a result, there was ae fatal
variance between the indictment and_ the
evidence offered at trial. Under’ the
Federal Rules of Criminal Procedure, a
defendant may waive indictment in all but
capital offenses. See Fed. R. Crim. P.
7(a). “An offense which may be punished by
-26-
imprisonment for a term exceeding one year
may be prosecuted by information if the
defendant, after he has been advised of the
nature of the charge and his rights, waives
in open court prosecution by indictment."
Id. 7(b). We hold that in this case
appellant effectively waived indictment by
agreeing to the amendment of the indictment
in the proceeding before the magistrate.
Had appellant insisted on resubmission of
the indictment to the grand jury, he would
have the right to be reindicted. Instead,
appellant affirmatively waived that right,
and cannot argue after conviction that the
indictment was fundamentally defective.
Hence, we hold that the defendant waived his
right to be prosecuted by indictment and
that the amended indictment constituted a
valid information under which appellant was
prosecuted. See id. 7(c)(1).
=«27=
D. The Jury Instructions on Possession:
Appellant argues that the district
court committed reversible error in
instructing the jury that they could infer
possession from the fact that a person is in
control of a vehicle or an airplane, and
that this instruction amounted to a directed
verdict on appellant's defense of lack of
knowledge that the cocaine was aboard the
airplane. This argument fails to
distinguish between a permissive inference
and a mandatory presumption, and we reject
it. Cf. United States v. Ferro, 709 F.2d
294, 296-97 (5th Cir. 1983) (approving
instruction that the jury may infer
knowledge that property is stolen = and
participation in the theft from unexplained
possession of recently stolen property). In
=28-
this instruction,” the district court made
it clear that the jury had to be convinced
beyond a reasonable doubt that appellant
knowingly and willfully possessed the
cocaine. The jury was therefore free to
accept or reject the inference that
appellant's control over the airplane
) The district court's instruction
provided:
I was telling you about possession.
And I was also telling you, my
recollection is, for example, vou can
infer a person has possession over
something if he has control over it.
For example, he is the driver of a
vehicle or the pilot of a plane or the
like. But do not forget that before
you can find a person guilty of having
something in his possession you must
also be satisfied from the evidence
beyond a reasonable doubt that the
person knowingly and willfully had
control over the matter....
=. =
constituted possession of the cocaine.
Hence, we conclude that the district court
did not improperly direct a verdict against
appellant on the issue of whether he
knowingly possessed the cocaine.
E. Failure to Give Appellant's Requested
Instruction:
Appellant argues that the district
court erred in failing to grant his
requested instruction that the jury must
6 This court has held that "[o]ne who
owns or exercises dominion or control over
a motor vehicle in which a_= contraband
substance is concealed may be deemed to
possess the contraband."" United States v.
Williams-Hendricks, No. 86-2070, slip op.
eee 2a aoee©6hCilr, 6C6hUNov. 19, - 1986)
(quoting United States v. Vergara, 687 F.2d
57, 62 (5th Cir. 1982)). Hence, we think
that the district court's instruction was a
correct statement of the law and that the
jury could infer from the appellant's
exercise of control over the airplaine that
he constructively possessed the cocaine.
Of course, as per the instruction, the
government was also required to prove that
the defendant knowingly possessed’ the
cocaine.
«46 =
return a verdict of "not guilty” if they
have a reasonable doubt that appellant knew
that the cocaine was aboard the plane. We
think that the district court did not err
in refusing to grant this instruction. The
refusal by a trial judge to deliver a
requested instruction constitutes
reversible error only if three conditions
are met:
(1) the instruction is substantively
correct;
(2) it is not substantially covered in
the charge actually given to the
jury; and
(3) it concerns an important point in
the trial so that the failure to
give it seriously impairs’ the
defendant's ability to present a
given defense effectively.
United States v. Hunt, 794 F.2d 1095, 1097
(Sth Cir. 1986). We hold that appellant is
unable to meet the second prong in the above
test. The jury instructions clearly stated
that the prosecution was required to prove
«ttn
beyond a reasonable doubt that appellant
knowingly imported the cocaine and knowingly
possessed it with the intent to distribute
it. Under the instructions given, if the
jury had a reasonable doubt that appellant
had knowledge that the cocaine was aboard
the airplane, they would have had to acquit
him. Hence, appellant's requested
instruction would have been redundant. The
district court's instructions properly
placed the burden of proof on the element of
knowledge on the government, and additional
instructions on this issue were not
required.
F. Alleged Prosecutorial Misconduct in the
Closing Argument:
Appellant argues that the conduct of
the prosecutor in the closing arguments
constituted reversible error, and that the
district court erred in failing to grant his
it
motion for a mistrial and in failing to
sustain his objection to one of the
arguments. In order to understand the basis
for appellant's argument, it is necessary to
digress somewhat. Prior to trial, appellant
sought a motion in limine and an order for
notice by the government of the intention to
rely on evidence of other crimes. Appellant
had made many flights into the United
States, and wanted to avoid any inference
that he might have been smuggling narcotics
on those occasions. The district court
granted the motion, and instructed _ the
government that it could not make _ any
reference to extraneous offenses or similar
acts of appellant or his brother without
first approaching the bench. In his closing
argument, the prosecutor made a reference to
"airplanes," arguably inviting the jury to
infer that appellant brought cocaine into
the United States on his numerous other
aS3e
trips to this country. Appellant objected,
and the . district court immediately
instructed the jury that thev were _ to
consider only the evidence in the case.
Appellant then moved for a mistrial, which
the district court denied.’ Although we
? The entire exchange is set out below:
MR. WOLFE:
I will tell you right now, in this
country we have got a cancer and it is
called "cocaine." It might be painful
for you, but you have got to go in
there and you have got to take out
that scalpel and you have got to cut it.
out. If you don't cut it out, ladies
and gentlemen, it is going to grow and
grow until it consumes us all. And he
is the virus that spreads it through
his airplanes.
MR. CONNORS: I object, Your Honor,
that was in the plural. Seems to infer
something about similar acts.
MR. WOLFE: I thought he said he had
flown several airplanes, ladies and
gentlemen.
anh
think that this argument was improper, in
that there was no evidence that appellant
carried cocaine in any other airplane, we
(continued)
MR. CONNORS: Would the Court --
MR. WOLFE: He spreads --
THE COURT: What is your objection,
please?
MR. CONNORS: The insinuation is, he is
spreading cocaine on more than _ one
airplane, Your’ Honor. And he _ is
forgetting about knowingly, but he is
saying numerous airplanes.
THE COURT: If any reference is made to
any matters not regarding the evidence
in this case, you are to completely and
totally disregard it. We are not
trying anything else except what's in
the indictment and what was presented
to you as evidence in this case. Anv
reference or intimation that is made to
the contrary, you are to completely and
totally disregard it. Those are my
instructions to you.
MR. CONNORS: Then I respectively move
for a mistrial.
THE COURT: Denied.
‘thn
decline to reverse in light of the district
court's prompt curative instruction. See
United States v. Cardenas, 778 F.2d 1127,
1132 (5th Cir. 1985); United Stated v.
Frasconé, 747 F.2d 953, 3957-58 (5th Cir.
1984); United States v. Shackelford, 709
F.2d 911, 913-14 (5th Cir.), cert. denied,
464 U.S. 899 (1983).
Appellant also argues that the district
court erred in failing to sustain his
objection to the prosecutor's’ closing
argument that if the defendant was
acquitted, he would be able to make up for
"
the loss of the airplane and the cocaine "on
" Ge think that this
his next’ trip."
argument was a fair response to appellant's
closing argument that the real smugglers:
could afford to lose the airplane and this
shipment of cocaine, and that the district
eourt was correct in overruling appellant's
objection. Hence, we hold that the
»36«
8 This argument is set out in full:
MR. WOLFE: He is spreading this virus
through his airplane TG-BEQ.
Fortunately we stopped him. But if you
let him go, like Mr. Connors, said, he
only lost $30,000 and half-a-million.
And on his next trip, if he _ gets
through, he can make it up. That's
what Mr. Connors told you.
Thank you ladies and gentlemen.
MR. CONNORS: I object to the last
three sentences. I never told the jury
that, Your Honor.
THE COURT: Overruled.
atts
a)
prosecutor's closing arguments’ did _ not
amount to reversible error. See United
States v. Strmel, 744 F.2d 1086, 1089-90
(Sth Cir. 1984).
G. The Special Parole Term:
Appellant also argues that the district
court erred in imposing a special parole
term at the sentencing hearing. As noted
above, the special parole term, for whatever
reason, was not incorporated into the final
judgment of the district court. The rule in
this circuit, however, is that "where there
is a conflict between the oral and the
written versions of a sentence, the former
is controlling.'"' United States v. Clark,
741 F.2d 699, 707 (5th Cir. 1984); see also
Schurmann v. United States, 658 F.2d 389,
391 (Former 5th Cir. Unit A Oct. 1981).
Turning to the special parole term, it is
clear that it is not authorized by the
x =
statutes under which appellant was
convicted, see 21 U.S.C. §§ 841(b)(1) (A) (ii)
and 960(b)(1)(B), and at oral argument the
government stated that it did not contend
that a special parole term should have been
imposed. See also United States_ v.
Santamaria, 788 F.2d 824, 829 (lst Cir.
1986) (holding special parole term not
authorized under the 1984 amendments to 21
U.S.C. § 841). We agree with both the
government and appellant that the special
parole term was unauthorized, and hold that
the special parole term is not a part of the
judgment of conviction.
H. Other Arguments:
Finally, appellant argues that this
court should not invoke the _ concurrent
sentence doctrine to pretermit review of the
sufficiency of the evidence issues
previously discussed, and that this court
£90-
should abandon the concurrent’ sentence
doctrine. Since this court has not invoked
the concurrent sentence doctrine in this
case, we decline to address these arguments.
Ill.
For the above reasons, we AFFIRM
Gonzalez-Calles' conviction.
-40-
United States of United States District
America vs. Court for the SOUTHERN
ROBERTO ANTONIO DISTRICT OF TEXAS
GONZALEZ-CALLES BROWNSVILLE DIVISION
DEFENDANT DOCKET NO. B-86-49-0L1
JUDGMENT AND PROBATION/COMMITMENT ORDER
In the presence of the attorney for the
government the defendant appeared in
person on this date May 15, 1986
COUNSEL
I><
FINDING &
JUDGMENT
WITH COUNSEL Joseph A. Connors,
III
NOT GUILTY on February 20, 1986.
There being a verdict of
X GUILTY.
On April 10, 1986, to Counts 1, 2
3 and 4 Defendant’ has_ been
convicted as charged of the
offense of conspiracy to import a
quantity of cocaine, in violation
of Sections 963, 952(a), and
960(b)(1), Title 21,. United States
Code on Count Ll; importing
approximately u25 pounds of
cocaine, in’ violation of Sections
952(a) and 960(b)(1), Title 21,
and Section 2, Title 18, United
States Code on Count 2; conspiracy
to possess, with intent to
distribute, a quantity of cocaine,
in violation of Sections 846,
841(a)(1), and 841(b)(1)(A), Title
ite
SENTENCE
OR
PROBATION
ORDER
21, United States Code, on Court
3; and possess, with intent to
distribute, approximately 125
pounds of cocaine, in violation of
Sections 841(a) (1) and
841(b)(1) (A), Title se and
Section 2, Title 18, United States
Code on Count 4 of the Indictment.
OFFENSE COMMITTED: January 18,
1986.
The Court asked whether defendant
had anything to say why judgment
should not be pronounced. Because
no sufficient cause to the
contrary was shown, or appeared to
the court, the court adjudged the
defendant guilty as charged and
convicted and ordered that: The
defendant is hereby committed to
the custody of the Attorney
General or his authorized
representative for imprisonment
for a period of Ten years as to
Gount 1; Ten years as to Count 2,
to run concurrently to Count 1;
ten years as to Count 3, to run
concurrently to Counts 1 and ?;
Ten years as to Count 4, to run
concurrently to Counts 1,2, and 3.
The Court further imposes a $50.00
special monetarv assessment
pursuant to 18 USC 3013, as to
each of Counts 1, 2, 3, and 4, for
a total of $200.00.
APPROVED AS TO FORM:
/s/ Alfred Crixell
~4?-
COMMITMENT The court orders commitment
RECOMMEND - to the custody of the
ATION Attorney General and
recommends, that the
defendant be housed at the
Tallahassee Federal
Correctional Institute in
Tallahassee, Florida.
Signed by
X U.S. District Judge:
/s/ Filemon B. Yele
Honorable
Filemon B. Vela
Date 5/26/86
it.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
UNITED STATES OF AMERICA *
vs * CR. NO. B-86-49
ROBERTO ANTONIO
GONZALEZ -CALLES *
CARLOS BENJAMIN
GONZALEZ-CALLES *
Rew. GME NE
THE GRAND JURY CHARGES:
COUNT 1
That from on or about January 16, 1986,
to on or about January 18, 1986, within the
Southern District of Texas, and elsewhere,
ROBERTO ANTONIO GONZALEZ-CALLES and CARLOS
BENJAMIN GONZALEZ-CALLES knowingly and
intentionally did combine, conspire,
confederate, and agree together and with
each other and with other persons unknown to
the Grand Jurors to unlawfully import into
the United States from a place outside of
-hh-
1 BEST AVAILABLE
the United States a quantity of cocaine, a
controlled substance under Schedule II of
the Controlled Substances Act of 1970, in
violation of Sections 963, 952(a) and
960(b) (1), Title 21, United States Code.
COUNT 2
That on or about January 18, 1986
within the Southern District of Texas, and
within the jurisdiction of this Court,
ROBERTO ANTONIO GONZALEZ-CALLES and CARLOS
BENJAMIN GONZALEZ-CALLES did knowingly and
intentionally import into the United States
from a place outside of the United States
approximately 125 pounds (gross weight) of
cocaine ey
mastherata, a controlled substance under
Schedule II of the Controlled Substancs
(sic) Act of 1970, contrary to Sections
952(a) and 960(b)(1), Title 21, and Section
2, Title 18, United States Code.
iis.
COUNT 3
That from on or about January 16, 1986,
to on or about January 18, 1986, within the
Southern District of Texas, and elsewhere,
ROBERTO ANTONIO GONZALEZ-CALLES and CARLOS
BENJAMIN GONZALEZ-CALLES knowingly and
intentionally did combine conspire,
confederate, and agree together and with
each other and with other persons unknown to
the Grand Jurors to unlawfully possess, with
intent to distribute, a quantity of cocaine,
a controlled substance under Schedule II of
the Controlled Substances Act of 1970, in
violation of Sect* ms 846, 841(a)(1). and
841(b)(1) (A), Title 21, United States Code.
COUNT 4
That on or about January 18, 1986,
within the eal District of Texas, and
within the jurisdiction of this Court,
ROBERTO ANTONIO GONZALEZ-CALLES and CARLOS
BENJAMIN GONZALEZ-CALLES did knowingly and
-46-
intentionally possess, with intent’ to
distribute, approximately 125 pounds (gross
weight) «f cocaine, a controlled substance
under Schedule II of the Controlled
Substances Act of 1970, contrary to Sections
841(a)(1) and 841(b)(1)(A), Title 21, and
Section 2, Title 18, United States Code.
A TRUE BILL:
/S/
FOREMAN OF THE GRAND JURY
HENRY K. ONCKEN
UNITED STATES ATTORNEY
/S/ Jack Wolfe
Assistant United States Attorney
-47-
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
UNITED STATES OF AMERICA
§
§
VS. § CRIMINAL
§ NO. B-86-049
ROBERTO ANTONTO §
GONZALEZ-CALLES §
CARLOS BENJAMIN §
§
GONZALEZ-CALLES
ALL DEFENDANTS' MOTION IN LIMINE
AND FOR NOTICE BY THE GOVERNMENT OF
THE INTENTION TO RELY UPON OTHER
CRIMES EVIDENCE AND FOR A CONTINUANCE
UNTIL SUCH NOTICE IS GIVEN WITH
SUPPORTING MEMORANDUM
TO THE HONORABLE JUDGE OF SAID COURT:
ROBERTO ANTONIO GONZALEZ-CALLES- and
CARLOS BENJAMIN GONZALEZ-CALLES, the
accuseds herein move this Court for an
order.
A. Directing the government, prior. to
trial, to give notice of its intention
to use evidence of any accused's
“other crimes, wrongs or acts" in the
-48-
trial of this case and to specify what
particular accusations will be made
and identifying the witnesses it
intends to rely upon at trial to prove
these matters.
To instruct the attorneys and any and
all Government witnesses to refrain
-from men-ioning, directly or
indirectly, in any manner whatsoever,
any extraneous offense of which this
accused is not charged explicitly in
the allegations of the Indictment
herein, without the Government
attorney first approaching the bench
with this accused's attorney’ and
obtaining a ruling from the Court,
outside the presence and hearing of
the Jury, in regard to any asserted
theory of admissibility of any _ such
extraneous offense(s). As a basis for
this motion, this accused maintains
-49-
that to allow mentioning of any
extraneous offenses without prior
ruling of the Court on its
admissibility would unduly prejudice
the accused before the jury herein.
In support of said motion, this
accused says:
In an effort to prove the elements of
the offense(s) charged, the government
may introduce evidence of other acts
and/or wrongs aside from those alleged
in the Indictment.
The granting of this motion for
disclosure would reduce the potential
of prejudice to this accused from
surnrise use of such uncharged
evidence.
The granting of this pre-trial motion
will also assist the court in making
timely pre-trial determinations of
admissibility, in avoiding the dangers
-50-
of unfair prejudice, of confusion of
the issues and of misleading the jury
and, finally, in minimizing undue
delay, waste of time, or needless
presentations of cumulative evidence
during the course of the jury trial.
NOTICE: This accused under the Fifth
and Sixth Amendments to the United
States Constitution is entitled to due
process and to advance notice of the
charges against which he must defend
himself. i. in proving those
charges, the prosecution reasonably
anticipates that it may be using
evidence of extraneous similar acts or
evidence of other crimes not in the
charging instrument, then this accused
will have no prior notice of them
unless notice is given at this time.
Further, lack of notice will
constitute a denial of this accused's
=
constitutional right to notice under
the United States Constitution.
EFFECTIVE ASSISTANCE OF COUNSEL:
Should the prosecution be allowed to
introduce evidence of other crimes or
extraneous similar acts in this cause,
then this court will charge the jury,
by instruction, that they may not use
that evidence of the extraneous
similar acts unless they find the
accused guilty of those offenses
beyond a reasonable doubt. The effect
of that instruction is to litigate
that issue. In order to fairly
litigate that issue, the accused must
be entitled to the effective
assistance of counsel in litigating
that issue. The accused must
reasonably be given the opportunity to
persuade the jury that the accused is
not guilty of the extraneous similar
.. =
acts beyond a_ reasonable doubt. By
failing to give the accvsed notice of
the extraneous similar acts, if any,
which the prosecution reasonably may
introduce in this cause, the
prosecution and this court are
depriving the accused, in addition to
notice and due process, of the
effective assistance of counsel which
in (sic) his right under the Fifth and
Sixth Amendments to the United States
Constitution.
THE RIGHT TO __ PRESENT _ DEFENSIVE
EVIDENCE: It is fundamental under the
Sixth Amendment of the United States
Constitution that the accused has the
right to present defensive evidence.
Chambers v. Mississippi, 404 U.S. 284,
93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
When the prosecutor tries to prove the
guilty of any extraneous similar acts
«$3
beyond a reasonable doubt, then under
Chambers v. Mississippi, the accused
—_—
would be entitled to present defensive
evidence in his own behalf to show the
fact finder that he is not guilty of
that offense. In order to prepare and
to gather that defensive evidence,
this accused must have notice of that
extraneous similar acts evidence in
advance of trial. Deprivation of that
notice would make it impossible for
this accused to prepare or to present
the varied defensive evidence which is
his right to so do under the United
States Constitution.
CONFRONTATION: Under the Sixth
Amendment to the United States
Constitution, the accused is entitled
to confront and cross-examine his
accusers. If the prosecution chooses
to litigate the issue of the
-54-
extraneous similar acts, namely,
whether the accused is guilty of
similar acts ooffense(s) beyond a
reasonable doubt, which the~= fact
finder must find before it can use
such evidence, then the accused must
be able under the Sixth Amendment to
intelligently confront and
cross-examine the accusers on that
separate charge. If the accused is
given no notice of that charge, then
not only is his right under the Sixth
Amendment to notice denigrated as well
as the effective assistance of
counsel, as well as his fundamental
right to present defensive evidence,
but, in addition, his absolute right
to confront and cross-examine his
accusers is severely undercut by his
lack of any opportunity to prepare for
such cross-examination.
-55-
CONTINUANCE TO SECURE RIGHTS: If the
accused is not given notice of the
additional extraneous offenses which
the - prosecutor, in good faith,
reasonably believes or intends’ to
litigate at trial, then this accused
will be forced to move this court for
a continuance under the Fifth and
Sixth Amendments to the United States
Constitution in order to obtain both
due process and notice of and
defensive evidence concerning’ the
additional unindicted charges, to
secure the effective assistance of
counsel in litigating the issue of
this accused's guilt of the additional
charges beyond a reasonable doubt, to
secure his Sixth Amendment right to
present defensive evidence, and _ to
prepare adequately to intelligently
-56-
10.
cross-examine the accusers about the
additional crimes.
UNNECESSARY TRIAL DFLAY: If at trial,
in order to secure these rights, the
trial court agrees that this accused
is entitled to a continuance, then the
trial will be delayed unnecessarily.
That result can easily be avoided by
notice to the accused at the pre-trial
hearing of additional crimes which the
prosecution, in good faith, reasonably
expects it may attempt to prove at
trial.
Thus, the accused moves this court to
grant a continuance of this case until
such time as the prosecutor provides
the above-referenced information
reasonably requested in this case so
that this accused will not be
"convicted after less than the
meticulously fair trial that the
aSJo
Constitution demands." Gannett
Company, Inc. v. Depasquale, 443 U.S.
368, 99 S.Ct. 2898, 61 L.Ed.2d 608
(1979).
SUPPORTING MEMORANDUM
In order that this accused not be
subjected to a "trial by ambush, in
violation of the spirit of the rules",
United States v. Kelly, 420 F.2d 26, 29
(2nd Cir. 1969) [where the conviction was
reversed with the Court condemning such
tactics], and to prevent the introduction
of “other crimes" evidence which should not
intrude upon this accused's trial, and to
head off time-consuming and _ potentially
prejudicial contests over admissibility
before the jury, this accused seeks
pre-trial disclosure of the government's
intention to rely upon such troublesome
evidence. The right of the accused to be
-58-
advised of such evidence prior to trial
arises from basic rights to notice of the
mature and cause of the accusation, to
prepare a defense, to confrontation of
witnesses, to effective assistance of
counsel, and to due process of law itself;
guarantees made by the Fifth and Sixth
Amendments to the United States
Constitution. These guarantees will be
hopelessly frustrated if the accused does
not receive notice of such evidence until
it is offered against him at trial. United
States v. Baum, 482 F.2d 1325 (2nd Cir.
1973).
In Baum, a conviction for possession
of stolen goods ne reversed where the
trial court denied a defense motion for the
names, addresses and telephone numbers of
all Government witnesses which the
prosecution intended to call, together with
any record of prior felony conviction. The
-59-
Court
stated, 482 F.2d at 1331-1332
(footnote omitted):
"Confronted for the first
time with the accusation of prior
criminal conduct and the identity
of the accuser, the defendant had
little or no opportunity to meet
the impact of this attack in the
midst of trial. This precarious
predicament was precipitated by
the prosecutor."
kkkkek
"It is the duty of the
government to present its case
against the defendant fairly.
Little can be added to Justice
Traynor's statement—'A defendant
has hardly had a fair trial if he
has been denied the opportunity
to discover evidence or
information crucial to his
defense.'
"The failure to reveal
Greenhalgh's identity until he
was presented as a witness,
confronted the trial judge with
the hard choice of interruption
of the trial or denial to the
defense of a reasonable
opportunity of meeting the severe
impact of this aspect of the
prosecutor's evidence. Such
tactics were condemned, and
called for the reversal in United
States v. Kelly, 420 F.2d 26, 29
(2d Cir. 1969). In the language
of Judge Smith ‘The course of the
-60-
government smacks too much of a
trial by ambush, in violation of
the spirit of the rules." To be
sure, Baum's attorney did not
make a very forceful showing in
the district court of what
cross-examination or rebuttal
material he could secure. But in
a case so close as this, we would
rather give the defendant’ the
benefit of the doubt than let the
Government . reap even a slight
possibility of benefit from what
we regard as a lack of candor
unworthy of a prosecutor.
"Here, no reason for
nondisclosure was advanced by the
government. Greenhalgh's
testimony was crucial to the
prosecution; it was equally
crucial to the defense. Cf.
Rovario v. United States, 353
Css Bae. OO, 47. B.C. 623, 1}
L.Ed.2d 639 (1957); United States
.ex rel Wilkins, 326 F.?d 135, 140
(2d Cir. 1964). We hold a new
trial is required to afford the
defendant Baum a fair opportunity
to meet the critical and damaging
proof of an offense not presented
against him in the indictment."
Similarly, in Riggs v. United States,
F.2d 750, 753-754 (5th Cir. 1960),
-61-
280
the
Court reversed the conviction and strongly
condemned nondisclosure of ae transaction
ee eS ee ee eg
not included in the indictment but ''saved
to be used as a surprise knockout blow
RkKKKK and as the record plainly = and
affirmatively shows, the defendant was
deprived of a fair trial by the cloak and
dagger manner of getting this surprise
testimony into evidence
There is much to be learned from the
way State jurisdiction handle these
problems. The Supreme Courts of several
States have observed the pernicious
tendencies of “other crimes" evidence and
decreed special notice provisions and other
safeguards. State v. Prieur, 277 So.2d 126
(La. 1973); State v. Spreigl, 272 Minn.
488, 139 N.W.2d 167 (1965). The Oregon
Supreme Court stated the necessity well
when it said over sixty-six years ago, in
State v. Jensen, 70 Oreg. 156, 158, 140 P.
740, 741 (1914):
=62-
"To allow such testimony is to
infringe the constitutional right
of the defendant to demand the
nature and cause of the
accusation against him. Such
procedure might be palliated if
there was any provision’ for
giving the defendant notice of
the other charges in such cases;
but it is utterly repugnant to
justice and fair play to accuse a
person of a stated crime and make
that the excuse for what is
really trying him for a number of
others by springing them
unheralded upon the attention of
the jury to produce a verdict of
guilty which might not result
except for the bias thus imparted
to the minds of the jurors."
This court, as well as this accused,
has a stake in pre-trial disclosure of the,
intention to interject other crimes
evidence into the trial. Admissibility
under Rules 404(b) and 403, Federal Rules
of Evidence, ordinarily poses’ serious
questions of evidence which may delay the
proceedings if litigated during the course
of the trial. Moreover, if the government
is allowed to spring other crimes evidence
-63-
during the trial, mid-trial continuances
may be necessary in the interest of justice
to allow the accused fair opportunity to
meet the evidence. Finally, erroneous
admission of other crimes evidence remains
a common source of mistrials, appeals and
retrials. Thus, it is very much in the
interests of sound judicial administration
to require pre-trial notice of the
intention to use other crimes evidence and
to resolve admissibility, to the greatest
extent possible, before the jury is exposed
to voir dire examination and to opening
statements. See generally, 2 Weinstein's
Evidence 4404[{1] at 404-13 and 404-14
(1980). Thus, in fairness to the accused
and to the trial court, the foregoing
motion should be _ granted. E.g., United
States v. Stofsky, 409 F.Supp. 609, 620
CRsmcmits 8872), O22 6., Sat -¥.28- 237 (ze
~64-
cert. denied, 429 U.S. 819
(1976).
Respectfully submitted,
/S/Joseph A. Connors III
JOSEPH A. CONNORS III
ATTORNEY FOR R. A.
GONZALEZ-CALLES
State Bar No. 04705400
McAllen, Texas 78502-5838
(512) 687-8217
/S/Fidencio M. Guerra, Jr.
FIDENICO M. GUERRA, JR.
ATTORNEY FOR C. B.
GONZALEZ-CALLES
State Bar No. 08580500
McAllen, Texas 78502-4227
(512) 682-1465
-65-
DISTRICT COURT'S ENTIRE FINAL CHARGE
TO THE JURY (4R. 698 to 7/26)
THE COURT: Overruled.
You want to stand up a minute. Stand
up and I will talk to you. Stand up in
place. Let me tell you what takes place at
this time while you are standing.
You have already heard the evidence
and arguments of the attorneys. It now
becomes incumbent upon me being the Judge
of the law to give you your instructions,
what we call the charge of the Court. The
charge of the Court is the law by which you
will be governed in your deliberations.
That's simply what the Court's charge is,
and that is what is going to be taking
place now.
It is my duty at the end of the trial
to instruct you on all the law applicable
to the case. You as jurors are Judges of
the facts. But in determining what
-66-
happened in this case, on ther (sic) words,
in reaching your decision as to the facts,
it is your sworn duty to follow the law
that I am about now to define to you.
I think you may be seated now. You
will be more comfortable. _
And, folks, you have to follow all of
my imstructions as a whole. You have no
right to give special attention or
disregard to any one of my instructions or
to question the wisdom or correctness of
any rule of law I may state to you. In
other words, do not substitute your own
notion or opinion as to what the law is or
what the law ought to be. When you and I
become Judges, when we take that oath, we
are bound by the law whether we agree with
it or disagree with it. It is your duty to
apply the law as I give it to you
regardless of the consequences.
oh Fa
By the same token, it is also your
duty to base your verdict solely upon the
testimony and evidence in the case, without
prejudice or without sympathy. Remember we
said evidence in a case is what came from
this witness stand here as well as any
exhibits that are admitted into evidence.
That's a promise you made when you took
your oath as jurors. And both sides in
this case have a right to expect no less of
you.
The indictment or formal charge
against the defendant is indeed no evidence
of guilt. The defendant is presumed by law
to be innocent. The law does not require a
defendant to produce any evidence or to
prove his innocence or produce any evidence
at all. The Government has the burden of
proving him guilty beyond a _ reasonable
doubt. If you are not satisfied from the
evidence that the Government has met its
-68-
burden, then you should find the defendant
guilty -- rather not guilty. You must
acquit him.
Now, while the Government's burden of
proof is a strict or heavy burden, it is
not necessary that the Government's proof
exclude all doubt. For I suppose humanly
speaking it is impossible for anybody to
prove to another human being = anything
beyond all possible doubt. What is
required is that the Government's proof
exclude any reasonable doubt concerning the
defendant's guilt. And a reasonable doubt
is a real doubt. It is based upon reason
and common sense after careful and
impartial consideration of the evidence in
the case. The Government's burden is to
prove the defendant guilty beyond a
reasonable doubt. tk it teile to de s6,
you must find the defendant not guilty.
nt®.
And proof beyond a reasonable doubt is
proof of such a convincing character that
you would be willing to act and rely upon
it without hesitation in the most important
personal matters of your own. If you are
satisfied from the evidence that’ the
Government has met its burden, simply say
so. If you are not satisfied, likewise
simply say so.
Remember that I told you that what the
attorneys said to you in their opening
statements as well as what they said to you
in their final arguments was not evidence.
I told you at the outset of this case that
I did not have an opinion about the case,
although under our rules I might be able to
express my opinion. It was not- my
_intention to do anything whatsoever during
the course of this trial to lead you to
believe that I had an opinion. If I did
so, then I am going to ask you at this time
a Dba
to completely and totally disregard it, for
I do not want to in any way take a part
what is exclusively yours in your capacity
as Judges of the facts in this case. Now,
while you should consider the evidence in
this case, just like the attorneys did in
their final arguments, you are permitted to
draw such reasonable inferences from the
testimony and exhibits that you feel are
justified in the light of common
experience. In other words, you can make
deductions and reach conclusions which
reason and common sense lead you to believe
from the facts that have been established
by the evidence in the case.
You can consider two kinds of
evidence. You can consider direct evidence
or circumstantial evidence.
Direct evidence is eye-witness
testimony. I saw such and such a person do
-Jl-
such and such a thing or f did such and
such a thing.
Circumstantial evidence is a chain of
events or circumstances which indicate that
a person is either guilty or innocent.
You noticed during the course of this
case that there was testimony regarding
fingerprints.
You know on the window sill of the
house that was burglarized they found some
fingerprints. Nobody saw those finger-
prints get there, but the fact that they
are there is circumstantial evidence that
there was an individual there.
Before you go to sleep you look out
your back window and your lawn is dry. You
go to sleep and wake up the next day at
7:00 o'clock the next morning and there are
four inches of water on there. You didn't
see the water get on there, but the fact
that the water is on your’ lawn is
atZn
circumstantial evidence that something
happened during the course of the night to
get the water on there.
What is important to remember is, that
the law does not distinguish between direct
and circumstantial evidence and it leaves
it to you to decide what weight to give
either direct or circumstantial evidence
that was presented during the course of
this trial. That is exclusively within
your province. You- decide what weight to
give any type of evidence that was
submitted to you.
And I said to you, you have got to
consider all of the evidence in this case.
Did I ever tell you that you had to believe
it? I never told you that you had to
believe it, did 1? Because you see you are
the sole judges of the believeability and
credibility of the testimony of _ the
witnesses that came before you. You decide
=
what weight you want to give the testimony
of any witness.
Now, how do you do that? I guess we
search and we look for every human
experience that we've ever had. Here are
- some things you should take into
consideration. For example, in weighing
the testimony of a witness you_ should
consider their relationship to the
Government or the defendant; you should
consider whether or not the witness that
came before you had an interest in the
outcome of the case; the manner that that
witness testified before you; the
opportunity that that witness had_ to
observe or acquire knowledge about the
facts to which he or she testified; their
candor; their frankness, their fairness,
their intelligence, and the extent to which
they have either been supported or
contradicted by other credible evidence.
«Phin
You may in short accept or reject in
whole or in part the testimony of any
witness. You can believe all of what a
witness said, half of what a witness said
or none of what he said.
And it doesn't make any difference if
more witnesses came here to testify to one
matter as opposed to a smailer number to
the contrary. You decide what weight to
give the testimony of anv number of
witnesses.
We attorneys like to use the words
“discreditation" or "impeachment." And
that simply means this, if it happened in
this case, that there may have been in the
course of this trial a showing that a
witness came before you who testified
falsely or contrary concerning a material
matter or by evidence that at some other
time the witness had said or done something
or failed to say or do something which is
-75-
different than the way they testified or
said they had done or not done things here
before you. If that happened during the
course of the trial that's what we call
impeachment. If a person was so impeached,
then here again it is your’ exclusive
province to give the testimony of that
witness such credibility you think it
deserves. That's your authority.
We also had some expert witnesses who
came here to testify before you. The rules
of evidence provide that if scientific,
technical, or other specialized knowledge
might assist the jury in understanding the
evidence or in determining a fact in issue,
a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify and come here and
state his or her opinion to you in those
matters.
~~ /
Listen to this: You should consider
each expert opinion received in evidence in
this case and give it such weight as you
may think it deserves. If you should
decide that the opinion of an_ expert
witness is not based upon sufficient
education and experience, or if you should
conclude that the reasons given in support
of the opinion are not sound, or that the
opinion is outweighed by other evidence,
you can disregard the opinion entirely even
of an expert witness.
Then we come to some very important
terms. Important terms because they are
essential ingredients. They underlie the
way we do things in this country. For a
person to engage in such conduct that on
the face of things it makes that person
look like he or she is guilty, but if the
person did not have the required state of
mind -- and in this case these terms become
~) *
very important -- the person didn't have
the required state of mind, knowledge or
willfully engage in misconduct, you can't
find that person guilty.
The first thing I want to define to
you is the fact -- you will notice in the
indictment the indictment uses the term "on
or about" a certain day. The proof doesn't
have to establish with certainty the exact
date of the alleged offense. eG
sufficient if the evidence in this case
establishes beyond a reasonable doubt that
the offense was committed on a date
reasonably near the date alleged. I don't
think that matter is in issue in this case.
Than we come to two very important
terms, two very important terms. The word
"knowingly."
The word knowingly means that
the act was done voluntarily and
intentionally -- because you wanted to do
it voluntarily and intentionally -- and not
x os
by accident or mistake. And then we come
to “willfully."" And "willfully" means that
the act was committed voluntarily = and
intentionally -- because you wanted to do
it -- and purposely and with the specific
intent to do something that the law forbids
-- and with the specific intent to do
something that the law forbids. That is to
say, with bad purpose either to disobey or
disregard the law. Remember those terms.
They are going to be coming back to you.
Now what do you have? In this case
you have a four-count indictment. We are
going to call Counts 2 and 4 the
substantive counts. Counts 1 and 2 allege
a conspiracy. Count No. 2 alleges a
substantive count or the alleged
importation into the United States from
another country 125 pounds gross weight of
a controlled substance. I will tell you
now cocaine is a controlled substance.
x
That is what they call narcotics. Count
No. 4 alleges the knowing and intentional
possession, with the intent to distribute,
approximately 125 pounds of the controlled
substance. In this case it being cocaine.
Let me first define to you what is
required before you can find the defendant
guilty of either Counts 2 and 4. Then I
will come back and define to you what a
conspiracy is, because an integral part of
a conspiracy entails the fact that there
was a scheme to violate a substantive law.
We will start with Count No. 4. Count
No. 4 alleges the possession, with intent
to distribute, cocaine in the amount
alleged in the indictment. It is against
the law for anybody to knowingly or
intentionally -- remember knowingly and
intentionally -- possess, with intent to
distribute, a controlled substance.
Cocaine is a controlled substance.
-80-
Before you can find the defendant
guilty of Count No. 4 you must be satisfied
from the evidence beyond a reasonable doubt
that the defendant knowingly and willfully
possessed the cocaine as charged.
And, in addition to that, making
references to Count No. 4, in addition to
that, you must also be satisfied beyond a
sonsnéabta doubt from the evidence that he
possessed the substance with the intent to
distribute it. And possession with intent
to distribute simply means to possess with
the intent to deliver or transfer
possession of a controlled substance to
another person with oor without any
financial interest in the’ transaction.
Simply passing it on to somebody else.
Further, I will tell you that you can
consider the amount of the controlled
substance in question as would regard the
-81-
element of the intention to distribute.
You can consider that.
Now, if you are not satisfied from the
evidence beyond a reasonable doubt that the
Government had met its burden in regard to
those elements in Count No. 4 you _ should
find the defendant not guilty of Count No.
4,
Then we go co Count No. 2, because
Count No. 2 alleges the alleged importation
of the controlled substance in question.
Well, in order for a person to import he
has to be guilty of possession. Now, I am
going to define possession to you in a few
minutes because we have both actual and
constructive possession. And I will simply
tell you at this time, you don't have to
have something in your hands to be legally
in possession thereof because you might
have constructive possession thereof. And
I will define it for you.
-82-
In Count No. 2 it is alleged that the
defendant imported into this country the
amount of cocaine in question. Simply put,
it is against the law for a person to
import into the United States a controlled
substance. In order for a person to be
guilty of Count No. 2, then, he must, of
course, have either actual or constructive
possession as I am going to define it for
you -- and remember the elements of
possession -- and bring it into’ this
country.
If you are satisfied from the evidence
that the Government has met its burden as
would regard Count No. 2 by proof beyond a
reasonable doubt, you should find the
defendant guilty. If you are not
satisfied, you should find the defendant
not guilty. Which brings us then to Count
No. 1 and 3.
aS.
"Conspiracy" is just a big word. It
really is. But maybe I can help you by
first giving you an example of what a
conspiracy is.
Mr. Holloway and I -- by the way, I
tell this to every jury -- don't make
enough money. Also ask our jurors to write
our Congressmen and tell them, too. But
that's neither here nor there. So what he
and I decide to do, we decide we are going
to find a way to get more money. So we go
to my office. We don't have a formal
meeting. We don't put it in writing. —
Nobody else is there. And he and I decide
that the way we are going to get more money
is to rob a National Bank. Robbing a
National Bank is a violation of law. All
of us know that. Robbing a Federal Bank is
a violation of law.
So for the purpose to engage in this
scheme we solicit the services of Mr.
-84-
Ramirez. Then we ask Mr. Ramirez to go
rent a get-away car. The moment that Mr.
Ramirez goes to rent that get-away car we
have committed a violation of law. We have
engaged in a conspiracy.
Doesn't make any difference if we
didn't rob the bank. By the same token, if
we robbed the bank, it doesn't make us any
less guilty. You understand that.
Now, the difference in an ordinary
conspiracy and a conspiracy in ae case
involving narcotics or drugs is that the
Government doesn't have to allege the overt
act committed by Mr. Ramirez nor prove the
overt act that Mr. Ramirez committed.
So you see a conspiracy simply means
that two or more persons get together and
engage in a plan to violate the law. It is
a kind of partnership in criminal purpose
in which each member becomes the agent of
each other member. The gist or essence of
-
the offense is a combination or mutual
agreement by two or more persons’ to
disobey, or disregard, the law.
There are some_- things that the
evidence doesn't have to show you as would
regard Counts 1 and 3, that is, the counts
on conspiracy.
Count 1 alleges a conspiracy to import
into this country a controlled substance.
Count 3 alleges a conspiracy to possess it
with intent to distribute it.
There are some things the Government
doesn't have to prove to your satisfaction
beyond a reasonable doubt before you .can
find the defendant guilty of either Counts
1 and/or 2. What the Government doesn't
have to prove to you is not’ what's
important. What is important is what the
Government must prove to you.
For example, the Government doesn't
have to show you that -- the case need not
-86-
show that the alleged members of the
conspiracy entered into any expressed or
formal agreement -- they didn't have to do
that in writing -- or that they directly
stated between themselves the details of
the scheme and its object or purpose, or
the precise means by which the object or
purpose was to be accomplished. Similarly,
the evidence in the case doesn't have to
establish that all the means or methods
discussed or may have been alleged in the
indictment were in fact agreed upon to
carry out the alleged conspiracy, or that
all of the means or methods which were
agreed upon were actually used or put into
operation. Neither must it be proved that
all of the persons charged to have been
members of the conspiracy were such, nor
that the alleged conspirators actually
succeeded in accomplishing their unlawful
~
objectives. That's what the Government
doesn't have to prove.
Here is what the Government must prove
to your satisfaction beyond a _ reasonable
doubt before you can find Robert
Gonzalez-Calles guilty of Count No. 1
and/or Count No. 3.
That two or more persons in some way
or manner, positively or tacitly, came to a
mutual understanding to try to accomplish a
common and unlawful plan, as charged in the
indictment. That two or more_ persons
engaged in a plan to violate the law.
In addition to that: That the
defendant knew of, intended to join and
willfully participated in the conspiracy;
that the defendant knew of, intended to
join and willfully participated in the
conspiracy.
If you’ are satisfied that the
Government has proven those elements to you
-88-
as would regard Count No. 1 and/or Count 3
you should find the defendant guilty. If
you are not satisfied that the Government
has met its burden of proving those matters
to you beyond a reasonable doubt, you
should find the defendant not guilty of
Count No. 1 and/or Count No. 3.
Knowledge, actual participation and
criminal intent are the necessary elements
of a conspiracy. The Government must prove
each of those elements beyond a reasonable
doubt.
You can become a member of a
conspiracy without full knowledge of all
the details of the unlawful scheme or the
names and identities of all of the other
alleged conspirators. So, if a defendant,
with an understanding of the unlawful
character of a plan, knowingly and
willfully joins in an unlawful scheme on
one occasion, om one occasion, that is
-89-
Y
sufficient to convict him for conspiracy
even though he had not participated at
earlier stages in the scheme and even
though he played only a minor part in the
conspiracy. In order to establish
participation in a conspiracy, the
Government must show more than~ mere
presence or association. Just because you
are there or just because you associate
with persons doesn't make you guilty.
Mere presence at the scene of an
alleged transaction or event, or _ mere
similarity of conduct among various persons
and the fact that they may have associated
with each other, and may have assembled
together and discussed common aims’ and
interests, does not necessarily establish
proof of the existence of a conspiracy.
There must be evidence that the individual
defendant had knowledge of the conspiracy.
Also, a person who has no knowledge of a
-90-
conspiracy, but who happens to act in a way
which advances some object or purpose of a
conspiracy, does not thereby become a
conspirator. You must have a knowing and
willfull (sic) participation in the event.
In your consideration of the
conspiracy offenses as alleged in the
indictment you should first determine, from
all of the testimony and evidence in the
case, whether or not the conspiracy existed
as charged. If you conclude that a
conspiracy did exist as alleged, you should
next determine wHether or not the defendant
under consideration willfully became a
member of that conspiracy. I told you that
I was going to define "possession." It is
not necessary that I have this pen in my
hand, in my actual physical possession, for
me to be in possession thereof, because the
law recognizes two kinds of possession.
The law recognizes actual possession, which
svi.
: is this in my hand, and_ constructive
possession.
: Sort of like, for example, you can be
. in Harlingen, Texas, and send somebody to
get something for you in Matamoros. And
: although whatever he brought from Matamoros
is not in your possession, you can lawfully
P be in constructive possession what _ he
: brought from Matamoros. Because, you see,
under the law a person who, although not in
‘ actual possession, knowingly has both the
power and the intention, at a given time,
to exercise dominion or control over a
thing, either directly or through another
person or persons, then that person is
considered to have constructive possession
thereof... You can also infer the matter of
the element of possession from the fact
that an individual has control over, let us
say, a vessel or a plane or a car or a
. house. But in order for you to find that a
-92-
i eM i i
person has either actual or constructive
possession thereof --
You need a recess, ma'am? Take her
with you, please. Do any of you want a
recess? I am about done.
(Short recess.)
THE COURT: I appreciate she asking.
Remember the old days when you used to try
cases and people worked until 10:00 or
11:00 o'clock. The Judge didn't recess.
Are you comfortable, ma'am? I am glad
you called it to my attention. Don't you-
worry about it one bit.
Okay. I was telling you = about
possession. And I was also telling you, my
recollection is, for example, you can infer
a person has possession over something if
he has control over it. For example, he is
the driver of a vehicle or pilot of a plane
or the like. But do not forget that before
you can find a person guilty of having
«93.
something in his possession you must also
be satisfied from the evidence beyond a
reasonable doubt that the person knowingly
and willfully had control over the matter.
Please don't forget that. The law
recognizes also that possession may be sole
or joint. If one person alone has actual
or constructive possession of at _ thing
possession is sole. If two or more persons
share actual or constructive possession of
a thing, possession is joint.
You may find that the element of
possession as that term is used in these
instructions is present if you find beyond
a reasonable doubt that the defendant had
actual or constructive possession, either
alone or jointly with others.
Then we come to another matter. I
know that you've heard of the law of aiding
and abetting. One very good way of
introducing the law of aiding and abetting
-94-
is simply translate what is commonly used
in Spanish: He who holds the cow's leg is
just a (sic) guilty who shot it in the
head. Because under our laws a person who
commits an offense against the United
States, if he aids, abets, counsels,
commands , induces or procures its
commission, that person is just as guilty
as the one who actually did it because he
helped to accomplish the unlawful
objective. So you see the law recognizes
that, ordinarily anything a person can do
for himself may also be accomplished by him
through the direction uf another person as
his agent, or by acting in concert with, or
under the direction of, another person or
persons in a joint effort or enterprise.
So, if the acts or conduct of an
agent, employee or other associate of the
defendant are willfully directed or
TVFTrorroyrFro rr FF FT FF FT Ww
authorized by him, or if the defendant aids
-95-
rT
————— Eee
and abets another person by willfully
joining together with such person in the
commission of a crime, then the law holds
the defendant responsible for the acts and
conduct of such other persons just as
though he had committed the acts or engaged
in such conduct himself.
Here again remember this: That before
any defendant may be held = criminally
responsible for the acts of others it is
necessary that the accused willfully
associate himself in some way with the
criminal venture, and willfully participate
in it as he would in something he wishes to
bring about; that is to say, that he
willfully seek by some act or omission of
his to make the criminal venture succeed.
And here again, mere presence at the scene
of a crime and knowledge that a crime is
being committed are not sufficient to
establish that a defendant either directed
-96-
or aided and abetted the crime unless you
find beyond a reasonable dbout (sic) that
the defendant was a participant and not
merely a knowing spectator.
In other words, you may not find any
defendant guilty unless you find beyond a
reasonable dbout (sic) that every element
of the offense as defined in these
instructions was committed, by some person
or persons, and that the defendant
willfully participated in its commission.
A separate crime or offense is charged
in each count of the indictment. Each
charge and the evidence pertaining to it
should be considered separately. The fact
that you may find the defendant guilty or
not guilty as to one of the offenses
charged should not control your verdict as
to any other offense charged.
I caution you, members of the jury,
that you are here to determine the guilt or
«Fs
innocence of the accused from the evidence
in this case. He is not on trial for any
act or conduct or offense not alleged in
the indictment. Neither are you called
upon to return a verdict as to the guilt or
innocence of anybody else, any’ other
person, not on trial as a defendant in this
case.
Also, the punishment provided by law
for the offense charged in the indictment
is a matter exclusively within the province
of the Court or the Judge, and the jury
should never consider punishment in any way
in arriving at an impartial verdict as to
the guilt. or innocence of the defendant.
Now, any verdict that you return as to
all four counts must be the _ considered
judgment of each juror. In order for you
to return a verdict, all twelve of you who
will be deliberating must unanimously
-98-
agree. There must be unanimous agreement
in order to reach a verdict.
It is your duty as jurors to consult
with one another in an effort to reach an
agreement if you can do so without violence
to individual judgment. You have got to
decide the case for yourself but you do
that after careful and impartial
consideration and discussion of all the
evidence in the case with your fellow
jurors.
And in the course of your
deliberations don't hesitate to change your
mind if you are honest to _- goodness
convinced you are wrong. For God's sake
don't change your mind just simply to reach
a verdict in the case or to satisfy your
fellow jurors. You are Judges and the only
thing you are interested in is in
ascertaining and determining the truth.
-99-
The first thing you will do when you
go to the deliberation room is you will
select one of your members’ as_ your
foreperson. That individual will preside
in your deliberations and also will be your
spokesperson in the courtroom.
I have prepared a form of verdict
which is quite simple. It addresses each
count. And has a space for you to insert
"not guilty" or "guilty" for each and every
one of the counts. Further, a space for
the foreperson to sign and, of course, to
date the verdict.
You are going to take those into the
jury room with you. And when you have
reached a unanimous agreement, the
foreperson should fill in the _ blank
indicated and then you will be returned to
the courtroom so your verdict can be made
public.
-100-
If during your deliberations you wish
to communicate with the Court -- and I am
not encouraging you to communicate with me
and _ I am not discouraging you to
communicate with me -- I am going to ask
that you please do it in writing. Have the
foreperson sign it, date it, put the hour
on it. And if it is consistent with what
your conscience dictates, you continue your
deliberations I guarantee you I am not
ignoring any communication. I may be in
something else or I may be looking for an
answer to your communication. But if it is
consistent with what your conscience
dictates, you continue your deliberations.
I will respond as promptly as possible,
I'll guarantee you.
Then I am going to ask you to do me
one final favor. If you do communicate
with me, please don't specify your
numerical division. So many one way, so.
-101-
many another. Please don't do that at any
time.
At this point I must’ give the
attorneys an opportunity to address me. It
has to be done outside of your presence. I
am going to ask that you be taken to the
hallway.
Everybody rise and remain in place.
(Jury left courtroom. )
THE COURT: Any objection, from the
Government?
MR. WOLFE: It is not in the form of
an objection. In my opinion sometimes the
jurors get confused sometimes as to the
verdict. I know the Court was explicit
that it must be unanimous. In the
Government's opinion they think it is
unanimous only to find guilty. They don't
think it is unanimous to find not guilty.
I wish the Court would tell then,
“Ladies and gentlemen, it takes twelve of
-102-
you to find the defendant guilty. It takes
twelve of you to find the defendant not
guilty."
THE COURT: Maybe we will do it next
time. All right, sir. Any objection from
the defendant? Remember that everything
you have favored me with you preserve your
exception thereto.
MR. CONNORS: Your Honor, I have
several. Could the Clerk show the Court
Carlos’ No. 1. You covered about 90
percent of it. I wanted to cover a few
paragraphs with you.
THE COURT: That you preserve your
exception thereto.
MR. CONNORS: I am not sure the Court
did “burden of proof." You remember doing
that, Your Honor?
MR. WOLFE: I thought the Court was --
MR. CONNORS: About telling them
hesitation in personal affairs.
-103-
THE COURT: You mean proof of doubt --
proof beyond a_= reasonable doubt. The
burden of proof.
MR. CONNORS: I don't mean burden of
proof.
THE COURT: Proof beyond a reasonable
doubt, I most definitely did.
MR. CONNORS: ee. €6ct. that the
indictment is no evidence.
THE COURT: Yes, sir.
MR. CONNORS: That is all --
THE COURT: You preserve your
exception thereto.
MR. CONNORS: That's all in Carlos 1.
I have several others, Your Honor.
THE COURT: Go ahead. Hurry up.
MR. CONNORS: I would like the Court
to charge on the availability of the
exhibits. How they obtain them.
THE COURT: They are going to take the
exhibits.
-104-
MR. CONNORS: I didn't know that, Your
Honor.
THE COURT: Except the cocaine. If
they ask for it, I will send it to them.
MR. CONNORS: I would ask the Court to
charge the fact that Carlos Benjamin is no
longer in the lawsuit.
THE COURT: I already have.
MR. CONNORS : Your Honor, Robert
Gonzalez' jury instruction No. 15 went to
whether he was -- if he was ignorant of the
fact cocaine was in the plane, that
ignorance of fact goes to the heart of his
defense and if --
THE COURT: I think I covered that in
my instruction. They were told, if he
didn't know about it, he didn't willfully
engage in the conduct, they couldn't find
him guilty. You preserve your exception
\
thereto.
-105-
MR. CONNORS: Your Honor, the fact
that there were witnesses not called by the
Government or by me, you didn't give it to
them in the final charge. oe sate: . <¢
during the argument.
THE COURT: I think they have already
been instructed.
MR. CONNORS: Your Honor, the Court,
as far as I know, did not charge that there
is no inference of guilt because the man
was arrested, detained or even still in
custody. I would ask that you do that. I
know I charge on it but I don't count.
THE COURT: The Court did charge them
- on presumption of innocence.
MR. CONNORS: He testified that he was
in jail, Your Honor, on che stand when he
saw Victor. He testified he was detained
\
when this happened.
-106-
\
THE COURT: Denied. I think the Court
has already covered that on the presumption
of innocence.
MR. CONNORS: One other, Your Honor.
We would ask -- I guess we object. The
Court failed to instruct as follows; that
one of the defensive theories was that
someone knowingly conspired with others who
are not on trial before the jury to frame
my client, Robert Antonio Gonzalez-Calles,
for the charges in this’ case. Facts
adduced in support of this theory created
in the jurors minds a reasonable doubt of
guilt of these charges and the jury must
find the defendant not guilty.
THE COURT: That will be denied. You
will preserve your exception. Any others?
MR. CONNORS: Your Honor, as to
similar acts, since there was some
insinuations as to similar. acts, and
finally in jury argument --
-107-
THE COURT: I don't remember any
evidence to that effect.
MR. CONNORS: Is that one overruled,
Your Honor?
THE COURT: Yes, sir.
MR. CONNORS: That is all, Your Honor.
We have no further --
THE COURT: You preserve your
exception. Bring the jury in. Everybody
be seated.
(Whereupon the jury re-entered _ the
courtroom, the alternate jurors were
excused and the jury retired to deliberate.
At 4:15 p.m. the jury returned its verdict
in open court.)
-108-
RELEVANT JURY ARGUMENT (4R. 695-698)
Ladies and gentlemen, out in our
neighborhoods and out in the community that
we grow up in and live in, I don't have to
tell you the effects that drugs has. You
know the families that have been affected.
You know the lives that have been ruined.
You know what it causes. And Mr. Connors
says we are not being fair. Do you think --
MR. CONNORS: Your Honor, we are not
trying every lawsuit in cocaine in the
United States or marijuana or pills.
THE COURT: Confine yourself to
matters in this case, Mr. Wolfe.
MR. CONNORS : Is my objection
overruled?
THE COURT: Yes, sir. The jury has
been instructed accordingly.
MR. WOLFE: You think that he is being
fair when he brings this cocaine into the
country?
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When you go back in the jury room you
are going to have to make a tough decision.
You are going to have to decide what
happened. And it is not going to be easy.
I will tell you it is not going to be easy.
It never is and it is not supposed to ke.
That's why we have twelve people here. If
it was easy we wouldn't have juries.
But you are an important link in the
chain of criminal justice. And the chain
is only as strong as its weakest link.
When you go in that jury room don't be the
weak link. Be the strong link.
The Customs officers have done their
job. The Court has done its job. The
Government has presented its evidence to
you. You be the strong link. You tell the
defendant and his associates if they bring
cocaine into South Texas that we are going
to be waiting for them. And you tell them
that no matter how clever they are’ that
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they are not going to escape justice that
comes to South Texas with their poison.
When you go back in that jury room,
ladies and gentlemen, I know you are going
to agonize. In your own life you probably
had to make a decision in regards to an
operation or something like that. And it
is not easy for you or for a family member
to make those kind of decisions. It is a
tough decision to go into the doctor and go
into the hospital and have them take out
that scalpel and go in there and cut and
remove some cancer.
I will tell you right now, in this
country we have got a cancer and it is
called "cocaine."" It might be painful for
you, but you have got to go in there and
you have got to take out that scalpel and
you have got to cut it out. If you don't
cut it out, ladies and gentlemen, it is
going to grow and grow until it consumes us
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all. And he is the virus that spreads it
through his airplanes.
MR. CONNORS: I object, Your Honor,
that was in the plural. Seems to infer
something about similar acts.
MR. WOLFE: I thought he said he had
flown several airplanes, ladies and
gentlemen.
MR. CONNORS: Would the Court --
MR. WOLFE: He spreads --
THE COURT: What is your objection,
please?
MR. CONNORS: The insinuation is, he
is spreading cocaine on more than one
airplane, Your Honor. And he is forgetting
about knowingly, but he is saying numerous
airplanes.
THE COURT: If any reference is made
to any matters not regarding the evidence
in this case, you are to completely and
totally disregard it. We are not trying
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anything else except what's in the
indictment and what was presented to you as
evidence in this case. Any reference or
intimation that is made to the contrary,
you are to completely and totally disregard
it. Those are my instructions to you.
MR. CONNORS: Then I respectfully move
for a mistrial.
THE COURT: Denied.
MR. WOLFE: He is spreading this virus
through his airplane TG-BEQ. Fortunately
we stopped him. But if you let him go,
like Mr. Connors, said, he only lost
$30,000 and half-a-million. And on his
next trip, if he gets through, he can make
it up. That's what Mr. Connors told you.
Thank you, ladies and gentlemen.
MR. CONNORS: I object to the last
three <centences. I never told the jury
that, Your Honor.
THE COURT: Overruled.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.