Petition for Writ of Certiorari — Munoz-Romo v. United States

Supreme Court brief1992

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91-1598

no. /

UNITED STATES SUPREME COU

October 1991

FRANCISCO JAVIER MUNOZ-ROMO,

Petitioner,

bate

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Mare D. Murr

Hagans & Associates

1415 Louisiana, Suite 4100

Houston, Texas 77002

(713) 659-4100

(713) 659-3502 (Fax)

Attorney of Record for Petitioner

Francisco Javier Munoz-Romo

Alistair B. Dawson

Bracewell & Patterson |

South Tower Pennzoil Place

711 Louisiana, Suite 2900

Houston, Texas 77002-2781

(713) 223-2900

(713) 221-1212 (Fax)

Of Counsel

QUESTIONS PRESENTED

Whether the Trial Court Violated Munoz's Fifth

Amendment Rights Under the United States

Constitution by Convicting Munoz Twice for

Possessing the Same Firearm?

Whether Munoz's Fifth Amendment Rights Under

the United States Constitution Were Violated

When He was Sentenced Twice for Violating One

Statute?

Whether the Trial Court Erred by not Acquitting

on the Firearm-Possession Counts Because There

Was Insufficient Evidence that Munoz Possessed

the Firearms?

Whether the Trial Court Erred in Sentencing

Munoz Under Section 924(e)?

Whether the Trial Court Erred in Failing to

Grant an Acquittal on the Money-Laundering

Offenses Because There was no Evidence That he

Used Proceeds From Unlawful Activity?

Whether Munoz’s Sixth Amendment Rights Under

the United States Constitution Were Violated,

Because He was Denied Effective Assistance of

Counsel Which Severely Prejudiced his Right to

a Fair Trial?

sft.

a Vere Se eee _ ee a ee | a _ _

Francisco Javier Munoz-Romec -- Petitioner

Tali Villafranca -- Trial Counsel for

Petitioner

Robert Berg -- United States Attorneys’ Office

Paula Offenhauser -- United States Attorneys’

Office

Marc D. Murr -- Attorney for Petitioner

Alistair B. Dawson -- Attorney for Petitioner

~iii-

TABLE OF CONTENTS

QUESTIONS PRESENTED .

LIST OF INTERESTED PERSONS

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION .

CONSTITUTIONAL AND STATUTORY PROVISIONS

RELEVANT TO CASE

1. Firearm Possession Statute

2. Sentence Enhancement Statute

3. Money-Laundering Statute

STATEMENT OF THE CASE .

Be Course of Proceedings and Disposition

Below .

II. Statement of Facts

ARGUMENT

Z. Whether the Trial Court Violated Munoz's

Fifth Amendment Rights Under the United

States Constitution by Convicting Munoz

on Two Counts for the Same Offense?

A. The Statute Provides for Only

One Conviction.

B. Convicting Munoz Twice for the

Same Offense Violates’ His

Constitutional Rights.

-iv-

Il.

Ill.

C. The United States failed to

show that Congress intended to

allow multiple prosecutions

under 18 U.S.C. § 922.

1. The Blockburger test does not

apply to this case

# Under the Rule of Lenity, Munoz

could not be convicted twice

for the same offense under 18

U.S.C. § 922

Whether Munoz's Fifth Amendment Rights

Under the United States Constitution

Were Violated When He was Sentenced

Twice for the Same Offense

The Multiple Convictions Violate the

Double Jeopardy Clause of the United

States Constitution

The Sentences Imposed Under Counts

V and VII of the Indictment Should

be Vacated and the Case Remanded for

Resentencing

Whether the Trial Court Erred by not

Acquitting on the Firearm-Possession

Counts?

The Sufficiency of the Evidence

Standard. so 6 se © sw 6 8s

a The Government Failed to Meet

Its Burden of Proof Regarding

the Warren Street Firearm

a. Munoz Did Not

Constructively Possess the

Warren Street Firearm.

IV. Whether

The Government Failed to Meet

Its Burden of Proof With

Respect to the Sherwood Firearm

ms The Government Failed to

Prove that Munoz Knew of

the Gun’s Location.

b. Munoz Did Not Exercise

Dominion or Control Over

the Gun.

the Trial Court Erred in

Sentencing Munoz Under Section 924(e)?

V. Whether the Trial Court Erred in Failing

to Grant an Acquittal on the Money-

Laundering Offenses

There was no Evidence that the

Property Represented the

Proceeds From Unlawful Activity

The United States failed to

prove that Munoz had _ the

necessary intent to violate the

money-laundering statute

VI. Whether Munoz’s Sixth Amendment Rights

Under the United States Constitution

Were Violated Because He was Denied

Effective Assistance of Counsel

CONCLUSION

APPENDIX .

CERTIFICATE OF SERVICE

-vi-

TABLE OF AUTHORITIES

Cases

Albernaz v. United States,

450 U.S. 333 (1981)

Ball v. United States,

470 U.S. 854 (1985)

Bell v. United States,

349 U.S. 81 (1955)

Blockburger v. United States,

284 U.S. 299 (1932)

Bordenkircher v. Hayes,

434 U.S. 357 (1978)

Brown v. Ohio, 432 U.S. 161 (1977)

Cook v. Lynaugh, 821 F.2d

1072 (5th Cir. 1987)

Ladner v. United States,

358 U.S. 169 (1958)

North Carolina v. Pierce,

395 U.S. 711 (1969)

Rollins v. United States,

543 F.2d 574 (5th Cir. 1976)

Murphy v. Puckett, 893 F.2d 94,

95 (5th Cir. 1990)

United States v. Blackmon,

904 F.2d 1250 (8th Cir. 1990)

United States v. Smith,

591 F.2d 1105 (5th Cir. 1979)

-vii-

30,

af,

28,

18,

31,

Schovest v. Whitley,

927 F.2d 205 (5th Cir. 1991)

Smith v. Puckett, 907

F.2d 581 (5th Cir. 1990),

cert. denied, U.S. :

111 S.Ct. 694 (1991)

Strickland v. Washington,

466 U.S. 668 (1984)

United States v. 88 Designated

Accounts Containing

Monies Traceable to Exchanges

for Controlled Substances,

740 F.Supp. 842 (S.D.Fla. 1990)

United States v. $4,245,000,

762 F.2d 895 (llth Cir. 1985)

United States v. Ackerson, 502

F.2d 300 (8th Cir. 1974),

vacated on other grounds,

419 U.S. 1099 (1975)

United States v. All Monies

($477,048.62), 754

F.Supp. 1467 (D.Ha. 1991)

United States v. Allen,

699 F.2d 453 (9th Cir. 1982)

United States v. Beverley,

750 F.2d 34 (6th Cir. 1984)

United States v. Bigelow,

897 F.2d 160 (5th Cir. 1990)

United States v. Blackman,

897 F.2d 309 (8th Cir. 1990)

-viii-

47, 48,

31,

41, 42,

————————————————

United States v. Blannon, 836 F.2d

843 (4th Cir.) (same), cert.

denied, 486 U.S. 1010 (1988) ....... 21

United States v. Brewer, 853 F.2d

1319 (6th Cir) (same), cert.

denied, 488 U.S. 946 (1988) ....... 20

United States v. Bruce,

704 F.2d 1048 (8th Cir. 1983) ... . 31, 36

United States v. Clements,

peewee wee ewem Gir. 1972) ...... WU

United States v. Davis,

Den wome pom Coen Git. 1966) ....... 24

United States v. Davis, 656 F.2d

ee |

United States v. Deaton,

memo ee gen €oem Cir. 1972) ....... 4&6

United States v. Donofrio,

50 F.2e6@ 1056 (Sth Cir. 1971) .. 29, 30, 36

United States v. Evans,

mom me ©oem Car, 1988) ......-. x4

United States v. Gregg,

803 F.2d 568 (10th Cir.

1986) (same), cert. denied,

er |

United States v. Hastings,

918 F.2d 369 (2d Cir. 1990) .... .. 31, 35

United States v. Hatfield,

815 F.2d 1068 (6th Cir. 1987) .... 31, 36

United States v. Hawkins, 811 F.2d

210 (3d Cir) (same), cert.

denied, 484 U.S. 833 (1987) ....... 21

-ix-

eee

United States v. Jackson, 824 F.2d

21 (D.C. Cir. 1987) (same),

cert. denied, 484 U.S. 1013 (1988) .... 21

United States v. Jones,

687 F.26 G76 (9th Cir. -1973) .....e « W

United States v. Kalama, 549 F.2d

594 (9th Cir. 1976), cert.

Gembee, S27 0.3. g220 (1977)... ww ss

United States v. Kinsley,

518 F.2d 665 (8th Cir. 1975) ....... 14

United States v. Marino, 682 F.2d

ae et ee: } a ©

United States v. Ortega, 859 F.2d

327, 331 (5th Cir. 1988),

cert. denied, 489 U.S. 1027

PD ted) er a re

United States v. Phillips, 664

F.2d 971, 1040 (5th Cir.

1981), cert. denied sub

nom, Meinster v. United

Seates, GS/ U.S. bise €2962) . . «5 « » «= sw oO

United States v. Pirovolos,

844 F.2d 415(7th Cir.)

(same), cert. denied,

ge ee |

United States v. Quintero,

S72 F.26 1G7 (Sth Cir. 1989) ....... 3

United States v. Rumney, 86/7 F.2d

714 (lst Cir. 1989), cert.

denied sub. nom., Taylor v.

United States, U.S. :

Raw @.GO. Sova CASee> « « « » » « Bey Shy BO

-X-

———————_—

United States v. Rush, 840 F.2d 574

(8th Cir.) (same), cert. denied,

487 U.S. 1238 (1988)

United States v. Sherbondy,

865 F.2d 996 (9th Cir. 1988)

United States v. Soto, 779 F.2d 558

(9th Cir. 1986), cert. denied,

484 U.S. 833 (1987)

United States v. Stine,

458 F.Supp. 366 (E.D.Pa. 1978)

ited States v. Tankersley,

492 F.2d 962 (7th Cir. 1974)

United States v. Thomas, 810 F.2d

478 (Sth Cir.), cert. denied,

482 U.S. 930 (1987)

United States v. Triplett,

922 F.2d 1174 (5th Cir. 1991)

United States v. West,

826 F.2d 909 (9th Cir.

1987) (same)

United States vs. Kaplan,

588 F.2d 71 (4th Cir. 1978)

Vau Vv. telle,

671 F.2d 152 (5th Cir. 1982)

Whalen v. United States.

445 U.S. 684 (1980)

-xi-

31,

26,

Statutes

18 U.S.C. § 922(g) (1990) . | ee |

AG "as, OF,

a 6.8.C. § Fae i, em, &, 8, 2. 2a, 23, BW, 3A, A

ee ee ee a ee ee a ee

kee ee ee | re fe emer fo

18 U.S.C. §§ 2421-2424 (1970) ......... «27

23 U.S.C. § Gl C29GA) . . ws a “ae Ea Lk, oe

De Bcc. © Gaee CEeewe ss se tt ltl WR

if & Xe ee | a ae ee

Rules

Fed. R. Crim. P. 12(d) (1986) ... . — ae ae

poee..@. Gram. PF. 2608) (A986) . . 1. 1 ss ass me

-xii-

iin

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254 (1990). Petitioner seeks review of a

decision rendered by the United States Court of

Appeals for the Fifth Court on November 5, 1991.

Petitioner filed a Motion for Rehearing in the

United States Court of Appeals, which was denied on

December 3, 1991.

-xiii-

CONSTITUTIONAL AND STATUTORY PROVISIONS RELEVANT TO

CASE

1. Firearm Possession Statute

It shall be unlawful for any person --

(1) Who has been convicted on a count

of, a crime’ punishable by

imprisonment for a term exceeding

one year;

* * *

(5) Who, being an alien, is illegally

or unlawfully in the United

States.

* *« *

to . . . possess in or affecting

commerce, any firearm or

ammunition.

18 U.S.C. § 922(g) (1990).

2. Sentence Enhancement Statute

In the case of any person who violates § 922(g)

of this article and has’ three previous

convictions by any court referred to in

§ 922(g)(1) of this title for a violent felony

or a serious drug offense, or both, committed

on occasions different from one another, such

person shall be fined not more than $25,000 and

imprisoned not less than 15 years, and,

notwithstanding any provision of law, the court

shall not suspend the sentence of, or grant a

probationary sentence to, such person with

respect to the conviction of under § 922(g),

and such person shall not be eligible for

parole with respect of the sentence imposed

under this subsection.

-xiv-

18 U.S.C. § 924(e) (1990)

Money-Laundering Statute

Whoever, knowing that the property involved in

a financial transaction represents the proceeds

of some form of unlawful activity, conducts or

attempts to conduct such a financial

transaction which in fact involves the proceeds

of specified unlawful activity --

(a) (1) With the intent to promote the

carrying on of 3 specified unlawful

activity

18 U.S.C. § 1956(a)(1) (1990)

-XV-

STATEMENT OF THE CASE

I. Course of Proceedings and Disposition Below

On October 18, 1988, Petitioner Francisco

Javier Munoz-Romo ("Munoz") was indicted on eleven

counts. (R. 163-169).+ The indictment charged that

Munoz illegally distributed cocaine, possessed two

firearms, and engaged in money-laundering. See 21

U.S.C. §§ 841(a) (1) and 841(b)(1)(B) (1981)

(marcotics distribution); 18 U.S.C. §§ 922(g)(1)

and 924(a)(1)(B) (1990) (firearm-possession by a

convicted felon); 18 U.S.C. §§ 922(g)(5) and

924(a)(1)(B) (1990) (firearm-possession by = an

illegal alien); 18 U.S.C. § 1956(a)(1)(A) (1990)

(money-laundering). (R. 163-69).

After a four-day trial, the jury convicted

Munoz on ten of the eleven counts. fae. See Fee

The trial court granted an acquittal as to the

eleventh count. (Tr. 311). Munoz was sentenced to

1 Citations to the record will be cited as

e 2 ." All trial transcript references will be

cited as "Tr. —

240 months for the cocaine-distribution and money-

laundering offenses, 22 months for the firearm-

possession and 180 months for the firearm-

possession under an enhancement statute. All

sentences were to run concurrently. (R.90-92).

On March 6, 1989, Munoz filed a pro se notice

of appeal. (R. 89). On June 2, 1989, the Court of

Appeals dismissed the appeal due to Munoz’s failure

to order the transcript. (R. 86). Munoz then

filed with this Court motions to reinstate the

appeal, for leave to appeal in forma pauperis, for

appointment of counsel, and for the Court to supply

transcript for appeal. (R. 83-85). The Court of

Appeals returned these motions to Munoz, advising

him that he should file them with the district

court. (R. 70). On July 14, 1989, Munoz did so.

(ie ree On January 23, 1991, the district

court granted Munoz’s motion to proceed in forma

pauperis and his motion for the court to supply

transcript for appeal. (R. k-2). On March 4,

1991, the Court of Appeals granted Munoz’s motion

for appointment of counsel and appointed the

undersigned to represent Munoz in this appeal. The

Court of Appeals heard oral argument on September

5, 1991, and rendered its decision affirming the

convictions and vacating the sentence in part on

November 5, 1991.

II. ateme ts

In July 1988, the United States Government

("Government" or "United States"), through its

various branches, conducted a "sting" to trap the

Petitioner in a cocaine purchase. The Government

hired James A. Linberg, Jr. ("Linberg"), as an

informant, and instructed him to purchase cocaine

from Munoz. (ae .. Bee. Linberg went to a bar in

Victoria, Texas, and purchased cocaine (Tr. 54-

2 The only evidence linking Munoz to this

transaction is the testimony of Linberg, an

admitted cocaine addict who was paid to participate

in this trap. (Tr. 53, 56, 62, 63).

The overwhelming evidence, however, negates

Munoz’s involvement in this transaction. No one

witnessed the transaction between Linberg and the

seller, and no one was able to testify at trial

that he or she saw Munoz sell Linberg cocaine. (Tr.

145-156, 153). Significantly, despite the fact

that the Government was given packets containing

the cocaine, which Munoz allegedly handled, no

evidence was introduced establishing that Munoz’s

fingerprints were on these packets. (Tr. 153).

Munoz also denied that he sold the cocaine to

Linberg. (Tr. 377). Indeed, the evidence adduced

at trial indicates that Munoz's involvement in this

narcotics sale would have been completely out of

character. The evidence conclusively proved that

Munoz had not been implicated in any crime since

1985. (Tr. 104, 112, 334, 339).

The Government chose not to arrest Munoz after

the alleged sales of narcotics that occurred on

August 30 and 31, 1988. Rather, the Government

waited until September 14, 1988. Then, the

Government arrested Munoz and executed several

search warrants. Although the Government seized a

large number of items during the course of its

search, only a small number were introduced at

trial. Further, the real evidence introduced had

no direct bearing on the issues upon which Munoz

was tried and should not have been admitted had

Munoz’s trial counsel properly objected to its

introduction. Moreover, the Government alleged

that Munoz was a cocaine dealer. Yet, the search

did not produce a trace of cocaine. (Te. S68):

The absence of cocaine certainly is consistent with

the fact that Munoz was not implicated in any

crimes since his release in 1985.

Following his arrest, Munoz was indicted for

delivery of cocaine, possession of two firearms,

and money-laundering. (R. 163-69). The firearm-

possession indictments stemmed from two guns

located in the search.* One of these guns belonged

to Mrs. Munoz, whose father gave it to her before

he died. (Tr. 330). Indeed, Munoz was not even

* There are two firearms at issue in this case.

One was located during the course of a search of an

apartment located at 135 Sherwood in Victoria,

Texas. (Tr. 175). This firearm will be referred to

herein as the "Sherwood Firearm." The other was a

revolver located in a suitcase at 1402 East Warren

Street. (Tr. 138). This firearm shall be referred

to herein as the "Warren Street Firearm."

SS ee

aware that his wife had this gun; it was kept in

her locked suitcase. (Tr. 330).

Government agents found the other gun under a

mattress located in an apartment at 135 Sherwood in

Victoria, Texas. ee 2 137, ki2). The

uncontroverted evidence, however, established that

neither Munoz nor his wife were residing at the

apartment when the search warrant was executed.

(Te. 884; 328). The Munoz’s had rented the

apartment at 135 Sherwood, because their daughter

was expecting a child. The daughter lived next

door, and the Munoz’ s wanted to be near her in the

event there was an emergency. CoP. Sear. The

Munoz’s left the apartment shortly after their

grandchild was born and, at the time the search was

conducted, had not lived at the apartment for

several months. (Tr. 322).

In short, the Government failed to prove that

Munoz possessed, actively or constructively, the

firearms in question. Importantly, although

fingerprints were taken from both firearms, no

evidence was introduced establishing that Munoz had

she

handled either gun. (ir... 276). The Government

failed to produce any conclusive evidence linking

the Petitioner to possession of either gun. The

Government failed to meet its burden of proof

establishing that Munoz possessed these firearms.

Consequently, this Court should not uphold the

convictions for firearm-possessions.

To support a conviction on the money-laundering

counts, the Government proved that Munoz purchased

a home and made the $5,486 down payment in cash and

that he purchased two automobiles, totalling

slightly more than $12,000, for cash. (Tr. 240,

250, 256). The Government failed to introduce any

evidence, however, that these items were purchased

with the proceeds of illegal activity. Indeed, the

uncontroverted evidence established that’ the

property was not purchased with proceeds from

illegal activity. Instead, the evidence

established that Munoz received a $36,000

inheritance when his mother died. (Tr. 337, 380,

385). Munoz used the inheritance money to make the

down payment on the house and to pay for the two

automobiles. (Tr. 337, 380, 385). This evidence

was uncontroverted.

This is a review of an appeal to the United

States Court of Appeals. The Court of Appeals had

jurisdiction under 28 U.S.C. § 1291 (1990) because

the trial court’s conviction was a final appealable

order under 28 U.S.C. § 1291 (1990).

ARGUMENT

ie a Violated oz’s t

dme t de the ited States

Constitution by Convicting Munoz on Two Counts

for the Same Offense?

Munoz was convicted on five counts of

firearm-possession. There were, however, only two

firearms involved in this case. Munoz was

convicted twice for possession of the same two

firearms and was also given an enhanced sentence

under 18 U.S.C. § 924(e).* (R. 90-92). Munoz was

first convicted as a felon in possession of the

Sherwood Firearm; he was then convicted as an

illegal alien in possession of the same firearm.

> The enhancement section of the statute and

its application to this case is discussed in section

II infra.

The same double conviction occurred with respect to

the Warren Street Firearm. Petitioner was first

convicted as a felon in possession of this firearm;

he was then convicted as an illegal alien in

possession of the same firearm. Hence, Munoz was

convicted twice for the same offense -- possession

of a firearm. This double conviction violates

Munoz’s constitutional rights and overrides

congressional intent.

A. The Statute Provides for Only One

Conviction.

18 U.S.C. § 922 is written in the disjunctive.

It is a violation of this statute for a convicted

felon or an illegal alien to possess a firearm.

See 18 U.S.C. § 922 (1990). The statute does not

provide for a double conviction for a person who is

both a convicted feion and an illegal alien in

possession of a firearm. In Whalen v. United

States, 445 U.S. 684, 692 (1980), the Supreme Court

stated that "where two. statutory provisions

proscribe the ‘same offense,’ they are construed

not to authorize cumulative punishments in the

absence of a clear indication of contrary

Legislative intent." Id. at 692. In United States

vy. Clements, 471 F.2d 1253 (9th Cir. 1972), the

defendant was convicted for a single act that

violated subsections (c), (d) and (f) of 26 U.S.C.

5861. The district court in Clements imposed

sentences of 10 years imprisonment on each count.

The Ninth Circuit held that the imposition of

consecutive maximum sentences for multiple offenses

arising from the same _ transaction pyramids

punishments when such multiple punishments are not

authorized by Congress. Id. at 1258. the

sentences were, therefore, vacated and the cause

remanded to the district court for resentencing.

Id.‘ In the instant case, imposing multiple

“The holding in Clements has been discussed

and approved in numerous subsequent cases. See

United States vs. Kaplan, 588 F.2d 71, 74-75 (4th

Cir. 1978); United States v. Kalama, 549 F.2d 594,

597 (9th Cir. 1976), cert. denied, 429 U.S. 1110

(1977); Rollins v. United States, 543 F.2d 574, 575

(Sth Cir. 1976); United States v. Ackerson, 502 F.2d

300, 305 (8th Cir. 1974), vacated on other grounds,

419 U.S. 1099 (1975); United States v. Tankersley,

492 F.2d 962, 969 (7th Cir. 1974); United States v.

Jones, 487 F.2d 676, 679 n. 1 (9th Cir. 1973).

Shs

sentences arising from the same transaction is not

permitted, unless specifically authorized by

Congress. There is no_- evidence in the

congressional record or in the statute itself that

Congress intended to authorize multiple

prosecutions and convictions for the same offense.

The proscribed conduct under section 922(g) is

the possession of a firearm. In the instant case,

there was only one possession. Thus, in order to

convict Munoz on multiple counts for possession of

the same firearm, the United States must show that

Congress clearly intended to permit multiple

convictions for the same offense. Had Congress

intended a double conviction for such a person, it

could have created separate statutes for felons in

possession and for illegal aliens in possession of

a firearm. Alternatively, Congress could have

stated that multiple convictions were permissible

under section 922, and that a person may be

convicted under each provision of the statute.

Congress did neither. Because Congress did not

clearly provide for multiple convictions under

ej}.

section 922(g), Munoz should not have been

convicted on counts three and five as well as

counts four and six. Consequently, this Court

should reverse at least two of the firearm-

possession convictions.

B. Convicting Munoz Twice for the Same

Offense Violates His Constitutional

Rights.

The double jeopardy clause of the Fifth

Amendment of the United States Constitution

provides that no person shall "be subject for the

same offense to be twice put in jeopardy of life or

limb.“ U.S. CONST. amend. V (1987). Convicting

Munoz as a felon and an illegal alien in possession

of firearms violates this provision of the

Constitution.

The offense in this case is possession. Munoz

was convicted twice for the same offense --

> Munoz is in no way conceding that the

Government proved that he possessed any of the -guns

in question. To the contrary, Munoz will show the

Court that the Government failed to meet its burden

of proof under section 922(g). See Section III,

infra. For purposes of this section, Munoz argues

that even if the Government proved possession, he

could not be convicted twice for the same offense.

-12-

———————— ae

possession. He was convicted twice for possession

of the Sherwood Firearm. He was also convicted

twice for possession of the Warren Street Firearm.

Yet, there was only one possession, one offense, as

to each firearm. Consequently, convicting Munoz

twice for the same offense violates his

constitutional rights.

Several courts have held that a defendant

cannot be convicted twice for the same offense

under this statute.® See United States v. Evans,

854 F.2d 56 (5th Cir. 1988) (holding that defendant

could not be convicted twice for supplying false

information to purchase both | firearm and

ammunition; prohibited offense was supplying false

information which occurred only once); United

States v. Marino, 682 F.2d 449, 453-54 (3d Cir.-

1982) (holding that government could not treat each

U.S.C. § 922. Others were decided under its

predecessor statute, 18 U.S.C. App. § 1202 (1985).

Although there are substantive differences between

the two statutes, they are identical for purposes of

all arguments urged here. Compare 18 U.S.C. § 922

(1990) with 18 U.S.C. App. § 1202 (1985).

-13-

| suse

of several firearms simultaneously possessed as a

separate offense for prosecution); United States v.

Kinsley, 518 F.2d 665, 669-70 (8th Cir. 1975)

(holding that statute is ambiguous with respect to

multiple prosecutions and ambiguity is resolved in

favor of defendant allowing only one conviction).

Other courts have also held that a defendant could

not be convicted for both receipt of and possession

7 of the same firearm under the statute. See Ball v.

United States, 470 U.S. 854, 862 (1985) (holding

that a convicted felon could not suffer two

convictions or sentences ffor receiving and

possessing the same weapon or ae single act

established the receipt and possession); United

States v. Thomas, 810 F.2d 478, 479 (5th Cir.),

cert. denied, 482 U.S. 930 (1987) (holding that

although the Government may prosecute for both

possession and receipt of a weapon by a convicted

felon, it may only convict and sentence under one

of the two statutes). Reasoning that there was

only one offense, these courts concluded that

«ids

allowing a double conviction for the same offense

violates the Constitution.

The same reasoning applies also to Munoz. Here

there was only one offense --possession. Munoz was

convicted twice for the same offense of possession

in violation of his constitutional rights under the

Fifth Amendment of the United States Constitution.

Consequently, this Court should reverse at least

two of the firearm-possession convictions.

C. The United States failed to show that

Congress intended to allow multiple

rosecutions under 18 U.S.C. 922.

- The Blockburger test does not apply

to this case.

The Court of Appeals quoted this Supreme

Court’s decisions in Blockburger v. United States,

284 U.S. 299 (1932), and Whalen v. United States,

445 U.S. 684 (1980), in affirming the multiple

convictions under 18 U.S.C. § 922(g). See Op. at

8. Blockburger and Whalen, however, are

inapposite. Blockburger and its progeny apply

"where the same act or transaction constitutes a

violation of two distinct statutory provisions...."

-15-

Blockburger, 284 U.S. at 304 (emphasis added).

The issue in this case is whether Munoz’s

constitutional rights were violated when he was

convicted twice for the same offense under the same

statute; there were not two distinct statutory

provisions involved in this case. Consequently,

the Blockburger test does not apply to this case.

In United States v. Davis, 656 F.2d 153 (5th

Cir. 1981), the Court held that when a defendant is

convicted twice under the same _ statute, the

Blockburger test does not apply. Id. at 156.

Rather, the relevant inquiry is whether Congress

intended to impose multiple sentences for a

violation of the same offense. Id. at 157; see

also United States v. Deaton, 468 F.2d 541, 546

(Sth Cir. 1972) (reversing multiple convictions

under 18 U.S.C. § 1072, because of insufficient

authority "that Congress clearly intended that the

number of sentences of a man may be given for a

Single cause of action of concealment could be

determined by adding up the number of escapees

concealed..."). To support multiple convictions

-16-

for firearm-possession, therefore, the Government

must prove that Congress clearly intended to allow

multiple convictions for the same offense under 18

U.S.C. § 922(g). The Government has not met this

burden.

- Under th u ° e noz could

not be convicted twice for the same

offense under 18 U.S.C. § 922.

In Bell v. United States, 349 U.S. 8i (1955),

this Court decided whether Congress intended to

allow multiple convictions under the Mann Act, 18

U.S.C. §§ 2421-2424 (1970). The Court held that

the statute was ambiguous regarding the

permissibility of multiple convictions. This Court

held further that any such ambiguity should be

resolved against allowing multiple convictions.

When Congress has the will it has no

difficulty in expressing it -- when it has

the will, that is, of defining what it

desires to make the unit of prosecution and,

more particularly, to make each unit stick

in a faggot a single criminal unit. When

Congress leaves to the judiciary the task of

imputing to Congress an undeclared will, the

ambiguity should be resolved in favor of

lenity.... It may fairly be said to be a

presupposition of our law to resolve doubts

in the enforcement of a penal code against

the imposition of harsher punishment.

sSPi

Bell, 349 U.S. at 83.

The holding in Bell has been referred to as the

Rule of Lenity regarding the imposition of multiple

convictions for a violation of a single statute.

"This policy of lenity means that the [courts] will

not interpret a federal criminal statute so as to

increase the penalty that it places on an individual

when such an interpretation can be based on no more

than a guess as to “on Congress intended." Ladner

v. United States, 358 U.S. 169, 178 (1958) (holding

that the single discharge of a shotgun wounding two

federal officers constituted only « single act of

assault).

The Rule of Lenity applies to this case. The

Government must prove that Congress clearly intended

to allow multiple prosecutions under the same

statute, 18 U.S.C. § 922 (1990). Any doubt or

ambiguity about the permissibility of such multiple

prosecutions must be resolved in Munoz’s favor,

against allowing this increased punishment.

-18-

—__

Nothing contained in 18 U.S.C. § 922(g)

provides, directly or indirectly, that a person may

be convicted twice for the possession of one

firearm. The Government has not provided any

support that Congress clearly intended to permit

multiple convictions of this statute. Because

Congress did not specifically provide for multiple

prosecutions under section 922(g), this Court would

have to "guess what Congress intended" regarding

multiple prosecutions. Ladner prohibits such a

result. At best, therefore, the statute is

ambiguous regarding the permissibility of multiple

prosecutions. This ambiguity must, under the Rule

of Lenity, be resolved against allowing multiple

convictions. Consequently, this Court should grant

the petition for writ of certiarori.

II. Whether Munoz’s Fifth Amendment Rights Under the

United States Constitution Were Violated When He

was Sentenced Twice for the Same Offense?

A. The Multiple Convictions Violate the

u t d

States Constitution

Munoz’s constitutional rights under the Fifth

Amendment of the United States Constitution were

-19-

also violated when he was sentenced twice for the

same offense. Munoz was sentenced to 22 months

confinement under § 922(g) as a felon in possession

of a firearm. Munoz was also sentenced to 180

months under 18 U.S.C. § 924(e). Section 924(e)(1)

provides that a person who violates section 922(g)

and is a three-time convicted felon shall be

sentenced to not less than 15-years imprisonment.

See id. Section 924(e) is not a substantive

statute; it is merely a _ sentence-enhancement

statute. See United States v. Ortega, 859 F.2d 327,

331 n. 3 (5th Cir. 1988), cert. denied, 489 U.S.

1027 (1989) (overruling United States v. Davis, 801

F.2d 754 (5th Cir. 1986) and holding that section

924(e) does not contain substantive elements of an

offense, but is merely a provision for sentence

enhancement under section 922(g)).’ Because section

’? See also United States v. Rumney, 867 F.2d

714, 717 (lst Cir. 1989) (holding that section

924(e) is a sentence-enhancement provision), cert.

denied sub. nom., Taylor _v. United States,

U.S. __s_,_-110 S.Ct. 2592 (1990); United States v.

Brewer, 853 F.2d 1319 (6th Cir) (same), cert.

denied, 488 U.S. 946 (1988); United States v.

(continued...)

-90-

924(e) merely enhances a sentence for a violation of

section 922(g), it is not a statute that sets forth

independent substantive violations. One cannot,

therefore, be convicted and sentenced under section

922(g) and sentenced under section 924(e).

Munoz, however, was sentenced under both section

922(g) and 924(e). (R. 90, 163-169). Section

924(e), however, merely imposes a sentence for a

violation of 922(g). See 18 U.S.C. § 924(e) (1990).

Munoz was, therefore, sentenced twice under section

922(g) for the same offense. This double sentence

clearly constitutes a Fifth Amendment violation.

’ (...continued)

Pirovolos, 844 F.2d 415, 420 (7th Cir.) (same),

cert. denied, 488 U.S. 857 (1988); United States v.

Rush, 840 F.2d 574, 576-78 (8th Cir.) (same), cert.

denied, 487 U.S. 1238 (1988); United States v.

Blannon, 836 F.2d 843, 845-46 (4th Cir.) (same),

cert. denied, 486 U.S. 1010 (1988); United States v.

West, 826 F.2d 909, 911-12 (9th Cir. 1987) (same);

United States v. Jackson, 824 F.2d 21, 22-26 (D.C.

Cir. 1987) (same), cert. denied, 484 U.S. 1013

(1988); United States v. Hawkins, 811 F.2d 210, 217-

20 (3d Cir) (same), cert. denied, 484 U.S. 833

(1987); United States v. Gregg, 803 F.2d 568, 570

(10th Cir. 1986) (same), cert. denied, 480 U.S. 920

(1987).

-2l1-

Consequently, this Court should reverse at least one

conviction.

Courts have long held that the double jeopardy

clause of the United States Constitution protects

against “multiple punishments for the same offense."

See Albernaz v. United States, 450 U.S. 333, 343-

44 (1981) (citing North Carolina v. Pierce, 395 U.S.

711, 717 (1969)); Brown v. Ohio, 432 U.S. 161, 165

(1977); United States v. Bigelow, 897 F.2d 160, 161

(5th Cir. 1990). In the instant case, convicting

and sentencing Munoz twice for the same violation of

section 922(g) violates Munoz’'s rights against

double jeopardy as protected by the Fifth Amendment.

B. The Sentences Imposed Under Counts V

and VIJ_ of the Indictment Should be

Vacated and the Case Remanded for

Resentencing.

The Court of Appeals found that Munoz was

illegally sentenced, in violation of his

constitutional rights, under both Counts V and VII

of the indictment. The Court of Appeals attempts to

placate this constituti ral violation by vacating

one of the two illegal sentences. The Court of

Appeals seems to ignore the fact that by exposing

Munoz to multiple punishments for the same offense,

the Government has violated not only "the specific

guarantees against double jeopardy, but also the

constitutional principle of separation of powers in

a manner that trenches particularly harshly on

individual liberty." Whalen v. United States, 445

U.S. 684, 689 (1980).

Vacating the sentence imposed under Court V of

the indictment, while affirming the sentence imposed

under Count VII is inappropriate. 18 U.S.C.

§ 924(e), the statute under which Munoz _ was

sentenced in Court VII, contains many qualifications

regarding its applicability. For example, this

statute only applies to "previous convictions by a

court referred to in section 922(g)," the statute

only applies to prior convictions for a "violent

felony or a serious drug offense," and the statute

only applies to convictions "committed on occasions

different from one another...." Thus, the

applicability of section 924(e) is a factual matter

properly decided by the trial court, as opposed to

-23-

this Court. Because the trial court i.iposed an

illegal sentence, in violation of Munoz’s

constitutional rights, the trial court should make

the determination as to which of the sentences, if

any, should be upheld.

Accordingly, Munoz requests that this Court

grant the petition for writ of certiorari.

III. Whether the Trial Court Erred by not

Acquitting on the Firearm-Possession

Counts?

This Court should reverse the convictions for

the unlawful possession of firearms. Munoz was

indicted on two counts of possession of firearms by

a convicted felon under 18 U.S.C. § 922(g)(1). (R.

164-166). Munoz was indicted also on two counts for

possession of a firearm by an illegal alien under 18

U.S.C. § 922(g)(5). (R. 164-166). The relevant

portion of section 922 provides:

It shall be unlawful for any person --

(1) Who has been convicted on a count

of, a crime punishable by

imprisonment for a term exceeding

one year;

* * *

(5) Who, being an alien, is illegally

or unlawfully in the United

States.

* * *

to . . . possess in or affecting

commerce, any firearm or

ammunition.

18 U.S.C. § 922(g) (1990).® When the Government

rested, Munoz moved for a judgment of acquittal on

all counts, including the firearm-possession

counts. fan. sear. Despite the fact that the

Government failed to meet its burden of proof with

regard to the firearm-possession counts, the trial

court denied Munoz’s motion. (Tr. 314). The trial

court erred, because the Government failed to prove

its case. The Government failed to satisfy the

elements of the statute. Specifically, the

Government did not prove that Munoz possessed a

firearm in or affecting commerce. As a result, the

® Munoz does not challenge the sufficiency of

the evidence regarding his prior conviction for a

crime punishable for more than one year. Munoz

further admits that the Government sufficiently

proved that he was an illegal alien under the

Statute.

-25-

trial court erred in refusing to grant Munoz’s

motion for acquittal.

A. c Vv ta rd.

The standard of review that this Court applies

in reviewing sufficiency of the evidence challenges

is whether, after reviewing the evidence presented

and all inferences that may reasonably be drawn

from it in the light most favorable to_ the

Government, any reasonably minded jury could have

found that the defendant was guilty beyond a

reasonable doubt. United States v. Triplett, 922

F.2d 1174, 1177 (5th Cir. 1991). The oe does

not have to establish every reasonable hypothesis

of innocence or be wholly inconsistent with every

conclusion except guilt, provided a reasonable

trier of fact could find that the evidence

establishes guilt beyond a reasonable doubt. Id.

at 1177. |

The Court of Appeals found that, because Munoz

did not renew his motion for acquittal at the close

of all the evidence, the standard of review is

"only to determine whether affirmance of the

-26-

conviction would result in a ‘manifest miscarriage

of justice.’" Op. at 12. This cannot, however, be

the appropriate standard of review in this case.

The lower Court is correct that Munoz did not

move for a judgment of acquittal at the close of

all the evidence. This procedural error, however,

should not be held against Munoz, by imposing upon

him a more stringent standard when reviewing the

sufficiency of the evidence to support his

convictions for firearms possession and money-

laundering. The failure to review the motion for

acquittal was the fault of Munoz’s trial counsel,

mot Munoz. As discussed infra, Munoz was denied

his right to effective assistance of counsel, in

violation of his constitutionally guaranteed rights

under the Sixth Amendment. The failure to review

the motion for acquittal is another example of the

ineffectiveness of Munoz’s counsel. If this Court

imposes a higher standard of review, based on the

failure to renew the motion for acquittal, this

Court would be penalizing Munoz for a situation

“a7.

WSs eee

that is itself a violation of his constitutional

rights.

Because of the inherent injustice in penalizing

Munoz for a violation of his constitutional rights,

this Court should not impose a higher standard of

review than it would had Munoz’s rights not been

violated. See Borden c v. Hayes, 434 U.S.

357, 363 (1978) (holding that Government may not

punish an individual for exercising his

constitutional rights). Indeed, to impose such a

higher standard in this case would constitute a

"manifest miscarriage of justice." Consequently,

this Court should review the sufficiency of the

evidence under the standard espoused in United

es v. ett, 922 F.2d 1174, 1177 (5th Cir.

1981).

The Government Failed to Meet Its

urde ard W

Street Firearm.

At trial, it was undisputed that the Warren

Street Firearm belonged to Mrs. Munoz, not

Petitioner. Mrs. Munoz’s father gave her the gun

prior to his death. (Tr. 330, 374). Mrs. Munoz

-28-

kept the gun in a locked suitcase. (Tr. 330).

Moreover, the evidence conclusively proved that

Munoz did not know about the existence of the gun,

much less its location. (Tr. 330, 374). Again,

the Government did not cast doubt on _ this

testimony. Significantly, the Government extracted

fingerprints from the gun but did not produce any

evidence that Munoz’s fingerprints were located on

the gun. (Te. i178). In short, the Government

failed to produce any evidence that Munoz knew that

Mrs. Munoz kept the Warren Street Firearm at their

house. The Government, therefore, failed to meet

its burden of proof under 18 U.S.C. § 922(g).

a. Munoz Did Not Constructively Possess

the Warren Street Firearm.

In order to prove possession under § 922, the

Government must prove actual or constructive

possession of the firearm. See United States v.

Donofrio, 450 F.2d 1054, 1056 (5th Cir. 1971). In

the instant case, there was no evidence that Munoz

actually possessed the Warren Street Firearm. The

evidence merely showed that the gun was located in

-29-

Mrs. Munoz’s’ suitcase. (Tr. i386). Without

evidence of actual possession, the Government then

can support its case only by proving that Munoz

constructively possessed the Warren Street Firearm.

To prove constructive possession, the

Government had to prove that Munoz had the intent

and the power to exercise dominion and control over

the weapon. See United States v. Smith, 591 F.2d

1105, 1107 (5th Cir. 1979); JU d tes v.

Donofrio, 450 F.2d 1054, 1056 (5th Cir. 1970).

Thus, the Government was required to prove both

that Munoz intended to exercise dominion and

control over the gun and that he had the means

available to effectuate his intentions. The

Government failed to meet this burden of proof.

To prove that Munoz intended to exercise

control over the Warren Street Firearm, the

Government was required to prove that Munoz knew of

the gun’s existence. It is axiomatic that one

cannot intend to control a firearm that he does not

know exists. Several courts have held, therefore,

that the Government must prove that the defendant

-30-

See Bore.

knowingly possessed the firearm to sustain a

conviction under section 922. See United States v.

Hastings, 918 F.2d 369, 371 (2d Cir. 1990); United

States _v. Rumney, 867 F.2d 714, 721 (lst Cir.

1989), cert. denied sub. nom., Taylor v. United

States, U.S. , 210 8$.Ce. 2392 (i990);

United States v. Sherbondy, 865 F.2d 996, 1002 (9th

Cir. 1988); ted Sta v. Hat d, 815 F.2d

1068, 1072 (6th Cir. 1987); United States v. Bruce,

704 F.2d 1048, 1049 (8th Cir. 1983); United States

v. Allen, 699 F.2d 453, 458 (9th Cir. 1982).

The evidence here proves only the converse;

Munoz had no knowledge that the firearm was located

in Mrs. Munoz's’7 suitcase. (Tr. 330, 374).°

Consequently, the Government failed to meet its

® Because the firearm was located in Mrs.

Munoz’s suitcase and, therefore, not in the plain

view of the Appellant, the decision in United States

v. Smith, 591 F.2d 1105 (Sth Cir. 1979) is easily

distinguishable. In Smith, the court held that

where guns are in plain view or in a place where

they could hardly escape one’s’ knowledge,

constructive possession may be found. Id. at 1107.

Here, however, the firearm was not in plain view and

was not in a place where it could hardly have

escaped Appellant’s knowledge. Smith, therefore,

does not control.

She

sisi iba

sb one

burden of proof to show constructive possession of

the firearm under section 922(g).

In ted States v. Soto, 779 F.2d 558 (9th

Cir. 1986), cert. denied, 484 U.S. 833 (1987), the

defendant was charged under Section 922(g)(1) with

possession of a firearm. The defendant was in a

vehicle where firearms were located. The court

held that the lack of defendant's fingerprints on

several of the firearms coupled with the

defendant’s testimony that he did not know the guns

were in the vehicle was insufficient evidence to

support the verdict of conviction. "No other

evidence suggests that Soto knew that the guns were

in the van, much less that he had dominion or

control over them." Id. at 560.

The same reasoning applies with equal force in

this case. The lack of any evidence linking Munoz

to this gun coupled with the testimony that Munoz

did not know this gun was located in Mrs. Munoz’s

suitcase leads to only one conclusion: The jury

verdict of conviction was not based on sufficient

evidence.

- 32-

The only evidence linking Munoz to this gun was

the fact that it was found in his house. This

evidence, however, is insufficient to sustain a

finding of constructive possession beyond a

reasonable doubt. As the court held in United

States v. Stine, 458 F.Supp. 366 (E.D.Pa. 1978),

the possession of a firearm by a convicted felon’s

spouse is not a criminal act. Id. at 369. Nor

does section 922 make it unlawful for a convicted

felon to have a wife that possesses a firearm.

Under the Government's theory, it need only prove

that Munoz was a convicted felon and that a firearm

was located in his residence. Section 922 as

construed by courts requires more. The Government

must prove that the defendant possessed _ the

firearm, actively or constructively. In this case,

with respect to the Warren Street Firearm, the

Government failed to meet its burden of proof.

Consequently, the trial court erroneously refused

to grant Munoz’s motion for acquittal with respect

to counts three and five alleging possession of the

-33-

Warren Street Firearm by,a convicted felon and an

illegal alien.

ee The Government Failed to Meet Its

Burden of Proof With Respect to the

Sherwood earm.

The Government failed also to prove that Munoz

possessed the Sherwood Firearm. The Sherwood

Firearm was located under a mattress in an

apartment. ©: aan > yee YD It is undisputed,

however, that Munoz was not living at _ this

apartment at the time of the search and had not

lived there for several months. ‘Te. t32, sok,

322). The evidence also established that Munoz had

no knowledge that this gun was located under this

mottress. (Tr. 375). There was no testimony that

Munoz’s fingerprints were located on the gun.

There was no testimony of any one who had seen

Munoz in possession of this gun. The Government's

only evidence was that the gun was located at an

apartment rented in the Petitioner’s name. This

evidence does not meet the Government’s burden of

proof.

- 34-

a. The Government Failed to Prove that

Muno ew e Gun’s Location.

The uncontroverted evidence at trial

established that Munoz did not know the gun was

t 2°

located in this apartmen Consequently, the

Government did not prove with suffici2ant evidence

that the Petitioner constructively possessed this

firearm. See United States v. Hastings, 918 F.2d

369, 371 (2d Cir. 1990); United States v. Rumney,

867 F.2d 714, 721 (lst Cir. 1989), cert. denied

sub. nom., Taylor v. United States, U.S. /

110 S.Ct. 2592 (1990); United States v. Sherbondy,

865 F.2d 996, 1002 (9th Cir. 1988); United States

10 The firearm located at the Sherwood

apartment also was not in plain view nor was it in

a place where Appellant could hardly notice it,

particularly as he was no longer living at this

address. As stated earlier, therefore, the decision

in United States v. Smith, 591 F.2d 1105 (5th Cir.

1979) does not apply to the facts of this case.

2 As stated earlier, the standard for

sufficiency of the evidence is whether, after

reviewing the evidence presented and all inferences

that may reasonably be drawn from it in the light

most favorable to the Government, any reasonably

minded jury could have found that the defendant was

guilty beyond a reasonable doubt. United States v.

Tripplett, 922 F.2d 1174, 1177 (5th Cir. 1991).

2h.

v. Hatfield, 815 F.2d 1068, 1072 (6th Cir. 1987);

Un tat v. Bruce, 704 F.2d 1048, 1049 (8th

Cir. 1983); United States v. Allen, 699 F.2d 453,

458 (9th Cir. 1982). Munoz could not

constructively possess the Sherwood Firearm if he

did not know the gun was located in the apartment.

See Donofrio, 450 F.2d at 1056. Consequently, the

Government failed to meet its burden of proof under

18 U.S.C. § 922(g).

b. Munoz Did Not Exercise Dominion or

Control Over the Gun.

The Government also failed to prove that Munoz

had dominion or control over the Sherwood Firearm.

Munoz was no longer residing at the Sherwood

apartment. (Tr. 192, 322, 331). Consequently, he

could not have exercised dominion or control over

the gun. Consequently, the Government failed to

meet its burden of proving that Munoz

constructively possessed the Sherwood Firearm.

In United States v. Beverley, 750 F.2d 34 (6th

Cir. 1984), the defendant was convicted of

possession of a firearm. The firearm was found in

_ =

a waste paper basket at the defendant's foot in an

apartment in which the defendant did not reside.

The appellate court held that there was

insufficient evidence to support the conviction.

Evidence that the gun was found at the defendant’s

foot did not establish constructive possession when

the evidence also showed that the defendant did not

reside in the apartment. Id. at 37.

Similarly, in this case, evidence that a

revolver was located under a mattress in an

apartment at which Munoz no longer resided is

insufficient to sustain a jury finding of

constructive possession. Moreover, the Government

presented no other evidence that Munoz had dominion

or control over the Sherwood Firearm. The evidence

presented by the Government was insufficient to

support a verdict of conviction. Consequently, the

trial court committed error in refusing to grant a

judgment of acquittal on counts four and six

alleging possession of the Sherwood Firearm by a

convicted felon and by an illegal alien.

~ 2

IV. Whether the Trial Court Erred in Sentencing

Munoz Under Section 924(e)?

Munoz was sentenced to 180 months imprisonment

under 18 U.S.C. § 924(e). Section 924(e) is merely

a sentencing statute for violations of section

922(g). Here, however, the Government failed to

meet its burden of proof under section 922(g). See

discussion supra section III. The trial court

should not, therefore, have sentenced Munoz under

section 924(e). Consequently, this Court should

reverse Munoz’s conviction under section 924(e).

V. e t al Cou ed é to

cquit n e ° -Launderin

Offenses?

A. e w no Evidence that & opercy

epresented the eds m Unlawful

Activity.

Munoz was convicted for three counts of money-

laundering in violation of 18 U.S.C. § 1956. The

pertinent section of this statute provides:

Whoever, knowing that the property involved in

a financial transaction represents the proceeds

of some form of unlawful activity, conducts or

attempts to conduct such a financial

transaction which in fact involves the proceeds

of specified unlawful activity --

- 38-

(a) (1) With the intent to promote the

carrying on of specified unlawful activity

18 U.S.C. § 1956(a)(1) (1990) (emphasis added).

The Government alleged that Munoz used the proceeds

from drug sales to purchase a house and two cars.

(R. 163-169). The Government, however, failed to

prove its case and failed to meet the requirements

of the statute beyond a reasonable doubt.

The Government merely proved that Munoz

purchased a home and made the down payment in cash

and paid for two automobiles for cash. (Tr. 240,

250, 256). These purchases totalled approximately

$17,500. (Tr. 250, 256). The Government, however,

proved nothing more. The Government failed to

prove that the cash used to purchase this property

“represented the proceeds of some form of unlawful

activity." Rather, the uncontroverted evidence in

this case established that the items in question

were purchased with funds Munoz inherited from his

mother. This evidence established that Munoz

received $36,000 in inheritance after his mother

died. (Tr. 380, 385). The evidence further

-39-

established that Munoz used this money to purchase

the two automobiles and pay the down payment on the

house. (Tr. 337, 380, 385).

The uncontroverted evidence at trial,

therefore, established that the source of funds

used to purchase the cars and pay the down payment

on the house was the inheritance money, not illegal

activity. Thus, even accepting all the

Government’s evidence as true on a sufficiency

challenge, the trial court should have acquitted

Munoz of the money-laundering convictions. The

Government failed to meet its burden establishing

that the funds used to purchase this property

represented the proceeds from unlawful activity.

Consequently, Munoz requests that this Court

reverse his convictions under 18 U.S.C. § 1956.

The Government's only evidence regarding the

alleged money-laundering violations was that Munoz

had limited income. (Tr. 426-433). This evidence,

however, is insufficient to support the convictions

for money-laundering. First, this evidence did not

prove that the property in question was purchased

-40-

with proceeds of unlawful activity. Munoz

introduced evidence that the property was purchased

with inheritance money. Proving that Munoz had a

limited income in no way disproves that the Munoz’s

purchased their house and two cars with inheritance

money.

Further, evidence that the Petitioner had a

limited income is insufficient, by itself, to

support a conviction for money-laundering. The

court ir United States v. Blackman, 897 F.2d 309,

316-17 (8th Cir. 1990), addressed the question of

tracing proceeds from illegal activity to support a

conviction under the money-laundering statute. The

court stated:

we do not read this statute to require that the

Government trace the proceeds to a particular

sale. We do agree with [the defendant] that

the Government cannot rely exclusively on proof

that a defendant charged with proceeds from an

unlawful activity has no legitimate source of

income.

aa. @t . 316-17. The Government here relied

exclusively on proof that the defendant had

insufficient income to purchase the house and the

cars without using proceeds from illegal activity.

-41-

That evidence did not meet the Blackman threshold. /4

Consequently, this Court should reverse the money-

laundering convictions.

Several courts have required the United States

to establish a causal nexus’ between illegal

activity and particular funds in order to support a

conviction or a forfeiture action. See United

States v. $4,245,000, 762 F.2d 895, 903 (llth Cir.

1985) (holding that Government must show probable

cause that seized property was involved with

illegal drug or money-laundering transactions as

specified by statutes), cert. denied, 4/4 U.S. 1056

(1986); United States v. All Monies ($477,048.62),

754 F.Supp. 1467, 1471 (D.Ha. 1991) (same); United

ates v. 88 Designated Accounts Cont i Monies

Traceable to Exchanges for Controlled Substances,

12 The court in Blackman issued a new opinion

in which it found that expert testimony regarding

drug dealers’ use of wire services in furtherance of

their drug activities supported the jury’s verdict

of conviction under the money-laundering statutes.

See United States v. Blackmon, 904 F.2d 1250, 1257

(8th Cir. 1990). There is no question that in the

instant case there was no expert testimony presented

to the jury. The court's second opinion in

Blackman, is, therefore, inapposite to this case.

~42-

740 F.Supp. 842, 845 (S.D.Fla. 1990) (same). Thus,

Courts have required the United States to trace the

proceeds to the illegal activity. Hence, the

Government was required in the instant case to

trace the funds used to purchase the _ subject

property to some form of illegal activity. The

Government failed to meet this burden.

Accordingly, the trial court skvould have granted

the defendant’s motion for acquittal on the money-

laundering counts. This Court should, therefore,

reverse the money-laundering convictions.

The Court of Appeals cites the fact that cash

was found at Munoz’s home at the time of his arrest

to prove that Munoz purchased property with

proceeds of unlawful activity. Op. at 1/7. The

property that is the subject of the wmoney-

laundering convictions consisted of a _ home

purchased in December 1986 (Tr. 238), a 1984 Dodge

Ram Charger purchased in February 1987 (Tr. 252-

3), and a 1987 Nissan Sentra purchased in January

1988 (Tr. 256). The cash discovered at Munoz’s

residence was discovered on September 14, 1988 (Tr.

-43-

eee See

199-201). The cash discovered in September 1988,

therefore, in no way proves that Munoz violated the

money-laundering statute in 1987 and 1988. First,

the Government was unable to trace the monies

discovered at Munoz’s residence to some unlawful

activity. No evidence was presented at trial that

proved that any of the cash found at Munoz’s house

derived from unlawful activity. Further, the fact

that monies were discovered in September 1988 could

not prove that the property purchased in 1987 and

early 1988 was paid for with proceeds of unlawful

activity. The Government must prove that, when

Munoz purchased his house and two cars, he

purchased them with proceeds from’ unlawful

activity. All the Government could prove was that

these items were purchased with cash. The

Government offered no evidence that proved that the

cash used by Munoz to purchase these items derived

from unlawful activity.)

13 The only evidence that the Government can

cite in support of the convictions for money

laundering is the fact that Munoz had a limited

(continued...)

on le

Even though the Government offered no evidence

that the property in question was purchased with

the proceeds of unlawful activity, Munoz offered

evidence that conclusively proved that’ these

properties were not purchased with the proceeds of

unlawful activity. The only evidence adduced at

trial conclusively established that Munoz purchased

the property in question with inheritance money he

received. This evidence established that Munoz

received $36,000 in inheritance after his mother

died. (Tr. 380, 385). The evidence further

established that Munoz used this money to purchase

the two automobiles and pay the down payment on the

house. (Tr. 337, 380, 385). The only evidence

presented at trial regarding the source of the cash

used to purchase the house and the two cars,

therefore, proves conclusively that the source of

13 (.. continued)

income. This evidence is legally insufficient. See

United States v. Blackman, 897 F.2d 309, 316-17 (8th

Cir. 1990) (stating that "the Government cannot rely

exclusively on proof that a defendant charged with

proceeds from an unlawful activity has no legitimate

source of income").

-45-

funds used to purchase the cars and for the down

payment on the house was the inheritance money, not

illegal activity. Thus, even accepting all the

Government’s evidence as true on a sufficiency

challenge, the trial court should have acquitted

Munoz of the money-laundering convictions. Because

the Government failed to carry its burden that the

property in question was purchased with the

proceeds of unlawful activities, the money-

laundering conviction cannot stand.

B. he Uni t iled ove tha

un t_ to violate

Finally, the Government failed to produce any

evidence in support of the final element of the

statute; that, at the time Munoz purchased the

properties, he intended to use the properties to

carry on a specified unlawful activity. There is

no evidence in the record tending to support this

allegation. On this basis, the Government failed

to meet its burden of proof. In sum, the money-

laundering convictions are not supported by legally

-46-

sufficient evidence. Consequently, this Court

should grant the petition for writ of certiorari.

VI. ethe unoz’s S$ endment Rights Unde

the United States Constitution Were Violated

caus ew enied Effectiv ssistance of

Counsel?

Munoz was denied effective assistance of

counsel in the trial court and, therefore, his

Sixth Amendment rights were abrogated.

The Sixth Amendment guarantees every criminal

defendant the right to representation by counsel.

See U.S. CONST. amend. VI (1987). Courts have long

recognized that this Amendment guarantees not only

the right to counsel, but also the right to

“effective” counsel. See Strickland v. Washington,

466 U.S. 668, 686 (1984). The Supreme Court wisely

reasoned that the right to counsel is meaningless

if that right did not also guarantee the right to

effective counsel. Thus, a defendant who is denied

effective assistance of counsel is denied his or

her rights under the Sixth Amendment and is

entitled to a retrial with effective counsel. See

id. at 686.

-*,

In order to prove ineffective assistance of

counsel, Munoz must prove that his’ counsel’s

representation fell below an objective standard of

reasonableness and that the counsel’s ineffective

assistance made a difference to the presentation of

his case. See Strickland, 466 U.S. at 690-95;

Smith v. Puckett, 907 F.2d 581, 584 (Sth Cir.

1990), cert. denied, U.$. , 111 S.Ct. 694

(1991). In the present case, Munoz can meet this

burden. Munoz was represented at trial by Tali

Villafranca ("Villafranca"). Munoz will show that

Villafranca's representation at trial was

inadequate and that this ineffective representation

made a significant difference to Munoz’s trial.

This case involves several allegations, many of

which were very complex. Munoz was indicted on

eleven counts, alleging violations of three

statutes and several subsections. One of the

statutes, the money-laundering statute, was a new

Statute at the time of the indictment. Even the

trial court candidly stated that he did not fully

understand the statute (Tr. 5-6), even though he

-48-

played a role in its drafting. (Tr. 480-482). In

short, this was a very complex case that required a

great deal of investigation and _ preparation.

Villafranca, however, failed adequately to

investigate and prepare this case.

Villafranca was retained by Munoz on November

8, 1988. (R. 54). On November 14, 1988, less than

one week later, Villafranca announced that he was

ready for trial. (R. 54-55). Clearly, Villafranca

did not conduct sufficient pretrial investigation

into the allegations made against Munoz; he could

not investigate these allegations, prepare the case

for trial and announce ready for trial in less than

a week. Failure to properly investigate the

allegations made against the defendant is a

sufficient basis upon which to find ineffective

assistance of counsel in violation of the Sixth

Amendment. See Cook v. Lynaugh, 821 F.2d 1072,

1078-79 (5th Cir. 1987). Villafranca’s failure to

properly investigate the allegations made against

Munoz, therefore, denied Munoz of his right to

-49-

effective assistance of counsel under the Sixth

Amendment of the United States Constitution.

Villafranca also failed to make any pretrial

motions. The record on appeal does not show any

pretrial discovery conducted by Villafranca. For

example, Villafranca did not determine the evidence

the Government intended to introduce at trial as

provided for in Rule 12(d). See Fed. R. Crim. P.

12(d) (1986). Further, Villafranca did not request

the documents and tangible objects that’ the

Government was going to use at trial. See Fed. R.

Crim. P. 16(b) (1986). It is impossible to

properly prepare a case of this nature without

conducting any pretrial discovery. This omission

is a further indication that Villafranca did not

adequately investigate and prepare this case.

Villafranca’s failure to investigate the

allegations made in this case and failure to

properly prepare for trial were apparent throughout

the record. The sum of the errors and omissions

made by trial counsel in this case denied Munoz of

effective counsel and prejudiced his case.

-50-

eencinenll

Villafranca did not notice that Munoz was

charged on a defective indictment. The United

States alleged that Munoz violated section 922(g)

and it sought sentencing under section

924(a)(1)(B). (R. 163-69). Section 924(a)(1)(B),

however, does not apply to convictions rendered

under 922(g); rather, Munoz should have been

indicted under 924(a)(2). Moreover, the Petitioner

was indicted under 21 U.S.C. §§ 841l(a)(1) and

(b)(1)(B) for distribution of seven grams of

cocaine. (R. 163). Subsection (b)(1)(b) does not

apply to distribution of seven grams; Petitioner

should have been indicted under subsection

(b)(1)(C). Villafranca never noticed this defect,

and the trial court had to bring it to his

attention. (Tr. 475-76). In short, Villafranca’s

preparation of this case was so poor that he never

confiried that Munoz was convicted and indicted

under the correct provisions of the statutes.

Further, much of the evidence introduced at

trial had no relevance to the issues tried in this

case. For example, the United States introduced

th.

items sometimes referred to as “drug paraphernalia"

that were seized during the searches of September

14, 1988. (Tr. 172-73, 197-201, 213-216, 230-235).

These items, however, did not bear on any of the

issues involved in this case. Munoz was not

charged with possession of any of these items and

the introduction of this evidence was not relevant

to any of the allegations made against him. This

evidence was, however, very prejudicial to Munoz.

Nevertheless, Villafranca failed to object to the

introduction of this evidence. Although the Court

usually gives deference to the tactical decisions

of trial counsel, Villafranca’s failure to object

to the introduction of this evidence was not a

tactical decision, it was an omission based on a

failure to properly prepare this case and a failure

to understand the allegations made against Munoz.

Villafranca also failed to raise the defense of

double jeopardy at the trial court. As stated

earlier, Munoz was subjected to double jeopardy in

«$2.

—

two instances.'* Villafranca, however, failed to

raise a double jeopardy defense in the trial court.

Villafranca also failed to object to the court's

charge cn double jeopardy or to object to the

court’s sentence in light of the double jeopardy.

Moreover, the trial court even suggested to

Villafranca that Munoz was being charged twice for

the same offense. (Tr. 4-5). Despite this

suggestion, Villafranca never raised the defense.

Villafranca’'s failure to raise this defense

violated Munoz’s constitutional rights to effective

assistance of counsel. See Murphy v. Puckett, 893

F.2d 94, 95 (5th Cir. 1990) (holding that failure

to raise double jeopardy defense constitutes

14 Munoz was sentenced twice for the same

offense. Munoz was sentenced for possession of a

firearm in violation of section 922(g) and was

sentenced for possession of a firearm in violation

of section 922(g) under section 924(e). (R. 90,

163-169). Second, Munoz was convicted twice for the

same offense, possession of a firearm. Munoz was

first convicted as a felon in possession under

section 922(g)(1) and an illegal alien in possession

under section 922(g)(5). (R. 90, 163-169). Munoz

was clearly exposed to double jeopardy in violation

of his constitutional rights.

ineffective assistance of counsel under’ the

standards set forth in Strickland v. Washington).

Indeed, one of Villafranca’s errors at trial

severely prejudiced Munoz’s right to a fair trial.

Munoz was charged with violating 18 U.S.C.

§ 924(e), a sentence enhancement statute for three-

time convicted felons. Munoz stipulated that he

was a three-time convicted felon within the meaning

of Section 924(e). (Tr. 124-25). Because of the

stipulation, there was no need for the Government

to introduce evidence of the prior convictions:

the introduction of such evidence could be only for

the purpose of inflaming the jury. Nevertheless,

the superceding indictment, which contains detailed

references to all three prior offenses, was given

to the jury during deliberation. (Tr. 475).

In United States v. Quintero, 8/72 F.2d 107 (5th

Cir. 1989), the Court faced a substantially similar

situatior In Quintero, the defendant was charged

with a violation of Section 924(e). The Quintero

defendant also stipulated to the prior offenses.

Id. at 109. In Quintero, the defendant moved to

-54-

dismiss the portions of his indictment referring to

the prior offenses, arguing that such evidence was

only relevant to sentencing. The trial court

refused to dismiss these portions of the indictment

and allowed the jury to take the indictment with

them during deliberations. id. On appeal, the

Court held "the additional felony convictions were

not an element of the offense charged and should

not have come before the jury." Id. at 110.

The same reasoning applies with equal force in

this case. The evidence regarding Munoz’s prior

convictions was not an element of any offense for

which he was charged, and such evidence should not

have come before the jury. By introducing this

evidence to the jury, Munoz’s rights to a fair

trial were prejudiced. On this basis, he is

entitled to a new trial and respectfully requests

this Court to reverse his convictions and remand

for a new trial.

oan

Further, Villafranca did not object to the

introduction of this evidence to the jury.?°

Villafranca made no objection to the fact that the

indictment contained references to the _ prior

offenses, even though the prior offenses were not

part of the charged offense and even though he had

stipulated to these offenses. There was no reason

for the jury to have with it, during deliberations,

documents referring to Munoz’s prior convictions.

Despite the obvious effect of these documents on

the jury, Villafranca failed to have these portions

of the indictment dismissed. Villafranca’s

ineptness clearly prejudiced Munoz’s rights to a

fair trial with effective counsel.

1° The Government may argue that Munoz waived

his right to assert prejudice based on _ the

introduction of the indictment to the jury because

Villafranca did not object at trial. Because

Munoz’s failure to object was based on a violation

of his constitutional rights, the Government cannot

use this in support of its argument that Munoz

waived his right to assert this error. See

enkircher v. Hayes, 434 U.S. 357, 363 (1978)

(holding that Government may not_ punish an

individual for exercising his constitutional

rights). To allow otherwise would allow the

Government to take unfair advantage of the violation

of Munoz’s constitutionally guaranteed rights.

- 56-

Courts have previously ruled that it will

address Sixth Amendment violations based on

ineffective assistance of counsel when the

appellate record permits evaluation of the claim.

See United States v. Phillips, 664 F.2d 971, 1040

(Sth Cir. 1981), cert. denied sub nom, Meinster v.

United States, 457 U.S. 1136 (1982). Clearly,

therefore, this Court has the power and authority

to address Munoz’s claims that he was denied his

right to effective assistance of counsel. Given

the gravity and severity of the errors and

omissions made by Munoz’s trial counsel, this Court

should exercise that power and authority and remand

this case to the district court for a new trial at

which Munoz can be given effective assistance of

counsel.

In short, Villafranca made a series of errors

and omissions at Munoz’s trial, the sum of which

denied Munoz his constitutionally guaranteed right

to effective assistance of counsel. The Court of

Appeals did mot reach the issue of whether

Villafranca’s representation of Munoz was

’ :

ineffective; the lower court ruled that the record

did not permit evaluation of the Sixth Amendment

violation. *®

1° To argue, as the Court of Appeals did, that

the Sixth Amendment claim was not raised before the

district court misses the point. The Government

cannot expect Munoz’s trial counsel, Villafranca, to

raise this issue before the trial court and,

therefore, impugn himself. After trial, Villafranca

ceased representing Munoz. ( Fe te Munoz,

therefore, was represented pro se, until the

undersigned was appointed to represent him. One

cannot reasonably expect that a pro se defendant,

incarcerated in a federal penitentiary, who speaks

no English, should have raised this issue before the

trial court and that his failure to do so bars this

Court from addressing the issue. Courts have

traditionally given more leeway to pro se parties.

See, e.g., Schovest v. Whitley, 927 F.2d 205, 208

(Sth Cir. 1991) ("pro se cases generally are

governed by more forgiving standards of pleading

than cases in which the person is represented by

counsel...); Vaughn v. Estelle, 671 F.2d 152, 153-

& (5th Cir. 1982). Because of the inherent

injustice of such a result, this Court should

address Munoz’s Sixth Amendment violation.

ee |

‘

’

+ : i 7 ’

eR Ener Gile. <dt> ome ae *- = .

es = > % : = es

a = 7 7 = hn 7 - -

4) = -— 7 > © : 5 » - a ry a

Is ae mall = 2 ee ae 7 — = =

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CONCLUSION

For all the reasons stated herein, this Court

should grant the petition for writ of certiorari.

Respectfully submitted,

Meu Ou [abel

Marc D. Murr

Hagans & Associates

1415 Louisiana, Suite 4100

Houston, Texas 77002

(713) 659-4100

(713) 659-3502 (Fax)

Alistair B. Dawson

Bracewell & Patterson

South Tower Pennzoil Place

711 Louisiana, Suite 2900

Houston, Texas 77002-2781

(713) 223-2900

(713) 221-1212 (Fax)

Attorneys of Record

for Petitioner

Francisco Javier Munoz-Romo

-59-

ees ging

NO.

UNITED STATES SUPREME COURT

October 1991

FRANCISCO JAVIER MUNOZ-ROMO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

)

APPENDIX

Marc D. Murr

Hagans & Associates

1415 Louisiana, Suite 4100

Houston, Texas 7/7002

(713) 659-4100

(713) 659-3502 (Fax)

Attorney of Record for Petitioner

Francisco Javier Munoz-Romo

Alistair B. Dawson

Bracewell & Patterson

South Tower Pennzoil Place

711 Louisiana, Suite 2900

Houston, Texas 77002-2781

(713) 223-2900

(713) 221-1212 (Fax)

of Counsel

-60-

APPENDIX

Order Denying Motion for Rehearing

Opinion from the Court of Appeals

Order Granting Leave to Proceed in Forma

Pauperis on Appeal, Granting Movant’s Request

for Transcripts, Referring Movant’s Request for

Court-Appointed Counsel and Staying § 2255

Motion

Notice of Appeal

Judgment Including Sentence under the Sentencing

Reform Act

Sentencing Order

Verdict of the Jury

Superseding Indictment

Ete

CERTIFICATE OF SERVICE

I hereby certify that three true and correct

copies of the foregoing Petitioner Francisco Javier

Munoz-Romo’s Petition for Writ of Certiorari and

Appendix has been forwarded to the Solicitor

General, Department Justice, Washington, DC 20530

the on this the {3 day of February, 1992, by

certified mail, return receipt requested.

Mau 0. Mow fast

Mare D. Murr

DAWSAB\68875\1006

06760551.PLD

-62-

APPENDIX NO. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2345

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER MUNOZ-ROMO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

ON PETITION FOR REHEARING

( December 3, 1991 )

Before DAVIS and BARKSDALE, Circuit Judges, and

MENTZ, District Judge.”

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be

and the same is hereby

ENTERED FOR THE COURT:

United States Circuit Judge

District Judge of the Eastern District of

Louisiana sitting by designation.

APPENDIX NO. 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2345

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER MUNOZ-ROMO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

( November 5, 1991 )

Before DAVIS and BARKSDALE, Circuit Judges, and

MENTZ, District Judge.’

BARKSDALE, Circuit Judge.

Double jeopardy is the principal issue in this

appeal. Review of several issues is limited by the

failure to raise them in the district court.

: District Judge of the Eastern District of

Louisiana sitting by designation.

Although Francisco Javier Munoz-Romo does not appeal

his convictions on two counts of cocaine

distribution, he does challenge them on several

counts of illegal firearms possession and money

laundering. He also contends that the was

improperly sentenced twice for one of the firearms

offenses. We AFFIRM the convictions, and, with

respect to the sentence, AFFIRM IN PART and VACATE

IN PART.

Since late 1987, Munoz-Romo had been the subject

of an ongoing drug trafficking investigation by

several federal and state agencies A government

informant, wearing a wireless microphone transmitter

monitored by the Victoria, Texas, police, purchased

a total of 14 grams of cocaine from Munoz-Romo on

August 30 and 31, 1988.

On September 14, 1988, search warrants were

issued for property owned or rented by Munoz-Romo in

Victoria. The first locale searched was a house he

ail.

rented on East Warren Street. Munoz-Romo and his

wife were present during the search. Law

enforcement officers discovered a RG revolver hidden

in a maroon suitcase in the bathroom. Approximately

$59,000 in cash was found throughout the house.* A

set of scales and a bottle of lactose were also

seized.

The second location searched was an apartment

registered to Munoz-Romo on Sherwood Avenue. An

Excam revolver was discovered between the mattress

and box springs of the bed in the bedroom. Two

empty bottles of lactose were found; and, other

items of drug paraphernalia were seized, including

a Triple Beam Balance scale, a small mirror, a razor

blade, a soda straw, and a “coke spoon". Officers

also discovered a plastic cooler, containing jewelry

2 The agents found $11,400, $9,030 and

$30,020 hidden in the rafters of the utility room

ceiling, $4,827 hidden under a mattress in the

master bedroom, $1,510 in the pocket of a pari of

pants on the bedroom floor, and $2,074 in the top

dresser drawer in the bedroom.

and several thousand dollars, buried in the ground

behind the apartment. Law enforcement officials

also searched a house Munoz-Romo owned on North

Wheeler Street, seizing various tax records of

Munoz-Romo and his wife.

In early October 1988, Munoz-Romo was charged in

a two-count indictment for distribution of the

cocaine sold on August 30 (count 1) and 31

(count 2), in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C). Later that October, an 1l-count

superseding indictment was filed against him. In

addition to the two distribution charges, he was

charged with (1) being a felon in possession of the

Excam revolver (count 3) and the RG _ revolver

(count 5), in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(1)(B), as well as being an illegal alien

in possession of the revolvers (counts 4 and 6), in

violation of 18 o. 3c. §§ 922(g)(5) and

924(a)(1)(B); (2) being in possession of the RG

revolver while having previously been convicted of

three drug offenses, each punishable by a term of

imprisonment exceeding ten years, in violation of

18 U.S.C. §§ 922(g)(1) and 924(e) (count 7); and

(3) money laundering in the purchase of the North

Wheeler Street residence (count 8), a Dodge truck

(count 9), and Nissan (count 10) and Chevrolet

(count 11) automobiles, in violation of 18 U.S.C.

§ 1956(a)(1)(A). |

A jury trial was conducted in December 1988. At

the close of the government’s case, Munoz-Romo moved

for a judgment of acquittal on all counts. The

government agreed that it had not met its burden of

proof on count 11 (money laundering in the purchase

of the Chevrolet). The motion was granted on that

count, but denied as to the remainder. However,

after presentation of all evidence, including Munoz-

Romo testifying, he did not renew the acquittal

motion. The jury returned a verdict of guilty on

the remaining ten counts.

-68-

A sentencing hearing was held in February 1989.

Munoz-Romo was sentenced to 240 months’ imprisonment

on each of the counts 1, 2, 8, 9, and 10 (cocaine

distribution and money laundering) (the first set),

with the sentences to run concurrently with each

other. He was sentenced to 22 months’ imprisonment

on each of counts 3, 4, 5, and 6 (firearms

possession), with the sentences to run concurrently

with each other, and to run concurrently with the

sentences on the first set. He was’ further

sentenced to 180 months on count / (firearms (RG

revolver) possession enhancement), with the sentence

to run concurrently with all other’ sentences,

resulting in a total imprisonment of 240 months. He

also received supervised release terms of five years

each on counts 1, 2, 8, 9, and 10, and three years

each on counts 3, 4, 5, 6, and 7, with all terms to

run concurrently. Finally, he was ordered to pay a

$50 special assessment on each of the ten counts,

for a total of $50U. He made no objections at the

-69-

sentencing hearing, nor were any objections to the

presentence investigation report (PSI) filed.

Munoz-Romo timely appealed.?

* #

As noted, Munoz-Romo does not appeal his

convictions or sentences (concurrent terms of

240 months) on the two counts of cocaine

distribution. He contends that (1) his convictions

concerning each of the two revolvers for the single

: The notice of appeal was filed in March

1989; however, this court dismissed the appeal that

June, due to his failure to order the transcript.

Later that June, Munoz-Romo filed a motion in this

court for reinstatement of his appeal. He then

filed motions in the district court to proceed in

form pauperis, for appointment of counsel on appeal,

and for the court to supply a transcript at

government expense. And, in August 1989, he filed

a motion in the district court under 28 U.S.C.

§ 2255, contending that, because his trail counsel

declined to represent him on appeal, he had been

denied effective assistance of counsel on appeal.

In January 1991, the magistrate judge gratned the

motions to proceed in forma pauperis and for a court

supplied transcript, referred the request for court

appointed counsel on appeal to this court, and

stayed the § 2255 motion pending disposition of the

direct appeal to this court. In February 1991, this

court reinstated the appeal, and, in March, granted

the motion for appointment of appellate counsel.

«76>

act of possession of each firearm as both a

convicted felon and an illegal alien subjected him

to double jeopardy, (2) there was insufficient

evidence to support his convictions for the firearms

and money laundering offenses, (3) he received

ineffective assistance of counsel at _ trial,

(4) comments by the trial judge to him and his

counsel substantially prejudiced his right to a fair

trial, and (5) he was erroneously sentenced twice

for possession of the RG revolver as a felon under

18 U.S.C. §§ 922(g)(1) and 924(e).

Among other things, the Double Jeopardy Clause

of the Fifth Amended "'protects .. . against

multiple punishments for the same _ offense.'"

Albernaz v. United States, 450 U.S. 333, 343 (1981)

(quoting North Carolina v. Pearce, 395 U.S. 711, 71/7

(1969)). Munoz-Romo was convicted of two violations

each of 18 U.S.C. §§ 922(g)(1) and 922(g)(5), which

provide:

It shall be unlawful for any person--

(1) who has been convicted in any

court of[ ) a crime punishable by

imprisonment for a term exceeding one year;

[or}

ke Oe *

(5) who, being an alien, is illegally

or unlawfully in the United States;

x*wek &

to . . . possess in or affecting commerce,

any firearm

Munoz-Romo contends that these two. provisions

proscribe the same offense -- possession of a

firearm. Therefore, he maintains that, because he

was convicted of possession of each firearm as both

a convicted feion and an illegal alien, he was

improperly subjected to multiple punishments for a

single offense as to each revolver.

Although his contentions are generally framed as

a double jeopardy challenge, Munoz-Romo is

essentially contending that counts 3 and 4

(possession as felon and illegal alien of Excam

revolver), and 5 and 6 (possession as a felon and

«32.

illegal alien of RG revolver), are multiplicious.

"'Multiplicity’ is charging a single offense in more

than one count in an indictment. Accordingly, it.

‘addresses double jeopardy; and where the jury is

allowed to return convictions on multiplicious

counts, the remedy is to remand for resentencing,

with the government dismissing the count(s) that

created the multiplicity.’" United States v.

Lemons, 941 F.2d 309, 317 (5th Cir. 1991) (quoting

United States v. Moody, 923 F.2d 341, 347 (Sth Cir.

1991)). "'The chief danger raised by a

multiplicious indictment is the possibility that the

defendant will receive more than one sentence for a

single offense.’" Lemons, 941 F.2d at 317 (quoting

United States v. Swain, 757 F.2d 1530, 1537 (5th,

Cir.), cert. denied,.474 U.S. 825 (1985)).

Munoz-Romo did not raise the double jeopardy (or

multiplicity) issue in the district court.

"Multiplicity of an indictment must be raised as a

defense pursuant to Fed. R. Crim. P. 12(b) to be

«FAs

a = eh a ——— 2

preserved for appeal." United States v. Stovall,

825 F.2d 817, 821 (5th Cir. 1987) (citing United

States v. Gerald, 625 F.2d 1291, 1300 (5th Cir.

1980), cert. denied, 450 U.S. 920 (1981)). “Failure

to object to an indictment on_ grounds of

multiplicity prior to trial constitutes a waiver of

that objection." Lemons, 941 F.2d at 316 n.4.

Accord United States v. Marroquin, 885 F.2d 1240,

1245 (5th Cir. 1988), cert. denied, __ U.S. __,

110 §.Ct. 1807 (1990). This atta precludes

Munoz-Romo from challenging his firearms convictions

as multiplicious.

Despite this waiver, "{a} complaint about

multiplicity of sentences .. . can be raised for

the first time on appeal." Stovall, 825 F.2d at

821. But, if the sentences are to be served

concurrently, a defendant is still precluded from

asserting a multiplicity claim not raised prior to

trail. Marrogquin, 885 F.2d at 1245. However, if

monetary assessments under 18 U.S.C. § 3013 are

imposed on ‘separate counts of conviction, the

sentences on those counts are not concurrent, and

the concurrent sentence doctrine does not apply.

Ray v. United States, 481 U.S. 736, 736-37 (1987);

Marroquin, 885 F.2d at 1245. As noted, the district

court imposed a $50 assessment against Munoz-Romo on

each count of conviction. Accordingly, Munoz-Romo

has not waived his right to challenge on appeal the

alleged multiplicity of these sentences.

In United States v. York, 888 F.2d 1050, 1058

(5th Cir. 1989), this court stated that, "[{i]n order

to determine whether Congress intended to authorize

multiple punishments under violations of two

different statutes for the same criminal act, ‘our

starting point must be the language of the statutes.

Absent a ‘clearly expressed legislative intention to

the contrary, that language must ordinarily be

regarded as conclusive.’’" (quoting Albernaz, 450

U.S. at 336). In applying this rule, the York court

then stated:

Wis

The Supreme Court has directed us to

apply the Blockburger rule of statutory

construction to the language:

In Whalen [v. United States, 445 U.S.

684, 691 (1980)], the Court explained

that the ‘rule of statutory

construction’ stated in Blockburger

[v. United States, 284 U.S. 299

(1932),] is to be used ‘to determine

whether Congress has in a given

situation provided that two statutory

offenses may be punished

cumulatively.’ The Court’ then

referenced the following set forth in

Blockburger:

The applicable rule is that

where the same act’ or

transaction constitutes a

violation of two distinct

statutory provisions, the

test to be applied to

determine whether there are

two offenses or only one,

is whether each provision

requires proof of a fact

which the other does not.

888 F.2d at 1058 (quoting Albernaz, 450 U.S. at 337

(citing Blockburger, 284 U.S. at 304)) (citations

omitted) (emphasis added). Next, and as had the

Supreme Court, the York court cautioned again that

the Blockburger test does not control in the face

-76-

of clearly expressed contrary legislative intent.

Id. i

We are not dealing with two statutes. Two

“provisions (indeed, subparts of a subsection) in

the same statute are in issue. This, of course,

does not affect our review. E.g., United States v.

Nation, 832 F.2d 71, 73 (5th Cir. 1987) (upholding

multiple punishments under different subsections of

18 U.S.C. § 922); United States v. Luis-Gonzalez,

719 F.2d 1539, 1546-47, 1548 (llth Cir. 1983)

(upholding multiple convictions and punishments for

separate violations of four’ subsections of

21 U.S.C. § 955a). In applying the above described

analysis from York, we note, first, that the plain

wording of § 922(g) permits the multiple

punishments in issue. There is no indication in

the statute that only one conviction is permitted

under it, even if the same weapon is in issue on

«Re

Soi

a ao a ae

separate charges under each of its seven subparts.“

Section 922(g) provides:

It shall be unlawful for an person --

(1) who has been convicted in any

court of, a crime punishable by

imprisonment for a term exceeding one

years;

(2) who is a fugitive from

justice;

(3) who is an unlawful user of or

« addicted to any controlled substance

(as defined in section 102 of the

Controlled Substance Act (21 U.S.C.

802));

(4) who has been adjucted as a

mental defective or who has been

committed to a mental institution;

(5) who, being an _ alien, is

illegally or unlawfully in the United

States; :

(6) who has been discharged from

the Armed Forces under dishonorable

conditions; or

(7) who, having been a citizen of

the United States, has renounced his

citizenship;

(continued...)

-78-

Second, our review of the legislative history

reveals no express legislative intent that § 922(g)

does not permit multiple punishments for the same

possession, nor are we cited to any. Third, as

discussed below, the Blockburger rule permits the

punishments imposed. As stated in Stovall, "[iJ]f

both offenses require proof of a fact not

necessarily required by the other then Blockburger

is satisfied and sentences under each statutory

provision may be constitutionally imposed even

though there is a substantial overlap in the proof

offered to establish the crimes." 825 F.2d at 822.

In United States v. Nation, this court

addressed an argument similar to that raised by

Munoz-Romo. Nation was convicted twice for a

* (...continued)

to ship or transport in interstate or

foreign commerce, or possess in or

affecting commerce, any firearm or

ammunition; or to receive any firearm

or ammunition which has been shipped

or transported in interstate or

foreign commerce. :

-79-

single act with the same firearm: shipping and

transporting a firearm by a convicted felon, in

violation of § 922(g)(1), and shipping and

transporting a stolen firearm, in violation of

18 U.S.C. § 922(i). 832 F.2d at 72. Noting that

Blockburger standard controlled Nation's

contentions, the Nation court undertook to

determine "whether each violation requires proving

a fact that the other does not." Id. (citing Ball

v. United States, 470 U.S. 856 (1985)). The court

stated:

In analyzing Nation’s convictions, we find

that different elements of proof are

required for each conviction. Under section

922(g)(1), the government must prove not

only that Nation transported the firearm

between states, but also that Nation was a

felon. Under section 922(i), however, the

government must prove that Nation

transported the firearm while knowing it was

stolen. Thus, these multiple convictions

involve proving distinctly different

elements and, under the Blockburger test,

cumulative sentences would certainly seem

allowable.

-80-

7 at. «hence stearate ee

— -

832 F.2d at 73 (emphasis in original).°

' The Nation court noted that previous

decisions of this court had preciudec cumulative

sentences for a "single act" uder the firearm

Statutes. 832 F.2d at 74. For example, in United

States v. McDaniel, 550 F.2d 214, 219 (Sth Cir.

1977), it held that cumulative sentences could not

be imposed for violation of statutory provisions

prohibiting possession of an unregistered firearm

and possession of a firearm with an obliterated or

unidentified serial number because "possession of a

firearm with an obliterated [unidentified] serial

number necessarily entails possession of an

unregistered firearm.... " Cr. Rollins v.

United States, 543 F.2d 574 (5th Cir. 1976) (same).

Additionally, in United States v. Hodges, 628 F.2d

350, 352 (5th Cir. 1980), it held that cumulative

sentences could not be imposed for’ statutes

proscribing receipt of a firearm by a felon and

possession of a firearm by a felon because receipt

of a firearm was tantamount to possession. See also

Ball v. United States, 470 U.S. 856, 862 (1985)

("proof of illegal receipt of a firearm necessarily

includes proof of illegal possession") (emphasis in

original); United States v. Thomas, 810 F.2d 478,

478 (5th Cir.), cert. denied, 482 U.S. 930 (1987)

(following Ball).

Nation, however, distinguished these cases,

finding that, in each, “proof of one offense

constituted proof of the other." 832 F.2d at 74.

In other words, "proof that the felon received a

firearm was tantamount to providng that the felon

possessed the firearm"; similarly, “proof that a

defendant possessed a firearm with an obliterated

serial number was proof in fact that the defendant

possessed an unregistered firearm since a serial

(continued...)

ais

Similarly, under § 922(g)(1), the government

must prove not only that Munoz-Romo was_ in

possession of a firearm, but also that he was a

felon. And, under § 922(g)(5), in addition to the

element of possession, the government must prove

that he was an alien residing in the United States

illegslly. "“[E]ach provision requires proof of an

additional fact which the other does not."

(...continued)

number was required for registration." Id. With

respect to the facts before it, however, the Nation

court found that “proving that the gun transported

in interstate commerce was stolen does not prove

that it was transported in interstate commerce by a

felon; proof of additional facts and a different

element are required." Id. Under Blockburger,

therefore, the court found that its holding did not

conflict with the previous holdings discussed above.

Id.

As in Nation, proof that Munoz-Romo possessed

the firearms as a convicted felon is not proof that

he possessed them as an illegal alien. "([PJ)roof of

additional facts and a different element [is]

required." 832 F.2d at 74. The facts presented in

this appeal, therefore, are controlled by our

holding in Nation, rather than in McDaniel, Rollins,

or Thomas.

-82-

Blockburger, 284 U.S. at 304. The sentences are not

multiplicious.

Munoz-Romo contends that there is insufficient

evidence to support his convictions on the firearms

and money laundering offenses. He maintains,

therefore, that the district court erred in not

granting his motion for a judgment acquittal.

However, although he moved for a judgment of

acquittal after the government rested its case, he

failed to renew his motion at the close of the

proof, following the presentation of his case,

including his testimony, and the government’s

rebuttal witnesses. "This failure waived any

objection to the denial of his motion." United

States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).

"Consequently, this [cJourt’s review is not

under the usual standard of review for claims of

insufficiency of evidence but rather under a much

stricter standard." Id. "We are limited to the

£5.

determination of ‘whether there was a manifest

miscarriage of justice.’ Such a miscarriage would

exist only if the record is ‘devoid of evidence

pointing to guilt,’ or .. . ‘because the evidence

on a key element of the offense was so tenuous that

a conviction would be shocking.'" Id. (quoting

United States v. Ivory, 468 F.2d 613, 614 (Sth Cir.

1972) and United States v. Bullock, 551 F.2d 1377,

1385 (Sth Cir. 1977)). "In making’ this

determination, the evidence, as with the regular

standard for review for insufficiency of evidence

claims, must be considered ‘in the light most

favorable to the government, giving the government

the benefit of all reasonable inferences and

credibility choices.’" Ruiz, 860 F.2d at 617

(quoting United States v. Hernandez-Palacios, 838

F.2d 1346, 1348 (5th Cir. 1988)). Accord United

States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.),

cert. denied, _-;U.S. __,, 111 $.Ct. 2038 (1991).

- 84.

Munoz-Romo contends that there was insufficient

evidence to prove that he knowingly possessed the RG

and Excam revolvers found at the East Warren Street

residence and the Sherwood Avenue’ apartment

respectively. "Possession may be either actual or

constructive." United States v. Smith, 930 F.2d

1081, 1085 (5th Cir. 1991). In Smith, which also

involved illegal possession of firearms, we stated

that "‘[c]Jonstructive possession’ has been defined

as ownership, dominion, oor control over. the

contraband itself, or dominion or control over the

premises in which the contraband is concealed." Id.

(emphasis in original). "The ‘»roof that possession

of contraband is knowing will usually depend on

inference and circumstantial evidence.'" United

States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir.

1989), cert. denied, ___—-U.S. __, 110 S.Ct. 1818

(1990) (quoting United States v. Richardson, 848

F.2d 509, 514 (Sth Cir. 1988)).

-85-

The evidence established that Munoz-Romo was

renting the Warren Street residence, and was present

when the search warrant was executed. there.

Moreover, he testified that he was living in the

house at the time. A special agent with the IRS's

Criminal Investigation Division testified that, four

days before execution of the warrant, he observed

Munoz-Romo entering the Warren Street residence

carrying a suitcase that was maroon in color and

similar in appearance to the one in which the RG

revolver was later discovered. Further, the

revolver was found in the bathroom -- a location

that "“[o]ne could reasonably infer [was }

conveniently accessible to [Munoz-Romo}." Smith,

930 F.2d at 1086.

Regarding the Sherwood Avenue apartment, Mary

Miller, the apartment manager, testified that Munoz-

Romo had rented the apartment. Miller further

testified that, two days before execution of the

search warrant, Munoz-Romo had paid his monthly rent

-86-

in advance. Munoz-Romo admitted that he did so,

and, further, acknowledged that he had been the one

to secret the money and jewelry in the cooler buried

behind the apartment. And, the Excam revolver was

found between the box springs and mattress of the

bed, a location easily accessible to Munoz-Romo.

In short, the record is far from being "’devoid

of evidence pointing to guilt.’" Ruiz, 860 F.2d at

617 (citation omitted). Munoz-Romo clearly

exercised dominion and control over both the Warren

Street residence and the Sherwood Avenue apartment.

The jury could, therefore, reasonably infer that he

had constructive possession of the firearms

discovered in both locations. Needless to say,

there has not been a "‘manifest miscarriage of

justice’" on this issue. Id. (citations omitted).

Pursuant to 18 U.S.C. § 1956, Munoz-Romo was

convicted of three counts of money laundering, in

connection with the purchases of the North Wheeler

-87-

Street residence, a Dodge truck, and a Nissan

automobile. With respect to each, the government

was required to prove that he (1) knowingly

conducted a financial transaction, (2) which

involved the proceeds of unlawful activity, and

(3) with the intent to promote or further that

unlawful activity. 18 U.S.C. § 1956(a)(1)(A)(i).

The unlawful activity at issue was Munoz-Romo’s drug

trafficking. Again, because of Munoz-Romo’s failure

to move for a judgment of acquittal after

presentation of the evidence, we are limited to

determining whether there has been a manifest

miscarriage of justice.

Munoz-Romo acknowledges that the financial

transactions were conducted, but contends that the

government failed to prove that they involved the

proceeds of unlawful activity. He maintains,

erroneously, that the only evidence produced by the

government concerning this element was that he had

a limited income. And, citing United States v.

-88-

Blackman, 897 F.2d 309, 317 (8th Cir. 1990), he

contends correctly that proof of his limited income,

by itself, is insufficient to support his money

laundering convictions. However, the jury is

entitled to consider such proof in combination with

additional evidence, such as "evidence of [a]

defendant’s drug trafficking" or "large sums of

unexplained currency." Id.

As noted, the jury was presented with far more

evidence of money laundering than simply Munoz-

Romo’s limited income. There was evidence that he

engaged in drug trafficking activities during the

time period that the transactions in issue were

conducted. For example, Ramiro Martinez, a former

co-worker, testified that he observed Munoz-Romo

selling cocaine and heroin at their place of

employment, and that, during the two-year period

prior to the arrest, he accompanied Munoz-Romo on

several trips to Houston, Texas, during which Munoz-

Romo would purchase drugs for later resale. And,

-89-

the jury was entitled to consider the severai items

of drug paraphernalia seized at Munoz-Romo’s

residences as evidence of drug trafficking. For

example, a special agent with the IRS’s Criminal

Investigation Division, testified that lactose (of

which several bottles were seized at Munoz-Romo’s

residences) is a common cutting agent used by

narcotics distributors to dilute drugs in order to

increase profitability.

The jury also heard evidence that Munoz-Romo

used the items purchased in these transactions in

furtherance of drug trafficking activity. Martinez

testified that he observed Munoz-Romo with large

sums of money received from drug sales, and that he

kept that money at his North Wheeler Street

residence. He further testified that the trips to

Houston to purchase drugs were taken in the Dodge,

and, also, that he had observed Munoz-Romo dealing

drugs from both the Dodge and the Nissan.

-90-

Obviously, the large amounts of currency seized

at Munoz-Romo’s residences were relevant to the

issue of money laundering. The currency seized at

the East Warren Street residence was _ secreted

throughout the house (including the rafters of the

utility room ceiling); at the Sherwood Avenue

apartment, it was buried in back of the apartment.

Munoz-Romo attempted to explain these funds by

contending that he had received $38,000 in an

inheritance from his mother in Mexico, and $18,500

from Eliseo Guzman, his former employer at a shoe

repair shop.

The government, however, presented evidence

refuting this claim. Eva Guzman, Eliseo Guzman’'s

widow, testified that she was unaware of any such

bequest to Munoz-Romo, and that her husband had not

left any money to her or their three children when

he died. Moreover, Munoz-Romo was interviewed on

the day the search warrants were executed (but

before any money was found) by John Brown, a revenue

.' eS

agent for the IRS. Brown testified that Munoz-Romo

informed him that he had received approximately

$12,000 to $18,000 in an inheritance from either his

mother or father one or two years previously, and

that he had already spent that inheritance.

Moreover, the jury was entitled to consider the

implausibility of Munoz-Romo’s attempts to account

for the currency. "An implausible account of

exculpatory events suggests that the defendant

desires to obscure his criminal responsibility. A

factfinder need not ignore such an implausible

account; under appropriate conditions, the

implausible account provides persuasive

circumstantial evidence of the defendant's

consciousness of guilt." United States v. Diaz-

Carreon, 915 F.2d 951, 955 (5th Cir. 1990).

In sum, and viewing the evidence in the light

most favorable to the verdict, there was, obviously,

no manifest miscarriage of justice on the issue of

money laundering.

-92-

Munoz-Romo asserts he was denied effective

assistance of counsel at trial in violation of the

Sixth Amendment to the United States Constitution.

However, the contention was not presented to the

district court. "The general rule in this circuit

is that a claim of ineffective assistance of counsel

cannot be resolved on direct appeal when the claim

has not been raised before the district court since

no opportunity existed to develop the record on the

merits of the allegations." United States v.

Higdon, 832 F.2d 312, 313-14 (Sth Cir. 1987) (citing

United States v. McClure, 786 F.2d 1286, 1291 (5th

Cir. 1986), cert. denied, 484 U.S. 1075 (1988);

United States v. Freeze, 707 F.2d 132, 138-39 (5th

Cir. 1983)). Accord United States v. Bounds, 943

F.2d 541, — (Sth Cir. 1991); United States v.

Lewis, 902 F.2d 1176, 1180 (5th Cir. 1990).

We consider "claims of inadequate representation

on direct appeal only in rare cases where the record

-93-

allow[s] us to evaluate fairly the merits of the

claim." Higdon, 832 F.2d at 314. "To succeed on

any claim of ineffective assistance of counsel, a

defendant must show that: (1) the attorney's

representation fell below an objective standard of

reasonableness, and (2) there is a reasonable

probability that except for the attorney's

unprofessional errors, the results of the proceeding

would have been different." United States v.

Kinsey, 917 F.2d i181, 183 (5th Cir. 1990) (citing

Strickland v. Washington, 466 U.S. 668, 687-88, 694

(1984)). Based on this record, we cannot fairly

evaluate the merits of this claim. Accordingly, we

decline to address it, without prejudice to Munoz-

Romo’s right to raise it in a proceeding pursuant to

26 U.8:C. § 2255." Higdon, 832 F.2d at 314;

McClure, 786 F.2d at 1291; Freeze, 707 F.2d at 139.

:. As noted, Munoz-Romo’s § 2255 motion in

the district court, alleging ineffective assistance

of counsel because of his failure to appeal, was

stayed pending disposition of this appeal. See

note 3, supra.

-94-

Munoz-Romo contends that the behavior of the

trial judge established that he was “predisposed

against [him]" and denied him due process under the

Fifth Amendment. He asserts that the judge stated

in a side bar conference that he believed Mu 2z-

Romo was lying, and later suggested the same to the

jury. However, because Munoz-Romo did not object at

trial to any conduct or comments of the trial judge,

we review this issue only for plain error. See Fed.

R. Evid. 103; Fed. R. Crim. P. 52(b).

"'Plain error’ is error which, when examined in

the context of the entire case, is so obvious and

substantial that failure to notice and correct it

would affect the fairness, integrity or public

reputation of judicial proceedings." United States

v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied,

a Meee 2, BOs BGG. £03 TIFF). "It is a

mistake so fundamental that it constitutes a

‘miscarriage of justice.’" Id. “Alternatively

-95-

stated, when a new. . . legal issue is raised for

the first time on appeal, plain error occurs where

our failure to consider the question results in

‘manifest injustice.’" Id. And, "“[e]rrors of

constitutional dimension will be noticed more freely

under the plain error doctrine than less serious

errors." Id. (citing Alexander v. United States,

390 F.2d 101, 103 n.3 (Sth Cir. 1968)).

The exchange in question is as follows:

[DEFENSE COUNSEL]: .. . Your Honor, I'm

going to object. He’s arguing and badgering

the witness.

THE COURT: Let me see counsel up here.

(Sidebar conference: )

THE COURT: I'm going to permit you to

continue this line of questioning. And I

want to make my ruling [outside] the

presence of the [jury]. Your witness is

lying. Your witness has flat-out told the

prosecutor that was his handwriting. And

then when he got in a bind, he denied saying

that.

[DEFENSE COUNSEL]: I -- that’s fine, your

Honor. I thought that he said some of it

was his handwriting and some of it --

-96-

THE COURT: Counsel, he’s been through it.

He said, ‘Okay.’ Then moments ago he said,

‘Show me where that is.’ Then a few moments

later he admitted to that line. Then when

the witness saw where [the prosecutor] was

going, he said, ‘Oh, some are mine, some

aren’t mine.’ He's not being a cooperative

witness. So, I’m going to let [the

prosecutor] work on him a while. I thing

it’s only fair.

[DEFENSE COUNSEL]: That’s fine, Judge.

(Open court: )

[THE PROSECUTOR:} Now, Mr, Munoz, I thought

you told me a few moments ago this second

number -- in fact, you read it off --

‘375.00 - 1 1/2,’ and then you corrected

yourself to ‘1/2’ -- did you say that was

your writing a while ago?

[MUNOZ-ROMO:] Let me see it a little bit.

I see that I -- my mistake now. I did say

he Fe Poe But I see that it’s ‘1/2’ now.

it’s been shown to be very -- and taken away

very quickly.

THE COURT: Wait a minute. The record will

reflect that the defendant has had ample

opportunity and that the prosecutor is not

taking away anything from the defendant. If

the defendant would like additional time to

examine the document, then he now has the

time.

No. No. There’s been no question put

to you. You answer the prosecutor's

question. He asked you a moment ago a

question to which you gave an answer. It is

O07

_—

his belief that you're changing your answer.

And he has asked you for your explanation of

what he believes to be your change. That's

going to be up to the jury to decide. But

he’s entitled to ask his question. Please

answer his question.

"To constitute constitutional error .. . the

trial court’s actions, viewed as a whole, must

amount to intervention which could have led the jury

to a predisposition of guilt by improperly confusing

the functions of judge and prosecutor." United

States v. Davis, 752 F.2d 963, 974 (5th Cir. 1985)

(citing United States v. Abrams, 568 F.2d 411, 423-

24 (Sth Cir.), cert. denied, 437 U.S. 903 (1978)).

"In addition, such judicial intervention must be

qualitatively and quantitatively substantial to meet

this test." Davis, 752 F.2d at 974 (citing United

States v. Robinson, 687 F.2d 359, 361 (llth Cir.

1982)).

The trial judge’s comment that Munoz-Romo was

lying was made outside the presence of the jury and,

therefore, could not have influenced it. The

response in open court to Munoz-Romo’s statement

-98-

that he had not been given sufficient time to review

a document did not suggest to the jury that Munoz-

Romo was being untruthful. Instead, the comments

advised Munoz-Romo, who was testifying through a

Spanish-speaking interpreter, why the prosecutor was

questioning him regarding an apparent discrepancy in

his testimony. The district judge correctly noted

that it was for the jury to decide whether a

discrepancy existed.

This single exchange, viewed in the context of

the entire record, does not amount to judicial

intervention which could have led the jury to a

predisposition of guilt. Furthermore, the trial

court later instructed the jury:

Do not assume from anything that I may have

said or done during the trial that I have

any opinion concerning any issues in this

case. Except for the instructions that I

give to you on the law at this moment and

other moments in the trial, you should

disregard anything that I may have said

during the trial in arriving at your own

findings as to the facts of the case.

-99.

As in Davis, “[sjuch a curative’ instruction

militates against any finding of prejudice." 752

F.2d at 975. There is no error plain or otherwise.

Finally, Munoz-Romo contends that his sentences

as a felon in possession of the RG revolver, under

§ 922(g)(1) (count 5) and § 924(e) (count 7),

violated his rights under the Fifth Amendment.

Munoz-Romo does not contend that he was not properly

subject to the § 924(e) enhancement, but only that

he should not have received both a 22 month sentence

for violation of § 922(g)(1) and an enhanced 180

month sentence under § 924(e).

As noted, however, Munoz-Romo made no objections

at the sentencing hearing, nor did he object to the

sentencing recommendations contained in the PSI.

Therefore, once again, we review the sentence only

for plain error. Lopez, 923 F.2d at 50. "The plain

error doctrine requires parties to raise objections

at procedurally opportune junctures as early in the

-100-

judicial process as possible. In the sentencing

process, ‘[t]jhe guidelines do not impose the

sentence, they provide a framework for a district

court to impose a sentence.’" Id. (alteration in

original) (emphasis in original) (quoting United

States v. Mejia-Orosco, 867 F.2d 216, 219 (5th

Cir.), cert. denied, 492 U.S. 924 (1989)). “It [is]

incumbent upon [the defendant] to make and factually

develop in the district court all arguments

concerning application of the guidelines he believed

might persuade the judge to alter the sentence he

now challenges." Lopez, 923 F.2d at 50.

"Section 924(e)(1) . . . establishes a minimum

fifteen-year sentence for violations of § 922(g) by

those who have three prior ‘dangerous felony’ or

‘serious drug offense’ convictions." Smith, 930

F.2d at 1089. However, § 924(e) does not create an

offense separate from § 922(g), but, instead, “is

intended only to provide enhanced punishment for

those persons convicted under § 922(g) who also have

-101-

three previous felony convictions." United States

v. Affleck, 861 £.2d 97, 99 (5th Cir. 1988), cert.

denied, 489 U.S. 1058 (1989). The government

concedes that Munoz-Romo should not have received

separate sentences under each provision.

Accordingly, and because this is 2 legal issue,

Munoz-Romo’s sentences as a felon in possession of

the RG revolver under §§ 922(g) and 924(e)

constitute plain error.

As noted, Munoz-Romo has not challenged the

finding that he was properly subject to. the

enhancement provision of § 924(e). Obviously, an

enhanced sentence is designed to be used instead of

the regular, or shorter, sentence. Therefore, we

vacate the 22 month sentence on count 5, and affirm

the 180 month enhanced sentence imposed under

§ 924(e) on count 7. See United States v. Bates,

896 F.2d 912, 913 (Sth Cir.), cert. denied, _ U.S.

; kao)60O 8. Ct. 2628 (1990) (where defendant

erroneously received double sentence for bank

-102-

robbery, the sentence imposed for the most

aggravated form of the bank robbery affirmed while

other sentence was vacated); Sullivan v. United

States, 485 F.2d 1352, 1355 (5th Cir. 1973) (to

eliminate necessity of additional judicial work by

district court, this court can vacate erroneous

sentence and leave undisturbed sentence properly

imposed).

ee oe

For the foregoing reasons, Munoz-Roimo’'s

convictions are AFFIRMED. Because we vacate his

sentence on count 5, his sentence is AFFIRMED IN

PART and VACATED IN PART.

-103-

APPENDIX NO. 3

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

UNITED STATES OF AMERICA §

Plaintiff-Respondent §

CR. No. V-88-06-01

Vv § w

C.A. No. V-89-33

FRANCISCO JAVIER MUNOZ-ROMO, §

Defendant -Movant §

ORDER GRANTING LEAVE TQ PROCEED IN

FORMA PAUPERIS ON APPEAL, GRANTING MOVANT’S

REQUEST FOR TRANSCRIPTS, REFERRING MOVANT’S REQUEST

FOR COURT-APPOINTED COUNSEL AND STAYING § 2255 MOTION

This Court’s Order striking Movant's affidavit

in support of it’s Motion for Leave to Proceed on

Appeal in forma pauperis because the affidavit does

not state the issues Movant will raise on appeal is

WITHDRAWN .

This Court concedes that the aforementioned

Order imposed an untenable burden on a pro se

applicant, with little formal schooling and without

assistance of counsel. Rodriguez v. United States,

395 U.S. 327, 330, 89 $.Ct. 1715, 1717, 29 L.&d:2d.

340, 344 (1969).

It is ORDERED that Movant's Application to

Proceed in forma pauperis on appeal is GRANTED. It

is further

ORDERED that Movant’s Motion for the Court to

Supply Transcripts for appeal, without cost, is also

GRANTED. The Clerk shall forward copies of the

transcripts in this cause to Movant and to the Clerk

for the Fifth Circuit Court of Appeals.

Movant's Request for Court-Appointed Counsel on

Appeal is respectfully referred to the Fifth Circuit

Court of Appeals for its consideration.

Movant’s § 2255 motion is STAYED pending

disposition of Movant’s direct appeal of his

conviction.

SIGNED this day of January, 1991.

Eduardo E. de Ases

UNITED STATES MAGISTRATE JUDGE

-105-

APPENDIX NO. &

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

UNITED STATES OF AMERICA §

VS. CR. NO. V-88-6-S

FRANCISCO JAVIER MUNOZ-ROMO

NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

FRANCISCO JAVIER MUNOZ-ROMO, Defendant in the

above cause, herenow on this 2nd day of March, 1989,

gives notice of appeal of and from the judgment and

sentence entered in the above entitled and numbered

cause on March 2, 1989, to the United States Court

of Appeals for the Fifth Circuit at New Orleans,

Louisiana.

FRANCISCO JAVIER-MUNOZ-ROMO, PRO SE

Defendant

APPENDIX NO. 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

UNITED STATES OF AMERICA

V. Case Number

V-88-00006-S-01

FRANCISCO JAVIER MUNOZ-ROMO

AKA JAVIER MUNOZ

AKA FRANCISCO ROMO MUNOZ

Mm Mm MM Mm Mm Mm M

(Name of Defendant) Teli Villafranca

Defendant's

Attorney

THE DEFENDANT:

Cc pleaded guilty to count(s)

CJ) was found guilty on count(s)

after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of

such count(s), which involve the following offenses:

Count

Title & Section Nature of Offense Number(s)

21:841(a)(1) & (b)(1)(C) POSS W/INT TO DISTRIBUTE 7

GRAMS OF COCAINE L,@

18:922(g)(1) & 924(a)(1)(B) FELON IN POSSESSION OF

FIREARM 2; 2

18:922(g¢)(5) & 924(a)(1)(3) POSSESSION OF FIREARM BY

ILLEGAL ALIEN 4, 6

18:922(g)(1) & 924(e) POSSESSION/FIREARM BY A 3-TIME

CONVICTED FELON 7

18:1956(a)(1)(A) CONDUCTING FINANCIAL TRANSACTION

W/INT TO PROMOTE UNLAWFUL ACTIVITY

The defendant is sentenced as provided in pages 2

through 4 of this Judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

CJ The defendant has been found not guilty on

count(s) #11 and is discharged as to _ such

count(s).

Count(s)

(isXare) dismissed on the motion of the United

States.

C) The mandatory special assessment is included in

the portion of this Judgment that imposes a

fine.

It is ordered that the defendant shall pay to

the United States a special assessment of

$500.00, which shall be due immediately.

It is further ordered that the defendant shall

notify the United States Attorney for this district

within 30 days of any change of residence or mailing

address until all fines, restitution, costs, and

special assessments imposed by the Judgment are

fully paid.

Defendant’s Soc. Sec. Number:

None

Date of Imposition of Sentence

Defendant’s mailing address:

005 N. Wheeler

Signature of Judicial Officer

Victoria, TX 77903 HAYDEN W. HEAD, JR.

UNITED STATES DISTRICT JUDGE

Defendant's Name & Title of Judicial

residence address: Officer

Same

Date

-108-

Defendant: FRANCISCO JAMBRE rnMUNGA ROMO of 4

Case Number: V-88-00006-S-01

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be

imprisoned for a term of TWO HUNDRED FORTY (240)

MONTHS in Cts. 1, 2, 8 9 & 10, to be _ served

concurrently to each other;

TWENTY-TWO (22) MONTHS in Cts. 3, 4,

5, & 6, to be served concurrently to

each other and with Cts. 1, 2, 8, 9 &

10;

ONE HUNDRED EIGHTY (180) MONTHS IN

Count 7, to be served concurrently

with sentences in Cts. 1, 2, 3, 4, 5,

6, 8, 9, & 10 for a total of TWO

HUNDRED FORTY (240) MONTHS.

CJ The Court makes the following recommendations to

the Bureau of Prisons:

CJ The defendant is remanded to the custody of the

United States Marshal.

(CJ The defendant shall surrender to the United

States Marshall for this district.

a.m.

CJ at p.m. on

CJ as notified by the Marshal.

-109-

CJ The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons

CO before 2 p.m. on ;

C) as notified by the United States Marshal.

CJ as notified by the Probation Office.

RETURN

I have executed this Judgment as follows:

Defendan* delivered on to at

with a certified copy of this Judgment.

United States Marshal

By:

Deputy Marshal

-110-

Judgment--Page 3 of 4

Defendant: FRANCISCO JAVIER MUNOZ-ROMO

Case Number: V-88-00006-S-01

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of

FIVE (5) YEARS, unsupervised if deported.

This term shall consist of terms of FIVE (5)

YEARS as to Counts l, ?, 8, 9 & 10; and THREE

(3) YEARS as to Counts 3, 4, 5, 6 & 7. All

terms of Supervised Release shall run

concurrently.

While on supervised release, the defendant shall

not commit another Federal, state, or local crime

and shall comply with the standard conditions that

have been adopted by this Court (set forth on the

following page). If this judgment imposes a

restitution obligation, it shall be a condition of

supervised release that the defendant pay any such

restitution that remains unpaid at the commencement

of the term of supervised release. The defendant

shall comply with the following additional

conditions:

CJ The defendant shall pay any fines that remain

unpaid at the commencement of the term of

supervised release.

-1ll-

The defendant shall be prohibited from

possessing a dangerous weapon;

The defendant shall participate in a

program for the treatment of drug and/or

alcohol addiction, dependency or abuse,

which may include but not be limited to

urine, breath, saliva and skin testing to

determine whether he has reverted to the

use of drugs and/or alcohol. Further, he

shall participate as instructed and as

deemed necessary by the U.S. Probation

Officer and shall comply with all rules

and regulations of the treatment agency

until discharged by the program director

with approval of the U.S. Probation

Officer; and

The defendant shall be deported and remain

outside the United States and shall be

delivered to a duly authorized Immigration

official for such deportation.

-112-

Judgment--Page 4 of 4

Defendant: FRANCISCO JAVIER MUNOZ-ROMO

Case Number: V-88-00006-S-01

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on _ probation or

supervised release pursuant to this Judgment:

1) The defendant shall not commit another

Federal, state or local crime;

2) the defendant shall not leave the judicial

district without the permission of the court

or probation officer;

3) the defendant shall report to the probation

officer as directed by the court or probation

officer and shall submit a truthful and

complete written report within the first five

days of each month; :

4) the defendant shall answer truthfully all

inquiries by the probation officer and follow

the instructions of the probation officer;

5) the defendant shall support his or her

dependents and meet other family

responsibilities;

6) the defendant shall work regularly at a lawful

occupation unless excused by the probation

officer for schooling, training, or other

acceptable reasons;

-113-

10)

11)

12)

13)

14)

the defendant shall notify the probation

officer within seventy-two hours of any change

in residence or employment;

the defendant shall refrain from excessive use

of alcohol and shall not possess, use,

distribute, or administer any narcotic or

other controlled substance, or any

paraphernalia related to such _ substances,

except as prescribed by a physician.

the defendant shall not frequent places where

controlled substances are illegally sold,

used, distributed, or administered;

the defendant shall not associate with any

persons engaged in criminal activity, and

shall not associate with any person convicted

of a felony unless granted permission to do so

by the probation officer;

the defendant shall permit a probation officer

to visit him or her at any time at home or

elsewhere and shall permit confiscation of any

contraband observed in plain view by the

probation officer;

the defendant shall notify the probation

officer within seventy-two hours of being

arrested or questioned by a law enforcement

officer;

the defendant shall not enter into any

agreement to act as an informer or a special

agent of a law enforcement agency without the

permission of the court;

as directed by the probation officer, the

defendant shall notify third parties of risks

that may be occasioned buy the defendant’s

-114-

criminal record or personal history or

characteristics, and shall permit the

probation officer to make such notifications

and to confirm the defendant’s compliance with

such notification requirement.

These conditions are in addition to any other

conditions imposed by this Judgment.

-115-

APPENDIX NO. 6

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

UNITED STATES OF AMERICA §

V. ; CR. NO. V-88-6-S

FRANCISCO JAVIER MUNOZ-ROMO

SENTENCING ORDER

On the 16th day of December, 19988, the

Defendant was found guilty on his/her plea of

guilty/by verdict of the jury. A Presentence Report

is ordered and a sentencing schedule is established

as follows:

1. No later than January 20, 1989, the United

States Probation Office will complete a Presentence

Report. It is the -responsibility of counsel to

obtain the PSI Report. (Rule 17B, Local Rules of

Southern District of Texas.) The United States

Probation Office will not advise counsel of the

completion of the PSI Report.

2. No later than January 30, 1989, each

counsel shall furnish a written statement to the

United States Probation Office stating either that

there are objections and describing them or that

there are no objections. The Defendant shall also

sign the defendant's statement.

3. No later than February 11, 1989, the

United States Probation Office shall prepare the

final Presentence Report and furnish it to the Court

and the parties.

4. On THURSDAY, FEBRUARY 23, 1989, at 8:30

a.m., the Defendant will appear for sentencing.

All parties and their counsel and the United

States Probation Office shall comply fully with

Local Rule 17 in the completion and review of the

Presentence Report.

ORDERED this 16th day of December, 1988.

HAYDEN W. HEAD, JR.

UNITED STATES DISTRICT JUDGE

ACKNOWLEDGED:

Defendant

Defendant's Counsel

Asst. United States Attorney

-117-

ti A, YE ew

Nl ee

APPENDIX NO. 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

UNITED STATES OF AMERICA

v. CR. NO. V-88-6S

FRANCISCO JAVIER MUNOZ-ROMO

a/k/a JAVIER MUNOZ,

a/k/a FRANCISCO ROMO MUNOZ

Mm MMM Mm M M

VERDICT OF THE JURY

Verdict No. One

We, the Jury, find the Defendant FRANCISCO

JAVIER MUNOZ-ROMO , as

("Guilty" or "Not Guilty”)

charged in

Count I of the superseding indictment.

Verdict No. Two

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ - ROMO , as

("Guilty" or “Not Guilty”)

charged in

Count II of the superseding indictment.

Verdict No. Three

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ - ROMO , as

("Guilty" or "Not Guilty")

charged in

Count III of the superseding indictment.

Verdict No. Four

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ -ROMO , as

("Guilty" or "Not Guilty")

charged in

Count IV of the superseding indictment.

Verdict No. Five

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ - ROMO , as

("Guilty” or "Not Guilty")

charged in

Count V of the superseding indictment.

Verdict No. Six

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ - ROMO , as

("Guilty" or “Not Guilty")

-119-

charged in

Count VI of the superseding indictment.

Verdict No. Seven

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ -ROMO , as

("Guilty" or "Not Guilty")

charged in

Count VII of the superseding indictment.

Verdict No. Eight

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ -ROMO _ ea

("Guilty" or "Not Guilty")

charged in

Count VIII of the superseding indictment.

Verdict No. Nine

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ - ROMO , as

("Guilty" or "Not Guilty”)

charged in

Count IX of thé superseding indictment.

-120-

Verdict No. Ten

We, the Jury, find the defendant FRANCISCO

JAVIER MUNOZ-ROMO as

("Guilty" or "Not Guilty")

charged in

Count X of the superseding indictment.

DATED:

Jury Foreman

-121-

APPENDIX NO. 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

UNITED STATES OF AMERICA *

VS. * CRIMINAL NO. V-88-6S

FRANCISCO JAVIER MUNOZ-ROMO, *

a/k/a JAVIER MUNOZ,

a/k/a FRANCISCO ROMO MUNOZ *

THE GRAND JURY CHARGES:

COUNT I

On or about August 30, 1988, in the Southern

District of.Texas and within the jurisdiction of the

Court, Defendant FRANCISCO JAVIER MUNOZ-ROMO, also

known as JAVIER MUNOZ, also known as FRANCISCO ROMO

MUNOZ, did knowingly and intentionally distribute a

quantity less than five hundred (500) grams, that

is, approximately seven (7) grams, of cocaine, a

Schedule II controlled substance.

[Violation: Title 21, United States Code, —

Sections 841l(a)(1) and 841(b)(1)(B)]

COUNT I1

On or about August 31, 1988, in the Southern

District of Texas and within the jurisdiction of the

Court, Defendant FRANCISCO JAVIER MUNOZ-ROMO, also

known as JAVIER MUNOZ, also known as FRANCISCO ROMO

MUNOZ, did knowingly and intentionally distribute a

quantity less than five hundred (500) grams, that

is, approximately seven (7) grams, of cocaine, a

Schedule II controlled substance.

[Violation: Title 21, United States Code,

Sections 841(a)(1) and 841(b)(1)(B) }

COUNT III

On or about September 14, 1988, in the

Southern District of Texas and within’ the

jurisdiction of the Court, Defendant FRANCISCO

JAVIER MUNOZ-ROMO, also known as JAVIER ROMO, also

known as FRANCISCO ROMO MUNOZ, previously having

b2en convicted in the 24th Judicial District Court,

Victoria County, Texas, on September 14, 1984, for

the following three offenses: 1) Delivery of

-123-

Cocaine, Cause Number 84-6-11, 562; 2) Delivery of

Cocaine, Cause Number 84-6-11, 563; and 3) Delivery

of Cocaine, Cause Number 84-6-11, 564, all crimes

punishable by imprisonment for a term exceeding one

year, did knowingly possess in and affecting

commerce a firearm, namely, an Excam revolver, model

TA76, .22 caliber, serial number C42124.

[Violation: Title 18, United States Code,

Sections 922(g)(1) and 924(a)(1)(B)]

COUNT IV

On or about September 14, 1988, in the

Southern District of Texas and within’ the

jurisdiction of the Court, Defendant FRANCISCO

JAVIER MUNOZ-ROMO, also known as JAVIER MUNOZ, also

known as FRANCISCO ROMO MUNOZ, an alien illegally

and unlawfully in the United States, did knowingly

possess in and affecting commerce a firearm, namely,

an Excam revolver, model TA/76, .22 caliber, serial

number C42124.

-124-

[Violation: Title 18, United States Code,

Sections 922(g)(5) and 924(a)(1)(B)]

COUNT _V

On or about September 14, 1988, in the

Southern District of Texas and within’ the

jurisdiction of the Court, Defendant FRANCISCO

JAVIER MUNOZ-ROMO, also known as JAVIER MUNOZ, also

known as FRANCISCO ROMO MUNOZ, previously having

been convicted in the 24th Judicial District Court,

Victoria County, Texas, on September 14, 1984, for

the following three felonies: 1) Delivery of

Cocaine, Cause Number 84-6-11,562; 2) Delivery of

Cocaine, Cause Number 84-6-11, 563; and 3) Delivery

of Cocaine, Cause Number 84-6-11,564, all crimes

punishable by imprisonment for a term exceeding one

year, did knowingly possess in and affecting

commerce a firearm, namely, an RG revolver, model

RG14S, .22 caliber, serial number Z103908.

[Violation: Title 18, United States Code,

Sections 922(g)(1) and 924(a)(1)(B)])

-125-

area eeppnatet -

COUNT VI

On or about September 14, 1988, in the

Southern District of Texas and within’ the

jurisdiction of the Court, Defendant FRANCISCO

JAVIER MUNOZ-ROMO, also known as JAVIER MUNOZ, also

known as FRANCISCO ROMO MUNOZ, commerce a firearm,

namely an RG revolver, model RG14S, .22 caliber,

serial number Z103908.

[Violation: Title 18, United States Code,

Sections 922(g)(5) and 924(a)(1)(B)]

COUNT Vil

On or about September 14, 1988, in the

Southern District of Texas and within’ the

jurisdiction of the Court, Defendant FRANCISCO

JAVIER MUNOZ-ROMO, also known as JAVIER MUNOZ, also

known as FRANCISCO ROMO MUNOZ, previously having

been convicted in a court of the State of Texas of

three serious drug offenses, all punishable by a

term of imprisonment exceeding ten years, did

knowingly and unlawfully possess in and affecting

-126-

commerce a firearm, namely, an RG revolver, model

RG14S, .22 caliber, serial number Z103908.

Then Grand Jury further charges that Defendant

FRANCISCO JAVIER MUNOZ-ROMO, also known as JAVIER

MUNOZ, also known as FRANCISCO ROMO MUNOZ, was

heretofore duly and legally convicted of the felony

offense of Delivery of Cocaine in Cause No. 84-6-11,

562 on September 14, 1984, in the 24th Judicial

District Court of Victoria County, Texas;

and of the felony offense of Delivery of

Cocaine in Cause No. 84-6-11,563 on September 14,

1984, in the 24th Judicial District Court of

Victoria County, Texas;

and of the felony offense of Delivery of

Cocaine in Cause No. 84-6-11,564 on September 14,

1984, in the 24th Judicial District Court of

Victoria County, Texas.

All three of said serious drug convictions

occurred prior to the offense alleged in the first

paragraph of this count of the indictment.

-127-

[Violation Title 18, United States Code, Section

1956(a) (1) (A) ]

COUNT 1X

On or about December, 1986, in the Southern

District of Texas and elsewhere within’ the

jurisdiction of the Court, Defendant FRANCISCO

JAVIER MUNOZ-ROMO, aiso known as JAVIER MUNOZ, also

known as FRANCISCO ROMO MUNOZ, with the intent to

promote the carrying on of specified unlawful

activity, to-wit: the sale and distribution of

controlled substances, and knowing that property

involved in a financial transaction represented the

proceeds of some form of unlawful activity, did

conduct and attempt to conduct such a financial

transaction, that is, the purchase of a 1984 Dodge

Ramcharger, serial number 1B4GD12T3ES289867, by

paying $4,837.18 to the Victoria Motor Company,

Victoria, Texas which purchase in fact involved the

proceeds of the said specified unlawful activity.

-128-

[Violation Title 18, United States Code, Section.

1956(a)(1) (A) ]

COUNT X

On or about January 25, 1988, in the Southern

District of Texas and within the jurisdiction of the

Court, Defendant FRANCISCO JAVIER MUNOZ-ROMO, also

known as JAVIER MUNOZ, also known as FRANCISCO ROMO

MUNOZ, with the intent to promote the carrying on of

specified unlawful activity, to-wit: the sale and

distribution of controlled substances, and knowing

that property involved in a financial transaction

represented the proceeds of some form of unlawful

activity, did conduct and attempt to conduct such a

financial transaction, that is, the purchase of a

1987 Nissan Sentra, serial number JN1PB241XHu044148,

by paying $7,200.00 to Discount Motors, Victoria,

Texas, which purchase in fact involved the proceeds

of the said specified unlawful activity.

{Violation Title 18, United States Code, Section

1956(a)(1) (A) ]

-129-

COUNT XI

On or about May 26, 1988, in the Southern

District of Texas and within the jurisdiction of the

Court, Defendant FRANCISCO JAVIER MUNOZ-ROMC, also

known as JAVIER MUNOZ, also known as FRANCISCO ROMO

MUNOZ, with the intent to promote the carrying on of

specified unlawful activity, *o-wit: the sale and

distribution of controlled substances, and knowing

that property involved in a financial transaction

represented the proceeds or some form of unlawful

activity, did conduct and attempt to conduct such a

financial transaction, that is, the purchase of a

1987 Chevrolet Cavalier, serial

number 1G1JE31W3HK7127413, by paying $9,100.00 to

Discount Motors, Victoria, Texas, which purchase in

-130-

fact involved the proceeds of the said specified

unlawful activity.

[Violation Title 18, United States Code, Section

1956(a)(1)(A)]

A TRUE BILL:

FOREMAN OF THE GRAND JURY

HENRY K. ONCKEN

UNITED STATES ATTORNEY

By:

Assistant United States Attorney

-131-

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.