Petition for Writ of Certiorari — Eakes v. United States

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85-1900 . FILED

" MAY 16 {986

‘ JOSEPH F. SPANIOL,

GLERK

—-

Supreme Court, U.S,

JR,

No.

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1985

JAMES EDWARD EAKES,

Petitioner,

Vv.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARi

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

PETER W. LEWIS

216 Stratford No. 5

Houston, Texas 77006

713/224-6719

Counsel of Record

HENRY L. BURKHOLDER III

216 Stratford No. 5

Houston, Texas 77006

713/224-6719

Counsel for Petitioner

QUESTIONS PRESENTED

The Speedy Trial Act requires a

criminal defendant to be tried within

seventy days from initial appearance, but

provides a mandatory thirty-day period in

which a defendant cannot be tried without

his consent. The Act requires dismissal

ot the criminal action if the trial

proceeds after seventy days, less

excludable periods of delay. Excludable

periods of delay are provided for, inter

alia, where the trial court finds that

such delay is required by "the ends of

justice."

The questions presented are:

(1) Whether the Court of Appeals was

correct in finding that the continuance

granted from December 8, 1984 (the trial

date set for Petitioner's second

Ssuperseding indictment and also the date

of arraignment for the third superseding

indictment) to January 28, 1985, the date

set for trial on the third superseding

indictment was properly excludable delay

under the "ends of justice" exception,

since the trial court granted a

continuance under the erroneous belief

that the mandatory thirty-day period

barred the government from proceeding to

trial on December 8, 1984.

(2) Whether the Court of Appeals was

correct in ruling that an "indirect"

request for an continuance constitutes an

adequate reason for the delay under the

"ends of justice" standard, particularly

where there is no indication that the

trial judge balanced the facters

specified by the statute.

Setiticnes was convicted of

transporting cocaine on three separate

ii.

occasions. The question presented is:

(3) Whether the Court of Appeals was

correct in holding the evidence

sufficient to convict appellant of

possession of cocaine, where no person

ever saw the cocaine appellant was to

have have exercised control over.

iii.

LIST OF PARTIES

The parties to the proceedings below

were the petitioner James Edward Eakes,

and the United States of America.

iv.

TABLE OF CONTENTS

QUESTIONS PRESENTED. .

LIST OF PARTIES ° °

OPINIONS BELOW . . .

JURISDICTION ° ° .

STATUTES INVOLVED .

STATEMENT Of THE CASE °

REASONS FOR GRANTING THE WRIT

I. THE FIFTH CIRCUIT'S

FINDING THAT THE TRIAL

COURT'S ERRONEOUS

APPLICATION OF THE

MANDATORY THIRTY-DAY RULE

WAS NEVERTHELESS

EXCLUDABLE DELAY [IS IN

CONFLICT WITH THE STATUTE,

AND THE CASE LAW OF OTHER

JURISDICTIONS, WHICH

REQUIRE THE TRIAL JUDGE TO

BALANCE CERTAIN FACTORS

BEFORE GRANTING AN "ENDS

OF JUSTICE” CONTINUANCE .

II. THIS COURT NEEDS TO

GIVE GUIDANCE TO THE TRIAL

AND APPELLATE COURTS

CONCERNING THE PROCEDURE

FOR GRANTING AN "ENDS OF

JUSTICE" CONTINUANCE UNDER

THE ACT, IN LIGHT OF THE

EMPHASIS IN ROJAS-

CONTRERAS THAT THIS

PROCEDURE IS ADEQUATE TO

PROTECT A DEFENDANT FROM

UNFAIR SURPRISE WITH A

SUPERSEDING INDICTMENT °

III. THE COURT OF APPEALS

RULING THAT PETITIONER'S

DECISION NOT TO WAIVE THE

THIRTY-DAY PERIOD WHICH

THE TRIAL COURT HAD

ASSUMED BARRED

PETITIONER'S TRIAL AS

CONSTITUTING AN INDIRECT

REQUEST FOR A CONTINUANCE

IS CLEARLY ERRONEOUS,

SINCE A DEFENDANT IS NOT

REQUIRED TO OBJECT TO

DELAY OR OTHERWISE DEMAND

A SPEEDY TRIAL UNDER THE

ACT . . . ° °

IV. THERE IS A CONFLICT IN

THE FEDERAL COURTS

CONCERNING THE TYPE OF

CIRCUMSTANTIAL EVIDENCE

NEEDED TO SHOW THE CHEMICAL

NATURE OF A CONTROLLED

SUBSTANCE IN LIEU OF A

CHEMICAL ANALYSIS OF THE

SAME ° ° . .

CONCLUSION ° ° .

APPENDIX . ° ° °

App 1

TABLE OF AUTHORITIES

In re Winship,

397 U.S. 358, 90 S.Ct. 1068,

25 L.Ed.2d 368 (1970) . : ° 18

Jackson v. Virginia,

403 U.S. 337 (1979) ° ° ° 19

United States v. Brooks,

697 F.2d 512 (3rd Cir. 1982),

cert. denied,

460 U.S. 1071 (1982) . ° ° 13

United States v. Didier,

542 F.2d 1182 (2nd Cir. 1976) . 18

United States v. Haro-Espinosa,

619 F.2d 789 (9th Cir. 1979) ° 19, 27

United States v. Harrell,

737 F.2d 971 (11th Cir. 1984) ° 20

United States v. Hiil,

589 F.2d 1344 (8th Cir.),

cert. denied,

442 U.S. 919 (1979) ° ° ° 6, 20

United States v. Lawson,

507 F.2d 433 (7th Cir. 1974),

cert. denied,

420 U.S. 1004 (1975) . ° . 20

United States v. Luschen,

614 F.2d 1164 (8th Cir. 1979) . 21

United States v. Murray,

753 F.2d. 612 (7th Cir. 1985) . 20

Vike

United States v. New Buffalo

Amusement Corp.,

600 F.2d 368 (2nd Cir. 1979)

United States v. Quesada,

512 F.2d 1043 (5th Cir.),

cert. denied,

423 U.S. 946 (1975) ° °

United States v. Rodriguez-Arevalo,

734 F.2d 612 (11th Cir. 1984)

United States v. Rojas-Contreras,

U.S. , 106 S.Ct. 555,

SS L.84@,2¢ 537 (1985) .

United States v. Scott,

725 F.2d 43 (4th Cir. 1984)

United States v. Tunnessen,

763 F.2d 74 (2nd Cir. 1985)

United States v. Umentum,

547 F.2d 987, (7th Cir. 1976),

cert. denied,

430 U.S. 983 (1977) . °

United States v. Wentland,

pee £e4G@ 1022 (Sth Cir. 1978),

cert. denied,

O27 U.S. 1133 (1979). .

Waid «

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

JAMES EDWARD EAKES,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner James Edward Eakes

respectfully prays that a writ of

certiorari issue to review the judgment

and opinion of the United States Court of

Appeals for the Fifth Circuit, entered in

the above-entitled proceeding on February

19, 1985.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Fifth Circuit is reported at 783

F.2d 499, and is reprinted in the

appendix hereto.

JURISDICTION

Petitioner was indicted for conspiracy

and possession of cocaine with intent to

distribute. 18 U.S.C. § 841. On May 1,

1985, appellant received concurrent

twelve year sentences on each count.

On February 19, 1986 the Court of

Appeals affirmed petitioner's conviction.

On March 17, 1986, petitioner's Motion

For Rehearing was denied. A copy of the

court's opinion, and order denying a

rehearing, are attached to the appendix.

The jurisdiction of this Court to

review the judgment of the Fifth Circuit

is involked under 28 U.S.C. § 12543(1)

and Rule 20.1.

STATUTES INVOLVED

18 U.S.C. § 3161(c)(2)

18 U.S.C. § 3161(h) (8) (A)

eee

STATEMENT OF THE CASE

Petitioner was originally charged in

the Eastern District of Louisiana, with

three separate indictments with

conspiracy and the substantive offense of

possession with intent to distribute

cocaine, resulting out of three separate

sisenas cocaine shipments into the United

States in July-October, 1982.

On November 15, 1984, the trial court

determined that 23 days remained under

the Speedy Trial Act (the Act). This

calculation was not disputed in the court

below. On November 29, 1984 a superseding

indictment was filed. This indictment

joined each of petitioner's three

separate alleged drug shipments into the

Single indictment, and joined petitioner

with Billy Joe Nichols.

= eae

Petitioner was scheduled to go to

trial on the original indictments on

December 6, 1984. On this date,

petitioner was arraigned on the

superseding indictment. The trial court

found that the mandatory thirty day

period under the Act barred the

government from proceeding under the

superseding indictments at that time.

After consulting with counsel, the trial

court rescheduled the trial until January

28, 1985.

On January 22, 1985 petitioner filed a

motion to dismiss pursuant to the Act.

The trial court denied the motion at a

pretrial hearing on the date of trial.

The Court of Appeals found from the

evidence at trial that petitioner and

Robert Ross were hired to transport

cocaine from Columbia into the United

a i - ;

States. Petitioner and Ross in turn hired

Billy Joe Nichols, who flew shipments in

July, 1982, and August, 1982. A third

shipment was made on October 24, 1982.

No part of the "cocaine" petitioner

allegedly shipped into the United States

was ever analyzed by a chemist.

Furthermore, there was sparse testimony

concerning the physical characteristics

of the substances being transported.

Claude Griffin testified that he handled

"opaque packages." Fred Compton commented

that the substance in the duffle bags

"could have been anything."

The Court of Appeals relied on United

states v. Scott, 725 F.2d 43 (4th Cir.

1984) and United States v. Hill, 589 F.2d

1344 (8th Cir.), cert. denied, 442 U.S.

919 (1979). 783 F.2d at 504. In each of

those cases the evidence was found

sufficient to support a finding beyond a

reasonable doubt that the defendant had

possessed the named contraband drug,

without the drug every being seized and

tested. In each case, testimony was given

concerning the physical characteristics

and narcotic effect of the possessed

substance by eyewitnesses familiar with

the narcotic in question.

The only testimony from any witness

showing that any substance. petitioner

handled was cocaine came from William

White. White told the jury that he had

handied a shipment on October 24, 1982

involving packages which he had opened,

and knew contained cocaine. However,

White also told the jury that the

petitioner was not associated with that

shipment.

—————————————

; i

The Court of Appeals found the

evidence sufficient to show that the

substances being transported were in fact

cocaine. 783 F.2d at 506. The Court

emphasized the fact that (1) many of the

co-conspirators referred to the substance

as cocaine, (2) the substances were

packaged like cocaine, (3) the

transactions were carried out in secret,

and (4) the co-conspirators received

substantial sums of money for their

transportation work,. Id. The Court

concluded that, "{iJ]n light of this

evidence, here, as in Hill case,

[petitioner's] claim that no witness

could verify the contents of the various

loads as cocaine does not defeat the

reasonable inference of the evidence

presented that the substance imported in

each load was cocaine." Id.

isis

The jury found petitioner guilty of

conspiracy and each of the three

substantive counts of possession with

intent to distribute cocaine. The trial

court assessed concurrent twelve year

sentences, and a special parole term,

On February 19, 1986 the Court of

Appeals for the Fifth Circuit affirmed

petitioner's conviction. On March 17,

1986, the Court overruled petitioner's

motion for rehearing.

REASONS FOR GRANTING THE WRIT

THE FIFTH CIRCUIT'S FINDING THAT THE

TRIAL COURT'S ERRONEOUS APPLICATION OF

THE MANDATORY THIRTY-DAY RULE WAS

NEVERTHELESS EXCLUDABLE DELAY IS IN

CONFLICT WITH THE STATUTE, AND THE

CASE LAWOF OTHER JURISDICTIONS, WHICH

REQUIRES THE TRIAL JUDGE TO BALANCE

CERTAIN FACTORS BEFORE GRANTING AN "ENDS

OF JUSTICE” CONTINUANCE,

It is apparent from both the record

and the Court of Appeal's opinion that

the sole reason that the trial court

continued the case on December 6, 1984,is

because of the court's incorrect

application of the mandatory 30 day rule.

The decision is in direct conflict with

the very terms of the statute, and

creates a conflict with other

jurisdictions correctly interpreting the

statute.

At the time of petitioner's

arraignment, there was a conflict in the

ill

federal courts as to whether the

mandatory thirty-day period applied to

superseding indictments. See United

States v. Rojas-Contreras, _ U.S. ’

106 S.Ct. 555, N1, 88 L.Ed.2d 537 (1985).

The Court of Appeals in petitioner's case

correctly found that, in light of this

Court’s decision in Rojas-Contreras, the

trial court was in error in finding a new

thirty-day mandatory period had to

commence on the filing of the superseding

indictment.

The Court of Appeals fell into error

by finding that the trial court's

erroneous construction of the statute

could also constitute an adequate “ends

of justice” continuance. 8.8.Cc. §

3161 provides, in part:

"(h): The following periods of

delay shall be excluded... iin

computing the time within which the

trial of any such offense must

commence: (8)(A) Any period of time

delay resulting from a continuance

granted by any judge on his own

motion .. . if the judge granted

such continuance on the basis of his

findings that the ends of justice

served by taking such action

outweigh the best interest of the

public and the defendant in a speedy

trial. . . (B) The factors, among

others, which a judge shall consider

in determining whether to grant a

continuance under subparagraph (A)

of this paragraph in any case are as

follewss . «+s

The factors are set out in the appendix.

They include, inter alia, whether a

miscarriage of justice might occur in the

aosence of a continuance, and the

relative complexity of the case. There is

no indication from the record, or the

Court of Appeal's opinion, that the trial

judge engagec in the necessary balancing

of the proper determination. Such a

determination was mandatory under the

statute.

The record in oetitioner's case is not

clear that the trial court engaged in the

oroper statutory balancing of factors.

Other circuits have held that where the

record is not clear that the trial judge

engaged in the oprooer balancing of

factors, the oeriod of delay resulting

from the continuance is not properly

excludable under the “ends of justice"

provision. United States v. Tunnessen,

763 F.2d 74 (2nd Cir. 1985); United

States v. New Buffalo Amusement Corp.,

600 F.2d 368 (2nd Cir. 1979); United

states v. Brooks, 697 F.2d 512 (3rd Cir.

1982), cert. denied, 460 U.S. 1071

(1982). The Court's opinion is even in

conflict with an earlier Fifth Circuit

case, United States v. Wentland, 582 F.2d

1022 (5th Cir. 1978), cert. denied, 439

J.S. 1133 (1979).

The Court of Aooeals avoided the issue

of whether an "ends of justice"

determination should have deen made by

the trial judge, voy finding that the

trial court granted a continuance for t

convenience of the trial counsel. 733

F.2d at 503. This continuance was granted

by the court on its own motion, and not

at the request of counsel. Furthermore,

this continuance was granted only after

the trial court had ruled that the 30 day

mandatory oeriod was triggered by the

Fact tnat the Government wanted to

oroceed on the suoerseding indictment.

The continuance ordered by the trial

court on December 6, 1982 was clearly the

result of the trial court's erroneous

anpolication of the mandatory thirty-day

rule, and not the result of petitioner's

request, indirect or otherwise. At the

time the continuance was granted, there

were only 23 days at most left on

petitioner's speedy trial time.

oetitioner's trial on January 28, 1985

was therefore well after the time limits

orovided for in the Act.

II.

THIS COURT NEEDS TO GIVE GUIDANCE TO THE

TRIAL AND APPELLATE COURTS CONCERNING THE

PROCEDURE FOR GRANTING AN “ENDS OF

JUSTICE” CONTINUANCE UNDER THE ACT, IN

LIGHT OF THE EMPHASIS IN ROJAS-CONTRERAS

THAT THIS PROCEDURE IS ADEQUATE TO

PROTECT A DEFENDANT FROM UNFAIR SURPRISE

WITH A SUPERSEDING INDICTMENT,

In United States v. Rojas-Contreras,

...., Vee _._ _ 106 $.Ce. 355, SS L.Ed.24

537 (1985) this Court established that a

superseding indictment did not trigger a

new mandatory 30 day period under 18

U.S.C. 3161(c)(2). This Court further

found that any prejudice suffered by a

defendant caused by a superseding

indictment filed too close to trial could

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be handled by the trial court granting an

"ends of justice" continuance under 18

U.S.C. 3161 (h)(8)(A).

The decision by the Court of Appeals

for the Fifth Circuit in petitioner's

case leaves in doubt the question of how

close the appellate scrutiny should be

concerning the trial judge's decision to

grant, or not to grant, a "ends: of

justice" continuance. Petitioner

encourages this Court to grant this

petition in order to define the limits,

and give guidance to the lower courts,

concerning how the trial judge should

grant "ends of justice" continuances

after a superseding indictment has been

filed.

Itt.

THE COURT OP APPEALS RULING THAT

PETITIONER'S DECISION NOT TO WAIVE THE

THIRTY-DAY PERIOD WHICH THE TRIAL COURT

HAD ASSUMED BARRED PETITIONER'S TRIAL AS

CONSTITUTING AN INDIRECT REQUEST FOR A

CONTINUANCE IS CLEARLY ERRONEOUS, SINCE A

DEFENDANT IS NOT REQUIRED TO OBJECT TO

DELAY OR OTHERWISE DEMAND A SPEEDY TRIAL

UNDER THE ACT,

The Court of Appeals found that the

petitioner's decision not to execute a

waiver of the 30 day period was an

indirect request for a continuance, 783

F.2d at 504. This assertion is incorrect

both factually and legally.

The record is clear that petitioner

never requested the continuance, nor did

he or counsel at any timeindicate that

they were not prepared for trial. The

record is silent as to any assertion by

petitioner or his counsel to the effect

that they were not ready for trial at the

time of the arraignment on the

superseding indictment.

The Court of Appeals assumed that by

petitioner not making the affirmative act

of waiving the 30 day period (which it is

now established he had no right to have),

the petitioner had to have been asking

for a continuance. However, this Court

noted in Rojas-Contreras, U.S. P

106 S.Ct. 555, N1, 88 L.Ed.2d 537 that a

conflict existed among the circuits

concerning whether the 30 day mandatory

period applied in petitioner's

situtation. It cannot be inferred from

petitioner's conduct that he was

exercising the "indirect" method of

requesting a continuance. At the most, it

can only be inferred that petitioner did

not want to waive any possible procedural

error under the strict rules of the Act

if Rojas-Contreras had been decided

differently by this Court.

The Court of Appeals further reasoned

that

"(Petitioner] did not object to

the delay at that time. Now, in an

effort to turn the benefit he

accepted into an error that would

undo his conviction, ne comnolains

that the grant and his acceptance of

extra preparation tine violated his

rights." 783 F.2d at 503.

It is not clear from the trial court as

to what benefit petitioner received. The

record is silent as to any announcement

by petitioner or his counsel to Ene

effect that they were not ready for

trial. Furthermore, there is no

indication in the record that they had

sougnt a continuance. The record, as it

stands, shows that petitioner was ready

for trial on December 6, 1934,

The Court of Appeals fell into error

by its implicit assumption that

petitioner was required to object to the

trial court's continuance ordered on

December 6, 1984. The Act is not

structured so that a defendant is

required to object to not being brought

to trial soon enough. Under the Act, the

failure to object goes only to determine

whether the statutory remedy of dismissal

should be with or without prejudice. See

United States v. Didier, 542 F.2d 1182

(2nd Cir. 1976).

Iv.

THERE IS A CONFLICT IN THE FEDERAL COURTS

CONCERNING THE TYPE OF CIRCUMSTANTIAL

EVIDENCE NEEDED TO SHOW THE CHEMICAL

NATURE OF A CONTROLLED SUBSTANCE IN LIEU

OF A CHEMICAL ANALYSIS OF THE SAME.

This Court has established that as a

matter of constitutional law, the

government must prove each element of the

offense beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 90 S.Ct. 1068, 25

L.Ed.2d 368 (1970). In reviewing the

sufficiency of the evidence, the inquiry

is whether a rational trier of fact could

find each element of the offense beyonda

reasonable doubt. Jackson v. Virginia,

403 U.S. 337 (1979).

Petitioner was convicted of possession

with intent to distribute cocaine. 18

U.S.C. § 851. It was necessary for the

government to show beyond a reasonable

doubt that the substance petitioner

possessed was in fact cocaine. United

States v. Quesada, 512 F.2d 1043 (5th

Cir.), cert. denied, 423 U.S. 946 (1975).

The most direct method of proof that

an individual possessed a controlled

substance would be for the government to

seize the substance and submit it to

chemical analysis. See United States v.

Haro-Espinosa, 619 F.2d 789 (9th Cir.

1979)(chemical tests sufficient to

determine identity of substance). It

appears, however failure or inability to

seize the substance allegedly possessed

unlawfully is becoming more common. In

petitioner's case, federal agents either

purposefully failed to, or were unable to

seize all or part of any of the three

shipments of cocaine petitioner was

convicted of transporting.

All the federal circuits agree that

the character of the substance alleged

possessed may be shown by circumstantial

rather than direct evidence. However, the

circuits disagree on what level of proof

is required. Some circuits will support a

conviction based solely on the

circumstances surrounding the possession,

without any witness having observed the

actual physical characteristics of the

substance. See United States v. Hill, 589

F.2d 1344 (8th Cir.), cert. denied, 442

U.S. 919 (1979); United States v. Murray,

753 F.2d. 612 (7th Cir. 1985). Other

jurisdictions have found the evidence

sufficient only where there was some

eyewitness observation asto thephysical

characteristics, and a showing that the

witness was familiar with the controlled

substance. United States v. Lawson, 507

F.2d 433 (7th Cir. 1974), cert. denied,

420 U.S. 1004 (1975); United States v.

Harrell, 737 F.2d 971 (11th Cir. 1984);

United States v. Rodriguez-Arevalo, 734

F.2d 612 (11th Cir. 1984); United States

ve. Scott, 725 F.2d 43 (4th Cir. 1984).

The Court of Appeals sustained

petitioner's conviction without a

chemical analysis conducted on the

alleged cocaine petitioner transported.

The Court based its opinion in part on

the testimony of Bob Folse. The Court

found from the evidence that Folse had

agreed to accept one kilo of cocaine in

exchange for allowing petitioner's

aircraft to use his property. 783 F.2d at

506. The Court further found, however,

that Folse had never used or sold cocaine

before.

Petitioner was convicted of possession

of cocaine without a chemical analysis of

the alleged cocaine. The danger of a

false conviction is particularly great,

given that some forms of cocaine can be

lawfully possessed. See United States v.

Haro-Espinosa, 619 F.2d 789 (9th Cir.

1979); United States v. Luschen, 614 F.2d

1164 (8th Cir. 1979); United States v.

Umentum, 547 F.2d 987, (7th Cir. 1976),

cert. denied, 430 U.S. 983 (1977).

Likewise, the danger that the substance

posssessed was in fact not a controlled

' substance lurks in every conviction based

on circumstantial evidence.

This Court should grant this writ in

order to resolve the conflict among the

circuits concerning how much

circumstantial evidence is required

before a conviction on possession of a

controlled substance can be had without

a chemical analysis of the same.

CONCLUSION

For the various reasons noted above,

this petition for certiorari should be

granted. Under any of the three issues

presented to this Court, this Court

should reverse petitioner's conviction

after a brief and a full hearing on the

issues. In the alternative, petitioner

prays this Court to issue a summary

Opinion finding the Court of Appeal's

ruling that the trial court's invocation

of the mandatory thirty-day rule on

December 8, 1984 was clearly erroneous,

and remand to the Court of Appeals for

the Fifth Circuit to reconsider

petitioner's arguments concerning the

statutory speedy trial error committed in

his case.

Respectfully submitted,

PETER W. LEWIS

216 Stratford No. 5

Houston, Texas 77006

713/224-6719

Counsel of Record

HENRY L. BURKHOLDER III

216 Stratford No. 5

Houston, Texas 77006

713/224-6719

Counsel for Petitioner

APPENDIX

STATUTES INVCLVED

18 U.S.C. § 3161(c)(2): Unless the

defendant consents in writing to the

contrary, the triaszj shall not commence

less than thirty days from the date on

which the defendant first appears through

counsel or expressly waives counsel and

elects to proceed pro se.

18 U.S.C. § 3161(h): The following

periods of delay shall be excluded in

computing the time within which an

information or an indictment must be

filed, or in computing the time within

which the trial of any such offense must

commence:

(8)(A) Any period of time delay

resulting from a continuance granted by

any judge on his own motion or at the

request of the defendant or his counsel

or at the request of the attorney for the

Appendix 1

Government, if the judge granted such

continuance on the basis of his findings

that the ends of justice served by taking

such action outweigh the best interest of

the public and the defendant in a speedy

trial. No such period of delay resulting

from continuance granted in accordance

with this paragraph snall be excludable

under this subsection unless the court

sets forth, in the record of the case,

either orally or in writing, its reasons

for finding that the ends of justice

served by the granting of such

continuance outweigh the best interests

of the public and the defendant ina

speedy trial.

(B) The factors, among others, which a

judge shall consider in determining

whether to grant a continuance under

subparagraph (A) of this paragraph in any

Appendix 2

‘y

hn WES

fiat, Gaede

case are as follows:

(i) Whether the failure to grant such

a continuance would be likely to make a

continuation of such a proceeding

impossible, or result in a miscarriage of

justice.

(ii) Whether the case is so unusual or

so complex, due to to the number of

defendants, the nature of the

orosecution, or the existence of novel

questions of fact or law, that it is

unreasonable to expect adequate

oreoparation for oretrial proceedings or

for the trial itself within the time

limits established by this section.

(iii) Whether, ina case which arrest

precedes indictment, delay in the filing

of the indictment is caused because the

arrest occurs at a time such that it is

unreasonable to expect return and filing

Appendix 3

Be a EL ie a:

LPR KE PF BSG

of tha indictment within the period

specified in section 3161(b), or because

the facts upon which the grand jury must

base its determination are unusual or

complex.

(iv) Whether the failure to grant such

a continuance in a case which, taken as a

whole, is not so unusual or so complex as

to fall within clause (ii), would deny

the defendant reasonable time to obtain

counsel, would unreasonably deny the

defendant or the Government continuity of

counsel, or would deny counsel for the

defendant or the attorney for the

Government the reasonable time necessary

for effective preparation, taking into

account the exercise of due diligence.

Appendix 4

IN THE UNITED STATED COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 85-3259

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

JAMES EDWARD EAKES,

Defendant~Appellant.

Appeal from the United States

District Court for the

Eastern District of Louisiana

Chief Judge, TATE, and DAVIS,

Circuit Judges.

CLARK, Chief Judge:

Appellant James Eakes challenges his

convictions for conspiracy to import

cocaine, conspiracy to possess with

Appendix 5

intent to distribute ining. and the

corresponding substantive crimes. We

affirm on all issues except Eakes'

contention that the judgment erroneously

recites convictions for two charges that

were not in the indictment. We remand on

this issue with directions for the entry

of a new judgment that corresponds with

the indictment and convictions.

Claude Griffin and Ferando Lopez hired

James Eakes and Robert Ross to transport

cocaine from Columbia into the United

States. Eakes and Ross hired Billy Joe

Nichols to pilot the aircraft

transporting the cocaine. Nichols piloted

the plane that brought shipments of

cocaine into the United States in July,

1982, and in August, 1982.

Griffin, Eakes, and Ross had a falling

Appendix 6

out over money after the second shipment.

Griffin made independent arrangements

with Nichols for the transportation of a

third innent in September, 1982.

Nichols was not able to transport this

shipment because his aircraft developed

mechanical problems. Griffin then made

arrangements with Eakes and Ross for

transportation of the third load.

Eakes and Ross contrived and executed

a complex plan to deceive the other co-

conspirators, and to steal and distribute

the third load of cocaine themselves.

Griffin and Lopez made plans fora fourth

shipment, which they never attempted.

Nichols was convicted of conspiracy to

import cocaine and to possess with intent

to distribute cocaine on the basis of the

unattempted plan to smuggle a fourth load

of cocaine into the United States.

Appendix 7

Nichols was then charged with both

conspiracy and the corresponding

substantive crimes in three separate

indictments. The three cocaine shipments

that actually reached the United States

formed the basis for the three separate

indictments. Likewise, Eakes was charged

with conspiracy and with the

corresponding substantive crimes in three

separate indictments based on the three

shipments that entered the United States.

On appeal of the denial of Nichols'

motion to dismiss his indictments as

violative of the double jeopardy clause,

a panel of this court held that Nichols

had “participated in a single conspiracy

to commit multiple violations of the drug

control law." United States v. Nichols,

741 P.2da 767, 772 (Sth Cir. 1984), cert.

denied, 105 S.Ct. 1186 (1985). The

Appendix 8

district court then granted Nichols’

motion to consolidate the three

indictments.

The resulting superseding indictment

was filed on November 29, 1984. It named

Nichols and Eakes as co-deferdants. It

charged Eakes with one count of

conspiracy to import cocaine, one count

of conspiracy to possess with intent to

distribute cocaine, three counts of

importation of cocaine, and three counts

of possession with intent to distribute

cocaine. The indictment charged Nichols

with the six counts that corresponded to

the substantive crimes.

Eakes and Nichols were arraigned on

the superseding indictment on December 6,

1984, the same day for which their trial

was originally set. The presiding judge

interpreted the Speedy Trial Act (the

Appendix 9

Act) to require a thirty-day continuance

from the date the defendants' arraignment

on the superseding indictment. Both Eakes

and Nichols expressly refused to waive

this right. After conferring with all

attorneys on their upcoming schedules,

the judge reset the trial for January 28,

1985. On January 22, 1985, Eakes filed a

motion to dismiss the superseding

indictment for failure to grant a speedy

trial. The district court denied that

motion at the pretrial hearing on the

date of trial.

At trial, Eakes testified in his own

defense. He claimed that he acted in the

smuggling operation as a government

informant. A jury convicted him on all

eight counts of the indictment. He

received a tweleve-year sentence on each

count. The sentences were to run

Appendix 10

concurrently.

On appeal, Eakes makes six arguments:

(1) the trial court's continuance of the

trial until January 28, 1985, violated

his statutory right to a speedy trial;

(2) the government failed to prove beyond

a reasonable doubt that the substance

Eakes and Nichols imported was cocaine;

(3) the trial court's refusal to admit

into evidence a taped telephone

conversation between Ross and Drug

Enforcement Administration (DEA) agent

Howard Whitworth constituted reversible

error; (4) the trial court's refusal to

admit a tape of a conversation between

Eakes and DEA agent Michael Hurley

constituted reversible error; (5) the

trial court's admission of photographs of

cocaine and of an automobile seized by

the police was reve.sible error; and (6)

Appendix 11

the judgment erroneously recites

convictions for aiding and abetting, and

for conspiracy to distribute cocaine.

Eakes asserts that the delay of his

trial until January 28, 1985, violated

his rights under the Speedy Trial Act.

That Act provides that a defendant's

trial must begin “within seventy days

from the filing date (and making public)

of the information or indictment, or from

the date the defendant has appeared

before a judical officer of the court in

which such charge is pending, whichever

date last occurs." 18 U.S.C. §3161(c)(1).

"Unless the defendant consents in writing

to the contrary, the trial shall not

commence less than thirty days from the

date on which the defendant first appears

through counsel or expressly waives

Appendix 12

}” ae * “ee Se ? NR ea re

counsel and elects to proceed pro se." 138

U.S.C. § 3161{c)(2). The Act also defines

certain "periods of delay" which are not

included "in computing the time within

which the trial of any such offense must

commence." See 18 U.S.C. § 3161(h).

Relying on the language of the Act and

its legislative history, the United

States Supreme Curt recently held that

the Act does not mandate the commencement

of a new thirty-day trial preparation

period upon a defendant's arraignment on

a superseding indictment. United States

v. Rojas-Contreras, 54 U.S.L.W. 4061,

4061 (U.S. Dec. 17, 1985), reversing 730

F.2d 771 (9th Cir. 1984). Due to a

typographical error, the original

indictment against that defendant

mistated the date of a previous

conviction on which the enhancement of

Appendix 13

the charged offense was based. The

superseding indictment corrected that

reference. The defendant claimed

entitlement to a thirty-day continuance

of his trial under § 3161(c)(2) of the

Speedy Trial Act. Id. at 4061-62.

In rejecting this claim, the Supreme

Court stated that "a defendant must [not]

always be compelled to go to trial less

than 30 days after the filing of such an

indictment." Id. at 4062. The district

judge still has a broad discretion to

grant a continuance if "the ends of

justice served by taking such action

outweigh the best interest of the public

and the defendant in a speedy trial." Id

(quoting 18 U.S.C. § 3161(h)(8)). The

"ends of justice" provision authorizes a

continuance in cases where a superseding

indictment prejudices a defendant. Id. at

Appendix 14

4062-63.

Eakes claims that the trial court

erroneously continued his trial for

1 That

thirty days on its own motion.

additional thirty days was not a properly

excludable period under the Act. As a

result, he says, the seventy days during

which the Act mandated the trial must

commence expired before the trial took

place.

Eakes also makes the following two

alternative arguments. First: On November

15, 1984, the trial court correctly

determined that the twenty-three days

remained in his initial thirty-day

1 If the trial court grants a defendant's

motion to dismiss an indictment, and the

government then reindicts the defendant

on the same basic charges, the thirty-day

preparation begins anew with regard to

the new indictment. 18 U.S.C. §

3161(da)(1).

prepartion period. Between that date and

Appendix 15

Eakes' arraignment on the superseding

indictment on December 6, 1984, six

nonexcludable dave elapsed. Even if the

Act required a new excludable thirty-day

waiting period upon his arraignment on

the superseding indictment, that new

period should have run concurrently with

the days remained in that first

preparation period. The second period,

and the time during which Eakes' trial

had to commence, expired on January 5,

1985.

Second: Even if the additional thirty-

day continuance was proper, excludable,

and not required to run concurrently with

the original preparation period, the

trial court miscalculated the number of

days remaining in the first period. The

court allowed for twenty-three additional

days when only seventeen remained. The

Appendix 16

time for commencement of Eakes' trial

thus expired on January 22, 1985.

None of Eakes' arguments are tenable

under the facts and circumstances

presented here. At the arraignment on the

superseding indictment, the presiding

judge noted that the superseding

indictment represented a “housekeeping

maneuver" which did not contain any new

substantive charges against Nichols and

Eakes. He stated that he interpreted the

Act to entitle the defendants to a

thirty-day waiting period between the

time of their first appearance on the

superseding indictment and the

commencement of trial, absent their

waiver of this right. He then asked

Eakes' attorney if Eakes was prepared to

waive this right and proceed with th

trial that morning as scheduled. Eakes's

Appendix 17

attorney answered negatively. Nichols'

attorney also responded negatively to the

same question. In light of these

reponses, the judge stated that since

both defendants wished to exercise their

rights under the Act, continuing the

trial would serve the ends of justice.

Following a discussion between the judge

and attorneys concerning their respective

schedules, the judge reset the trial for

January 28, 1985. Eakes' attorney

expressly agreed to that date.

In Rojas-Contreras, and in all but one

of the cases cited by Eakes in support of

his main argument, it was the defendant

who requested the thiry-day continuance

after the return of a superseding

indictment. The alleged error the

district court was the court's refusal

togrant that request. See United States

Appendix 18

v. Adu, 770 F.2d 1511, 1513-14 (9th Cir.

1985)(nmew thirty-day period not required

where new indictment merely corrected a

clerical error and did not change alleged

facts or charges); United States v.

Hawkins, 765 F.2d 1482, 1487 (11th Cir.

1985)(trial court has discretion to

balance interests of government and

defendant and grant or deny a continuance

for trial preparation on a superseding

indictment); United States v. Rush, 738

F.2d 497, 510-11(1st Cir.)(new thirty-day

period not required where superseding

indictment named additional defendant

even though original indictment was still

outstanding), cert. denied, 105 S.Ct.

1355 (1985); United States v. Horton, 676

P.2da 117165, 1170 (7th Cir. 19862) (new

thirty-day period not required where new

indictment charged same offense but

Appendix 19

reduced the number of counts), cert.

denied, 459 U.S. 1201 (1983); United

States v. Todisco, 667 F.2d 255, 260 (2nd

Cir. 1981)(new thirty-day period not

required when charges in the superseding

indictment were substantially the same as

those in the original indictment, and

where substantial discovery had taken

place); see also United States v. Harris,

724 F.2d 1452, 1454-55 (9th Cir.

1984)(new thirty-day period required by

because “section 3161(c)(2) .. .

guarantee[s] that the defendant is not

forced to trial less than thirty days

from the date on which the defendant

first appears on the indictment on which

the defendant ultimately goes to

trial")(emphasis in original).

In United States v. Dennis, the Eighth

Circuit held that the trial court's grant

Appendix 20

of the government's motion for a

continuance after the trial court

dismissed a principle count of the

indictment was not an abuse of discretion

under the ends of justice provision ora

violation of the appellant's

constitutional right to a speedy trial.

625 F.2d 782, 793-94 (8th Cir. 1980).

Here, although the judge

misinterpreted the Act, he granted the

thirty-day delay because Eakes expressly

refused to waive assumed right to it.

Eakes did not object to the delay at that

time. Now, in an effort to turn the

benefit he accepted into an error that

would undo his conviction, he complains

that the grant and his acceptance of

extra preparation time violated his

rights. The Speedy Trial Act entitles

criminal defendants to adequate time for

Appendix 21

preparing a defense, but that right may

not be used as a two-edged sword in this

fashion. Cf. Rush, 738 F.2d at 508

(defendants may not "deliberately obtain

an (h)(8) continuance for their own

convenience in the face of speedy trial

concerns articulated by the trial court

and then later claim that the court

abused its discretion in granting the

requestedcontinuance")(citations

omitted). |

Rojas-Contreras and the facts of this

case also refute Eakes' alternative

arguments. A district judge has the

discretion to continue a trial under the

ends of justice provision even though the

Act does not eequire an additional

thirty-days after arraignment on a

superseding indictment. Rojas-Contreras,

54 U.S.L.W. 4062-63. A judge's finding

Appendix 22

that a continuance would best serve the

ends of justice is a factual

determination subject to review under the

clearly erroneous standard. See United

States v. Nance, 666 F.2d 353, 356 (9th

Cir.)("we do not disturb factual findings

underlying the district court's

determination unless they are clearly

erroneous"), cert denied, 456 U.S. 918

(1982).

The judge here continued the trial |

because both Eakes and Nichols expressly

refused to waive any rights they had

under the Act, and because their

arraignment on the superseding indictment

took place on the same day for which the

trial was scheduled. The defendants'

refusal to waive their assumed right to

additional time indicated to the judge

that the defense was not ready for trial.

Appendix 23

In granting the continuance, the judge

stated that by doing so, "the ends of

justice will be best served." The judge

then discussed a date for the trial with

all four defense attorneys. The judge and

the attorneys agreed on January 28, 1985,

as the preferable date for everyone.

Eakes' attorney expressed satisfaction

with that date.

In light of these facts, the judge's

decision to continue the trial was not

clearly erroneous, and any error he made

in calculating the appropriate number of

additional days did not prejudice Eakes.

The record discloses that he continued

the trial until January 28th for the

convenience of counsel on both sides, not

as Eakes contends, in order to include an

erroneously calculated additional twenty-

three days. In fact, the trial judge

Appendix 24

first suggested a trial date of January

7, 1985. The trial court's conclusion

that a continuance would best serve the

ends of justice under these circumstances

was not clearly erroneous, nor was his

election of a trial date violative of

Eakes' statutory right to a speedy trial.

Eakes also implies, however, that his

conviction cannot stand because the

district judge did not comply with the

Act's requirements for the grant of an

ends of justice continuance, The Act

provides that the court must "set[]

forth, in the record of the case, either

orally or in writing, its reasons for

finding that the ends of justice served

by the granting of such continuance

outweigh the best interests of the public

and the defendant in a speedy trial." 18

U.S.C. § 3161(h)(8)(B), (C). Eakes

Appendix 25

suggests that the district judge failed

to sufficiently state his reasons for

granting an ends of justice continuance.

Contrary to Eakes' suggestion, the

basis for the judge's grant of an ends of

justice continuance is apparent from the

record. The judge granted the continuance

"given the fact that both defendants. .

under 3161(c)(2) and the fact that both

men were only arraigned today on ‘ma

counts contained in th superseding

indictment." The clear meaning of the

exchange between the judge and the

defense attorneys was that the judge was

ready for trial that day and wanted to

know whether the defense was also ready

or whether it needed more time. The

negative reply of Eakes' attorney when

the judge asked for a waiver of rights

Appendix 26

under the Act indicated that the defense

was not ready for trial and did need more -

time.- |

We decline to apply a hypertechnical

construction to the language of the Act

in this case where the judge clearly

granted the continuance for the benefit

of and at the indirect request of the

defendant who now compiains of that

grant. Cf. United States v. Richmond, 735

F.2d 208-211-12 (6th Cir. 1984)(two-week

postponement of trial after jury

selection because defense counsel was not

ready did not constitute attempt by trial

judge to evade Speedy Trial Act

requirements); United States v. Nance,

666 F.2d at 357-58 (portion of

continuance necessitated by defense

counsel's scheduling conflicts was

excludable under ends of justice

Appendix 27

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7 44

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Mee ~ é a af

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;

provision). The judge used the ends of

justice provision in a reasonable manner

under the circumstances. While the better

practice would have been to articulate

specific reasons, the record adequately

defines the basis on which the court

acted. Eakes has wholly failed to

demonstrate the continuance until January

28, 1985, constituted reversible error.

Iil

Eakes also urges reversal on the

ground that the government failed to

prove beyond a reasonable doubt that the

substance he imported was cocaine. In

response to a charge that the evidence is

insufficient to support the judgment, we

consider the evidence in the light most

favorable to the government. "We will

reverse only if a reasonably minded jury

must necessarily have entertained a

Appendix 28

reasonable doubt of a defendant's guilt."

United States v. Galan, 693 F.2d 417, 419

(5th Cir. 1982)(quoting United States v.

Vergara, 687 F.2d 57, 60 (5th Cir.

1982)).

Eakes concedes that circumstantial

evidence may establish the identity of a

drug in a prosecution for violation of

the narcotics laws, as long as it does so

beyond a reasonable doubt. See United

States v. Quesada, 512 F.2d 1043, 1045

(Sth Cir.), cert.denied, 423 U.S. 946

(1975)(citations omitted). He claims,

however, that the circumstantial evidence

: the government offered to prove the

substance involved in this case was

cocaine was insufficient. He relies on

several cases in which courts held that

particular circumstantial evidence not

offered here was sufficient for an

Appendix 29

we OF eee ep 4, a

7 OR a SAM Prey a gtig ft: 1 ASE

Oa 42 mE.t. ta. «9.7 HO}

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affirmance of both conspiracy and

substantive drug convictions. See United

States v. Harrell, 737 971, 978-79 (11th

Cir. 1984)("Identification based on past

use coupled with present observation of

the substance at hand will suffice to

establish the illicit nature of a

suspected substance."), cert. denied, 105

S.Ct. 1392 (1985); United States v. Haro-

Espinosa, 619 F.2d 789, 795 (9th Cir.

1979)({six tests conducted by an expert

were sufficient to establish substance

was cocaine); United States v. Crisp, 563

F.2d 1242, 1244 (5th Cir. 1977)(testimony

establishing defendants referred to

substance as coke or cocaine, snorted it,

cut it, weighed it, tested it over a

flame and under a microscope, and soldit

for large amounts of money was sufficient

to prove identity of substance).

Appendix 30

Other cases suggest, however, that

various types of circumstantial evidence

are sufficient to establish the identity

of a controlled substance ina criminal

prosecution. United States v. Scott, 725

F.2d 43 (4th Cir. 1984), involved proof

that a substance was cocaine very similar

to the proof offered in the case at bar.

The prosecution in Scott produced no

samples of the substance in question, no

chemical analysis, and no expert

testimony. The government relied on the

"lay testimony" of a cocaine user who

stated that he bought some powder from

the "same batch" as that purchased by the

defendant, that he tested the substance

by "snorting" it, and that he concluded

it was cocaine. Id. at 44. The court

defined the permissible types of

circumstantial proof:

Appendix 31

[E]vidence of the physical

appearance of the substance involved

in the transaction, evidence that

the substance produced the expected

effects when sampled by someone

familiar with the illicit drug,

evidence that the substance was used

in the same manner as the illicit

drug, testimony that a high price

was paid in cash for the substance,

evidence that transactions invovling

the substance were carried on with

secrecy or deviousness, and evidence

that the substance was called by the

name of the illegal narcotic by the

defendant or others in his presence.

Id. at 45-46 (quoting United States v.

Dolan, 544 F.2d 1219, 1221 (4th Cir.

1976)). The Court concluded that all

these types of circumstantial proof were

present in the case and confirmed the

appellant's convictions for possession of

cocaine. Id.

In United States v. Hill, 589 F.2d

1344 (8th Cir.), cert.denied, 442 U.S.

919 (1979), the defendant was charged

with fraudulently obtaining by means of

false orders, and illegally distrubting,

Appendix 32

diet pills manufactured by his employer.

As in Scott and the case at bar, the

government did not seize the drugs or

have direct evidence that Hill ever

possessed them. The government's evidence

showed only “that the shipments were

never returned to [the manufacturer] for

credit, that Hill had volunteered to pick

up the shipments and take care of tie

matter, [and] that Hill did go to the

customers’ officers and take pills

(although there were not always

eyewitnesses)." Id. at 1349. The court

held this evidence was sufficient to show

possession. Id. The court further noted

that "Hill's claim that none of the

government witnesses could identify the

contents of any of the specific shipments

as Statobex-D [diet pills] does not

defeat the reasonable inference of the

Appendix 33

evidence presented that the boxes did

contain Statobex-D." Id. at 1350

(citation omitted).

United States v. Lawson, 507 F.2d 433

(7th Cir. 1974), cert. denied, 420 U.S.

1004 (1975), involved a cocaine

transaction. The court held that the

following evidence indentified the

substance in question as cocaine

sufficiently to support convictions for

conspiracy and substantive crimes: the

defendant's girlfriend and the purchaser

testified the substance was a white

powder; they also testified the defendant

spcke of selling "cocaine;" the purchaser

paid the defendant a substantial amount

of cash for the white powder; and the

transaction was carried out in secret.

Id. at 439.

Similar circumstantial proof was

Appendix 34

at SeSe? a P<

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Fn. S*% f be

- tor,

- ie

iA ei sae seags

present in the case at bar. Claude

Griffin testified tha’: he conspired with

others to import cocaine into the United

States. He testified that Eakes

participated in the transportation of the

substance. Griffin testified that he

received large amounts of money in

payment for most this work, and that he

received cocaine in payment for the

second load.

Paul Gray testified that the Griffin-

Lopez conspiracy imported three loads of

cocaine, and that Eakes participated in

some way with each load. Gray unloaded

and delivered the first two loads for

Griffin, and received and delivered large

amounts of cash in return. He stated the

first load was packaged in a fashion

usual for cocaine, individual packages or

kilos and duffle bags. The second load

Appendix 35

was packaged in plastic bags and

Suitcases. Gray did not see what the

cocaine looked like at the unloading, but

he did later.

Bob Folse testified that Eakes

contacted him about using an airstrip on

his land. The conspirators paid him $5000

for the use of the airstrip for the first

load of cocaine. Folse thought they were

importing marijuana. When he found out

the smuggled substance was cocaine, he

renegotiated the fee and Griffin agreed

to pay him $60,000 for the use of his

property on the second cocaine load.

Later, Folse agreed to take one kilo of

cocaine in payment rather than the

money. Folse had seen cocaine before, but

had never used or sold it. His cousin

sold the kilo for either $68,000 or

$72,000.

Appendix 36

rs anes

—

Robert LeBlanc testified that the

plane carrying the third stolen load of

cocaine landed on his property and that

Ross offered him a million dollars to

secure and distribute the load. He helped

unload that cocaine, which was packaged

in duffle bags. LeBlanc kept six out of

the duffle bags, out of which he sold

between fifteen and thirty kilos of

cocaine. He testified that the people

involved with this third load eventually

gained over two millions dollars from the

transaction. LeBlanc had been involved in

various capacities with marijuana and

cocaine smuggling before this incident.

William White also testified that he

helped unload the stolen third load of

cocaine. Three or four duffle bags from

the plane were loaded in his car and he

took them to his home. The next day he

Appendix 37

noticed one of the duffle bags was

unlocked. He took a package out of the

duffle bag and opened it. He testified

the package contained cocaine. White and

his partner kept two kilos in return for

their storage of a portion of the load.

They sold part of the kilos they kept.

Although White stated that he did not see

Eakes in connection with this load of

cocaine, other witnesses testified that

Eakes participated in the plan to steal

this load from Griffin and Lopez.

Eakes testified as well concerning his

knowledge of and participation in this

plan. Throughout his testimony, Eakes and

his attorney referred to the substance

transported by the Griffin-Lopez

conspiracy as cocaine. Eakes also

testified that the conspirators received

large cash payments for their

Appendix 38

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transportation work and for the cocaine

they distributed.

The whole of the above circumstantial

evidence is sufficient to support an

inference that the substance imported by

the smuggling conspiracy in which Eakes

participated was cocaine. Eakes and all

the co-conspirators referred to the

substance as cocaine. The substance was

packaged in kilos as cocaine normally is

packaged. The transactions concerning

these packages were carried out in

secret. The co-conspirators received

substantial sums of money or cocaine for

their transportation work. The sellers

received large cash payments for the

substance. Co-conspirators familiar with

cocaine testified the packages suhstance

was cocaine. The fact that various

conspirators successfully imported and

Appendix 39

sold the substance three times indicates

that they dealt with cocaine and not a

counterfeit product. In light of this

evidence here, here, as in Hill, Eakes'

claim that no witness could verify the

contents of the various loads as cocaine

“does not defeat the reasonable inference

of the evidence presented that the”

substance imported in each each load was

cocaine. 589 F.2d at 1350.

Eakes objects to three of the district

court's evidentiary rulings. The trial

judge refused to admit into evidence a

taped conversation between co-

conspirators Ross and DEA agent

Whitworth, and a taped conversation

between Eakes and DEA Hurley. The judge

admitted photographs of cocaine seized by

the police and of the car in which the

Appendix 40

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police found the cocaine.

Rulings on the admissibility of

evidence are within the discretion of the

trial court. We review those rulings only

for an abuse of discretion. Unite’ States

v. Acosta, 763 F.2d 671, 693 (5th Cir.),

cert. denied subnom. Weempe v. United

States, 106 S.Ct. 179 (1985)(citation

omitted); United States v. Cochran, 697

F.2d 697 F.2d 600, 608 (5th Cir.

1983)(citation omitted).

The judge excluded the tape between

Ross and Whitworth primarily because Ross

was a fugitive and not available for

cross-examination during the trial. The

judge admitted a transcript of the tape

between Eakes and Hurley. The record

leaves in doubt whether either tape was

audible.Eakes has not shown that the

trial judge abused his discretion in

Appendix 41

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refusing to admit these tapes.

Government witness Paul Gray testified

that he unloaded a large amount of

cocaine in August, 1982, from a plane

piloted by Nichols. Although Gray

testified that Eakes did not go to the

landing strip for the unloading of this

second load of cocaine, he stated that he

met with Eakes and Griffin in a motel

room before going to meet the plane. He

said Eakes gave him some instructions

regarding the seats in the airplane. Gray

delivered a car containing a portion of

that load, designated by prearranged

markings, to a man known as Oscar. Gray

testified Oscar was driving the car

depicted in the photographs when Gray met

with him to decide on a delivery site for

the cocaine. He also testified that the

packaging and markings of the cocaine

Appendix 42

that he delivered to Oscar were similar

to that of the cocaine seized by the

police and depicted in the photographs.

Captain Robert Early of the Jefferson

Parish Police testified that he conducted

a surveillance of a man named Oscar

Tabarres over the weekend during which

Tobarres was arrested. He observed Oscar

drive to a warehouse. The packaged

substance depicted in the photographs was

seized from a car in this warehouse. The

bags had differentiating marks on them.

This substance field tested positive for

cocaine. The seizure occurred within a

week of the flight piloted by Nichols and

the delivery to Oscar by Gray.

Evidence may be so remote as to be

irrelevant. Here, however, the government

demonstrated a connection in time between

the evidence in question and the crimes

Appendix 43

charged to Eakes, and a connection

between a co-defendant hired by Eakes and

the parties from whom the police seized

the evidence. The trial judge did not

abuse his discretion in admitting the

photographs of the cocaine and car seized

from Oscar.

Finally, Eakes claims that the

judgment erroneously cites two offenses

for which he was neither indicted nor

convicted, Aiding and abetting and

conspiracy to distribute. We remand on

this issue with directions for the entry

of a new judgment that is consisted with

the indictment and jury verdict.

AFFIRMED in part, and,

in part, REMANDED WITH

DIRECTIONS.

Appendix 44

| NT

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 85-3259

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES EDWARD EAKES,

Defendant-Appellant

Appealed from the

United States District Court

for the Eastern District of Louisiana

ON PETITION FOR REHEARING

(March 17, 1986)

Before CLARK, Chief Judge,

TATE and DAVIS, Circuit Judges.

Appendix 45

PER CURIAM:

‘IT IS ORDERED that the petition for rehearing

the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

Appendix 46

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.