# Appendix — Lau v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1316%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1005 ## Text ‘waaay ~ Po RE Gt SERENE IES, Ei a 87-18 if Buna Cut, NO. OLERK JAN 27 1986 JOSEPH F. SPANIOL, JI IN THE UNITED STATES SUPREME COURT OCTOBER TERM, 1987 MICHAEL ALAN LAU and BRUCE TAYLOR, Petitioners, Vv. UNITED STATES OF AMERICA, Respondent. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS, FIRST CIRCUIT ROBERT AUGUSTUS HARPER 131 North Gadsden Street Post Office Box 10132 Tallahassee, FL 32302-0132 (904) 224-5900 Counsel for Petitioners a re —_— = ra SP ee Description Page I. Portions of the Record Necessary to 1 Show Proper and Timely Raising of Federal Questions II. Opinions —~f the Lower Court 5 A. United States Court of Appeals 5 for the First Circuit - Opinion 09-15-87 B. United States Court of Appeals 27 for the First Circuit - Order on Rehearing 10-29-87 C. United States Court of Appeals 29 for the First Circuit - Judgments/Mandates 11-09-87 III. Judgments Sought to be Reviewed 37 A. United States District Court af for the District of Puerto Rico (Lau) B. United States District Court 40 for the District of Puerto Rico (Taylor) a. I. RECORD SHOWING PROPER AND TIMELY RAISING OF FEDERAL QUESTIONS : IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA * vs * Criminal Case MICHAEL, ALAN LAU and * No. 85-321 (PG) BRUCE TAYLOR . FIFTH DAY OF JURY TRIAL The above-captioned case came to be heard before the HONORABLE JUAN M. PEREZ-GIMENEZ, United States District Court Judge, sitting at San Juan, Puerto Rico, on December 16, 1985 at 9:00 a.m. FERNANDO ALTAMIRANO, Official Court Reporter P. O. Box 383, San Juan, P.R. 00902 722-2003, 722-1553 PROCEEDINGS THE COURT: Are the parties ready? MR. BAZAN: The government is ready, Your Honor. MR. CAMPER: We are ready. [Counsel for Lau] MR. TAYLOR: We are ready, Your Honor. [Counsel for Taylor! THE COURT: Bring the jury in. MR. BAZAN: Your Honor, before the jury is brought in I want to inform that the government intends to present evidence of prior Similar acts. If counsel for defendants have any objection to it, or any objection at all, I think it should be discussed right now before the jury comes in. MR. TAYLOR: It is our position that at this point in time it certainly is questionable as to whether or not 404(b) will come in, in light of the evidence that is being presented today, and I think the appropriate procedure would be a proffer, either through the witness, what evidence he's expected to introduce, so that this Court can . , " ' wwe . lator i natanyr + . . +} a , + ; WrAnDy? ; lIAKe a QGev¢ nation OL whnevrvnel J IS proper Ol 1 " nuth> YY nic noayvr+rtee ane f Gilly Uiiiiil i bic Well ALULAL Y rn tangnarvic i Inde} ne n I | anaaras. y ; ~ ; +} nL 4 +} , ( +> F yepyy | 72 Nor root ian | LiLiiA it i Jf A it 2 it Y i “ae © 65 . a ow | rt *; +hoat 3 +h ~~ hath + +} ' } ‘ noant . alia Ulla CLIC oe. i) I iit i¢ enddal +h 7 rn nar + 4 = -A PN? + —— . + cil Lict { ULICILIS( Lid i J Lif i Eh a | sco ON . ‘ .. 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IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT UNITED STATES OF AMERICA, No. 86-1255 No. 86-2008 Appellee, a" > ~ — ~~ P 4 heual o _, — Defendant, Ay No. 86-1256 UNITED No. 86-2002 OR THE DISTRICT OF PUERTO RICO " . Hor sua | Pe a (+7 17% T . UDASTY 1dg Before Breyer and Selya, Circuit Judges , and Re,* Judge. William L. Camper for appellant Michael Alan Lau. Clyde M. Taylor, Jr. for appellant Bruce Taylor. Antonio R. Bazan, Assistant United States Attorney, with whom Daniel F. Lopez Romo, United States Attorney, was on brief for appellee. *hief Judge of the United States Court of International Trade, sitting by designation. — BREYER, Circuit Judge. The appellants, Michael Lau and Bruce Taylor, appeal their convictions for importing and possessing cocaine and for conspiring to do so. 21 U.S.C. §§ 841(a)(1), 846, 942(a). They claim that there was insufficient evidence for conviction; they make several claims relating to a DEA informant's testimony about their participation in an earlier cocaine smuggling scheme; and they ask for a new trial because they say the government withheld exculpatory evidence. We do not believe their arguments are legally sufficient, and we affirm their convictions. I Appellants' first claim is that there was insufficient evidence for conviction. A reading of the record, with inferences appropriately drawn in the government's favor, see United States v. Drougas, 748 F.2d 8, 15 (1st Cir. 1984); United States v. Patterson, 644 F.2d 890, 893 (1st Cir. 1981), indicates the following basic series of events: i In the morning of August 9, 1985, appellant Michael Lau, president of St. Maartin Helicopter Service, landed his helicopter in St. Croix, Virgin Islands. He falsely told a United States customs officer that he was traveling on to San Juan, Puerto Rico, with only one passenger and that the senior inspector of U.S. customs in St. Croix had said it was all right to "pre-clear'" the flight, that is, to grant U.S. customs clearance in St. Croix instead of San Juan. The customs officer then pre-cleared Lau without inspecting the helicopter. (Tr. 259, 262-63, 266-68) ae Later that day, Lau landed _. his helicopter in San Juan. Lau, an elderly man, and another man in a wheelchair all got off the helicopter. (Tr. 196) Lau and the elderly man unloaded several suitcases from the helicopter and "left them between two vehicles."" (Tr. 336-37) The elderly man and the man in the wheelchair then approached appellant Taylor, a partner in Lau's helicopter company, who was’ standing nearby awaiting the helicc cer's landing. (Tr. 339) Bee 3. Gus Maestrales, a charter jet pilot whom Lau had hired to fly his passengers from San Juan to Orlando, asked Taylor, the elderly man, and the man in the wheelchair if they had any luggage except the few bags they were carrying. They said, '[N]o, we've got more bags over there," and pointed to six suitcases "over by a _ vehicle." Maestrales' co-pilot complained that the six suit- cases "weigh[ed] a ton."" (Tr. 194-96) 4, Maestrales, who was perhaps especially cautious because authorities had found $5 million aboard his jet the previous March (Tr. 216-17), thought the bags were suspiciously heavy and asked about their contents. Taylor said, ''We don't have anything in there." (Tr. 198) Later, when Maestrales insisted on being shown the contents of the bags, Taylor said they belonged to a man who had not come on the helicopter. He added, "[T]Jhey are not mine. We don't want you to take them, just leave the bags."' (Tr. 202) Maestrales found a customs official, who watched as Maestrales opened one of the bags. Inside was cocaine. (Tr. — of cocaine. (Tr. aac) on — W time the cocaine was discoverec ~~ however, Taylor and the man in the wheelchair had disappeared. (Tr. 277, 416) Two witnesses said they saw Taylor pushing the man in the wheelchair quickly toward the street. (Tr. 341, 354) One of > } ) ; +) ] +} , uw >> Ls i i a ‘ ‘ Vro\y injder them found he wheelchair abandoned index in a4 a+ via 4 . Ty. 249 4 +} . ri , ead airport stairway. (Tr. 34: nother witne , whe > 7 T , 7 »7 . + . + . + } , 1 .. refueled Lau ne licopte! iftey ne bag were +17 ‘ } + +54 . +hoat T 17 r\Y ad ; y ~y } , Uli loaded { ] Dla Lal | Lx ‘ t i oa | | Wal=tahi = W1itne SS CONV i € LIONS JAD A Jil f y ¢ vv Lies 1 GE ii Pt ’ fication at trial .. . will be set aside... — \/ = —_ J “A « ‘ =F } , ct — ~~ ~ a ~ yhotographic identification procedure i a very substantial 1ikelihood irreparable misidentification"'); Judd v. Vose 813 F.2d at 498-99: Gullick v. Perrin, 669 F.2d 1] 0-6 (1st probative (as set out in Part ILiA, supra, that the dist rict court po: sessed the lega] power admit it. Although the appellants argue that the identification evidence wa not "clear ! convincing," see United States v. Mascio, 774 F.2d oo. anaes Cron Cir 1985); United States v. McDaniel, 773 F.2d 242, 247 (8th Cir. 1955), we note tha this circuit has not la lown a separate mechanical evidentiary test for "past bad act'"' identification Rather, the strength of the evidence linking defendants to a past bad t is but one consideration that the district court must take into account when weighing its "probative value" against its "prejudicial risk.'"' See United States v. Rivera Rodriguez, 808 F.2d at 888; United States v. Moccia, 681 F.2d at 63. Without expressing a view about whether the evidence here is or is not "clear and convincing,'' we conclude, on balance, that its probative value is sufficient to bring the question of admissibility within the scope of the trial court's lawful decisionmaking authority. C Appellants also claim that despite their timely request that the government disclose its intention to offer 404(b) evidence, the government failed to notify them of Aiello's testimony until December 3, 1985, six days before trial, and that even then the government misspelled Aiello's name. On the day of trial, the district court refused appellants' request for a continuance of 30 days or of 7 days in order to respond to the evidence, but it granted a one-day continuance over a long weekend. A court of appeals will not find that " . ‘ ‘ ‘ . . — . Tt } ‘ . —_— : 4 ‘ ‘ ‘ ‘ : P y ; “Ts " . . — 4 4 ‘ ‘ ‘ on ‘ : i . vy " , ) +) , he . ' ; »? ¥ : .‘% _ ¥ * , > . 7 ‘ ‘ ’ ; ; ; . , ‘ 4 ro ‘ ry 4 q wr , ‘ . . ‘ ‘ . : » .\ , ’ ’ - ’ . ’ 7 ’ ’ ’ , : " ’ . ’ ’ ’ * ’ 7 . » » ’ ’ ’ Yr ls thor , ‘ . ; +} . ‘ . fay —— . —_ . We -T ry Pe =? | ™ . — r\ ? . ‘ ‘ . " \ ” ra #4 . - ‘ ‘ ' ‘ _ : i r’y +> ’ * ? - = “= » ‘ ’ . 7 7 . > : T ete ? " g>7 rs . ‘ one, ii AMUALIIS | i i ‘ — a ‘ a el . . >) ’ . verry ~* ; ; ryrw y 4 ; ’ , Ab} A ‘ i - ‘ 4 ‘? - * 4 +. _— ‘ . ‘ . — ' oy Ty ‘ ’ ) ‘ ¥ s : i vv I . i i T y . . ny abl ’ , "~F + ~} cry errs ’ p , : ¥ Lu ; ke j +) . . . a + 7 ’ ‘ . y ner y ‘ , VeyY ™ } »y rs i y — Oe of *~ +h, ; ee id J ; ‘ i kes 4 . ‘ : = 5 ; ~~" -s. " " ior i . eaYrr _¥ yy , } T\ « ys — ‘ . +} + 3 7 - 3 . . AcaAYy di ‘ ‘ , wu Hryt hey, . . rr 4 . +} ‘ . P these conversations, Taylor said he suspected that someone was using the plane to transport drugs, that he strongly opposed any drug daling, and that he had told the FBI that the plane had _ been stolen. Appellants say that the government's failure to produce these tapes violated the disclosure rule of Brady v. Maryland, 373 U.S. 83 (1963), alternatively, they request a new trial based on the discovery of this new evidence, see Fed. R. Crim. P. 33. ‘To show a Brady violation, however, appellants must demonstrate that the allegedly suppressed evidence was "favorable'' to them and ‘material’ to guilt. Brady v. Maryland, 373 U.5. at 87. Similarly, discovery of new evidence merits a new trial only if the evidence is material and might have had some impact on the outcome of the trial. See In re United States, 565 F.2d 173, 176-77 (1st Cir. 1977). We do not think that the tapes in question meet these standards. For one thing, appellants have not explained how they could have admitted the tapes — we into evidence. They amount to hearsay in respect to the truth of Taylor's statements. Fed. R. Evid. 801, 802. They could not be offered to impeach, since no trial witness speaks on the tapes. And, they could not be offered to prove Taylor's character, since the rules allow such proof only by reputation or opinion testimony. Fed. R. Evid. 405(a). For another think, and in any event, we do not see how the evidence of Taylor's professed attitude toward drugs in April 1982 (as it appeared on these tapes) could have swayed the jury's determination of events in January 1983, much less August 1985. For these reasons, the judgment of the district court is Affirmed. B. UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Nov. O2, No. 86-1255 UNITED STATES, No. 86-2008 Appellee, v. MICHAEL ALAN LAU, Defendant, Appellant. No. 86-1256 UNITED STATES, No. 86-2002 Appellee, v. BRUCE TAYLOR, Defendant, Appellant. ee ee EE 1987 Before CAMPBELL, Chief Judge COFFIN, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges and RE,* Judge. ORDER OF COURT Entered: October 29, 1987 The panel of judges that rendered the decision in these cases having voted to deny the petitions for rehearing and the suggestions, for the holding of a rehearing en banc having been carefully considered by the judges of the Court in regular active service and a majority of said judges not having voted to order that the appeals be heard or reheard by the Court en banc, It is ordered that both petitions for rehearing and both suggestions for rehearing en banc be hereby denied. By the Court: /S/ Francis P. Scigliano Clerk *Chief Judge of the United States Court of International Trade, sitting by designation. [cc: Messrs. Camper, Taylor and Bazan] —- MANDATE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 86-2008 UNITED STATES, Appellee, MICHAEL ALAN LAU, Defendant, Appellant. JUDGMENT Entered: September 15, 1987 This cause coming on to be heard on appeal] from the United States District Court for the District of Puerto Rico, and was argued by counsel. Upon consideration whereof, It is now here — ordered adjudged and decreed as_ follows: The judgment of the district court is affirmed. By the Court: Francis P. Scigliano Clerk. Certified and Issued as informal mandate under F.R.A.P. 41 on NOV 9 1987 FRANCIS P. SCIGLIANO Clerk By: /S/ Richard W. Gordon Chief Deputy Clerk [cc: Messrs. Camper, Bazan and Taylor] sceaTrr are WANA LI rrr "arty . ywwr . aTX\TNTO AF % i v A : YvtTy {yt \ eS | ‘ ‘ ALA . Ava ‘ ‘ s , Tr rrwrr ror , ‘YY vr, "\e)' i} he Lacy Loy i i Aid ae = oe P| AA : nT 2c ONO rrarrocwy wranw _ ) } WO, OO a ka Yiiia " ita . Ar y 1] ADD iee, “ RIT PAVT C\D abd } 1 ¥y b4 ijl | AFL LAMAN, ' ; “ _* > , Woy or i9n7 \rory 9} ‘ i . }/} i . YT? AsToATT MR vvilt\ A nviaY J Y . . ar - . " nr TeYTY +’ Ory T aye yY } i A ‘ ‘ } 1D i ‘ f rm " ; . ; ywIne ry ’ ’ , ret , ry) LFTLLS ause COMLN Eg oT) a ira Dp " YT ‘ ; . fo. + + ; + ++ ; f " ; ~) y , > ry cy " y 7,y Lro Uiit Mi Leu ‘ ALS iJ J ‘ il iif Y T) ’ Tuiiectri net oy Puert ' 1? > Sala. wa . la. rye Viovli a i hee | ae' . ui Weal bla WY wyinec ; counsel. ' ; y ‘ y , i y Wal => at by yr ‘ + ¥ . y ,* pO! } Utia A i ‘ . af ‘ t ordered adjudged and decreed as_ follows: The judgment of the district court is affirmed. By the Court: Francis P. Scigliano Clerk. Certified and Issued as informal mandate under F.R.A.P. 41 on NOV 9 1987 FRANCIS P. SCIGLIANO Clerk By: /S/ Richard W. Gordon Chief Deputy Clerk [cc: Messrs. Camper, Bazan and Taylor] MANDATE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 86-1255 UNITED STATES, Appellee, v. MICHAEL ALAN LAU, Defendant, Appellant. JUDGMENT Entered: September 15, 1987 This cause coming on to be heard on appeal from the United States District Court tor the District of Puerto Rico, and was argued by counsel. Upon consideration whereof, It is now here - 33 - ordered adjudged and decreed as follows: The judgment of the district court is affirmed. By the Court: Francis P. Scigliano Clerk. Certified and Issued as informal mandate under F.R.A.P. 41 on NOV 9 1987 FRANCIS P. SCIGLIANO Clerk By: /S/ Richard W. Gordon Chief Deputy Clerk [cc: Messrs. Camper, Bazan and Taylor] MANDATE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 86-1256 UNITED STATES, Appellee, v. BRUCE TAYLOR, Defendant, Appellant. JUDGMENT Entered: September 15, 1987 This cause coming on to be heard on appeal from the United States District Court for the District of Puerto Rico, and was argued by counsel. —. “es Upon consideration whereof, It is now here ordered adjudged and decreed as follows: The judgment of the district court is affirmed. By the Court: Francis P. Scigliano Clerk. Certified and Issued as informal mandate under F.R.A.P. 41 on NOV 9 1987 FRANCIS P. SCIGLIANO Clerk By: /S/ Richard W. Gordon Chief Deputy Clerk a III. JUDGMENTS SOUGHT TO BE REVIEWED: A. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA vs. DEFENDANT MICHAEL ALAN LAU Docket No. Cr. 85-321-01 (PG) JUDGMENT AND PROBATION/COMMITMENT ORDER In the presence of the attorney for the government the defendant appeared in person on this date March 07, 1986 X WITH COUNSEL William Camper and Carlos Lopez de Azua There being a verdict of X GUILTY. Defendant has been convicted as charged of the offense(s) of conspiracy to possess with intent to distribute cocaine, a Sch. II Narcotic Drug Controlled Substance, in violation of Title 21 USC § 846, 952(a), 841(a)(1) as charged in Count One; aid and = abet to import cocaine, a Sch. Narcotic, in violation of Title 18 USC § 2 and Title 21 USC § 952(a) as charged in Count Two of the indictment; and aid and_e abet in the possession with intent t » distribute cocaine, a Sch. II Narcotic, in violation of Title 18 USC § 2 and Title 21 USC § 841(a) as charged in Count Three of the indictment. The Court asked whether defendant had anything to say why judgment should not be announced. Because no sufficient cause to the contrary was shown or appeared to the Court the Court adjudged the defendant guilty as charged and convicted and ordered that The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment of twenty (20) in years the sum of $20,000; for (20) years in Count Two $20,000; and for a y i tor a period Count One and fined a period of twenty and tined the sum of tf fifteen (15) years in Count Three and fined the sum of $20,000. Only the imprisonment terms imposed in Counts One and Two are to be served con- currently with each other. The term of imprisonment imposed in Count Three is to be served consecutively to the terms of imprisonment imposed in Counts One and Two. The defendant is ordered to_ stand committed until the fines are paid or he is otherwise discharged by due course of law. Credit towards the sentence is to be given for any time spent in jail in relation to this case. Juan M. Perez-—Gimenez March 7, 1986 B. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA vs. DEFENDANT BRUCE TAYLOR Docket No. Cr. 85-321-02 (PG) JUDGMENT AND PROBATION/COMMITMENT ORDER In the presence of the attorney for the government the defendant appeared in person on this date March 07, 1986 X WITH COUNSEL Clyde Taylor and Fernando Carlo Gorbea There being a verdict of X GUILTY. Defendant has been convicted as charged of the offense(s) of conspiracy to possess with intent to distribute cocaine, a Sch. II Narcotic Drug Controlled Substance, in violation of Title 21 USC § 846, 952(a), 841(a)(1) as charged in Count One; aid and abet to import cocaine, a Sch. Narcotic, in a iieetiaill violation of Title 18 USC § 2 and Title 21 USC § 952(a) as charged in Count Two of the indictment; and aid and abet in the possession with intent to distribute cocaine, a Sch. II Narcotic, in violation of Title 18 USC § 2 and Title 21 USC § 841(a) as charged in Count Three of the indictment. The Court asked whether’ defendant had anything to say why judgment should not be announced. Because no sufficient cause to the contrary was shown or appeared to the Court the Court adjudged the defendant guilty as charged and convicted and ordered that The - defendant is hereby conmitted to the custody of the Attorney General or his authorized representative for imprisonment for a period of fifteen years (15) in Count One and fined the sum of $20,000; for a period of fifteen (15) years in Count Two; and for a period of twenty (20) years in Count Three and fined the sum of $20,000. Only the terms of = n ft 2 — a eee ee ee ee ee ee ee ee) ee imprisonment imposed in Counts One and Two are to be served concurrently with each other. The term of imprisonment imposed in Count Three is to be served consecutively to the terms of imprisonment imposed in Counts One and Two. The defendant is ordered to stand committed until the fines are paid or he is otherwise discharged by due course of law. Credit towards the sentence is to be given for any time spent in jail in relation to this case. /S/ Juan M. Perez—Gimenez March 7, 1986 ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1316%3A2. Public record. Not legal advice.