Petition for A Writ of Certiorari — Ramirez v. United States

: U. Ss. — q

IN THE SUPREME COURT OF

THE UNITED STATES -— | 4

October. Term, 1970

RAMIRO RUBEN RAMIREZ, Petitioner

vs. “_ . ° a

\)

UNITED STATES OF AMERICA

&

-PETITION FOR A WRIT OF CERTIORARI TO

& © THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

4

JOSEPH A. CALAMIA

JOHN L. FASHING

Attorneys for Petitioner

608 Southwest National

Bank Bldg., El Paso, Tex.

79901.

.

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IN THE SUPREME COURT OF

THE UNITED STATES

October Term,1970 .°

\ OS e

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se

- RAMIRO RUBEN RAMIREZ, Petitioner

“vs.

‘UNITED STATES OF AMERICA

Ss.

~

—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

i

=

JOSEPH A. CALAMIA.

JOHN L. FASHING

Attorneys for Petitioner

608 Southwest National

. Bank Bldg., El Paso, Tex.

79901

PEER TMT

REELS TY RETO

PUGS EY UMTS et ee ate Re

TABLE OF CONTENTS

‘Opinion Bélow i ‘ eee re " x eas

POPIGCUOR bi ok ov vac i case es eee

Question Prdkneiwa eaeaas oe eres :

Statement et ores ere rs

Argument........ seeseees Perr

INDEX OF AUTHORITIES

CASES: _ Page

_Bruno v. United States,

| _ ak = Earnie sonar ee

_ Fagundes v. United States,

: We Be ei ces vada oe . 10

Fowle vy. United States, Y i

410 F.2d 48 .-,..., eye ee ee

Gillison v. United States,

399 F.2d 586 ........ “ishee ee

Griffin v. California ie

380 0.59409 suenwed \s:. 15°

Grunewald v. United States, =

Ne iE oo 66 8068 ks 0408s 11,13

Harris v. New York, . .

~ U.S. dec'd 2/24/71..... os ae oe

<——— : ae 2 7,18

Hunt v. Cox, ©

312 F.Supp. 637 ....0.....0.. 10

Helton v. United States, ,

221 F.2d 388... 0... ccc cil 10

Johnson v. Zerbst,° ©

304 U.S.458........ Leoed ;.. 1S

Leary v. United States, -

oe j* oe OW og he cies veces es . 15

McCarthy v. United States, _ 2%

Oe ee ee nhncvenuseekee’ 10,12

Miranda v. Arizona, “"y .

«$84 U.S.436. wae 2, 5, 6,

7,8

Phelin v. Kinderline,

SO POO. cc cveweeenaeees 10

Simmon v. United States, _ .

306 U.S. BT Tec ccccccccccsige i «

ii

Se > LEME Sob

%

Slochower v. Board of Education,

SL RTE iss Pe

Spector v. United States,

: 193 F.2d 1002

Spevak v. Klein, . a

385 U.S. 511 |

State v. ‘Hester, .

137 S.Ct. 145

‘State-v. Dowling, ; )

"SOO WeOs SE ci ncscicscdagus

Stewart v. United States, a

366 U.S. 1 '

Ullman v. United States, j

"= * -§§0.U.8. 432-....... Dkk

United States v. Brinson, :

aes. ee ror

- United States v. Foster,.

eS A: ete Seer

United States v. Gross,

ge eS Geer 2

United States v. McKinney .

. 379 F.2d yr eer eT

2 United States Vv. Piccioli .

eR BE TO ks 454 does yore

United States Vv. Tomaiolo

hoe Ge j

Watts v. Indiana,. a?

338 U.S. 4D eee e ee a aee ms oe

-€ ONSTITUTION AND STATUTES:

United States Constitution:

Fifth Amendment rey eerrere

Sixth Amendment ..+.+++-+-:

' Statutes: \

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IN THE SUPREME COURT OF

_ THE UNITED STATES

‘October Term, 1970

No.

RAMIRO RUBEN RAMIREZ, Petitioner

" VS. a. oa

UNITED STATES OF AMERICA

_ PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

| FOR THE FIFTH CIRCUIT

-

The petitioner, Ramiro Ruben Ramirez, —

petitions for a writ of certiorari to reveiw the

judgment of the United States Court of Appeals

for the Fifth Circuit, entered in this case on

the 29th day of April, 1971 with rehearing

denied on June ‘22, 1971. A co-appellant's

- conviction in the court below was reversed and:

neither she nor the government have petition- .

ed for a writ’of certiorari.

OPINION NEE LOW |

. The opinion of the court of appeals

( App. A, pp.19-27, infra ) and its opinion

. (1-)

denying ¥ehearing en banc ( App. B, pp. 28,29

infra ) are not yet reported.

JURISDICTION

The judgment of the court of appeals _

(App. C, infra,. p. 30,31, ) was entered on

April 29, 1971. A petition for rehearing En

Banc ( App. B, infra, p.28,29 ) was denied

on June 22, 1971. The mandate as to petitioner

Ramirez issued June 30, 1971. The jurisdict-

ion of this Court is involved } under 28 U.S.C.

§1254 (1).

>>.

QUESTION PRESENTED

Whether HARRIS v NEW YORK U.S.

decided February 24,.-1971, has overruled

the ruling in MIRANDA v ARIZONA 384 U.S.

436, (1966) that '' the prosecution may not,

therefore, use at trial the fact that he stood

mute or claimed his privilege in the face of

accusation” in that the Fifth Circuit on the

authority of the HARRIS case held that once

petitioner elected to testify, the government

may show he remained silent as an inconsist-

ent act. at the time of his arrest and thereafter,

notwithstanding the Fifth and Sixth Amend-

ments.

STATEMENT

After a jury trial in the United States .

District Court for the Western District of

Texas, petitioner was convicted for dealing

_ in heroin contrary to 21 U.S.C.§174. He was

sentenced to imprisonment for fifteen years.

_ 1. See page 16, infra.

The court of appeals reversed the conviction

of a co-defendant, Evangelina Lopez Hernandez,

on the insufficiency of the evidence. _ Hernandez

is nota petitioner-herein.

‘During its cross-examination of peti-

tioner, the prosecution established that he

was arrested on September 12, 1970 and _

remained in the presence of the police officers

until he was released on bail about 20 days

thereafter. (Tr. .347-348 ) Then the govern-

ment inquired of petitioner whether he had

_ chosen to remain silent at the time of his

arrest and thereafter in regards to his defense

of coercion with the following questions:

Q: All right, and you didn't tell a

Single one of those men ( police officers) -

this story that you have told from: the

witness stand this morning, did you?

A: At that moment ( of arrest ), I

didn't think so. q

Q. In fact, you never have told that

story to any officer, that you told on

the stand today?

A: No.

The prosecutor in his jury argument comment-

ed upon the proof that Ramirez had chosen to

remain silent at the time of his arrest. ( Tr.”

440-441, 484-485 ). The prosecutor argued; as

follows, atp. 441:

3. Lawes

"Jim Johnson, the Deputy Marshal,

put the handcruffs on him ( Ramirez ). And

he didn't say anything about 'my family may be |

in danger'. He didri't tell Bill Bessent or Mr.

Bartlett, the Customs Agent, 'my family may

be in danger' . He didn't tell anybody that

until he took the stand this morning. Now

does that comport with.reason? If anybody

had been in-danger, do you think for one

minute he wouldn't have told it then? "

_ Then at page 484, the prosecutor said:

'' I can in return ask one question that

- defeats the entire speculation of coercion, and

that question is this: listen to this: if he was

so afraid of these people in Juarez, way, why

_ in the world is he telling you the story now that

he has got a wife and he has got a family, if ©

he is afraid? Why is he telling the story now?

With the newspaper reporter in the back of the

room, and this is.a publictrial. He is telling

the story, people, because it is a total fabri-

cation."

The court of appeals concluded that —

petitioner's silence at the time of arrest and

thereafter was not excludable from the jury's.

consideration-once he elected to testify and

asserted the defense of eoercion in light of

HARRIS v NEW YORK, ‘U.8. |

(1971). It reasoned that silence at the time

of arrest and thereafter are inconsistent

acts and cross-examination of petitioner

concerning his silence falls within the ambit

of HARRIS v NEW YORK, supra. ,

4.

BAA i One No ean Ui

-*

ARGUMENT

The decision below holds that once’a

defendant elects to testify and asserts a

defense, the prosecution has a right to show

his prior inconsistent.act of remaining silent

at the time of his arrest. In hotding that a

defendant's silence at the time of arrest and

_ thereafter is not excludable from jury consi-_

deration by MIRANDA v ARIZONA 384 U.S.

436 (1966) the court of appeals has decided

an important question in a manner contrary to

the decisions of this Court and of other courts

of appeals and this important question of con-

-stitutional law should be settled by this Court.

The problem created by the court's ruling is

acute to all attorneys in the United States be-

cause a lawyer's '‘'sole duty is to protect his

client —guilty or innocent —and that in such a

capacity he owes no duty whatever to help so-

ciety solve its crime problem. Under this

conception of criminal procedure, any lawyer

worth his salt will tell the suspect in no un-

certain terms to make no statement to police

--under any circumstances.'' WATS v INDIANA,

338.U.S.°49, 59 ( 1948 ). See GILLISON v

UNITED STATES, D.C.1968, 399 F.2d 586.

’-The principal that all attorneys, appoint-.

ed or retained, can, in good faith without fear

that their advice will be used against their

client, " tell the suspect in no uncertain terms

to make no statement to police under any cir-

cumstance" is at stake here. Counsel ought

to be able to advise his client to remain silent.

at the time of arrest and thereafter no matter

what defense is asserted by the client from the

4

«ae

witness stand. ‘In this view, the instant case

is, we believe, a case of extreme significance

to the effectiveness of counsel in all

‘criminal cases as a whole. The advice to re-,,

‘main silent is perhaps the most iffportant

_advice an attorney can give and.a failure to

do-so might support a charge of ineffective

counsel.. Indeed, in those cases where counsel

advises a suspect to assert his defense to the

police, prosecutors will be in a position to ask

. the jury to consider that the suspect asserted

the defense after consulting with counsel in light

of the lower court's ruling in the case at bar.

Certainly there is no waiver of the Fifth and

Sixth Amendments right to remain silent at the

time of arrest and to counsel where a defendant

has the temerity to testify in his own defense.

The situation here is manifestly differ-

ent from that in HARRIS v NEW YORK,

U.S. _ ( decided February 24, 1971 ) relied

on by the the Court below ( App. A, infra, p. 26 )

where it was held statements obtained without

MIRANDA warnings could be admitted for the

purpose of impeachment. In likening the present

case to the HARRIS case the Court of Appeals

made the critical error of treating a prigr state-

ment and prior silence as the same. Further-

more, silence is not perjury. Certainly, as is

the law, if a person at the time of arrest and

thereafter may stand mute and refuse to answer

any question, it is most incongruous if he can-

not thereafter take the stand and assert a defen-

se without fear of cross-examination on his

original silence and comment by the prosecu-

tor in jury argument on said silence. ~

6.

._ The opinion ne is in conflict with

_ MIRANDA v ARIZONA, 384 U.S. 436 ( 1966) _

where this Court explicitly barred:the use of °

a defendant's silence against him and HARRIS

- NEW YORK, supra, did not overrule this

be Chief J ustice Warren tells as follows:

( 384.U.S. at 468- ~469 ) ats >

" At the outset, ifa

person in custody is to be

Subjected to interrogation, he

must first be informed in clear

and unequivocal:terms that he has

the right to remain silent. * * *

It is not just the subnormal or ;

woefully ignorant who succomb _

to an interrogator's impracations

whether implied or expressly

Stated, that the interrogation will

continue until a confession is

obtained or that silence in the

. face of accusation is itself damning

and will bode ill when presented

to a jury. ( emphasis added )

Footnote 37, in part, follows:

. | In accord with our deci-.

Sion today, it is impermissible to

penalize an individual for exercis-

ing his Fifth Amendment privilege

when he is umder police custodial

interrogation. The prosecution may

not, therefore, use at trial the fact

that he stood mute or claimed his

privilege in the face of accusation”.

( Emphasis added )

~l

_

CCI IAEA Gwe AS +

This court ceed the practice by. police of

telling an accused that there is an incriminat-

ing significance ina refusal to talk. ae.

at p. 712.

If this Court denies certiorari herein,

then it.will be appropriate for prosecutors in.

federal and state courts.in reliance upon the

opinion below, to-penalize a defendant when

he exercises his right to testify in his own

defense by showing to the jury that he exercised

his Fifth and Sixth Amendment rights to re-

- main silent and to counsel at.the time of arrest.

This situation will cause a great deal of liti-

- gation and conflict between courts of appeal and

in the event, this Court rules for petitioner's

- contentions in another case at a later date, .

then the question of retroactivity will raise its

ugly head. aa

Indeed the opinion below will support

not only an implication of an inconsistent act

.or perjury from silence at the time of arrest,

but the fact of said silence will be nothing

more than competent evidence as tending to

establish guilt.as well as to impeach once a

defendant elects to testify. If the learned

judges in the opinion below have deduced

the conclusion that silence at the time of

arrest is so weighty when a defendant elects ©

’ to testify as to create an inference of perjury

or creats an inconsistent act so as to impeach,

it cannot, with justice, be said that the mind

of one who is held in custody under suspicion

of having-committed a crime would-not be |

impelled to say something when informed by

8.

ee)

eT dT TELS ERR PO EES ARE STORIE

one in authority that in the’ event of a trial

should he elect to testify and assert a defense .

that the prosecution has the right to show to

the jury his inconsistent act of remaining

silent, when otherwise he might have remain-

ed silent but for fear of the consequences.

which might ensue; that is to say, he would be

impelled to speak either for fear that his fail-.

ure to make answer would be considered against

him , or of hope that if he did reply he would

be benefited thereby. Under.this state of the

law, neither a statement nor silence would be

made by one who in law could be considered a

-free agent. Either silence or a statement

would be inyoluntary.

; The opinion below is in conflict with

decisions of other. federal courts of appeals

and state: courts as to the critical question

whether silence or request for counsel on

arrest can be used for impeachment’or as a |

"tacit admission" of guilt.'' When one takes

the stand in his own defense, he of course

puts his credibility as a witness in issue.

Nevertheless we think it reversible error to

permit evidence of refusal to talk and of

request for counsel on arrest to be used for

the purpose of impeachment. In the first |

place such evidence is ambiguous. Fagunde's ©

words when arrested can as well be taken as

indicating reliance upon constitutional rights

as supporting an a that his alibi was .

an afterthought. * * * ‘ In the second place we

think it reversible error to permit a jury to

draw any inference adverse to one accused _

_ of crime from his reliance upon his constitu-

tional right to silence and to the advice

9.

of counsel ". FAGUNDES v UNITED. STATES, a

1 Cir.1965, 340 F.2d 673,677; FOWLE v "

UNITED STATES, 9 Cir. 1969, 410 F: 2d 48;

UNITED STATES v BRINSON, 6 Cir. 1969,,.

411 F’2d 1057, considered plain error;

~UNITED STATES v PICCIOLI,. 2 Cir. 1965,

352 F.2d 856; UNITED STATES v GROSS, 2

Cir. 1960, 276 F.2d 816; SPECTOR v UNITED

STATES, 9 Cir.1952, 193 F.2d 1002, bond

hearing appeal, UNITED STATES vTOMAI-

OLO, 2 Cir. 1957, 249 F. 2d 683, 690-692, improper

to impeach witness; HUNT. v COX, E.D. Va.

1970, 312. Supp. 637, state prisoner's writ

of habeas’corpus granted; STATE v HESTER,

137S.Ct. 145,185, 134S.E. 885, 898-899; ©

STATE v DOWLING, 1941, 348 Mo. 589, 599,

1154 S. W. 2d 749, 755; PHELIN v KINDER- | ba

LINE, 120 Pa. 354,363. See UNITED STATES .

_v. FOSTER, 4 Cir. 1962, 309 F.2d 8 :

UNITED STATES v McKINNEY, 6 Cir. 1967,

379 F.2d 259; McCARTHY v UNITED STATES,

6 Cir. 1928,. 25 F.2d 298, and the Fifth Circuit

in HELTON v UNITED STATES, 5 Cir. 1955,

‘221 F.2d 338, 342,: said:

; ' Under our law, it is

’ not the function of police officers

to determine for the benefit of' }

the jury whether or not a person a

unuer arrest on suspicion of crime

has given a’sufficient explanation

or any explanation at all and the

fact that the accused here remained

‘silent rather than risk unwitting

distortion of his statement by a

police officer at a later date does

10;

not give in law, and should not

be allowéd to give in fact, rise.

to an inference of guilt."

( Emphasis added )

_" For years and years the

members of the bar have cautioned

their clients not to discuss their

cases with those with whom théy

came in contact, unless absolutely

assured of their friendship and

many good lawyers have advised

clients to refrain from talking at |

all. This has been the practice _

so long that it has become a well-

- known fact to our people generally’.

-STATE v HESTER, -Supra.

It is also clear that testimony which is

elicited to establishMthat a defendant claimed the .

privilege against self- incrimination before a _

grand jury or ata former trial is inadmissible.

GRUNEWALD v UNITED STATES, 353 U.S.

391 (1957). STEWART v UNITED STATES,

366 U.S. 1 (1961). ee

, as a a.

The theory of the court of appeals , ~ .

below would require the warning of MIRANDA

supra, to read: " You have a right to remain

silent, that any statement you do make may

‘be used as evidence against you and that you.

have a right to presence of.an attorney, .

either retained or-appointed, but if you remain

Silent now or hereafter, or take the advice of

counsel to remain silent, and then elect to

testify in your own defense, your silence

will then be used against you’. See —

7

/

ya

. y 7

McCARTHY v UNITED STATES, 6 Cir. 1928,

25 F.2d 298 at 299. Ifthe above warning is

now the law, then counsel will be forced to

‘make split second decisions upon slim facts

as to whether a client who-calls counsel to

‘the police station should assert a Fifth Aménd-

ment right or assert their defense immediately.

Either choice may result in the impeach-

ment of the client before the jury. Where the

privilege is claimed the lower. court in the case

at bar will assume that silence is perjury.

This should not be the law and is not the law.

Justice Frankfurther in ULLMAN v UNITED

STATES, 350 U.S. 422 ( 1955 ) wrote as

follows:

' They too readily assume —*

that those who invoke it ( Fifth

Antiendment ) are either guilty of

‘crime or commit perjury in claiming

the privilege. Such a view does scant

honor to the. patriots who sponsored

the*Bill of Rights as a condition to °

acceptance of the Constitution by the

ratifying States, * * * The privilege

against self-incrimination serves

as: a protection to the innocent as well

as to the guilty and we have been

admonished that it should be given

liberal application. '' ( Emphasis

‘added ) =

°

.And Justice Clark in SLOCHOWER v. BOARD

_ OF EDUCATION,- 350 U.S, 551 ( 1955 ) tells: ’

And footnote 14 in STEWART V UNITED STATES

"At the outset we

must condemn the practice of

imputing a sinister meaning to

the exercise of a person's consti-

tutional —— waits the Fifth

Amendment * * * The privilege

against self-incrimination would

be reduced to.a hollow mockery

if its exercises could be taken as

equivalent either to a confession of

guilt ora rpicr oa presumption

_of perjury * * *: It matters not

whether the sacs ( Fifth Amendment)

resulted from mistake, inadvertance,

or legal advice — given,

whether wisely or unwisely *

Since no inference of ons was possi-

ble from the claim * % 3!

366 U.S. 1 explains the GRUNEWALD case

with these words:

/

-'" Since defendant's testi-

mony placed his credibility in ©

issue, the necessary implication

of that holding is that: his prior

refusal to testify could not be

used to impeach. his Srneres

i a cel

The issue here is not whether the

government's -croSsS-examination on silence

at the time of arrest is the only way for the

government to disprove coercion or whether

the subject matter is relevant and material,

but rather if such cross~examination violates

13.

? .

constitutional safe-guards and rights. How-"

ever, silence at time of arrest and there-

after is ambiguous for " the privilege serves.

to protect the innocent who otherwise might

_ be ensnared by ambiguous circumstances ".

SLOCHOWER v BOARD OF EDUCATION, supra.

Therefore, silence at time of arrest and there-

after is ambiguous and the lower court erred ©

in holding such was a prior inconsistent act

for jury consideration.

_ The government would make a rule that

a defendant could testify to a defense only by

assuming the risk that upon cross-examination

or by other evidence the jury would be shown

‘that the defendant failed to assert his defense

- at the time of arrest and thereafter. This’

dilemma presents a Hobson's choice. It is .

obvious that a defendant who knows that: his

silence at time of arrest will be admissible

against him at trial will sometimes be deter-

red from presenting his own testimonial proof

of a defense. * |

This rule will impose upon a defendant

’an unconstitutional condition which may deter ,

him from asserting his Fifth and Sixth Amend-

ment rights at the time of arrest and thereafter.

The governnient's justification for this new. ,

rule is that the defendant has a choice of re-

fusing to testify and not waiving the right to

remain silent after arrest, but by such a

choice he gives up the benefit of his own testi-:

. mony, or he can forego the benefits of silence

upon arrest and the advice of counsel in order

_ to testify to a defense without fear of jury

14.

consideration of his silence and invocation

of Fifth and Sixth Amendment rights as a

_ prior inconsistent act and most probably as -

an act.of guilt. No jury instruction could

prevent otherwise. BRUNO v UNITED STATES

308 U.S. 287 (1939). See SIMMON Vv.

‘UNITED STATES, 390 U.S. 377 (1968). It

is intolerable that one constitutional right

must be surrendered in order to assert ano-

ther. SPEVACK v KLEIN 385 U.S. 511 (1967) ;

GRIFFIN v CALIFORNIA, 380 U.S. 609 ( 1965 ).

Notwithstanding the failure to object in. . §

- the trial court, the lower court of appeals has _ |

considered the issues herein and has made a

new rule. by mis-apprehending the teachings

of HARRIS v NEW YORK, supra. In LEARY

v. UNITED STATES, 395.U.S. 6 ( 1969 )

this Court held that '' his failure to raise the

issue ( Fifth Amendment ) at that time ( the

trial ) did not amount to a waiver o/ privilege".

See JOHNSON v ZERBST, 304 U.S. 458 (1938).

A denial of certiorari herein will give a green

light to prosecutors in light of the lower court's

opinion to bring before juries for their consi-

deration silence at:the time of arrest. This

will cause many appeals and cost the govern-

ment thousands of dollars for appointed counsel |

on appeal and many retrials and writs of

habeas corpus will be filed should this Court:

rule for petitioner's contention in another case

at a later date. oe ote

er

¢

,

The wording in’part of the issue con-

. Sidered by the court below and which is in

.substance the same as presented herein, follows:

"May the silence of Ramirez at

the time of his arrest and thereafter,

RT BP the exercise-of his privi--

lege.against self-incrimination and

the right to counsel, be constitutionally

used against him by the prosecution.

if, during his trial, he testifies in

his own defense * *.%"',

Now is the time for this Court to give

clear guidance to all lower courts, federal

and state, to law enforcement officers, to.

prosecutors and to defense counsel, on the

important issue presented herein. A clear

cut decision now will save untold judicial

time in the future and courts, defense counsel,

and jaw enforcement need an answer in order

to promote the fair administration of justice:

The rule that the silence of an accused

at the time of arrest and thereafter can be

.used to impeach or to draw an inference of

guilt will do untold harm to innocent persons.

Certainly, the questions and jury argument

of the prosecutor in the case at bar asked the

jury to consider silence as an inference of

guilt as well as evidence for impeachment.

In this light, it is difficult to imagine a rule

that will cause.more confusion and uncertainty

within the legal profession in the future. A

whole new area of dispute will be opened.. It

is urged that this Court give the most serious

_ consideration to the numerous problems

Bare si 15.

that courts will encounter on the proposition

or principle that a defendant can be penalized

‘for his silence upon arrest and thereafter.

We therefore, urge this Court to review and

reverse —_ decision below.

CONCLUSION

The petition for writ of certiorari

should be granted. —

_ Respectfully submitted,

t

Va

5

ee

Attorneys for the Petitioner

Ramiro Ruben Ramirez

608 Southwest National Bank

Building, El Paso, Tex.79901

CERTIFICATE OF SERVICE

Il, JOHN L. FASHING, one of the

attorneys for the petitioner Ramiro Ruben

Ramirez, and a member of the Bar of the

Supreme Court of the United ease hereby

certify that on this the ja? Aday of July, 1971°

I served three copies of the foregoing petition

for writ of certiorari each, on the following:.

i.

1. - OnMr. Ralph Harris, Assistant U.S.

Attorney for the Western District of Texas,

El PasoDivision, by mailing him three copies

of the same at his offices, Federal Courthouse

Building, El Paso, Texas 79901.

2. On the United States by mailing three

' copies thereof in a duly addressed envelope,

- with airmail postage prepaid to Honorable

Erwin Griswold, United States Solicitor

. General, United States: Department of Justice,

Washington, a», «,.

OHN L. FASHING

Wer ERARIA WPL ER We AN 0

APPENDIX A |

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT ©

No. 30511

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus"

- RAMIRO RUBEN RAMIREZ and

EVANGELINA LOPEZ HERNANDEZ,

Defendants-Appellants.

Appeals from the United States District Court

‘ for the Western District of Texas

(April 29, 1971)

a

Before SKELTON’, Judge, and MORGAN and

CLARK, Circuit Judges.

MORGAN, Circuit Judge: Ramiro Ryben Ramirez

and Evangelina Lopez Hernandez, brother and sister

~ of the half-blood, appeal their conviction for dealing in

heroin contrary to 21 U.S.C. §174. We affirm the convic-

tion of Ramirez and reverse as to defendant Hernandez. .

*Judge Byron G. Skelton, U.S. Court. of Claims, sitting by designa-

tion.

19.

SPREE RE RES Ci

.

2 U.S.A. v. RAMIREZ & HERNANDEZ

In June of 1969, Billy Ray Bessent, working as an un-

‘ dercover agent for the narcotics section of the Texas

Department of Public Safety, began a relationship with

David Rowlang, a known narcotics dealer and addict.

Rowland introduced agent Bessent.to several suppliers

of narcotics over the State of Texas and in partitular

to an El Paso resident, defendant Ramiro ‘Ramirez.

_Suspecting that Bessent was ‘a police officer, Ramirez

at first refused to talk or deal with the undercover a-

gent. Instead, Ramirez sold five. grams of heroin to

Rowland who in turn resold the drug to agent Bessent.'

However, in August of 1969, Ramirez finally agreed to

sell heroin directly to Bessent, and the parties decided

to meet and consummate the transaction at a house lo-

cated at 362 Val.Verde Street: This house was owned by

‘Ramirez’ mother who lived there along with Ramirez’

brother, Mr. and Mrs. Hernandez, and the two Her-

nandez children. |

As. agent Bessent, accompanied by Rowland and

Ramirez, entered the house on Val Verde, Mrs. Her- .

nandez and her two children were sitting in the living

room. The three men proceeded to the middle bedroom

where Ramirez removed a small jar from a drawer

and began slowly. measuring the proper amount of

heroin by scooping a spoonful of the powdered drug out

of the jar, scraping the excess powder off the top of the

spoon with a razor blade, and then emptying the leveled

spoonful into a plastic bag. According to Ramirez, fifty

“level spoonsful would ais the two ounces for which

(Rowland: was tried jointly and, convieted along with defendants |

Hernandez and Ramirez but\ \he a not participate in this

_ appeal. seen

° *

Poe ee

ie AE AL RAE ,

U.S.A. v. RAMIREZ & HERNANDEZ. 3

Bessent had agreed to pay $1, 100,00. While the meas-

uring operation was in progress, agent Bessent counted

the purchase money and placed it ona table’ Ramirez

thereupon called out something in Spanish and Mrs.

Hernandez appeared at the bedroom door and, _upon

hearing more Spanish words, removed the money from

_ the table and left the room:Not being conversant in

. the Spanish language, Bessent was -unable to under-

stand the content of the conversation between Ramirez

and his half-sister.

On September 12, 1969, Ramirez again agreed to sell

Bessent.a large quantity of heroin. This sale took place

behind an E] Paso shopping center in Ramirez’ 1965

Pontiac. When Ramirez produced the -heroin from un-

der the car seat, agent Bessent drew his pistol and ar-

rested the defendant while several other police officers

closed to provide assistance.

‘After the arrest of Hearnsees, police officers obtained

a search warrant and went to the house at 362 Val

Verde Street where they found Mrs. Hernandez, her :

two children, and two relatives in the living room. A -

thorough search of the house was conducted, and in the

middle bedroom officers discovered forty “papers”? of

heroin inside the pocket of a brown work shirt which

. Was hanging in the closet. Mrs. Hernandez. was arrest-

ed and taken to the sae station. |

z

2A “paper” of heroin is simply a small amount of the drug wrap-

ped in a piece of paper and ready for sale to the addict as one

“fix”, or dosage, which the addict reduces to liquid form and

injects into the /bloodstream. pe

21.

.

4 USA. v, RAMIREZ & HERNANDEZ

_ At the ensuing trial, the government charged Rami-

rez with three counts of selling, transporting, receiv-

ing, and concealing heroin, and with oné count of con-.

spiracy to commit these substantive offenses, all in

violation of 21 U.S.C. $174. Mrs. Hernandez was charg-

ed with one count of concealing and transporting heroin,. _

and with another count for conspiracy to ‘import, re-

ceive, conceal and sell, heroin, also in violation of 21

USC. £174: Ramirez did not attempt to refute any of.

the factual allegations against him but, instead, raiséd

the defense of coercion by claiming that he was selling

heroin onlw because a group of men from Mexico had

threatened him and his family with immediate harm

if he refused to cooperate. On the other hand, Mrs.

Hernandez denied any -knowledge of. heroin being con-

cealed or sold in the house in which she lived. The jury.

believed neither defendant and returned a verdict of

guilty on all counts. Ramirez received a sentence of 15

vears ow each. pena to be serveel concurrently and

Hernandez received two. concurrent sentences of 5

vears each. :

‘On this appeal Mrs..Hernandez contends her motion.

for acquittal at the close of the testimbny should have

been granted because the evidence before the jury was,

insufficient to support her conviction. The burden was,

of course, on the BON ernment to prove the element of

knowledge by showing that Mrs. Hernandez knew the

“substance concealed and sold in her ho: ne was heroin.

See Newsome v. United States, 5 Cir., "1964, 335 F.: 2d

237. Considering the evidence in the light most favor-

‘able to the jury’s verdict, Causey v: United States, 5

Cir., 1965, 352 F. 2d 203, we find the gov oo failed

ah Bete : io ;

Ce ae

a |

_- . foregoing circumstantial evidence that Mrs. Hernandez _

was an active participant in the heroin business, but ‘the:

question. is whether the jury could so infer to the ex-.

clusion of every other. reasonable hypothesis. See Rob-

Alam,

_versing in Spanish with. Ramirez, pi

and left the room. When persons seeking to buy heroin

, called the Val.Verde address and asked for Ramirez,

U.S.A. v. RAMIREZ & HERNANDEZ 5

to sustain its burden of proving knowledge as an ele-

ment of the crime. A review of the record discloses that ©

Mrs. Hernandez lived in the house. at 362 Val Verde

\Street with her ‘husband, her two children, her mother,

el! her brother, Roberto. On the day of the herein

“sale, Mrs. Hernandez entered the middle bedroom

while the drug was’ being meastited and, after con-

me up thé $1,000.00

Mrs. Hernandez summoned her brother to the tele-

phone. After the arrest of Ramirez, a search of the Val

Verde house revealed 40 “papers” of herdin concealed

in the same middle bedroom where the initial sale had.

taken. ‘Place.

‘Admittedly, a jury could reasonably infer. from the

erts v. United States, 5 Cir., 1969, 416 F.2d 1216; Harper

v. United States, 5 Cir., 1969, 405 F. 2d 185.-We hold'‘they ©.

_ could not. In the first instance, there was absolutely no.

testimony that. Mrs. Hernandez would recognize heroin

_ for what it was when she saw it. Prior to the trans-

- @

action in the middle bedroom®. there was no evidence

that Mrs. Hernandez had ev er seen, heard of or had any. ~

contact whatsoever with narcotic drugs.. Fo®all the

record: shows, Mrs.- Hernandez would have ‘had

3The ‘middie’ bedroom. was > not/the) he\ bedroom in which Mrs. Her-

‘nandez tie #

‘

:

6 U.S.A. v. RAMIREZ & HERNANDEZ

ra | | -

no reason to suspect anything illegal upon seeing a

-a small bottle containing a white powdery substance

since, regrettably, heroin does not ‘have distinctive

_ identifiable qualities which would inform the uninitiate

that criminal activity is afoot. The fact that Mrs. Her-.

nandez received money and at the same time observed

a substance later proved to be Keroin does not of itself

establish her complicity in the crime in the absence of

some evidence that she knew or should have known a’

heroin transaction was taking place.

Neither -does ° the additional proof that Mrs. Her-

nandez called Ramirez to the telephone when requested

to do so by prospective heroin customers save the

' government's case. The customers merely asked to ‘

speak with Ramirez; the government made no attempt

to show that a customer ever revealed the nature of

hiscall to defendant Hernandez. Moreéver, it would not |

seem unusual for Ramirez to receive at 362 Val Verde

‘since, his house, located two blocks away, did not have a

telephone. As to the .40:“papers” of heroin seizedftrom

the, middle bedroom, the/record reveals nothing more ©

than the fact that the contraband was discovered in a

house where Hernandez and several other persons liv-

"a :

In summary, we hold that the. evidence presented

was insufficient to support a finding that Mrs. Her-

nandez knew that heroin was being transported, con-

. cealed or sold‘in the house in which she lived. The con-

_ viction of Hernandez on both counts is hereby reversed.

ye

Se Pare ae ee ae eee ~

Defendant Ramirez, relying on Miranda v. Arizona,

24,

U.S.A. v. RAMIREZ & HERNANDEZ — 7

1966, 384 U.S. 436, contends that plain error* was com- .

‘mitted when the government cross-examined him a-_ .

bout remaining silent during his arrest and thereafter.

The colloquy. began when Ramirez took the witness

stand and told the jury that he was coerced into selling

" heroin by strangers from Mexico who kept himself and

‘his family under constant threat of harm. Ramirez

further testified that he desired to get caught so he

would. no longer es compelled to sell heroin: In an at-

tempt to discreUit the coercion: defense, the govern-

ment, on cross-examination, solicited the following

testimony from Ramirez : :(R. 349) :

‘Question: “All right and you didn’t tell a single one

of those men (police officers) this story

that you have told from the witness stand

this morning, did you?

Answer: “At that moment I didn’t think so.

Question: “In fact you never have told that story

to arly officer, that you told-on the stand”

today? (

Answer: “No.”

In its closing argument, the government urged the jury

- to believe that Ramirez was lying since a man actually

_ under duress and fearful for his family’s safety would

have informed the police of such a dangerous situation

upon being apprehended.

4None of the points of error raised by Ramirez on appeal were |

objected to by his trial counsel.

25.

‘ i

USA. v. RAMIREZ & HERNANDEZ

We reject the contention that Ramirez’ Silence is ex-

cludable from the jury’s consideration by Miranda v.

Arizona, supra, and hold that the cross-examination

falls Qearly within the ambit of Harris v. New York,

1971,_. sd U~S. —____, 39 :;U.S.L.W. 4281. In Harris the court _

held that while Miranda might prevent the use of cer- .

- tain statements obtained without proper warnings in

the prosecution’s case in chief, such statements could

‘be admitted for the purpose of impeaching the testi~

mony of an accused who took the witness stand.

“Every criminal defendant is privileged to

_ testify in his own defense, or to refuse to do so.

But that privilege cannot be construed to in-

clude the right to commit perjury. See United

States.v. Knox, 1969, 396 U.S. 77; cf. Dennis v..

United States, 1966, 384 U.S. 855. Having volun-

tarily taken the stand petitioner was S$ under an

obligation to speak truthfully and accurately

- and the prosecution here did no more than uti-

lize the traditional truth testing deviges of the

adversary process. |

“The shield provided by Miranda cannot be

perverted into a license to use perjury by way

of a defense, free from the risk of prior incon-

sistent utterances. £ Harris v. Néw York, es

at,

/

a

The analogy of Harris to the case at hand is inescap-

able. Once Ramirez eleéted to testify and assert. the

defense of coercion he became subject to the “tradi-

. tional truth-testing devices of the adversary process”,

26.

U.S.A. v, RAMIREZ & HERNANDEZ 9

_ including the right of the prosecution to show his prior

inconsistent act of remaining silent at the time of his

arrest. Thus, the district court was not in error in allow-

ing the government to cross-examine Ramirez about

his silence. 6 re Sia

— |

We have considered each of the several other con-

tentions advanced by Ramirez and find them to be

without merit. The conviction of Ramirez on all counts -

is therefore affirmed. . £S:

REVERSED IN PART; AFFIRMED IN PART.

2

Adm. Office, U.S. Courts—Scofields’ Quality Prifiters, Inc., N. O. La.

ats

Che

APPENDIX B

IN THE

"United States Court of Appeals

’ FOR THE FIFTH CIRCUIT

No. 30511

UNITED STATES OF AMERICA, ,

. Plaintiff-Appellee,

versus aie

- RAMIRO RUBEN RAMIREZ and

EVANGELINA LOPEZ HERNANDEZ,

| Defendants-Appellants.

Appeals from the United States District Court for the

_ Western District of Texas

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

(Opinion April 29, 1971, 5 Cir., 197_-_, ___ -F.2d___).

(June 22, 1971)

Before SKELTON*, Judge, and MORGAN and

CLARK, Circuit Judges.

*Judge Byron G. Skelton, U.S. Court of Claims, sitting by designa-

tion. ;

28.

2 U.S.A. v. RAMIREZ & HERNANDEZ

PER CURIAM: The Petition for Rehearing on be-

half of Ramiro Ruben Ramirez is DENIED and no

member of this panel nor Judge in regular service on

the Court having requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the Petition for

Rehearing En Banc on behalf of Ramiro Ruben. Rami- °

rez is DENIED.

,.

\

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.

29.

“ BRT Sg ty adi ait coke |

APPENDIX C

UNITED STATES COURT OF APPEALS FOR

—— FIFTH separates

October Saray 1970 -

No. 30511

D. C. Docket No. EP=70-CR-94

ty |’ UNITED STATES OF AMERICA, °_

Plaintiff-Appellee

_ versus, ss

RAMIRO RUBEN RAMIREZ and

EVANGEL INA LOPEZ HERNANDEZ,

. Defendants-Appellants

‘Appeal from the United States District Court

for the Western District of Texas’ ~

Before SKELTON, Judge, and MORGAN and

CLARK, Circuit Judges. ©

JUDGMENT

This cause came on to be heard on the

_transcript of the record from the United States

‘District Court for the Western District of

Texas, and was argued by counse;

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this Court

that the judgment of the said District Court

in this cause be, and the same is hereby,

reversed in part; and affirmed in part in

accordance with the opinion of this Court.

. ; April 29,1971

30,

oN a SPOT BI,

Issued as Mandate: ‘June 30, 1971 |

( As to Ramirez only )

Judge Byron G. Skelton, U.S. Court of

Claims, sitting by designation

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ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

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