Appendices — Gonzalez v. Vincent

APPENDIX A

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App. 1

APPENDIX A

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-1974

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SUSAN JILL FORBICETTA,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

(September 19, 1973)

Before GEWIN, COLEMAN and MORGAN,

Circuit Judges.

COLEMAN, Circuit Judge: In a Bench trial, Miss

Forbicetta was convicted of the knowing, intentional,

and unlawful importation of cocaine in violation of 21

U.S.C., $1952(a), and of the knowing, intentional, and

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et cl., 5 Cir. 1970, 431 F.2d 409, Part I.

App 2

2 U.S.A. v. SUSAN JILL FORBICETTA

unlawful possession with intent to distribute cocaine

in violation of 21 U.S.C., £84l(ai(1).

It could not have been denied that on November 21,

1972 the appellant arrived at Miami International Air-

port on a flight from Bogota, Colombia, carrying,

while concealed on her person, 2 1/2 pounds of cocaine.

An attack upon the validity of the search which dis-

covered the cocaine provided the only hope of avoid-

ing a conviction. The search was found valid, we agree,

and the convictions are affirmed.

This was a border search, accomplished at the very

time the appellant was entering the United States

from abroad. The evidence reflected that according to

the experience of customs officials at Miami, a high

percentage of the individuals discovered in the act

of attempting to smuggle cocaine at the Miami Inter-

national Airport arrived on flights from Bogota; the

American women discovered in this activity were us-

ually young, clean looking, and traveling alone; women

discovered carrying cocaine on their persons usually

wore loose-fitting dresses to conceal the bulkiness of

the packages hidden beneath their clothing; usually

when an official could not see the contours of a femi-

nine figure under loose-fitting dresses, even when the

subject was in a bending position, the wearer gener-

ally had something strapped to her waist; individuals

attempting to smuggle cocaine usually carried only

one suitcase and no items to declare so as to clear

customs quickly; it had been observed that it was very

unusual for young people to go on vacations to Colom-

bia if they had no relatives there; and the usual air-

App.3

U.S.A. v. SUSAN JILL FORBICETTA 3

line female traveler ordinarily wore tight-fitting cloth-

es.

In this context Miss Forbicetta arrived from Colom-

bia, traveling alone, with one suitcase, and no liquor

or other items requiring customs inspection. She was

young (age 21), thin, ciean looking, and attractive.

She was wearing a loose-fitting dress. When she bent

to pick up her suitcase, the dress revealed no con-

tours of her figure.

The customs official then questioned Miss Forbi-

cetta. Her passport revealed that she was from Brook-

lyn. She said that she had been a bank teller, was un-

employed, had gone to Colombia for a vacation, and

had no relatives in Colombia.

She was then referred to two female customs in-

spectors. They, in the presence of none others, in a

room which had no windows, asked the appellant to re-

move her dress and slip. The customs inspectors then

could easily see that something was concealed under

the remaining girdle. Upon removal of that garment,

there appeared seven large packets, containing the

2 1 2 pounds of cocaine.

Under an abundance of precedent, this was a lawful

border search, United States v. Thompson, 5 Cir., 1973,

475 F.2d 1359; United States v. Skipwith [No. 72-1932,

slip opinion dated June 14, 1973], 5 Cir., 1973, F.2d

____; United States v. Cyzewski [No. 72-3368, slip opin-

ion dated August 29, 1973], 5 Cir., 1973, _.. F.2d ___;

United States v. Maggard, 5 Cir., 1971, 451 F.2d 502;

App. 4

4 U.S.A. v. SUSAN JILL iP ORBICETTA

United States v. Briones, 5 Cir., 1970, 423 F.2d 742; Unit-

ed States v. Hill, 5 Cir., 1976, 430 F.2d 129; United States

v. Rodriquez, 5 Cir., 1961, 292 F.2d 709.

In United States v. Skipwith, supra, the defendant

fell within the F.A.A. anti-skyjack profile and stated

that he had no identification. A sky marshal detained

him and found that the name on his airline ticket was

false, took him to his office, and, fearing that a bulge

in the defendant’s pocket was a gun, had him to empty

his pockets, revealing a plastic bag of cocaine. The

search was held to be lawful.

In Miss Forbicetta’s case, her appearance, method

of travel, and response to questions met a “smuggling

profile” born of experience gained in coping with that

elusive activity. She was at the border, in the act of

entering the Country. She was examined by other

women in a dignified manner, in a place where there

could be no peeping eves, and there was no explora-

tion of body cavities. This search was entirely reason-

able.

The appellant complains of the alleged bias of the

trial judge. Counsel did file a motion, 28 U.S.C., £144,

that the Judge recuse himself, which was overruled.

Despite this unfavorable ruling, jury trial! was waived,

after the defendant had been very meticulously as-

sured of her right to trial by jurv. It is easily seen that

counsel adopted this course because the only hope for

his client was the asserte: illegality of the search.

That was a question of law. not a question for a jury.

App. 5

U.S.A. v. SUSAN JILL FORBICETTA 9)

As an issue of law, and upon undisputed facts, the Dis-

trict Court has decided it correctly.

Nothing remains but for the Judgment of the Dis-

trict Court to be

AFFIRMED.

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

APPENDIX B

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App. 8

APPENDIX B

: Pe aS aed Xo sernes| ez

United States Guurt of Avipeals

FOR THE FIFTH CiRCUIT

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October Term, 1972

No. 73-1974

Swumary Calendar

D. C. Docket No. 72-929-CR-EC

UNITED STATES OF AMEKICA,

Plaintiff-Appellee,

versus

SUSAN JILL FORBICETTA,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

Pat) > GMEWNT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Southern

District of Florida, and was taken under subnission by the Court

upon the record and briefs on file, pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here ordered and adjudg

by this Court that the judgment of the said District Court in this

cause be, and the same is hereby, affirmed.

September 19, 1973

Issued as Mandate:

APPENDIX C

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APPENDIX C

IN THE

UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 73-1974

SUSAN JILL FORBICETTA,

Appellant

versus

UNITED STATES OF AMERICA,

Appellee

Appeal from the United States District Court

for the Southern District of Florida

PETITION FOR REHEARING

(EN BANC)

JACK FREED

1390 S. Venetian Way

Miami, Florida 33139

Attorney for Appellant

App. 12

INDEX

PETITION FOR REHEARING

CERTIFICATE OF SERVICE

App.13

TABLE OF CITATIONS

Page

Henderson v. United States

390 F.2d 805 (9th Cir. 1967)

Santabello v. New York

4O4 U.S. 257 (1971) a.

United States v. Gilda-Avila

468 Fed 184 (1972)

Un.ted States v. Gualdalupe-Garza

421 F.2d 876 (9th Cir 1970)

United States V. Johnson

425 F.2d 630 (1970)

United States v. Poindexter

429 F.2d 510 (1970)

United Stutes v. Shields

453 F.2d 1235 (1972)

ii

App. i¢

LN THE UNLTED STATES COURT OF APPEALS

FOR THE FIFTH CIRCULT

NO. 73-1974

SUSAN JILL FORBICETTA,

Appellant, !

versus

UNITED STATES OF AMERICA,

Appellee.

Appeal from the United States District

Court for the Southern District of

Florida

PETITION FOR REHEARING

IN THE INTEREST OF JUSTICE and adherence to the law of

the United States of America, Appellant, SUSAN JILL FORBICETTA, by and

through her undersigned attorney, respectfully petions this Court for a

REHEARING IN BANC, of its decision in this cause and as grounds states:

l. That these proceedings involves questions of

-xceptional importance.

2. That consideration of the full Court is necessary

to maintain uniformity of decisions within this and other UNITED STATES

COURTS OF APPEALS and the UNITED STATES SUPREME COURT.

The questions presented in this cause are of exceptional

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App.15

importunce not only because this defendant's Constitutional rights have

een openly disregarded in the sole interests otf a conviction, but due

srimurily to the tact that should this decision be permitted to stand

in its open conflict and disregard of the Constitution and supporting

cuse law, the Fourth Amendment has,in effect, been rendered null and

void,

The reviewing panel in this cause did not address them-

selves to the questions, the facts or the law in this cause. In their

opinion affirming this warrantless strip search the panel cites several

recent cases as "an abundance of precedent." These recent cases are of

an entirely different nature involving serious and immenent danger to

Life and property of air travelers by the skyjackers and/or potential

sky jackers. Such is not the case in this cause, as no danger, serious or

incidental, real or suspected, to life or property was imminent to justify

this warrantless strip search.Further, the decision rendered in this

cuuse is in clear and direct conflict with recent decisions on this

subject, United States v.Poindexter, 429 F.2d510(1970); United States v.

Johnson, 425 F.2d630 (1970); rehearing denied June 22,1970,Henderson v.

United States,390 F.2d 805,808 (1967); United States v.Guadalupe-Garza,

421 F.2d 876 (1970); United States v.Gilda Avila, 468 F.2d 184 (1972),

United States v. Shields 453 F.2d 1235 (1972), to cite but a few.

The reviewing panel further takes Little note of the tria

judges open bias to the Defendant and her counsel in denying this Defen-

dunt a fair and impartial trial before a fair and impartial judge. Defen-

dant was badgered and threatened by the trial judge during the hearing on

Defendant's Motion to Suppress.

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Arr. 16

Defense counse! exhibited the utmost respect to the court

und the judge at all times. The Judge, nonetheless continually badgered

cwunsel, assumed the role of the prosecutor, called counsel a liar, told

him he was unfit to practice law, held him in eontempt, fined him $100.00

and he was removed by the Marshall to the Marshall's holding area.

Cleurly unjustified bias which has no pluce in law or in the dignity of

wur judicial system,

Furthermore the panel, tor whatever reason, apparently

places yreut weight on the waiving of jury by Defendant. Defendant and

counsel had no choice but to waive jury trial, as a written stipulation

hud been entered into and signed by the government, Defendant and defense

cumsel. (Copy of which is available ty this Court) which was honored by

the Defendant, but dishonored by the Government. It was during defense

cumse! attempted proffer to the court of this written stipulation where

comsel was held in contempt, called a Liar, fined $100.00 and removed

by the Marshall. The United States Supreme Court in Santobello v.

New York 404 U.S. 257, has expressly held that plea bargaining must be

honored by both parties or require that the judgment be vacated.

It is respectfully submitted that the opinion and decision

in this cause is not only in direct conflict with the law for it is not

the Law, hasnever been the law and God forbid should it ever become the

Law of this great Republic.

Furthermore, for this court of appeals to permit a

Jistrict court to unjustly treat a citizen and an attorney, (who is an

otticer of the court) in the manner which they were subjected in this cause

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App.17

is beyond the law or legal reasoning in establishing that the end, (u

conviction), justifies the means, for an illegal warrantiess strip seurch.

(Appellants brief sets forth some of the legal authority concerning this

cause.)

WHEREFORE, the Court should reconsider its opinion and

decision, grant a rehearing En Bunc, and reverse the judyment beliw.

Respectfully submitted,

’ Venetian Way

\ Miami/ Florida 34149

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 2nd of October, 1973, two

true and correct copies of the foregoing Petition for Rehearing wus

hand delivered to the United States Attorney for the Southern District

of Florida, Ainsley Building, Miami, Florida 33132.

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APPENDIX D

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App. 21

APPENDIX D

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-1974

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SUSAN JILL FORBICETTA,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Sept. 19, 1973, 5 Cir., 1973, ___. F.2d ___).

(November 2, 1973)

Before GEWIN, COLEMAN and MORGAN,

Circuit Judges.

PER CURIAM: The Petition for Rehearing is DE-

NIED and no member of this panel nor Judge in regu-

lar active service on the Court having requested that

the Court be polled on rehearing en banc, (Rule 35

App. 22

2 U.S.A. v. SUSAN JILL FORBICETTA

Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 12) the Petition for Rehearing En Banc is

DENIED.

SATE BARE

APPENDIX E

APPENDIX E

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APPENDIX F

US.Cl.°T OF AFFEALS

P'_ED

APPENDIX F ° wes

UNIYED STATES count oF apprats 4!) {3

Codes) U6 wASS WORTH

FOR THE FIFT! CINCUIL CLERK

UNITED STATES OF AMERICA, ;

Plaintiff-Appeliee, ;

versus )

) NO, 73-1974

)

SUSAN JILL FORBICETTA, ;

Defendant-Appellant. )

ON CONSIDERATION OF THE APPLICATION of the Appellant

in the above numbered and entitled cause for a stay of the mandate

of this Court therein, to enable Appellant to apply for

and to obtain a writ of certiorari from the Supreme Court of the

United Giaces. if i5 GADERED that toe issuance of the mendere of

this Court in said cause be, and the same is stayed to and including

December 2, 1973 , the stay to continue in force until the final

disposition of the case by the Supreme Court, provided that within

the period above mentioned there shall be filed with the Clerk of

this Court the certificate of the Clerk of the Supreme Court that

certiorari petition has been filed. IT IS FURTHER ORDERED that

the Clerk shall issue the mandate upon the filing of a copy of an

order of the Supreme Court denying the writ, or upon the expiration

of the stay granted herein, unless the above mentioned certificate

shall be filed witn the Cierk of this Vourt within that time.

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