# Appendices — Gonzalez v. Vincent > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0766%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendices - **Published:** January 1, 1973 - **Citation:** 414 U.S. 924 ## Text APPENDIX A or ae pe dm alow oe CR Pte cea PNP BA 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 dt (DAI Libis 4 ms App. 8 APPENDIX B : Pe aS aed Xo sernes| ez United States Guurt of Avipeals FOR THE FIFTH CiRCUIT %- —— 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 SOT ATP at YN er oo 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 ‘ aie 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. ate 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 aie 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. a eer Peer SI et ROE LEE TE IF TUNER TE ETT ET OT SR SERIE ARLES TERETE SOE SI PPD AA IE IE NOE APPENDIX D 0 NO EAN Oh 6 eb BA ANT gh we WS Taek: Biarlbnit Se lle LNT s. hh bade eh LDP EAR IO SIR NS eo deka 2 APA ORES ES PNT RN TER ETT WE TYY PHN OMS PRA TI (2 tet veae ry 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 . . pa 3 Sy < Aen wa TUN “a - we eset’ =—_ ——— App. App. 26 3 . . ‘ . . “ ‘ ; ' . ° ‘ { - — ne : ae” tape wk thecte SR RMRSCE Ros ede ky P. eae | teeeese . Hed . = , ae eee We . Nf SrtNe NS . s- me . . Milas 2 reese sees Luise . - + -. Rises n en eee woe oe teh +e - * es oe - ree a3 Cele ° ; rn . * : . a? 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Ay ae ae aN\ene - we eee obe CIT tr.” ws Td Denese ebaicrts ey Sd & 90 46 > pie Ssuss St sess ” 4, eo crue dhu correct CaOsgics . > hen. delivered to the a Neuetoy Bui lids bLUPAGE, 2D acy UsLiuss Soke wh ese Kins - PSV aTig Snreatenn & Set tl 5% ~ TCV were TSU ofa uss — a ye WTA IN bc Raee ed 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. Qf ee) oe ‘te --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0766%3A2. Public record. Not legal advice.