Petition for Writ of Certiorari — Savard v. United States

11 1974

IN THE Se ON. 08

Supreme Court of the Anited States

1974

73-2009

JOSEPH ROLAND ROGER SAVARGL,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for writ of certiorari to the United States

Court of Appeals for the Fifth Circuit

Robert Dyer

Post Office Box 793

Orlando, Florida 32802

van den Berg, Gay, Burke & Dyer

Orlando, Florida

TABLE OF CONTENTS

Page

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Coke Cras cial ast se ah sb 400668544 004% l

QUESTIONS PRESENTED ........0cccccccscccccccns 2

Pee Oe OME 5 bn sccsnsccscesessentescsasr 2

DUR MEITE GO BUN GAGE ce ccc n ne nscncescsecaens 3

REASONS FOR GRANTING THE WRIT .............. 6

I. THE DECISION BELOW CONFLICTS

WITH A DECISION OF THIS COURT

AND A DECISION OF ANOTHER

COURT OF APPEALS AS TO THE

SUFFICIENCY OF INDICTMENTS

CONTAINING SUCH PHRASES AS

“CONTRARY TO LAW” AND “IN

WEEE BE s osc ecnceeecnsnsvcunseaces 6

Il. THE OPINION OF THE LOWER

COURT SANCTIONS A DEFINITION

OF “ENTRY” IN CONFLICT WITH

DECISIONS FROM OTHER COURTS

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APPENDIX (immediately following the Certificate of Service)

AURESOPEES Ta eR

AUTHORITIES

Cases

Page

Babb vy. United States, 218 F.2d 538 (Sth Cir. 1955) ... 6.7.9

Bland v. United States, 299 F.2d 105 (Sth Cir. 1962) ..... 8.9

Herrera v. United States, 208 F.2d 215 (9th Cir. 1953) ..... 9

In re Dubbiosi, 191 F. Supp. 65 (E.D. Va. 1961).......... 10

Keck v. United States, 172 U.S. 434 (1899) ......... 659

Lazarescu v. United States, 199 F.2d 898

ee SUE: Kash ca wee ba eee ee re be ee ae oa as 10

Martinez-Quiroz v. United States, 210 F.2d 763

oe A ee ee eee er er eee ee ry eee eee 9

Melendrez-Rodriguez v. United States, 441 F.2d 1109

TE: ATER. Wes RUNeh CAS eRe ke ANke ERO E ESAS 9

Russell v. United States, 369 U.S. 749 (1962)..........25.- 8

Savard v. United States, 493 F.2d 490 (Sth Cir. 1974) ..... l

Steiner v. United States, 229 F.2d 745 (9th Cir. 1956) . 6.7.9

Sutton v. United States, 157 F.2d 661 (Sth Cir. 1946) .7,8.9

United States v. Mallides, 339 F. Supp. 1 (S.D. Cal. 1972),

rev'd on other grounds, 473 F.2d 859 (9th Cir. 1973).... 10

United States v. Quinonez-Alavarado. 317 F. Supp.

(Pees CURE NED sc ae ke caacddeeuseeeureeeasda 9

United States v. Vasilatos, 209 F.2d 195 (3d Cir. 1954) ..... 9

Van Liew v. United States, 321 F.2d 664 (Sth Cir. 1963) . 7.9

Miscellaneous

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IN THE

Supreme Court of the Rnited States

1974

JOSEPH ROLAND ROGER SAVARD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Petition for writ of certiorari to the United States

Court of Appeals for the Fifth Circuit

Joseph Roland Roger Savard respectfully petitions this

Honorable Court for a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the Fifth

Circuit entered in this cause on May 2, 1974.

OPINION BELOW

The opinion of the Ccurt of Appeals, reported below at 493

F.2d 490 (Sth Cir. 1974), is set forth in the Appendix.

JURISDICTION

The May 2, 1974 judgment by the Court of Appeals became

final when it denied a petition for rehearing on June 11, 1974;

this petition for certiorari was filed within thirty (30) days of

that date. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254 (1).

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QUESTIONS PRESENTED

1. Where an indictment under 8 U.S.C. §1324 (a) (2)

charges, in the words of the statute, that the defendant knew

the alien transported was in the United States ‘in violation of

law,” but it does not set forth any specific facts showing that

violation or even cite a statute or regulation violated by that

alien, can the indictment be cured at the close of the

government’s case by an open court disclosure of the statute

violated by that alien, followed by a new trial?

2. (a) Is an “entry” by an alien, in violation of 8 U.S.C.

§ 1325, complete when the border guard removes official re-

straint by waving the alien through the check point?

(b) If an “entry” is complete upon passing through the

check point, how can such an entry be ‘furthered,’ within the

contemplation of 8 U.S.C. §1324 (a) (2), by transportation

which begins at least five miles below the border?

(c) If an “entry” is complete upon passing through the

border check point, was it error to refuse a supplemental in-

struction defining that word, where the request was made im-

mediately after the trial court gave a detailed supplemental

charge explaining to the jury for the first time the phrase, ‘in

furtherance of a violation?’

STATUES INVOLVED

1. 8 U.S.C. § 1324 (a):

“‘Any person, including the owner, operator, pilot, master,

commanding officer, agent, or consignee of any means of

transportation who —

“(2) knowing that he is in the United States in violation of

law, and knowing or having reasonable grounds to believe

that his last entry into the United States occurred less than

three years prior thereto, transports, or moves, or attempts

to transport or move, within the United States by means

of transportation or otherwise, in furtherance of such vio-

lation of law;

“Any alien, including an alien crewman, not duly admitted

by an immigration officer or not lawfully entitled to enter

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or reside within the United States under the terms of this

chapter or any other law relating to the immigration or ex-

pulsion of aliens, shall be guilty of a felony . . .”

2. 8 U.S.C. § 1325:

“Any alien who (1) enters the United States at any time or

place other than as designated by immigration officers, or

(2) eludes examination or inspection by immigration

officers, or (3) obtains entry to the United States by a will-

fully false or misleading representation or the willful con-

cealment of a material fact, shall, for the first commission

of any such offenses, be guilty of a misdemeanor . . -

ESS te ah ERPS BE) te

STATEMENT OF THE CASE

On May 17, 1973 the United States filed an indictment

against petitioner charging in count one! thereof that on or

about November 28, 1972 he transported an alien, one Jean

Marc Levesque, from Plattsburg, New York, to Orange County,

Florida. This count further alleged that Levesque was not duly

admitted by an immigration officer, that he was not lawfully

entitled to enter and reside in the United States, that petitioner

then knew that Levesque was in the United States in “violation

of law” and that the transportation was in order to further such

violation. The indictment did not set forth any facts or citation

indicating the specific nature of the offense by Levesque.

At trial Levesque testified that by prior understanding with

petitioner, he came across the United States-Canadian border at

Champlain, New York, in a car driven by Savard’s brother-in-

law. (Petitioner crossed the border in advance in a separate

vehicle.) At the border, the brother-in-law told the guard, on be-

half of all occupants including Levesque, that they were going

to Plattsburg for the day, to go swimming and drink beer. On

the highway outside of Plattsburg — at least five miles below the

border — Levesque transferred to petitioner’s car and rode with

him to Orange County, Florida. Shortly thereafter Levesque

went to work picking oranges. Petitioner’s testimony was not

materially different, although he could not, of course, testify as

to what occurred at the border.

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1. Two other counts were disposed of in the first trial and are

not here involved.

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After the United States rested, it announced, for the first

time, that the violation by Levesque was illegal entry under 8

U.S.C. § 1325. Petitioner’s post-trial motions for acquittal and

new trial set forth this late disclosure as one of its grounds. The

District Court denied the motion for acquittal but granted a

new trial on the ground that

“... the Government did not disclose to the defendant —

or to the Court — the basis for the allegation in Count

One that the alien named therein was ‘in violation of law’

until the close of the government’s case. . .””

At the commencement of the second trial, »etitioner moved

in open court to dismiss the indictment on the ground that it

contained “no indiction” of what Levesque had done that was

“in violation of the law,” making it “impossible . . . to tell what

_ facts were before the Grand Jury .. .” Whereupon this colloquy

_ ensued:

“THE COURT:

“Well, the man that signed this Indictment is now trying the

case. The last time the attorney for the government had been

somebody else and it was somebody else’s Indictment. This

time Mr. Jontz has his own Indictment so we will hear from

Mr. Jontz.

“MR. DYER:

“They were only a telephone length away during the pretrial

period.

“MR, JONTZ:

“‘During the first trial Mr. Snyder called me — I believe I can

state this, and asked me what the Statute was that was in-

volved as there was some question about it. I said that I

thought it was abundantly clear, everybody knew from the

outset it was 1325. I presented this case along with ihe wit-

nesses before the Grand Jury and I can specifically say that at

that time they were told that the government’s theory in the

case was that a Mr. Levesque was improperly in the country

by reason of willful, false and misleading statements made at

the border and Mr. Savard knew that when he transported

him down there.

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“THE COURT: é

“It doesn’t say so in the Indictment. $

“MR. JONTZ: :

“That’s correct. I think that was probably a proper subject ©

for bill of particulars and Your Honor said that we complied [

with the bill of particulars too late and it is my understanding ©

that is the ground for the granting of the motion for a new ~

trial. t

“THE COURT: ,

“‘That’s right and the order so states. ;

“MR. JONTZ: i

“| would so state — I do state here as an officer of the Court *

that this theory was presented to the Grand Jury. P

“MR. DYER: i

“I was not present, Your Honor, and I don’t know if there e

were any minutes kept but I move to strike what he said to y

the Grand Jury. 4

“THE COURT: i

“Well, the defendant and his counsel are both well aware now ©

of the government’s contention as we start this new trial and :

the slate is clean.” i

Shortly after the jury instructions were read, the foreman A

sent a written request to the court: “Please define precisely

‘furtherance of a violation.”’ After this new instruction, and

after the jury was taken out, petitioner requested a qualifying |

instruction that as a “matter of judicial interpretation the

offense [of illegal entry under §1325] is complete when...

[the alien] passes the border by use of material misstatement or

material omission ... because ... without that they are in a

very difficult position in understanding the furtherance of that

particular violation.” The court denied the request, saying,

“The way the case was presented I don’t know any other way

to present the furtherance but you may have a point.”

The Court of Appeals affirmed the judgment of conviction.

REASONS FOR GRANTING THE WRIT

I, THE DECISION BELOW CONFLICTS WITH A DE-

CISION OF THIS COURT AND A DECISION OF

ANOTHER COURT OF APPEALS AS TO THE

SUFFICIENCY OF INDICTMENTS CONTAINING

SUCH PHRASES AS “CONTRARY TO LAW” AND

“IN VIOLATION OF LAW.”

In the Court below petitioner relied upon Babb v. United

States, 218 F.2d 538 (Sth Cir. 1955). The opinion below did

not cite Babb, Petitioner submits that the decision by the Court

cf Appeals conflicts with these cases:

(1) Keck v. United States, 172 U.S. 434 (1899). Count one

of the indictment charged that Keck had unlawfully imported

and attempted to import diamonds of a stated value into the

port of Philadelphia, ‘‘‘contrary to law ...”’ Jd. at 437. This

Court held as to count one that

“The words, ‘Contrary to law,’ contained in the statute

clearly relate to legal provisions not found in section 3082

itself, but we look in vain in the count for any indication

of what was relied on as violative of the statutory regu-

lations concerning the importation of merchandise.” /bid.

This aspect of Keck has not been questioned by subsequent de-

cisions of this Court.

(2) Steiner v. United States, 229 F.2d 745 (9th Cir. 1956).

Substantive counts 8, 9, 10 and 11 charged defendants with

transporting psittacine birds (“merchandise’’) “knowing the

same to have been imported into the United States contrary to

law.” Jd, at 748. The Ninth Circuit, citing Keck and Babb,

_ supra, held that these substantive counts were insufficient to

charge an offense because each count “failed to state what law

... the importation mentioned therein was contrary, or in what

respect such importation was contrary to law.” 229 F.2d at

748. The Ninth Circuit said the defects in these counts “could

not have been cured by a bill of particulars. It is therefore

immaterial that appellants did not move for such a bill.” 229

F.2d at 748.

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Thus, in Steiner, the indictment did not disclose any specific

facts known to the defendant that explained why the mere

presence of the birds in the United States was known by de-

fendant to be contrary to law. In tne case at bar, the indictment

did not state what Levesque had done — or intended to do —

that was known by petitioner to make Levesque’s presence in

the United States “in violation of law.’ The indictment does

not even charge that petitioner knew that Levesque was not

duly admitted by an immigration officer. It certainly does not

hint at the specific facts of Levesque’s violation.

The trial court in the case at bar believed that disclosure at

the end of the Government’s case of the statute involved in

Levesque’s offense, 8 U.S.C. § 1325, came too late to cure the

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prejudice to petitioner. The actual reasoning of the Court of |

Appeals is unclear, because although it alluded to a bill of

particulars, none was in fact filed. The Court of Appeals, at the |

very least, held that petitioner’s indictment was not fatally de- —

fective, i.e., could be cured with an oral bill of particulars. To |

this extent, it conflicts with Steiner, where the Ninth Circuit B

held that the phrase, “contrary to law,” rendered the indict- |

ment so defective it could not have been cured by a bill of |

particulars.

The opinion below conflicts with at least three opinions by ~

the Fifth Circuit itself. In Babb v. United States, 218 F.2d 538 ©

(Sth Cir. 1955), the indictment charged defendants with trans-

porting certain merchandise, to wit, eight Charolaise Cattle,

“knowing the same to have been importated and brought into

the United States contrary to law.” /d, at 539. Notwithstanding

a bill of particulars, to which wis «ttached ten pages of regula-

tions, the Court held (1) the! the indictment was deficient be-

cause there were no references to a specific statutory violation

encompassed by the phrase “contrary to law,” and (2) the de-

fective indictment could not be cured by any bill of particulars.

Ibid. The Court cited Keck and Sutton v. United States, 157

F.2d 661 (Sth Cir. 1946), on the need to allege facts and a

statutory violation to support the otherwise meaningless phrase,

“contrary to law.” 218 F.2d at 54041... .[I] t is not enough

to say that they were imported or brought in ‘contrary to law.”

Id, at 541.

In Van Liew v. United States, 321 F.2d 664 (Sth Cir. 1963),

count one of the indictment charged that defendants conspired —

to introduce into interstate commerce a food “which was mis-

branded” within the meaning of 21 U.S.C. § 343 (a), (b), (i) (2).

~J

Notwithstanding identification of the statute involved, the

Court held that the indictment did not sufficiently apprise de-

fendants of the specific offense with which they were charged.

The Court noted that Russell v. United States, 369 U.S. 749,

770 (1962), prohibited courts — or prosecuting attorneys —

from making a “subsequent guess as to what was in the minds

of the grand jury at the time they returied the indictment .. .”

321 F.2d at 669. The Court said that the provisions of the

sections of the statute cited in the indictment could charge

eleven possible crimes. In holding that it is the grand jury which

must select the offense (based on the evidence presented to it),

the Court said that if the prosecutor could make the “‘choice of

one or more out of many unidentified crimes ... then present-

ment by a Grand Jury will have become a useless, historic

ritual.” Jd, at 672. Yet, this is just what the trial court allowed

the prosecutor to do in the case at bar. Section 1325 of Title 8

contains three to five separate possible offenses; but not even

this section as a whole was ciied in petitioner’s indictment.

In Sutton v. United States, 157 F.2d 661 (5th Cir. 1946), the

Court reversed a conviction upon an indictment which charged

defendant with possession and control of rationed sugar ““‘in

violation of Second Revised Ration Order No. 3 and General

Ration Order No. 8, as amended.’ /d, at 663. The Court said

ihat the “phrase just quoted was not an allegation of fact but a

legal conclusion of the pleader .. .” /d, at 664.

The Court below said that ‘“‘An almost identical situation

existed in Bland v. United States, 299 F.2d 105 (Sth Cir. 1962).

That decision controls.” The Bland indictment charged that de-

fendants violated 8 U.S.C. §1324 (a) (1) by flying into the

United States two aliens not duly admitted and not entitled to

reside in the United States, 299 F.2d at 106. Bland seems dis-

tinguishable because there the defendants, themselves, were

charged with flying the aliens into the country; therefore, the

defendants knew that the aliens had not been duly admitted. In

the case at bar, Levesque went through a regular border station

. and petitioner’s transportation began several miles south of that

station.

The statutes and regulations governing aliens are complex and

voluminous. It was a complete surprise that Levesque’s offense

turned out to be §1325. The statutes and regulations cover

length of stays, students, unskilled workers (Levesque), etc.

The case at bar appears to be the first case under 8 U.S.C.

§ 1324 (a) (2) where the vagueness of the mere phrase, “in vio-

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lation of law,” has been challenged (and even this challenge is

not apparent from the text of the opinion below). But the ~*

failure factually to identify the offense of the alien transported, ~

with statutory citation, must surely be a problem in scores of —

other cases. The statutes and regulations are so complex, and

the situations under which transportation takes place are so

varied, that defendants indicted under 8 U.S.C. § 1324 (a) (2)

will suffer loss of their Sixth Amendment rights if the simplistic

rationale of Bland displaces the traditional tests of Keck,

Steiner, Babb, Sutton and Van Liew, supra. Strangely, there is

no indication that this concern has even been raised in cases

such as Melendrez-Rodriguez v. United States, 441 F.2d 1109

(9th Cir. 1971); Martinez-Quiroz v. United States, 210 F.2d 763,

764 n.2 (9th Cir. 1954); Herrera v. United States, 208 F.2d

215, 216 (9th Cir. 1953); and United States v. Quinonez-

Alavarado, 317 F. Supp. 1344 (W.D. Tex. 1970) (where the

court set aside its own finding of guilt on the ground that the

Government failed to prove that the defendant knew the alien

was in this country in violation of law).

I]. THE OPINION OF THE LOWER COURT SANCTIONS

A DEFINITION OF “ENTRY” IN CONFLICT WITH

DECISIONS FROM OTHER COURTS OF APPEALS.

Once the trial court gave a supplemental instruction defining

for the first time the phrase, ‘furtherance of a violation,’ the

logical question was how an entry at the border could be

furthered by transportation beginniny at icast five miles south

of that border. Nevertheless, the trial court denied a qualifying

instruction that the offense by the alien was ‘‘as a matter of

judicial interpretation complete ... when he passes the border

by the use of material misstatement or material omission .. .”

The opinion below did not comment on the refusal to give this

supplementary instruction, but did uphold the trial court’s

denial of another charge on general intent.

Several decisions hold that an “entry’”’ occurs when the alien

is physically in this country and official restraint has been

lifted, e.g., by an immigration officer granting leave for crew

members of a foreign ship to go ashore. See United States v.

Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954):

“In any event, the view has prevailed with respect to

arrivals of the type here involved that freedom from

official restraint must be added to physical presence before

entry is accomplished.”

To the same effect are Lazarescu v. United States, 199 F.2d

898, 900 (4th Cir. 1952); United States v. Mallides, 339 F.

Supp. 1 (S.D. Cal. 1972), rev’d on other grounds, 473 F.2d 859

(9th Cir. 1973); and In re Dubbiosi, 191 F. Supp. 65 (E.D. Va.

1961).

Apparently, United States v. Mallides, 229 F. Supp. 1 (S.D.

Cal. 1972), is the only decision that has discussed this judicial

definition of ‘entry’ in the light of a situation even remotely

analogous to that in the case at bar. In Mallides the indictment

charged aiding and assisting an illegal entry under 8 U.S.C.

§ 1325. Defendant met the aliens at San Diego and drove them

to Oceanside, California. The District Court, in reviewing a con-

viction by the magistrate, concluded “that the entry had been

accomplished prior to the time that appellant met the aliens.

Consequently, the conviction cannot be sustained under this

theory.” Jd. at 4. However, the conviction was sustained on the

theory that Mallides’ action “was part and parcel to a plan to

aid and assist the entry of aliens into this country, his duty

being to await the arrival of the aliens in San Diego and then

transport them further into the interior.” Ibid.

Had either the trial court or the Court below applied the

above judicial definition of “entry” as was done in Mallides, the

conviction would have been set aside, for there is no logical way

to further an entry, which was complete at the Champlain

border station, by transportation beginning five miles down the

highway.

Since unlawful entry, in violation of 8 U.S.C. § 1325, was the

offense committed by the alien (which offense petitioner

allegedly furthered), it would seem that petitioner was entitled

to (a) the qualifying charge defining entry, or (b) a review of

the evidence measured against the standard judicial definition of

that word. (The statutory definition of entry at 8 U.S.C. §1 101

(a) (13) does little to advance the problem.)

10

CS DAN LORELEI OTIS

CONCLUSION

The tests applied to indictments charging transportation of

cattle or psittacine birds in this country “contrary to law”

should not be more favorable to defendants than the tests

applied to indictments charging transportation of aliens in this

country “in violation of law.” But this unfortunate dichotomy

may continue unless this Court issues its writ of certiorari to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

Is! ROBERT DYE

Robert Dyer

Post Office Box 793

Orlando, Florida 32802

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was

furnished by first class mail this .2_--____ day of July 1974 to

John L. Briggs, Esquire, Post Office Box 2593, Orlando, Florida

32802, and three copies by air mail to the Solicitor General,

Department of Justice, Washington, D.C. 20530.

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{ ‘ie ‘

Robert Dyer

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APPENDiX

UNITED STATES of America, Plaintiff-Appellee,

wv

Joseph Roland Roger SAVARD, Defendant-Appellant.

No. 73-2926.

United States Court of Appeals,

Fifth Circuit.

May 2, 1974.

Appeal from the United States District Court for the Middle

District of Florida.

Before BROWN, Chief Judge, and AINSWORTH and

MORGAN, Circuit Judges.

PER CURIAM:

A jury found Savard guilty of violating 8 U.S.C. § 1324 (a)

(2),! and he was sentenced to one year in prison. All but three

months was suspended. This appeal followed.

A Canadian citizen with a permanent United States work

permit, Savard was chief of a fruit picking crew in Florida. His

pay consisted of a percentage of the profits made from the

picked fruit. Gene Mark Levesque is a Canadian citizen without

a United States work permit of any type. While in Canada,

Savard and Levesque agreed that Levesque would cross into the

United States, meet Savard, who would then take Levesque to

Florida to work. This was done, Savard carrying Levesque’s bag-

gage across the border and Levesque riding with friends so as

not to arouse suspicion. In the United States they met and pro-

ceeded south. Upon arrival in Florida they were apprehended.

1. 8 U.S.C. § 1324(a)(2) provides:

(a) Any person, including the owner, operator, pilot, master,

commanding officer, agent, or consignee of any means of

transportation who —

Alta DORAL 3

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(2) knowing that he is in the United States in violation of

law, and knowing or having reasonable grounds to believe

that his last entry into the United Staes occurred less than

three years prior thereto, transports, or moves, or attempts to

transport or move, within the United States by means of

transportation or otherwise, in furtherance of such violation

of law;

any alien, including an alien crewman, not duly admitted by

an immigration officer or not lawfully entitled to enter or re-

side within the United States under the terms of this chapter

or any other law relating to the immigration or expulsion of

aliens, shall be guilty of a felony, and upon conviction there-

of shall be punished by a fine not exceeding $2,000 or by

imprisonment for a term not exceeding five vears, or both,

for each alien in respect to whom any violation of this sub-

section occurs: Provided, however, That for the purposes of

this section, employment (including the usual and normal

practices incident to employment) shall not be deemed to

constitute harboring.

There are five contentions on appeal. First, the indictment

should have been dismissed because it did not allege essential

facts with requisite particularity to constitute an offense under

the statute. We find that the indictment, plus the bill of

particulars, properly advised the appellant of the offerise

charged. An almost identical situation existed in Bland v.

United States, 299 F.2d 105 (Sth Cir. 1962). That decision con-

trols. See, Banderas-Aguirre v. United States, 474 F.2d 985 (Sth

Cir. 1973). See also, United States v. Duran, 411 F.2d 275 (Sth

Cir. 1969) and Hayes v. United States, 407 F.2d 189 (Sth Cir.

1969).

Second, appellant chailenges the sufficiency of the evidence

of the violation. A thorough analysis of this statute, as was

done in Herrera v. United States, 208 F.2d 215 (9th Cir. 1953),

cert. den., 347 U.S. 927, 74 S.Ct. 529, 98 L.Ed. 1080 (1953),

combined with a complete review of the evidence convinces this

court that sufficient evidence existed to justify a guilty verdict.

Appellant’s fourth contention of error is also controlled by our

13

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finding as to this second allegation.? Furthermore, the trial re-

cord demonstrates on its face that appellant’s allegation as to

Levesque’s inability to communicate is meritless.

Last, it is urged that the tiral court erred in the giving of a

supplemental charge. After the jury retired to deliberate, a note

was sent to the court requesting a more precise definition of

“furtherance of a violation.” The request was granted. Tie total

elapsed time from the jury’s rising to go deliberate and its being

reseated to hear the supplemental instructions was 34 minutes.3

Appellant now asserts that because of this time lapse, tavorable

and unfavorable instructions were not kept in equal focus.

Bland, supra, and Perez v. United States, 297 F.2d 12 (Sth Cir.

1961) are relied on to support this argument. In Bland the

elapsed time was four hours and in Perez a minimum of 12

hours. ,

The trial court apparently determined that the jury had in

effect deliberated no more than ten minutes. Even then, the

court instructed them not to give unequal weight to any of the

instructions. We conclude that under these facts no error

occurred. The lower court is

Affirmed.

2. Appellant’s fourth contention was that the evidence was not

sufficient for the case to go to the jury.

3. Appellant and appellee apparently miscalculated the time in

their briefs.

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