Memorandum — Curbelo-Talvara v. United States

In the Supreme Court of the United States

OcTOBER TERM, 1974

No. 74-795

MARIO CURBELO-TALVARA AND

OcTAVIO PINO-VILLA, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners allege that the court of appeals erred

in concluding that the admission of certain hearsay state-

ments at trial constituted harmless error. In addition,

petitioner Pino argues that his right to counsel was

violated when a statement that he made to an informant

after his indictment was introduced at trial.

After a jury trial in the United States District Court

for the Middle District of Florida, petitioners were con-

victed on three counts charging conspiracy, importation

of marijuana, and possession of marijuana with intent to

distribute (21 U.S.C. 841(a)(1), 952(a) and 960(b); 18

U.S.C. 371). Petitioner Curbelo was sentenced to consecutive

(1)

2

five-year prison terms on each count and given a special

parole term of two years. Petitioner Pino was sentenced

to concurrent five-year prison terms on two counts and

given a special parole term of two years; in addition, he

was given a consecutive sentence of five years’ imprison-

ment and a special parole term of two years on count

three. The court of appeals affirmed (Pet. App. A).'!

The evidence is outlined in the opinion of the court of

appeals. Briefly, petitioner Curbelo introduced Juan

Ortiz, then a government informant, to Raul Gonzales,

an alleged narcotics smuggler from Colombia. Gonzales

in turn introduced Ortiz to Nacre Dace. Subsequently,

pursuant to a plan between Dace and | et‘tioner Curbelo

to smuggle some marijuana from Colombia, Curoelo agreed

to pay Ortiz, a pilot, to fly to Colombia and pick up

the contraband (rr. 133-137).2 Curbelo, accompanied by

Pino, later gave Ortiz the money with which to rent a

plane for this purpose. Ortiz was instructed to fly the

contraband to the Leesburg, Florida, airport, where he

was to be met by petitioners Curbelo and Pino (rr. 6-7).

Ortiz made the flight as planned, but upon landing at

the Leesburg airport he found no one there to take

possession of the marijuana he carried and he was

not able to locate either of the petitioners. Conse-

quently, he deposited the marijuana, which weighed

almost a ton and was packed in twenty-four cigarette

cartons, along one of the airport runways and then

'Four other defendants, Armando Arias-Diaz, Delfin Hondares-

Alfaro, Pedro Alvaro Zarzabal-Naranjo and Jose Quinones-Pita,

were also convicted of possession of marijuana. The court of appeals

reversed Zarzabal’s conviction for insufficiency of the evidence

and affirmed as to ine other three.

The transcript references used here correspond to those used in

the petition, p. 3.

3

continued to Miami. At three o'clock the following

morning, Ortiz received a telephone call from petitioner

Pino. Pino inquired about the location of the mari-

juana, which Ortiz disclosed to him (rr. 14-15).

Between thirty minutes to one hour after petitioner

Pino called Ortiz, customs agents spotted four cars pull

up and park near the east-west runway of the Leesburg

airport. Sho-tly thereafter, three of the cars proceeded to

the runway where Ortiz had dropped the marijuana and

the occupants retrieved the cartons (Tr. 322-327). All

four of the cars then left the airport and headed toward

Leesburg (Tr. 399). Customs agents stopped the cars

before they reached Leesburg and arrested the occupants.

The agents found cartons of marijuana in all the cars

except petitioner Curbelo’s. Petitioner Pino was driving

a car containing nine cartons of marijuana (Pet. App.

A7).

1. Ortiz testified at trial that after the arrests and in-

dictment, defendant Quinones spoke with him and dis-

closed that petitioners suspected someone had informed

and that thev intended to kill that individual on dis-

covering his identity. Petitioners argue that Quinones’

Statement constituted inadmissible hearsay and that the

court of appeals, recognizing the inadmissibility of the

Statements, applied the wrong test in concluding that the

erior was harmiess. The court of appeals, not considering

the error to be of constitutional magnitude, applied the

“substantial influence” test of Kotteakos v. United

States, 328 U.S. 750, 764-765, rather than the “beyond

a reasonable doubt” standard specified in Chapman v.

California, 386 U.S. 18, 24, for constitutional error.

4

We agree that Quinones’ statements were not admis-

sible under the federal hearsay rule. A hearsay statement

by a co-conspirator made in furtherance of a conspiracy

is of course generally admissible against other conspira-

tors, but after the object of a conspiracy has been

attained or defeated, as in the instant case, the

utterance is not admissible under the federal hearsay

rule. See Anderson vy. United States, 417 U.S. 211:

Lutwak vy. United States, M4 US. 604; Krulewitch

v. United States, 336 U.S. 449. Contrary to petitioners’

assertion, however, this rule tas not been generated by

constitutional mandate but sclely by considerations of

sound jurispruder.ce implemented pursuant to this Court’s

rule-making powers. See Dutton vy. Evans, 400 U.S. 74,

81-82.

In Dutton v. Evans, supra, the Court declined to hold

unconstitutional a state evidentiary rule permitting the

admission of a co-conspirator’; hearsay statement made

as part of an effort to conceal the conspiracy. Thus, it

is clear that the trial court’s departure from the federal

hearsay rule in the present case was not an error of con-

stitutional magnitude and that the court of appeals was

correct in not applying the more stringent “beyond a

reasonable doubt” test in concluding that the error was

harmless. In any event, however, we submit that the

evidence against petitioners—particularly their being ap-

prehended with almost a ton of marijuana after having

been observed retrieving it from the Leesburg airport—

was sufficient to warrant the conclusion that the admis-

sion of Quinones’ statement did not affect the jury’s

verdict even if the more rigorous test of harmless error

is applied.

PE RF OS OE IT AID DLO eg IT OO ly A TOE Re ay re pe OS RG Le rem pre gine eves?

5

2. Petitioner Pino also argues that a statement which

he made to Ortiz after the arrests and indictment, about

which Ortiz aiso testified at trial (Pet. 7-12), was ad-

mitted in violation of his Sixth Amendment right to the

assistance of counsel as defined in Massiah v. United

States, 377 U.S. 201. In Massiah, after the defendant had

been indicted and had obtained counsel. an informant—

at the government's request and directivi:—deliberately

elicited inculpatory statements from the defendant. These

Statements Weie * insmitted to government agents by

means of 2 rauio device concealed under the front seat

of the informant’s car. Tiis practice was deemed a denial

of the defendant's right to counsel. In the instant case,

by contrast, there is no indication in the record, and

petitioner Pino does not allege, that Ortiz had deliberate-

ly sought him out or elicited the damaging statements from

him. Consequently, there was no overreaching by the

government and reliance by petitioner Pino on the Court’s

decision in Massiah is misplaced.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoBertT H. Bork,

Solicitor General.

FesRuary 1975.

DOJ-1975-02

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