Appendix — Pomares v. United States

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APPENDIX

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CigcurT

i

No. 1127—September Term, 1973.

(Argued June 14, 1974 Decided July 5, 1974. }

Docket No. 74-1219

ee

UNITED STates or AMERICA,

Appellee,

Vv.

|

ARIEL POMARES and ANTONIO VECIANA,

Defendants-A ppellants.

Se

Before:

LUMBaRD, HAys and TIMBERs,

Circuit Judges.

>

Appeal from a judgment of conviction entered after a

_ jury trial in the United States District Court for thc

Southern District of New York, Dudley B. Bonsal, Judge,

| for conspiracy to distribute narcotics and possess them with

_ intent to distribute, and with the distribution of approx-

imately seven kilograms of cocaine. 21 U.S.C. §§ 812,

841(a) (1), 841(b)(1)(A), and 846.

Affirmed.

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APPENDIX

Opinion of the Court of Appeals

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BaNncrort LITTLEFIELD, Jk., Assistant Unite:

States Attorney (Paul J. Curran, Unite

States Attorney for the Southern Distric

of New York, and S. Andrew Schaffer, As

sistant United States Attorney, « on th

brief), for Appellee.

Henry J. BotreL, Esy., New York, New Yor!

(Barry L. Garber, Esq., and Abraham H

Brodsky, Esq., New York, New York, 0

the brief), for Appellants.

~

LuMBARD, Circuit Judge:

After a five-day trial in the Southern District befor

Judge Bonsal and a jury, Ariel Pomares and Antoni

Veciana were convicted on January 14, 1974 on bot

counts of an indictment which charged them with conspi

racy to distribute narcotics and possess them with inten

to distribute, and with the distribution of approximatel

seven kilograms of cocaine. 21 U.S.C. §§ 812, 841(a) (1)

841(b)(1)(A), and 846. Pomares was sentenced to cor

current terms of five years on each count, to be followe

by a special parole term of three years. Veciana receive

concurrent terms of imprisonment of seven years on eac

count, also to be followed by a special parole term c

three years.

On appeal, the defendants make several points, the tw

principal ones being that Pomares’ confession to gover

ment agents was involuntary and that the governmer

waived its right prior to trial to introduce into evidenc

portions of Pomares’ confession. We affirm.

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APPENDIX

Opinion of the Court of Appeals

The evidence at trial established that the two defen-

dants, along with a co-conspirator who pleaded guilty,

_ Augustin Barres, organized a cocaine smuggling ring

_ which succeeded in smuggling twenty-five kilograms of

"pure cocaine into the United States from Bolivia before

_ Barres was finally arrested while delivering seven kilo-

grams to an undercover agent on July 23, 1973. Barres’

role in the conspiracy was to help finance the purchase of

the cocaine. Veciana was responsible for travelling to

Bolivia, purchasing the drugs and delivering them to

Bolivian diplomats who then smuggled them into the

United States, while Pomares had the task of arranging

sales in the United States. All three were experienced

_ businessmen who had fled to Florida from Cuba after

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Castro had come t) power.

After Barres’ arrest, he agreed to cooperate with the

government. On the basis of information which he pro-

vided, Veciana was arrested in Miami on July 24, 1973 and

Pomares was arrested at his home in Puerto Rico on

| July 29, 1973.

Upon his arrest, Pomares was advised of his rights in

| Spanish by Special Agents Pinol and Amador. He was

_ then taken to the Drug Enforcement Administration office

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in San Juan where, prior to questioning, he was again ad-

vised of his rights by Agent Pinol. After being advised

4 of his rights on each of these occasions, Pomares was told

= that he faced heavy penalties for his smuggling activities,

- that he was his own best lawyer, and that the wisest course

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of action would be to cooperate with the government rather

_-~than exercise his right to remain silent. Pomares agreed

_ to cooperate, and confessed twice. On the second of these

occasions, Agent Pinol took handwritten notes, of what

was being said. These notes were eventually put into the

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APPENDIX

Opinion of the Court of Appeals

form of a typewritten report and introduced as an exhibit

in the suppression hearing held by Judge Bonsal to de-

termine the admissibilty of Pomares’ confession at trial.

Judge Bonsal ruled that Pomares’ confession was ad-

missible.

On October 4, 1973, during a pretrial conference, the

attorney for Veciana raised the issue of “a potentia) sev-

erance problem under Bruton since one of the defendants

[Pomares] did give a statement and the other one [Ve-

ciana] did not.” Assistant United States Attorney Ban-

nigan responded: “I can resolve that right now. We will

not use the statement.”

At trial, the government took the position tha. it had

only waived use of the written statement in order to avoid

the Bruton problem, but that it had recently learned that

Pomares had made an earlier confession, and that Special

Agent Pinol was prepared to testify as to this earlier oral

confession. Defense counsel objected that the government

had waived its right to introduce any confession and in any

event both confessions were essentially one and the same,

having been obtained within no more than three hours of

each other on the same day. Judge Bonsal concluded that

the waiver did not reach to the earlier oral confession.

In order to avoid any Bruton problem, however, the court

ruled that only those portions of Pomares’ confession

could be introduced which dealt with events after Veciana

had delivered the last shipment of cocaine. Thus so much

of the statement as was admitted in evidence made no

mention of Veciana or any transactions in which he par-

ticipated. >

I.

On appeal, Pomares and Veciana maintain that Pomares’

confession was involuntarily obtained and therefore should

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APPENDIX

Opinion of the Court of Appeals

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not have been admitted in evidence. They argue that the

4 comments of the special agents who arrested Pomares that

“he faced severe penalties, that he was his own best lawyer,

and that full cooperation with the government would be

the best course were improper and coerced the defendant

~ confessing.

We emphasized in United States v. Ferrara, 377 F.2d

i 16, 17 (2d Cir.), cert. denied, 389 U.S. 908 (1967), that

3 “the test of voluntariness [of a confession] is whether

a an ex:mination of all the circumstances discloses

5 that the conduct of law enforcement officials was

such #s to overbear [the defendant’s] will to resist

and bring about confessions not freely self-deter-

minez. .. .” See also Rogers 1. Richmond, 365

U.S. 534, 544 (1961).

OE Sense Oe

The circumstances here do not disclose any overbearing

on the part of government agents. There is no dispute that

after his arrest and prior to making his oral confession,

Pomares was advised three times in his native language,

Spanish, of his constitutional rights and in response indi-

’ cated that he understood them. The Miranda warning was

” given twice at his house after his arrest, once by Agent

_ Amador and once by Agent Pinol, and the third time at the

Drug Enforcement Administration office by Agent Pinol.

3 Nor is there any evidence that Pomares was subject to

> any threats, physical coercion, or protracted interrogation.

Indeed, his arrest and arraignment occurring on a Sunday,

were carried out in an expeditious fashion. He was arrested

at approximately 12:15 p.m., brought to the Drug Enforce-

ment Administration office by 1:30 and arraigned before

the Chief Judge for the District of Puerto Rico at the Chief

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APPENDIX

Opinion of the Court of Appeals

Judge’s home between 4:00 and 5:00 p.m. the same day. |

See United States v. Drummond, 354 F.2d 132, 144 (2d 4 |

Cir. en bane 1965), cert. denied, 384 U.S. 1013 (1966).

No specific promises were made to Pomares. He was _

simply informed that it would be to his benefit to cooperate.

Such statements by law enforcement officials have not been |

considered overbearing. See, ¢.g., United States y. Wil. —

liams, 479 ¥.2d 1138 (4th Cir.), cert. denied, 414 U.S. 1025 ~

(1973) ; United States v. Glasgow, 451 F.2d 557 (9th Cir. ©

1971). In United States v. Ferrara, supra, 377 F.2d 16, _

we held that the confession was voluntary even though ~

federal agents had gone beyond simply urging the defen- —

dant to cooperate and had promised that he would be re-

leased on bail if he confessed. See also United States vy.

Bailey, 468 ¥.2d 652, 672-74 (4th Cir. 1972), aff'd en banc —

on other grounds, 480 F.2d 518 (1973).

Finally, it cannot be overlooked that Pomares is an in- —

telligent, experienced businessman, aged 37 years, who was —

fully aware of his situation, having been informed by the |

agents that he had been arrested for violating the “Fed- ¥

eral Narcotics Law.” Indeed, the record reveals that he

was already aware at the time of his arrest that his co- _

conspirator, Barres, had been arrested. In light of all the i

circumstances, Judge Bonsal was correct in ruling that

Pomares’ confession was voluntary.

Surely, it is the duty of law enforcement officers to as-

semble all available evidence relating to the commission of

a crime and this includes such information as a participant

may be willing to give. Having fairly and fully advised

Pomares of his constitutional rights, as required by Mi-

randa, the agents were free to discuss with Pomares the

reasons why he should cooperate. It was quite proper in

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APPENDIX

Opinion of the Court of Appeals

the course of such discussion to mention the situation which

Pomares faced and the advantages to him if he assisted the

government. The agents stated facts; they made no mis-

representations. Nothing the agents were shown to have

said or done was unfair or overreaching. There was every

reason for the agents to act as they did; their conduct did

not violate the letter or the spirit of the holding of the

Supreme Court in Miranda.

The appellants’ argument that the government waived

its right to use Pomares’ confession in evidence is also

without merit. Judge Bonsal, who was present at the pre-

trial conference at which the waiver was made, concluded

that the waiver was not intended to go so far as to include

the prior oral confession. In any event, it was within the

discretion of the trial judge to admit testimony as to this

earlier oral confession, and under the circumstances it was

not an abuse of discretion to do so.

Moreover, it is difficult to see how the government could

have waived its right to introduce this prior oral confes-

sion, since it only learned about it at trial when Agent

Pinol arrived from Puerto Rico and informed the prose-

cutor that there had been an earlier confession.

Nor could the defendants have been surprised by the

use of the confession at trial since they were already fully

aware of the substance of the admissions made by Pomares,

which he had never denied. In fact, the defendants had

ample opportunity to challenge the admissibility of Po-

mares’ confession at a suppression hearing conducted dur-

ing the trial and did so. At the conclusion of that hearing

Judge Bonsal held that Pomares’ confession was admis-

sible.

Under the circumstances which disclose no bad faith on

the part of the government or surprise to the defendants,

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APPENDIX

Opinion of the Court of Appeals

there is no reason to conclude that Judge Bonsal abused

his discretion in admitting testimony regarding Pomares’

oral confession. See United States y. Cirillo, slip op. 3297,

3312-3315 (2d Cir. May 7, 1974). It is particularly note-

worthy that Judge Bonsal took great care to comply with

the Bruton rule by having excluded those portions of Po-

mares’ confession dealing with Veciana.

The several other arguments urged by Pomares and

Veciana on appeal are also without merit.

Affirmed. |

In the Supreme Court of the United States

OcTOBER TERM, 1974

No. 74-23

ARIEL POMARES AND ANTONIO VECIANA, PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners contend that (1) the manner in which peti-

tioner Pomares was questioned following his arrest made

his confession involuntary; (2) the trial court erred in

rejecting their proposed instruction concerning Pomares’

confession; (3) the trial court should have granted a mis-

trial after a government witness testified concerning Pom-

ares’ decision to stop cooperating with the government:

(4) petitioner Veciana was prejudiced by the government’s

comment about his failure to cooperate; (5) the principles

of Bruton v. United States were violated by their joint

trial; (6) petitioners were deprived of their right of cross-

examination and confrontation by the government's refer-

ences in its summation to facts not in evidence; and (7)

the government was improperly allowed to expand the

scope of the indictment by Proving crimes not charged.

After a jury trial in the United States District Court

for the Southern District of New York, petitioners were

convicted of one count of conspiring to distribute cocaine

BERLE MAA RO TIE PM ph RAEI ag FE

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and to possess it with intent to distribute, and of

one count of possessing seven kilograms of cocaine, with

intent to distribute, in violation of 21 U.S.C. 8lz,

841(ay(1), 841(b)(1A), and 846. Petitioner Veciana was

sentenced to two concurrent seven-year terms of imprison-

ment, to be followed by a three-year special parole term.

Petitioner Pomares was sentenced to two concurrent

five-year terms of imprisonment, to be followed by a

three-year special parole term. The court of appeals

affirmed (Pet. App.).

Petitioners and one Augustin Barres organized a cocaine

smuggling ring beginning in late 1971 that ultimately

was responsible for smuggling 25 kilograms of cocaine

into the United States. In August 1972, through arrange-

ments petitioner Veciana had made with a Bolivian

diplomat, five kilograms of cocaine were smuggled into

this country. Barres and Veciana each put up $10,000

to finance the venture, and petitioner Pomares weighed

and packaged the cocaine once it arrived in Miami

and then delivered it in stages to various buyers. The

sale resulted in a profit of $40,000 (Tr. 74-90, 94-110).'

In April 1973, petitioners and Barres smuggled ten

kilograms of cocaine into the coungry using the same

diplomat, who hid the cocaine in his furniture. The

cocaine was not as easily sold this time, but eventually

Pomares’ buyer was able to dispose of more than eight

kilograms of it (Tr. 112-142). They used the profit from

this sale to finance a third effort to smuggle cocaine.

Because there had been difficulty disposing of the second

shipment of cocaine, petitioners and Barres looked for a

new buyer for the third shipment. Thereafter, Barres

Tr.” refers to the transcript of the tria!.

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went to New York and arranged a sale ot seven kilo-

grams of cocaine to a man he knew only to be a cousin

of a previous associate. In fact, the cousin was an under-

cover New York City Police detective, John Bruno. On

July 23, 1973, when he met with Bruno to consummate

the sale. Barres was arrested and seven kilograms of heroin

were seized from him (Tr. 143-206).

After his arrest, Barres agreed to cooperate with the

police and made a complete statement about the entire

operation (Tr. 212). Thereafter, based on information sup-

plied by Barres, federal agents obtained a search war-

rant for the apartment in Miami that petitioners had used

for packaging and storing the cocaine. During the search,

they seized three kilograms of cocaine and a weighing

scale (Tr. 213).

On July 24, 1973, federal agents arrested petitioner

Veciana in Miami. Five days later they arrested petitioner

Pomares at his home in Puerto Rico (Tr. 214). Following

Pomares’ arrest, he was advised in Spanish of his rights,

and he consented to a search of his residence. The

agents then drove iim to the Drug Enforcement Adminis-

tration office in San Juan where they again informed him

of his rights (Tr. 217). They told Pomares that he faced

severe penalties for his involvement and that the wisest

thing for him to do would be to cooperate with the

government rather than exercise his right to remain silent

(Tr. 421, 485). Pomares, “an intelligent, experienced

businessman, aged 37 years, who was fully aware of his

situation,” including the fact that Barres had been arrested

(Pet. App. 6a), agreed to cooperate and confessed twice. A

Drug Enforcement Administration agent took notes during

one of these confessions (Tr. 215-225, 227-235, 498-500).

1. Petitioners’ contention that the manner in which

petitioner Pomares was questioned made his confession

involuntary was thoroughly considered and properly

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rejected by the court of appeals, upon whose opinion

we rely (Pet. App. 5a-7a). The court stated that the

test of voluntariness focuses on whether the conduct of

law enforcement officials was such as to overbear the

defendant’s will to resist and bring about a confession

not freely self-determined. Applying that standard, the

court concluded that the evidence disclosed 20 overbearing

by the government here. Instead, as the court said, the

evidence showed clearly that Pomares was given three

Miranda warnings and was not subjected to any threats,

physical coercion, or protracted interrogation. The court

specifically rejected the contention that informing Pomares

that it would be to his advantage to cooperate consti-

tuted overbearing on the government’s part (Pet. App.

6a-7a):

Having fully and fairly advised Pomares of his

constitutional rights, as required by Miranda, the

agents were free to discuss with Pomares the reasons

why he should cooperate. It was quite proper in the

course of such discussions to mention the situation

which Pomares faced and the advantages to him

if he assisted the government. The agents stated

facts; they made no misrepresentations. Nothing the

agents were shown to have said or done was unfair

or overreaching.

Other courts have taken similar positions. See United

States v. Bailey, 468 F. 2d 652, 660, 672-674 (C.A. 5);

United States vy. Springer, 460 F. 2d 1344, 1346-1348

(C.A. 7), certiorari denied, 409 U.S. 873; United States

v. Frazier, 434 F. 2d 994, 995-996 (C.A. 5); United States

v. Ferrara, 377 F. 2d 16, 17-18 (C.A. 2), certiorari denied,

389 U.S. 908; Fernandez-Delgado vy. United States, 368

F. 2d 34, 35-36 (C.A. 9).

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2. Citing Lego v. Twomey, 404 U.S. 477, petitioners

contend that the trial court erred in refusing to instruct

the jurors to disregard petitioner Pomares’ confession if

they found it unreliable. In Lego, this Court held that

the “preponderance-of-the-evidence” standard is appropriate

in determining the voluntariness of a confession and re-

jected a contention that the “reasonable doubt” standard

should be used. The Court stated (404 U.S. at 485-

486; footnote omitted):

The procedure we established in Jackson was design-

ed to safeguard the right of an individual, entirely apart

from his guilt or innocence, not to be compelled to

condemn himself by his own utterances. Nothing in

Jackson questioned the province or capacity of juries

to assess the truthfulness of confessions. Nothing in

that opinion took from the jury any evidence relating

to the accuracy or weight of confessions admitted into

evidence. A defendant has been as free since Jackson

as he was before to familiarize a jury with circum-

stances that attend the taking of his confession;

including facts bearing upon its weight and volun-

tariness. In like measure, of course, juries have been

at liberty to disregard confessions that are insufficient-

ly corroborated or otherwise deemed unworthy of be-

lief.

In the instant case, the trial court, in instructing the

jury on Pomares’ confession, stated: “In considering these

statements, ladies and gentlemen, give them such weight

as you think they deserve under all the circumstances

which have been brought out in the evidence in the

case” (Tr. 676). Such an instruction was consistent with

this Court’s language in Lego and adequately conveyed the

substance of petitioners’ proferred instruction.

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3. Also without merit is petitioner Pomares’ contention

that the trial court erred in refusing to grant a mistrial

after the government elicited from a witness the fact

that, after an initial confession, Pomares stopped cooperat-

ing in the hope of getting immunity (Tr. 501). Agent Pinol

of the Drug Enforcement Administratior testified about

the circumstances surrounding Pomares’ arrest, including

Pomares’ consent to a search of his house and his pre-

arraignment confession about his involvement in the co-

caine operation. Pinol testified that Pomares agreed that

he would sign a written statement following his arraign-

ment, but, after the arraignment, he balked at doing so.

When Pinol inquired why, Pomares said he wanted immun-

ity in exchange for any further cooperation. Pomares

objected to this disclosure, claiming that it was a comment

upon his exercise of his Fifth Amendment right to silence

(Tr. 501-502). The trial court instructed the govern-

ment not to go forward with this line of questioning

(Tr. 502). Pomares’ request for immunity was not, of

course, a simple assertion of his privilege, but rather an

effort to bargain over the terms of his cooperation.

Accordingly, we believe that disclosure of this action

on his part was not an impermissible comment on his

assertion of the privilege. In any event, in view of the

isolated und brief nature of this testimony and the

strong evidence of guilt, any error was harmless beyond

a reasonable doubi. See Schneble v. Florida, 405 U.S.

427, 430.

4. Petitioner Veciana’s contention that he was prej-

udiced by the government’s comment upon his failure to

cooperate is also without merit. In his summation, the

Assistant United States Attorney at one point referred to

petitioner Veciana’s refusal to cooperate, despite the fact

that only he knew who the sources in Bolivia were (Tr

618). Petitioner objected, and the court instructed the jury

to disregard the comment (Tr. 619). Thereafter, there were

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no other references to Veciana’s refusal to testify. The

appropriate procedure in dealing with an improper com-

ment is an objection and an instruction from the court.

This procedure was followed in the instant case.

5. Petitioners contend that their joint trial violated the

principles of Bruton v. United States, 391 U.S. 123. At

trial, neither Pomares nor Veciana testified, although

Pomares’ confession was admitted. Prior to its admission,

however, all reference to petitioner Veciana and his in-

volvement were excised. The confession as admitted dis-

cussed only events that came after Veciana was no longer

in the picture. Petitioners’ contention that the use of this

confession at a joint trial was contrary to Bruton is insub-

stantial.”

Petitioner Pomares similarly asserts that he was prej-

udiced by testimony that showed that petitioner Veciana

tried to influence the testimony of a witness. Jose Ramon

Lopez, an acquaintance of petitioners, testified that once,

when he entered the Miami apartment used by petitioners

and Barres, petitioners got up abruptly and left together

without speaking to him. Lopez was called later in the

trial and testified that Veciana-had asked him to testify

that petitioners did not leave the apartment at the same

time (Tr. 410-411). In his summation, the prosecutor com-

mented that the effort by Veciana to influence a witness’s

testimony was almost an admission of guilt by him (Tr.

628).

Petitioner Pomares’ contention that the admission of

this testimony and the comments by the government were

necessarily inculpatory as to him is without merit. Neither

2Moreover, prior to trial Veciana had opposed the government's

motion for a severance (Tr. 26-27).

eel .

8

Lopez’s testimony nor the government’s comments referred

to any involvement of Pomares. Thus, the testimony did

not inculpate Pomares by linking him with the crime

charged.’ United States v. Jackson, 482 F. 2d 1167, 1174-

1175 (C.A. 10), certiorari denied, 414 U.S. 1159; United

States ex rel. Nelson 'v. Follette, 430 F. 2d 1055, 1057-1059

(C.A. 2), certiorari denied, 401 U.S. 917.

6. Petitioners contend that they were deprived of their

rights of cross-examination and confrontation by the

Assistant United States Attorney’s repeated references in

summation (Tr. 616-652) to aspects of Barres’ confession

never admitted into evidence. However, the references were

to Barres’ trial testimony and to the testimony of other wit-

nesses, and not to anything not admitted in evidence. At

trial, Barres testified about the entire operation, includ-

ing his involvement and that of Veciana and Pomares. In

addition, he testified about his arrest and the information

he gave the government after his arrest. Barres’ testimony

about his cooperation with the government was corrobo-

rated by a number of other witnesses.*

In any event, the jury was repeatedly told by the court

and the prosecutor that what the lawyers say is not evi-

dence and that only the testimony of the witnesses is evi-

dence (Tr. 38, 41-42, 619, 659). Petitioners made no re-

quest for a further instruction and do not assert that the

instructions given were inefficacious. Cf. Donnelly v.

DeChristeforo, No. 72-1570, decided May 13, 1974.

’Moreover, Lopez was available for cross-examination.

‘Petitioners give no record reference supporting, their conten-

tion that the Assistant United States Attorney stated that

Barres’ testimony was “detail for detail” like his confession

(Pet. 14), and we are unable to find any such comment. Although

the prosecutor did state that “each detail of Barres’ statement

about Pomares is corroborated by the lease, the hotel reserva-

tions, the trip to New York on Amtrak, the Crossway” (Tr. 624),

it is apparent in context that that reference was to his state-

ment as a witness. ‘

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7. Petitioners’ contention that the trial court erred in

admitting evidence of two narcotics sales not charged in

the indictment is insubstantial. The indictment charged a

conspiracy to distribute and to possess narcotic drugs with

intent to distribute, taking place during the period from

November |, 1972, to August 10, 1973; it further charged

petitioners with distributing seven kilograms of cocaine.

Evidence at trial detailed the initiation and operation of

the cocaine ring run by petitioners and Barres. Included

was testimony about sales of cocaine in August 1972 and

April 1973. The April 1973 sale was evidence that directly

proved the conspiracy charge and thus was unquestionably

properly admitted. Evidence of the first sale, which took

place before the period specified in the indictment, was

relevant to proof of development of the conspiracy, and to

the issue of petitioners’ knowledge and intent, and was

thus properly admitted. United States v. Harrell, 436 F.2d

606, 612(C.A. 5); United States v. Del Purgatorio, 411 F.2d

84, 86-87 (C.A. 2); United States v. Battaglia, 394 F.2d

304, 313 (C.A. 7), vacated on other grounds sub nom.

Giordano vy. United States, 394 U.S. 310, adhered to after

remand, 432 F.2d 1115, 1118-1119 (C.A. 7), certiorari

denied, 401 U.S. 924; Williamson v. United States, 310

F.2d 192, 199 (C.A. 9); cf. Lisenba v. California, 314 U.S.

219, 227.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Rosert H. Bork,

Solicitor General.

Octoser 1974.

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