Petition for Writ of Certiorari — Fontao v. United States

Suprem¢? Coug, U.S.

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96 -8 ww 11996

OFFICE OF THE CLERK

No.

IN THE

United States Supreme Court

OCTOBER TERM, 1996

MIRIAM JUANA FONTAO

Petitioner

-VS-

UNITED STATES OF AMERICA

Respondent

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

FRANCISCO VILLARRUEL (P34147)

Attorney for Petitioner Fontao

1633 First National Building

Detroit, Michigan 48226

(313) 963-3311

CRAIG A. DALY, P.C. (P27539)

Co-Counsel for Petitioner Fontao

577 E. Larned, Suite 240

Detroit, Michigan 48226

(313) 963-1455

BOWNE OF DETROIT

610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

i

STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

I. WAS PETITIONER DENIED HER RIGHT TO CON-

FRONTATION BY THE ERRONEOUS ADMISSION

OF THE PARTIALLY REDACTED CONFESSION OF

THE NON-TESTIFYING CO-DEFENDANT?

II]. WERE PETITIONER’S DUE PROCESS RIGHTS DE-

NIED BY THE PRE-INDICTMENT DELAY?

III. WAS PETITIONER DENIED DUE PROCESS OF LAW

BECAUSE THERE WAS INSUFFICIENT EVIDENCE

AT TRIAL TO SUSTAIN A VERDICT ON ATTEMPT

POSSESSION WITH INTENT TO DISTRIBUTE CO-

CAINE AND WHERE THE TRIAL COURT ERRONE-

OUSLY DENIED PETITIONER’S MOTION FOR

DIRECTED VERDICT?

IV. WAS PETITIONER DENIED A FAIR TRIAL BY THE

DELIBERATE INJECTION INTO EVIDENCE BY AN

AGENT THAT SHE WAS THE SUBJECT OF AN-

OTHER DRUG INVESTIGATION?

Vv. WAS PETITIONER DENIED HER RIGHT OF CON-

FRONTATION WHEN THE TRIAL COURT RE-

FUSED TO DISCLOSE THE PRESENTENCE AND

PRETRIAL SERVICES REPORTS OF A WITNESS

AND REFUSED TO ADJOURN THE TRIAL TO OB-

TAIN THE INCOME TAX RETURNS OF THE

INFORMANT?

VI. DID THE GOVERNMENT’S MISCONDUCT IN

CLOSING ARGUMENTS VIOLATE PETITIONER’S

RIGHT TO A FAIR TRIAL BY VOUCHING FOR THE

CREDIBILITY OF A COOPERATING CO-CONSPIR-

ATOR AND BY DENIGRATING DEFENDANT’S

ii

RIGHT TO TRIAL, RIGHT TO COUNSEL, PRE-

SUMPTION OF INNOCENCE, AND RIGHT TO

HAVE THE GOVERNMENT PROVE HER GUILT BE-

YOND A REASONABLE DOUBT IN THIS CASE?

iii

TABLE OF CONTENTS

Page

Statement of Questions Presented for Review ......... i

ee hin cay brwe staves beesvaes» iv

Opinions and Orders Below ...............ceescees l

SE OE PUMIENEN vet pcan ne nw scesesecess l

Constitutional Provisions Involved .................6. 2

En eee eee 2

eS re 9

I eee ha ey ks ia < bine és's ab wuss shad 24

Appendix

Opinion of the United States Court of Appeals for the

Sixth Circuit, dated April 18, 1996 ................ la

iv

INDEX OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

Che GA: MONE cies con 05 CURE EO

Ea GE FOE ic ot ra hoe wee ee a a cr ea

FEDERAL CASES

Arizona v Fulminante, 499 US , 111 S Ct 1246,

Seem Ss.) Ry try ree

Boyde v California, 494 US 370, 110 S Ct 1190, 108

Se Eo ekkcs ki uvekukisasaeee ae

Brady v Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed

po a ee errr iy ig rug ere wp teem

Bruton v United States, 391 US 123, 88 S Ct 1620, 20

hi; ak CEE Kv sicvieeusaiwotushiseye¥<

California v Green, 399 US 149, 90 S Ct 1930, 26 L

Oe ee COE as SuRce eee hmiweatceeeesiens

Coy v Iowa, 487 US 1012, 108 S Ct 2798, 101 L Ed

ae AE: 6 oa aA ek bax ease Ak eae er eaaeeers

Donnelly v DeChristoforo, 416 US 637, 642-643, 94S

Ct 1868, 40 L Ed 2d 437 (1974) ................

Eberhardt v Bordenkircher, 605 F2d 275 (6th Cir

2) SINR Ee ERSTE ar preg gr nate oe 9 heen ee ener

In Re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed

Si ON STUN oss og cee ces

Jackson v Virginia, 443 US 307, 99 S Ct 2781, 61 L

Ed 2d 560 reh denied, 444 US 890, 100 S Ct 195,

Se Ee BG Oe RO AEOTED Sook eke twkieeerse us

Napue v Illinois 360 US 264, 79 S Ct 1173, 3 L Ed

SEE I oe ee ks

Pierce v United States, 86 F2d 949 (6th Cir 1936)....

Pointer v Texas, 380 US 400, 85 S Ct 1065, 13 L Ed

Oe PEs CURES bk 65 0 eA e re eean a ees

20

23

Richardson v Marsh, 481 US 200, 107 S Ct 1702, 95

ye ay Ei 7 | Beer rrr rete re eee

Schneble v Florida, 405 US 427, 92 S Ct 1056, 31 L

PR fig | Sey Teer eee ee Tee reee

Taylor v United States, 985 F2d 844 (6th Cir 1993) ..

United States v Andrea, 538 F2d 1255 (6th Cir 1976) ..

United States v Atisha, 804 F2d 920 (6th Cir 1986),

cert denied, 479 US 1067, 107 S Ct 955, 193 L Ed

i a, ty SE eR Pree TE rere Orr Ts yy ar ee

United States v Bakke, 942 F2d 972 (6th Cir 1991)...

United States v Balleaux, 685 F2d 1105 (9th Cir

| ERE FE Eee re ere Tee yee re ys fer Eee

TO se vv baa beh h cee Oh a eae

United States v Brown, 959 F2d 572 (6th Cir 1984) ..

United States v Causey, 834 F2d 1277 (6th Cir 1987),

cert den, 486 US 1034, 108 S Ct 2019, 100 L Ed

pe) Bae rpg a onan Sen ner ey

United States v Craven, 478 F2d 1329 (6th Cir 1973),

cert denied, 414 US 886, 94 S Ct 54, 38 L Ed 2d

EEL fh) Reenep ean ey erry rae of aby ern man yr Were

United States v DiCarlantonio, 870 F2d 1058 (6th Cir

SE. So viiccsseedahetocweense star eeeereries

United States v French, 974 F2d 687 (6th Cir 1992) ..

United States v Garber, 471 F2d 212 (Sth Cir 1972) ..

United States v Gomez-Lemos, 939 F2d 326 (6th Cir

tN er Ae a te Bart a TOE Oe A EN le eee eae

United States v Gray, 468 F2d 257 (3rd Cir 1972)....

United States v Huddleston, 485 US 681, 108 S Ct

LOG, FOE Bb OO TIE CIPS: ke civ tnes cena ees

United States v Marion, 404 US 307, 92 S Ct 455, 30

ES if eee AE eee ye neg

22

vi

United States v McDonald, 435 US 850, 98 S Ct 2182,

53 hs Tb BE Ue Cae ee 6 is hoc nved benescaer ae

United States vy Mehrmanesh, 689 F2d 822

COU Cr SIs oes sed cneec eee siakweeaess

United States v Monroe, 943 F2d 1007 (9th Cir 1991) ..

United States v Ortiz, 507 F2d 1224 (6th Cir 1974)...

United States v Payne, 923 F2d 595 (8th Cir 1991)...

United States v Perez-Garcia, 904 F2d 1534.

€o5 Ye 2. Reece yer Ce pyre ee ey

United States v Perryman, 889 F2d 104 (6th Cir 1989) ..

United States v Roberts, 618 F2d 530 (9th Cir 1980) ...

United States v Smith, 500 F2d 293 (6th Cir 1974)...

United States v Wallace, 848 F2d 1464 (9th Cir 1988) ..

United States v Young, 470 US 1, 105 S Ct 1038, 84 L

eS. Pee ere Tere ere ee ee eee

United States v Zelinka, 862 F2d 92 (6th Cir 1988) ..

United States v Williams, 704 F2d 315 (6th Cir 1983) ..

Vincent v Parke, 942 F2d 989 (6th Cir 1991)........

FEDERAL STATUTES

19 CE BD oink en sks ee ee

10 te 6 0 Sa eee

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2 AMO 6 AE os crerins cases eres

MISCELLANEOUS

POG. K. BU. GO i ok cawccccaviwnsewnd xdevnyns

ret. H. COM. Fi SEG ss oa 6 civcis deans enestavak

20

17

18

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1996

MIRIAM JUANA FONTAO

Petitioner

-VS-

UNITED STATES OF AMERICA

Respondent

Petition for a Writ of Certiorari

NOW COMES, Petitioner MIRIAM JUANA FONTAO,

and prays that a Writ of Certiorari issue to review the opinion of

the United States Court of Appeals for the Sixth Circuit entered

in the above case on April 18, 1996.

OPINIONS AND ORDERS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit is attached in the Appendix.

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals for the

Sixth Circuit was filed on April 18, 1996. The jurisdiction of this

Court is invoked pursuant to Rule 12 of this Court and Title 28,

United States Code § 1254(1).

2

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V: “No person

shall. . .be deprived of life, liberty or property without due process

of law...”

United States Constitution, Amendment VI: “In all criminal

prosecutions, the accused shall enjoy the right. . .to be confronted

with the witnesses against him. ..to have the assistance of coun-

sel for his defense.”

STATEMENT OF THE CASE

Petitioner MIRIAM JUANA FONTAO was convicted of

Conspiracy to Possess With Intent to Deliver Cocaine, 21 USC

§ 846; Attempt Possession With Intent to Distribute Cocaine,

21 USC § 841 (a) (1), 846; and Aiding and Abetting, 18 USC § 2

after a jury trial in the Eastern District of Michigan, Southern

Division. On January 13, 1995, Petitioner was sentenced to a term

of 188 months. Petitioner appealed as of right and her conviction

was affirmed in an opinion issued on April 18, 1996 in the United

States Court of Appeals for the Sixth Circuit.

The indictment charged crimes committed on or about

January 10, 1988 through February 5, 1988. The Indictment was

returned on January 13, 1993 and filed on January 20, 1993. A

Motion to Dismiss the Indictment because of prejudicial

pre-Indictment delay was argued and denied.

AGENT EDWARD KACEROSKY, from United States

Customs in Miami, Florida testified that the investigation began

on January 11, 1988 with a telephone call from Robert Collazo, a

government informant (Vol I, p. 43). Collazo said he received a

telephone call from Juanita, the day before, asking if he had

access to a source that could supply 100 kilograms of cocaine to

Detroit (Vol I, p. 46). Kacerosky told Collazo that if Juanita

called again to arrange a personal meeting with Juanita and an

3

uncover agent acting as the source (Vol I, p. 46). Kacerosky told

Agent Bilis that a meeting had been arranged by Collazo (Vol I,

p. 48). Bilis was to act as the source of supply of cocaine (Vol I,

p. 49). A tape of this meeting was played for the jury (Vol I,

p. 61). The tape revealed legitimate discussions about coins

(Vol I, p. 75). Specifically, there were conversation about jewelry,

old coins, coin collecting, cuban gold coins, as well as real estate

and apartments (Vol I, pp. 72-78). A second meeting between

the informant and Juanita was arranged for January 28, 1988

(Vol I, pp. 78-79, 81). A tape recording of this meeting was

played for the jury (Vol I, p. 103). The recording disclosed a

discussion about one-half (1/2) million dollars for a house, a

black man who had a recording studio, flights to Detroit from

Miami, the availability of money for expenses of the trip, and

100 kilograms of cocaine on credit (Vol I, pp. 104-107).

On January 30, 1988, the agents watched the informant and

undercover agent meet Juanita at Miami International Airport

(Vol I, p. 116). Kacerosky identified Petitioner in court as

“Juanita” (Vol I, p. 116). When the plane arrived in Detroit, they

were met by the Co-Defendant ERIK GALLEGO (Vol I,

p. 117).

On February 2, 1988, the informant contacted Kacerosky

(Vol I, p. 121). A meeting was arranged by the informant with

Juanita (Vol I, pp. 123-124). A tape of this conversation which

occurred on February 3rd, was played for the jury (Vol I, p. 124).

Kacerosky prepared 50 kilograms of sham cocaine to show at the

meeting (Vol I, p. 128). Petitioner Fontao was not present at this

meeting. On February 4th, the Co-Defendant, undercover agent

and informant took a flight from Miami to Detroit (Vol II, p. 13).

Later, the Co-Defendant was seen in the presence of Robert Hill

while at the Renaissance Center (Vol II, p. 16). On February Sth,

the Co-Defendant and Robert Hill were arrested at the Grosse Ile

Airport (Vol II, p. 20).

eT

4

After the arrest of the Co-Defendant, Eric Pagani-Gallego

was interrogated and gave a statement (Vol II, p. 24). The

prosecutor told Agent Kacerosky before reading the Co-Defen-

dant’s statement:

Now, I want to tell you something right now! Pursuant |

to an objection by counsel concerning names of individ-

uals, I don’t want you to name any individual by name. |

(Vol II, p. 24) (emphasis added).

The Co-Defendant’s statement read to the jury was as follows:

A. He indicated to me that he — he acknowledged

that the transaction that had occurred he knew to

involve cocaine. He indicated that he expected to

be paid money for his participation in the scheme.

And he indicated that other individuals in Miami

were involved in the scheme. (Vol II, p. 24)

(emphasis added).

During cross examination by the Co-Defendant’s attorney,

the following occurred:

Q. Were you personally aware of any other investiga-

tions that Mr. Collazo had been involved in prior

to the investigation in question?

A. Yes. As I stated, there was one other, my recollec-

tion is there was one other active investigation that |

was ongoing at that time. That investigation in-

volved the use of Go-Fast vessels that would be

used, which would mean very fast speed boats that

were being used to smuggle cocaine, or were in-

tended to be used to smuggle cocaine from the

Bahamas to South Florida. The investigation be- |

came centered on the number of people. There was

an overlap and some of the subjects in that case |

5

were some of the subjects in this case. (Vol II,

p. 43) (emphasis added).

Kacerosky conceded that there was no evidence that Petitioner

was involved in the shipment of cocaine, money laundering or any

commission for the sale of cocaine (Vol II, p. 79). Nor was

Petitioner arrested during the exchange of any cocaine or money

(Vol II, p. 89).

ROBERTO COLLAZO was the government’s paid inform-

ant. He was an admitted drug dealer, thief and liar, who first met

the Petitioner seven (7) years before in a night club in Hialeah,

Florida (Vol III, p. 32, 72; Vol IV, p. 16). Several months before

January 1988, they spoke about some people interested in buying

“some coke up north” (Vol III, p. 34). Collazo then contacted

Kacerosky about the conversation (Vol III, p. 34). Collazo then

introduced an undercover agent (Bilis) to Petitioner telling her

that he had the “merchandise” to deliver up north (Vol III,

p. 36). They agreed to meet at Willie’s place (Vol III, p. 38).

Willie had a legitimate export business of goods and services to

Cuba (Vol III, pp. 78, 81). At this meeting between Collazo,

Petitioner and Willie, Petitioner said the Co-Defendant wanted

them to go to Detroit to meet “the main person” (Vol III, p. 40).

When Collazo and Petitioner arrived in Detroit, they were met by

the Co-Defendant who drove them to Robert Hill’s business

(Vol III, p. 41). The Petitioner was to receive a $500 commission

per kilo (Vol III, p. 44). A person identified as “Queen”, later

identified as Johnny Ace Smith, then met Collazo at the studio,

where they discussed the “type of merchandise” to be delivered

and possible future deals for heroin (Vol III, p. 60). Queen gave

Collazo a black bag containing $300,000 (Vol III, p. 60, 62).

Collazo left to an airport with the Co-Defendant and Hill follow-

ing (Vol III, p. 64). They were arrested at the airport and Collazo

returned to the studio where Queen was arrested (Vol III, p. 66).

6

Collazo had previously been convicted of two (2) drug

offenses, fraud and two (2) theft convictions (Vol III, p. 68,

Vol IV, pp. 14-15). In the present case, Collazo was to receive

twenty-five (25%) percent of whatever money was seized which

amounted to $140,000 (Vol III, p. 69). He could not recall if he

reported this money as income to the Internal Revenue Service

(Vol III, p. 112). Defense counsel than sought Collazo’s income

tax returns for impeachment (Vol IV, pp. 4-5). The trial judge

refused to adjourn the case to allow counsel an opportunity to

obtain the returns (Vol IV, p. 5).

AGENT VICTOR AYALA was posing as a drug trafficker

in a “reverse buy” on February 3, 1988 (Vol IV, pp. 37-38). After

the Co-Defendant’s arrest, he was questioned by Ayala. The

following statement by the Co-Defendant was elicited:

Q. What did he tell you about this deal?

A. Yes. He told me that at the beginning he was

approached by the person in Miami.

Q. When you say “this person” he gave the name;

correct?

A. Yes. I’m trying not to say the name. You said not

to say.

Q. Okay. I just wanted to make sure that when you

say “this person” he did, in fact, give a name and

you now are putting the words in “this person”?

A. Yes.

Q. Okay. And what did this person discuss? Accord-

ing to the Defendant, what did this person discuss?

A. He was offered by this person if he wanted to make

some easy money. So he agreed, and he was

briefed what was the deal.

a

7

Q. Let me ask you this. Without telling me the per-

son's name, the person was not the confidential

informant?

A. No.

MR. ESCOBEDO: I’m going to object, Judge.

THE COURT: I think you ought to move on. (Vol IV,

pp. 58-59) (emphasis added).

Ayala never met the Petitioner (Vol IV, p. 85).

ROBERT HILLS, a convicted drug dealer, owned a record-

ing business, R & R productions, in 1988 (Vol IV, pp. 96, 103).

Hills was to meet some people to buy and sell drugs (Vol IV,

p. 97). In the present case, Hills pled guilty and agreed to testify

in exchange for a sentence of 4% to 6 years (Vol IV, p. 99). Prior

to his testimony, the defense sought release of or Hill’s

Presentence report and Pretrial Services Report (Vol I, p. ;

Vol III, p. 3). The District judge reviewed the requested docu-

ments, refused to allow the attorneys to see them and sealed them

(Vol II, p. 3).

AGENT JON RIDDLE was the case agent in Detroit.

Riddle spoke to the Co-Defendant. The prosecutor cautioned

Riddle not to use the names the Co-Defendant used in his

conversation (Vol IV, p. 197). Riddle then told the jury that the

Co-Defendant told him:

Q. What, if anything, and again remember by caution,

what if anything did he tell you concerning his

involvement?

A. Mr. Pagani told us that he was approached by an

individual who asked him if he would like to make

some money in the Detroit, Michigan area. And as

a result of that, he came to the Detroit, Michigan

area and arranged for the deal where a hundred

8

kilograms of cocaine would be sold to individuals

here in Detroit — (Vol IV, pp. 198-199) (empha-

sis added).

It was stipulated that Johnny Ace Smith, a fight promoter,

died on March 10, 1989 (Vol V, p. 20). A Motion for Directed

Verdict was denied (Vol V, pp. 10, 21).

in his closing argument, the prosecutor argued to the jury the

content of the Co-Defendant’s confession as follows:

The second one is longer. He gives detailed information

identifying people by name who are involved in this

transaction with him (Vol V, p. 31) (emphasis added).

The prosecutor also argued the credibility of Robert Hill in his

opening remarks as the informant as follows:

Ladies and gentlemen, unfortunately, you will find out

coke is not involved in this deal. I cannot bring the Pope

in before you and have the Pope testify about the drug

deal he did. I had to bring in people who were involved

in the drug deal, drug dealers, people who admitted

readily, I was involved in this drug deal, who admitted

readily, J am going to get something in return for my

truthful testimony, someone who admitted that, if I lie,

it’s all out the window and I go to jail for a long time.

(Vol V, p. 35) (Emphasis added).

He also argued, over objection, the following:

But in reality, even though everybody knows they did it,

even though we know the person confessed, they still

have the right to come in here and have an attorney

come in and try to argue that they didn’t do it.

MR. VILLARRUEL: Objection, we don’t have a bur-

den to do anything. That’s improper argument.

im 9

MR. WATERSTREET: I didn’t say they had a bur-

den, Judge. I said they have an opportunity.

THE COURT: Just proceed with your argument.

Hopefully by 12:00 o’clock. (Vol V, p. 69) (emphasis

added).

** * &

It’s not this impossible burden. Jurors have made it

every single day. People have been found guilty every

single day.

MR. VILLARRUEL: Object to that, Judge, what ju-

ries do every day.

THE COURT: Just proceed with your argument.

MR. WATERSTREET: Thank you, Judge. (Vol V,

p. 70) (emphasis added).

The trial court denied a second motion to dismiss for pre-

Indictment delay (Vol V, pp. 112-113).

REASONS FOR GRANTING THE WRIT

I.

PETITIONER WAS DENIED HER RIGHT TO

CONFRONTATION BY THE ERRONEOUS AD-

MISSION OF THE PARTIALLY REDACTED

CONFESSION OF THE NON-TESTIFYING

CO-DEFENDANT.

The right of cross examination is included in the right of

confrontation secured by the Sixth Amendment. Pointer v Texas,

380 US 400, 404, 85 S Ct 1065, 13 L Ed 2d 923 (1965); United

States v Gomez-Lemos, 939 F2d 326, 329 (6th Cir 1991). The

essence of the right of confrontation at trial is that it subjects the

witness to cross examination, allows the jury to observe the

10

demeanor of the witness in order to assess credibility, and im-

presses upon the witness the importance of telling the truth by

requiring an oath and subjecting the witness to the potential of

prosecution for perjury. California v Green, 399 US 149, 158,

90 S Ct 1930, 26 L Ed 2d 489 (1970); United States v Gomez-

Lemos, supra at 329. This Court, in Bruton v United States,

391 US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968) concluded

that a defendant’s right of confrontation is denied by the introduc-

tion of a non-testifying Co-Defendant’s statement at a joint trial,

even when the jury is instructed to consider the statement only

against the Co-Defendant who made it. Subsequently in Richard-

son v Marsh, 481 US 200, 107 S Ct 1702, 95 L Ed 2d 176 (1987),

this Court held that the admission of a _ nontestifying

Co-Defendant’s confession which is redacted to eliminate all

references to the defendant would not violate the right of confron-

tation if accompanied by the appropriate cautionary instruction.

On two (2) separate occasions, the Assistant United States

Attorney elicited the Co-Defendant’s confession in this joint trial.

Before questioning Agent Kacerosky about the Co-Defendant’s

confession, the government’s attorney said:

Now, I want to tell you something right now! Pursuant

to an objection by counsel concerning names of individ-

uals, I don’t want you to name any individual by name.

(Vol II, p. 24) (emphasis added).

This remark made it abundantly clear to the jury that it was

an objection by Petitioner’s counsel that was precluding the use of

her name. This comment rendered the exclusion of her name

totally meaningless. Moreover, in relating the Co-Defendant’s

confession to the jury, he failed to delete reference to Petitioner’s

existence and role in the crimes charged. The Co-Defendant’s

statement to Kacerosky was as follows:

A. He indicated to me that he — he acknowledged

that the transaction that had occurred he knew to

:

11

involve cocaine. He indicated that he expected to

be paid money for his participation in the scheme.

And he indicated that other individuals in Miami

were involved in the scheme. (Vol II, p. 24)

(emphasis added).

Agent Ayala was also questioned about the Co-Defendant’s

confession. On direct examination, the following statement by the

Co-Defendant was placed before the jury.

Q. What did he tell you about this deal?

A. Yes. He told me that at the beginning he was

approached by the person in Miami. |

Q. When you say “this person” he gave the name;

correct? |

A. Yes. I’m trying not to say the name. You said not

to say.

|

Q. Okay. I just wanted to maxe sure that when you

say “this person” he did, in fact, give a name and

you now are putting the words in “this person”?

A. Yes.

Q. Okay. And what did this person discuss? Accord-

ing to the Defendant, what did this person discuss?

A. He was offered by this person if he wanted to make

some easy money. So he agreed, and he was

briefed what was the deal.

Q. Let me ask you this. Without telling me the per-

son's name, the person was not the confidential

informant?

A. No.

MR. ESCOBEDO: I’m going to object, Judge.

12

THE COURT: I think you ought to move on. (Vol IV,

pp. 58-59) (emphasis added).

Once again, the government’s lawyer was making it clear to the

jury who the person was that initially approached the Co-Defen-

dant and offered a deal for him to make some easy money, by

eliminating the confidential informant. The jury was to infer that

it was the Petitioner given previous testimony that she was the

only other person present during the initial discussions.

Additionally, in his closing argument to the jury, the govern-

ment’s lawyer wanted the jury to know that the Co-Defendant

had, in fact, named the other participants, even though their

names were not in evidence. In referring to the Co-Defendant’s

confession, he told the jury:

The second one is longer. He gives detailed information

identifying people by name who are involved in this

transaction with him (Vol V, p. 31) (emphasis added).

It is improper for the government to make clear, through ques-

tioning, remarks and closing argument, that the jury is to infer

who the redacted name is. United States v Perez-Garcia, 904 F2d

1534, 1541 (11th Cir 1990).

In short, while Petitioner’s name was excised “any reference

to [her] existence” was not eliminated. United States v Marsh,

supra, 481 US at 200; United States v DiCarlantonio, 870 F2d

1058, 1062 (6th Cir 1989). The Co-Defendant’s confessions

expressly implicated Petitioner as the person in Miami who was

involved in the scheme by approaching him to make money in the

transaction. Given the government’s questioning of the agents and

closing arguments to the jury, certainly everyone knew that the

Co-Defendant was referring to Petitioner Fontao. United States v

Payne, 923 F2d 595, 597 (8th Cir 1991). This constitutional error

was not harmless beyond a reasonable doubt. Arizona v Fulmi-

nante, 499 US _, 111 S Ct 1246, 113 L Ed 2d 302 (1991);

13

Vincent v Parke, 942 F2d 989 (6th Cir 1991). The error is not

harmless because “there is a reasonable possibility that the

improperly admitted evidence contributed to the conviction”.

Schneble v Florida, 405 US 427, 432, 92 S Ct 1056, 1060, 31 L

Ed 2d 340 (1972).

Il.

PETITIONER’S DUE PROCESS RIGHTS WHERE DE-

NIED BY THE PRE-INDICTMENT DELAY.

The offenses for which Petitioner was convicted of occurred

between January 10, 1988 and February 5, 1988. On January 13,

1993, some sixty (60) months later, a grand jury returned an

indictment. By the time the case came to trial, three (3) essential

witnesses were unavailable.

The Due Process Clause of the Fifth Amendment provides

protection to an accused when a pre-indictment delay has

prejudiced her rights at trial. United States v McDonald, 435 US

850, 98 S Ct 2182, 33 L Ed 2d 18 (1978); United States v

Marion, 404 US 307, 92 S Ct 455, 30 L Ed 2d 468 (1971);

United States v Brown, 959 F2d 63, 65 (1992); United States v

Atisha, 804 F2d 920, 928 (6th Cir 1986), cert denied, 479 US

1067, 107 S Ct 955, 193 L Ed 2d 1003 (1987).

In the present case, Petitioner joined in two (2) Motion’s to

Dismiss the Indictment due to prejudicial pre-indictment delay

(Vol V, pp. 112-113). Both were denied by the district court.

Three (3) central figures of the alleged crimes were unavailable

due to the delay, which constitutes substantial and actual

prejudice to Petitioner’s case.

Agent John Bilis posed as a source of supply for the cocaine

in this “reverse-buy” (Vol I, p. 49). Bilis, acting as an undercover

agent, met with the informant and Petitioner on several occasions,

allegedly made arrangements for the exchange of the sham

14

cocaine for money, and was present when the transaction was to

occur in Detroit (Vol II, p. 13; Vol III, pp. 36-53; Vol IV,

p. 207). Although he was listed on the government’s witness list,

he was not produced at trial. At the time of trial, Bilis was no

longer employed by the federal government and he could not be

compelled to appear after leaving for Greece (Vol IV,

pp. 206-207). It was conceded that some of the taped conversa-

tions that Bilis was present at were difficult to understand or were

intelligible (Vol I, p. 60; Vol IV, p. 208).

Johnny Ace Smith, known as “Queen”, was the alleged

“money man” (Vol IV, p. 98). Collazo met Smith at a recording

studio in Detroit, where they allegedly discussed the “type of

merchandise” to be delivered, possible future deals and where

Smith gave Collazo a black bag containing $300,000 (Vol III,

pp. 60, 62). Smith was subsequently arrested at the studio

(Vol III, p. 66). Smith was killed on March 10, 1989 (Vol V,

p. 20).

Willie Lopez was present during meetings involving Peti-

tioner, the informant and Agent Bilis (Vol I, pp. 84-85; Vol III,

p. 38, 40). Lopez had a legitimate export business of goods and

services to Cuba (Vol III, pp. 78, 81). Discussions regarding the

transaction to be completed in Detroit were had at Lopez’s house

and place of business. One meeting was not taped (Vol III,

p. 82). The government was unaware of the whereabouts of

Lopez and had not kept track of where he was (Vol II, p. 79).

Each of these witnesses would have been used to impeach and

discredit the testimony of Mr. Collazo and to establish the

Petitioner’s lack of participation in the crimes for which she was

convicted. Yet, this evidence was lost by the government’s delay

in bringing charges against the Petitioner.

15

iil.

PETITIONER FONTAO WAS DENIED DUE

PROCESS OF LAW BECAUSE THERE WAS IN-

SUFFICIENT EVIDENCE AT TRIAL TO SUS-

TAIN A VERDICT ON ATTEMPT POSSESSION

WITH INTENT TO DISTRIBUTE COCAINE AND

WHERE THE TRIAL COURT ERRONEOUSLY

DENIED PETITIONER’S MOTION FOR DI-

RECTED VERDICT.

The government’s evidence was that Petitioner contacted the

informant and subsequently met with the informant, undercover

agents and the Co-Defendant in Florida as part of a “reverse-

buy”. Petitioner was not involved in shipment of cocaine, money

laundering or any commission for the sale of cocaine. In fact, she

was not present when the transaction was to occur. The trial court

erroneously denied Petitioner’s motion for directed verdict

(Vol V, p. 10, 21). There was insufficient evidence to support a

conviction for attempt possession with intent to distribute cocaine.

In order to obtain a constitutionally valid conviction, the

government must present the fact finder with evidence sufficient

to prove guilt. In, In Re Winship, 397 US 358, 90 S Ct 1068,

25 L Ed 2d 368 (1970). This Court specifically held:

“{T]he Due Process Clause protects the accused

against conviction except upon proof beyond a reasona-

ble doubt of every fact necessary to constitute the

crime with which he is charged.” US at 365.

The standard for reviewing the sufficiency of the evidence at trial

consistent with the requirement that there be proof beyond a

reasonable doubt. U.S. Const. Am. VI; Jackson v Virginia,

443 US 307, 316-319, 99 S Ct 2781, 61 L Ed 2d 560, reh denied,

444 US 890, 100 S Ct 195, 62 L Ed 2d 126 (1979).

16

In order to convict a person of attempt to commit a drug

offense, the government must establish beyond a reasonable

doubt, (1) the intent to engage in criminal conduct and, (2) the

performance of an overt act which constitutes a substantial step

toward the commission of the substantive offense, here, posses-

sion of cocaine with the intent to distribute. United States v

Perryman, 889 F2d 104, 106 (6th Cir 1989); United States v

Williams, 704 F2d 315, 321 (6th Cir 1983).

In the present case, it is undisputed that Petitioner was not

present in Detroit when the transaction involving the money and

sham cocaine occurred (Vol II, pp. 79, 89; Vol III, pp. 104-105).

More importantly, it was never her intent or purpose to gain

possession of narcotics, either directly or constructively. There is

absolutely no evidence to even suggest that Petitioner had an

intent to possess cocaine, or exercised any dominion or control

over the drugs, either directly or indirectly. United States v

Craven, 478 F2d 1329, 1333 (6th Cir 1973), cert denied, 414

US 886, 94 S Ct 54, 38 L Ed 2d 85 (1973).

IV.

PETITIONER FONTAO WAS DENIED A FAIR

TRIAL BY THE DELIBERATE INJECTION INTO

EVIDENCE BY AN AGENT THAT SHE WAS

THE SUBJECT OF ANOTHER DRUG

INVESTIGATION.

Evidence of other criminal acts is excluded when it is used to

show that the defendant had a criminal propensity or was a person

of bad character, likely to have committed the crimes charged in

the indictment. In other words, when the evidence of other bad

acts is being used to show the defendant committed the crime

charged (she acted in conformity with that character trait or

propensity on a particular oc@ision) the evidence is inadmissible.

The rationale behind such a rule is obvious. Such character

evidence distracts the trier of fact from the main question of what

17

actually happened in this particular case and permits conviction

because the defendant is a bad person, despite what the evidence

in the case actually shows. Thus, the use of such evidence must be

circumscribed and limited. United States v Balleaux, 685 F2d

1105, 1109 (9th Cir 1982). Before evidence of other criminal

conduct may be admitted pursuant to Rule 404(b), the govern-

ment must meet certain prerequisites. United States v Huddle-

ston, supra, 485 US at 691-692; United States v French, 974 F2d

687, 694 (6th Cir 1992); United States v Bakke, 942 F2d 972

(6th Cir 1991); United States v Zelinka, 862 F2d 92 (6th Cir

1988); United States v Blankenship, 775 F2d 735 (6th Cir 1985).

The government bears the burden of proving admissibility of

other alleged criminal behavior under Fed. R. Evid. 404(b);

United States v Huddleston, 485 US 681, 108 S Ct 1496, 99 L Ed

2d 771 (1988); United States vy Mehrmanesh, 689 F2d 822, 830

(9th Cir 1982). In the present case, there is no basis for

admission of the testimony of the agent.

During cross examination by the Co-Defendant’s attorney,

the following occurred:

Q. Were you personally aware of any other investiga-

tions that Mr. Collazo had been involved in prior to

the investigation in question?

A. Yes. As I stated, there vas one other, my recollec-

tion is there was one other active investigation that

was ongoing at that time. That investigation in-

volved the use of Go-Fast vessels that would be

used, which would mean very fast speed boats that

were being used to smuggle cocaine, or were in-

tended to be used to smuggle cocaine from the

Bahamas to South Florida. The investigation be-

came centered on the number of people. There was

an overlap and some of the subjects in that case

18

were some of the subjects in this case. (Kacerosky,

Vol II, p. 43) (emphasis added).

The question posed was whether the agent was aware of investiga-

tions Mr. Collazo had been involved in. The answer only required

an affirmative or negative response. The attorney never asked

about what the investigation involved or who the targets of the

investigations were.

The Courts have repeatedly condemned such conduct by

agents of the government, who are presumed to know that the

ipterjection of other alleged criminal acts by the defendant on

trial are inadmissible and extremely prejudicial. United States v

Andrea, 538 F2d 1255, 1256 (6th Cir 1976); United States v

Ortiz, 507 F2d 1224. 1226 (6th Cir 1974). The issue is not waived

by the attorney’s failure to object. United States v Gray, 468 F2d

257 (3rd Cir 1972); United States v Garber, 471 F2d 212 (Sth Cir

1972).” Ortiz, supra, 507 F2d at 1226. Review is under the plain

error rule of Fed. R. Crim. P. 52(a). The evidence presented by

the government, in this case, was not so overwhelming that this

error could not have possibly affected the outcome of the case or

affected Petitioner’s substantial rights.

V.

PETITIONER WAS DENIED HER RIGHT OF

CONFRONTATION WHEN THE TRIAL COURT

REFUSED TO DISCLOSE THE PRESENTENCE

AND PRETRIAL SERVICES REPORTS OF A

WITNESS AND REFUSED TO ADJOURN THE

TRIAL TO OBTAIN THE INCOME TAX RE-

TURNS OF THE INFORMANT.

The right of cross examination and confrontation embodied

in the Sixth Amendment is deeply rooted in our legal system.

Coy v Iowa, 487 US 1012, 1015-1016, 108 S Ct 2798, 101 L Ed

19

2d 857 (1988); United States v Gomez-Lemos, 939 F2d 326, 329

(6th Cir 1991).

In the present case, the District Court unduly restricted

counsel’s right to cross-examine two (2) key adverse witnesses.

To a large extent, the motivation of the informant, Robert

Collazo, to be involved and to see the case to completion was his

agreement with the government that he would receive a certain

amount of money seized. No written documentation of the money

agreed upon or the amount received was placed into evidence.

During cross-examination, Collazo testified that he received a

$25,000 cash payment as an informant, but he could not recall if

he reported it as income to the Internal Revenue Service

(Vol III, p. 112). Collazo could not recall the exact amount he

was paid in this case, whether it was $150,000, $147,000, or

$145,000 (Vol III, p. 113). Although he was paid in 1989,

Collazo testified he reported it as income on his tax return in 1992

(Collazo, p. 114). Defense counsel then sought Collazo’s income

tax returns for impeachment (Vol IV, pp. 4-5). The District

Court judge told the defense if he got the returns “in time” he

could use them because, the trial would not be adjourned

(Vol IV, p. 5). When the Assistant United States Attorney

indicated that no court order had been issued for the tax returns

and that the expected time to obtain the returns was two (2)

weeks, the district judge essentially ignored it (IV, pp. 4-5).

Robert Hills had pled guilty and was cooperating with the

government. Prior to his testimony, the defense sought release of

Hills Presentence Report and Pretrial Services Report (Vol I,

p. 61; Vol III, p. 3). The District judge reviewed the documents,

refused to disclose the content of the documents or allow the

attorneys to review them, and ordered them sealed (Vol II, p. 3).

The trial court’s refusal in both instances was clearly errone-

ous. Petitioner was entitled to documents she sought under both

the authority of Brady v Maryland, 373 US 83, 83 S Ct 1194, 10

20

L Ed 2d 25 (1963) and the Jencks Act 18 USC § 3500. Since the

credibility of both witnesses were crucial to the government’s case

“Tt)he jury’s estimate of the truthfulness and reliability of a given

witness may well be determinative of guilt or innocence. Napue v

Illinois 360 US 264, 269, 79 S Ct 1173, 3 L Ed 2d 1217 (1959).

VI.

THE GOVERNMENT’S MISCONDUCT IN

CLOSING ARGUMENTS VIOLATED PETI-

TIONER’S RIGHT TO A FAIR TRIAL BY

VOUCHING FOR THE CREDIBILITY OF A

COOPERATING CO-CONSPIRATOR AND BY

DENIGRATING PETITIONER’S RIGHT TO

TRIAL, RIGHT TO COUNSEL, PRESUMP-

TION OF INNOCENCE, AND RIGHT TO HAVE

THE GOVERNMENT PROVE HER GUILT BE-

YOND A REASONABLE DOUBT IN THIS

CASE.

The standard for reviewing allegations of prosecutorial mis-

conduct is whether the remarks deprived the defendant of a

fundamentally fair trial. United States v Young, 470 US 1, 11, 105

S Ct 1038, 84 L Ed 2d (1985); Donnelly v DeChristoforo, 416

US 637, 642-643, 94 S Ct 1868, 40 L Ed 2d 437 (1974).

A.

VIOLATION OF PETITIONER’S RIGHT TO

TRIAL, RIGHT TO COUNSEL, PRESUMPTION

OF INNOCENCE AND THE GOVERNMENT’S

BURDEN OF PROOF.

In his opening argument to the jury, the government’s

attorney argued the following, over objection.

Oe

21

But in reality, even though everybody knows they did it,

even though we know the person confessed, they still

have the right to come in here and have an attorney

come in and try to argue that they didn’t do it.

MR. VILLARRUEL: Objection, we don’t have a bur-

den to do anything. That’s improper argument.

MR. WATERSTREET: I didn’t say they had a bur-

den, Judge. I said they have an opportunity.

THE COURT: Just proceed with your argument.

Hopefully by 12:00 o’clock. (Vol V, p. 69) (Emphasis

added).

Shortly thereafter, the government’s attorney launched into

an attack on its burden of proof, going outside the evidence in the

case.

It’s not this impossible burden. Jurors have made it

every single day. People have been found guilty every

single day.

MR. VILLARRUEL: Object to that, Judge, what

juries do every day.

THE COURT: Just proceed with your argument.

MR. WATERSTREET: Thank you, Judge. (Water-

street closing argument, Vol V, p. 70) (Emphasis

added).

A defendant in a criminal case has an unqualified right to

trial, to counsel to represent her at trial, and to be presumed

innocent until and unless the government proves beyond a reason-

able doubt her guilt. U.S. Const. Am, V, VI.

22

B.

PROSECUTORIAL VOUCHING

It is well known that the government may not vouch for the

credibility of its witnesses by portraying the government as a

guarantor of truthfulness. Taylor v United States, 985 F2d 844,

846 (6th Cir 1993); United States v Monroe, 943 F2d 1007, 1013

(9th Cir 1991); United States v Wallace, 848 F2d 1464, 1473

(9th Cir 1988). The jury could reasonably conclude that the

government attorney was expressing his belief in Hill’s testimony

because the plea agreement required truthful testimony and the

attorney argued he would get his deal only in exchange for

truthful testimony. United States v Causey, 834 F2d 1277, 1283

(6th Cir 1987), cert den, 486 US 1034, 108 S Ct 2019, 100 L Ed

2d 606 (1988). The government’s lawyer argued Hill’s credibility

as follows:

Ladies and gentlemen, unfortunately, you will find out

coke is not involved in this deal. I cannot bring the

Pope in before you and have the Pope testify about the

drug deal he did. I had to bring in people who were

involved in the drug deal, drug dealers, people who

admitted readily, I was involved in this drug deal, who

admitted readily, J am going to get something in return

for my truthful testimony, someone who admitted that,

if I lie, it’s all out the window and I go to jail for a long

time. (Waterstreet closing argument, Vol V, p. 35).

The clear implication of this argument is that the govern-

ment is guaranteeing the truth of the testimony by enforcing the

truthfulness condition of its own plea agreement. United States v

Roberts, 618 F2d 530, 533 (9th Cir 1980).

23

C.

THE MISCONDUCT WAS NOT HARMLESS

BEYOND A REASONABLE DOUBT.

This Court has recognized that although :he cumulative

effect of repeated improper remarks magnifies th> prejudice, a

“single misstep on the part of the prosecutor may be so destruc-

tive o the right of the defendant to a fair trial that reversal must

follow. United States v Smith, supra, 500 F2d at 297. This would

include prosecutorial comments which tend to “overthrow the

presumption of innocence” as in the present case. Pierce v United

States, 86 F2d 949 (6th Cir 1936). Reversal is required unless the

reviewing court is able to declare a firm belief that misconduct is

harmless beyond a reasonable doubt. Boyde v California,

494 US 370, 110 S Ct 1190, 108 L Ed 2d 3196 (1990);

Eberhadt v Bordenkircher, 605 F2d 275, 278 (6th Cir 1979).

Given that the case against Petitioner was not overwhelming the

government is unable to establish beyond a reasonable doubt that

the repeated constitutional errors were harmless. The repeated

constitutional errors were not harmless.

24

CONCLUSION

WHEREFORE, for all the foregoing reasons, Petitioner

requests that this Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

FRANCISCO J. VILLARRUEL

(P34147)

Attorney for Petitioner

1633 First National Building

Detroit, Michigan 48226

(313) 963-3311

CRAIG A. DALY, P.C. (P27539)

Co-Counsel for Petitioner

577 E. Larned, Suite 240

Detroit, Michigan 48226

(313) 963-1455

Dated: June 24, 1996

sii

la

Appendix

No. 95-1084, 95-1086

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

ON APPEAL from the

v. > United States District

Court for the Eastern

MIRIAM JUANA FONTAO, District of Michigan,

Defendant-Appellant. | Southern Division

UNITED STATES OF AMERICA, /

Plaintiff-Appellee,

v. , ON APPEAL from the

United States District

ERIC PAGANI-GALLEGO, AKA Court for the Eastern

ERIK PAGANI-GALLEGO, District of Michigan,

Defendant-Appellant. } Southern Division

Before: NORRIS and SILER, Circuit Judges; and

GODBOLD, Senior Circuit Judge.!

GODBOLD, Senior Circuit Judge. Eric Pagani-Gallego and

Miriam Juana fontao were jointly tried and convicted of conspir-

acy to possess with intent to deliver cocaine, 21 U.S.C. §846,

1 The Honorable John C. Godbold, United States Circuit Judge for the

Eleventh Circuit, sitting by designation.

2a

Appendix

attempt to possess with intent to distribute cocaine,

21 U.S.C. §841(a)(1), and aiding and abetting, 21 U.S.C. §2.

Pagani-Gallego and Fontao timely filed notices of appeal and

challenge their convictions on several grounds. We affirm the

convictions.

A. Denial of Right of Confrontation

Fontao’s Sixth Amendment right of confrontation was not

violated by the admission of the confession of Pagani-Gallego,

who was not a witness at her trial. After the arrest of Pagani-

Gallego police interrogated him and extracted a confession which

was admitted at Fontao’s trial through the testimony of Agent

Kacerosky. Before the confession was read to the jury, the U.S.

Attorney states:

Now, I want to tell you something right now. Pursuant

to an objection by counsel concerning names of individ-

uals, I don’t want you to name any individual by name.

The confession, redacted to omit Fontao’s name, was read to the

jury:

He indicated to me that he — he acknowledge that the

transaction that had occurred he knew to involve

cocaine. He indicated that he expected to be money for

his participation in the scheme. And he indicated that

other individuals in Miami were involved in the

scheme.

In closing argument the U.S. Attorney summarized the

content of Pagani-Gallego’s confession:

He gives detailed information identifying people by

name who are involved in this transaction with him.

3a

Appendix

Fontao did not object to the U.S. Attorney’s statements or

the admission of Kacerosky’s testimony, or request a limiting

instruction, so our review is limited to plain error.

The Sixth Amendment of the Constitution embodies the

essential right of the accused in a criminal prosecution to have the

opportunity to confront witnesses against her. In Richardson v

Marsh, 481 US 200, 107 S Ct 1702, 95 L Ed 2d 176 (1987), the

Court restricted this right by holding that the admission of a

nontestifying codefendant’s confession which is redacted to elimi-

nate all references to the defendant would not violated the right of

confrontation if accompanied by the appropriate cautionary in-

struction. This circuit interpreted this rule as allowing the intro-

duction of a redacted confession “even if the codefendant’s

confession becomes incriminating when linked with other evi-

. dence adduced at trial.” U.S. v DiCarlantonio, 870 F2d 1058,

1062 (6th Cir 1989), cert denied, 493 US 933 (1989).

There was no reversible plain error. In light of the strength of

the other evidence produced by the government, error, if any, was

harmless.

income tax returns of Collazo, the government paid informant,

did not violate her right of confrontation. On the last day of trial

Fontao’s attorney requested copies of Collazo’s income tax re-

turns. The district judge instructed Fontao that he did not intent

to delay the trial, but if Fontao could retrieve the records without

{

'

) Second, the court’s refusal to allow Fontao time to obtain the

|

:

delay the records would be admissible. The U.S. Attorney in-

formed Fontao that she would have to seek a court order to move

for an adjournment of the trial to retrieve the records because

retrieval would require approximately two weeks. She did not seek

a court order or move for an adjournment. This inaction limits our

review to plain error.

4a

Appendix

The district court did not commit plain error in refusing to

delay the trial so Fontao could retrieve the records. The delay

would have extended the trial, which was almost over, for two

weeks. Fontao’s counsel cross-examined Collazo about his pay-

ment from the government even though she did not have his tax

returns.

Third, the refusal of the district court to order the disclosure

of the PSR of Robert Hills, a cooperating defendant, did not

violate Fontao’s right of confrontation. Our review is limited to

the clearly erroneous standard.

The court examined the PSR and did not find any relevant

information. The court stated: “I have examined the Pre-Trial

Services Report of Robert Hills. I find nothing in it of arguable

relevance.” The district court’s refusal was not clearly erroneous.

B. Sufficiency of the Evidence

Fontao challenges her conviction under 21 U.S.C. §841(a) (1)

and 18 U.S.C. §2 on the ground that the government failed to

prove every element of her offense beyond a reasonable doubt as

required by In re Winship, 397 US 358, 361, 90 S Ct 1068,

25 L Ed 2d 368 (1970).

The government must prove two elements to convict a

person of attempting to commit a cocaine offense: (1) the intent

to engage in the possession with intent to distribute cocaine; and

(2). the commission of an overt act which constitutes a substantial

step toward the possession with intent to distribute cocaine. U.S. v

Pennyman, 889 F2d 104, 106 (6th Cir 1989). Fontao asserts that

the government failed to prove that she had intent to possess or

did possess cocaine.

This challenge has no merit and sufficient evidence supports

the conviction. Fontao contacted Collazo to obtain a cocaine

a

Sa

Appendix

supplier; she conducted two meetings in Miami where she dis-

cussed the quantity of drugs and the persons who would be

involved in the sale of the cocaine; and she arranged to bring the

buyers and sellers together. This evidence tends to prove that she

intended to engage in the possession with intent to distribute

cocaine and that she participated in overt acts which constituted a

substantial step toward her possession with intent to distribute.

C. Prosecutorial Misconduct

The following are statements of the U.S. Attorney made in

opening remarks and in closing argument:

[OPENING REMARKS]

Ladies and gentlemen, unfortunately, you will find out

coke is not involved in this deal. I cannot bring the Pope

in before you and have the Pope testify about the drug

deal he did. I had to bring in people who were involved

in the drug deal, drug dealers, people who admitted

readily, I was involved in this drug deal, who admitted

readily, I am going to get something in return for my

truthful testimony, someone who admitted that, if I lie,

it’s all out the window and I go to jail for a long time.

[CLOSING ARGUMENT]

But in reality, even though everybody knows they did it,

even though we know the person confessed, they still

have the right to come in here and have an attorney

come in and try to argue that they didn’t do it.

* * *

[The reasonable doubt standard is]not this impossible

burden. Jurors have made it every single day. People

have been found guilty every single day.

6a

Appendix

These statements did not violate Fontao’s right of due process and

did not constitute prosecutorial misconduct. They were not

egregious or continuous. U.S. v Bess, 593 F2d 749 (6th Cir 1979).

At most the comments constituted harmless error which does not

provide a ground for reversal.

D. Agreement with Informant

The government agreed to pay Collazo, the informant, 25%

of the money seized from the investigation, resulting in a payment

of approximately $145,000. The admission of Collazo’s testimony

did not violate the constitutional rights of Pagani-Gallego.

The Fifth Circuit held in U.S. v Cervantes-Pacheco, 826 F2d

310, 315 (Sth Cir 1987), cert denied, 484 US 1026 (1988), that

“an informant who is promised a contingent fee by the govern-

ment is not disqualified from testifying in a federal criminal trial.”

Following this rule the government had the authority to compen-

sate Collazo. Although the amount of the payment is great, the

influence the payment had on the testimony goes to credibility

and not admissibility.

E. Denial of Due Process by Pre-Indictment Delay

Pre-indictment delays did not deny Fontao or Pagani-

Gallego of their right to due process. Fontao’s offense occurred

between January 10, 1988 and February 5, 1988, but she was not

indicted until approximately 60 months later, on January 13,

1993. pagani-Gallego was arrested on February 2, 1988, but the

indictment was not returned against him until January 20, 1993.

Appellants argue that this delay caused three essential witnesses

to be unavailable: Agent Bilis, Johnny Ace Smith and Willie

Lopez.

In U.S. v Lovasco, 431 US 783, 97 S Ct 2044, 52 L Ed 2d

752 (1977), the court required the defendant to show both

Ta

Appendix

(1) substantial prejudice to his right to a fair trial and (2) an

intentional delay by the government to obtain a tactical advantage

before a due process violation was present. The defendant must

demonstrate “in a ‘definite and not speculative’ manner how the

loss of the witness or other evidence was prejudicial.” U.S v Loud

Hawk, 816 F2d 1323, 1324 (9th Cir 1987).

Fontao and Pagani-Gallego did not prove either prong. The

only evidence of the prejudice was purely speculative. Fontao

admitted that she did not know “what Agent Bilis would have

testified to.” Tr. V at 18. No proffer was made to the court of the

proposed testimony. “Mere assertions that the testimony of missing

witness might have been useful. . . [do] not constitute the proof

of prejudice required... .If the ‘actual content’ of the lost testi-

mony was not before the court, it could not determine whether

that testimony would have been beneficial or detrimental to the

defendant.” Loud Hawk, 816 F2d at 1325.

The appellants did not establish that the government gained

a tactical advantage by the delay or that there was any due

process violation.

F. Denial or Right to Fair Trial

The district court did not err in admitting evidence of prior

bad acts under Fed. R. Evid. 404(b). Fontao and Pagani-Gallego

challenge two statements admitted in evidence. First, Agent

Kacerosky testified:

Q. Were you personally aware of any other investigations

that Mr. Collazo [the government informant] had

been involved in prior to the investigation in question?

A. Yes. AsI stated, there was one other, my recollec-

tion is there was one other active investigation that

was ongoing at that time. that investigation

ee eee

8a

Appendix

involved the use of Go-Fast vessels that would be

used, which would mean very fast speed boats that

were being used to smuggle cocaine, or were

intended to be used to smuggle cocaine from the

Bahamas to South Florida. The investigation

became centered on the number of people. There

was an overlap of some of the subjects in that case

were some of the subjects in this case.

Second, the government presented evidence that Pagani-Gallego

offered to launder the money obtained after the buy and that

Pagani-Gallego was highly capable of laundering the money due

to past acts of money laundering.

The Sixth Circuit employs a three-part test in determining

the admissibility of evidence under Rule 404(b): (1) the govern-

ment must introduce evidence so that a reasonable jury could

conclude that the act occurred; (2) the subsequent act must be

probative of a material issue other than character; and (30 the

probative value of the evidence must not be substantially out-

weighed by the danger of unfair prejudice. Fed. R. Evid. 403, 404.

Our standard of review is limited to plain error because the

evidence was introduced without objection. the admission of this

testimony did not result in plain error. The evidence fits into the

exceptions in Rule 404(b). A court may admit evidence of other

wrongs “if those other crimes or acts are relevant to intent or

knowledge which are elements of the crime charged.” U.S. v

Lash, 937 F2d 1077, 1087 (6th Cir 1991), cert denied, 502 US

949 (1991). Pagani-Gallego’s offer to launder money was part of

the continuing pattern of illegal activity. The evidence concerning

Fontao went to prove intent. The district court did not commit

plain error.

EEE Eo

9a

Appendix

G. Explanation of Drug Code Words

Agent Edward Kacerosky testified as an expert and identified

the meaning of code words used in the drug trade. this testimony

did not invade the province of the jury because the average juror

is not capable of understanding the meaning of code words used in

the drug trade.

This circuit established the well-recognized rule in U.S. v

Pearce, 912 F2d 159, 163 (6th Cir 1990), cert denied, 498 US

1093 (1991), that “[1]aw enforcement officers may testify con-

cerning the methods and techniques employed in an area of

criminal activity and to establish ‘modus operandi’ of particular

crimes. Knowledge of such activity is generally ‘beyond the

understanding of the average layman’ ” (quoting U.S. v Espinosa,

827 F2d 604, 611 (9th Cir 1987), cert denied, 485 US 968

(1988).

This testimony was beyond the knowledge of the average

juror and was proper.

AFFIRMED.