Petition for Writ of Certiorari — Bourhan v. United States

C1) Supreme Court, U.S,”

Q lei 686 _ FILED

| MAR 9 1992

OFFICE OF THE CLERK

Kencrnntee

CASE NO.: i

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

BASSEM BOURHAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALVIN E. ENTIN, ESQ.

2450 N.E. Miami Gardens Drive

Second Floor

Miami, Florida 33180

(305) 932-0550

Counsel for the Petitioner

/)

QUESTIONS PRESENTED FOR REVIEW

1. Whether the decision of the

Eleventh Circuit Court of Appeals

affirming the district court’s denial of

the Petitioner’s motion to dismiss for

violation of his Sixth Amendment right to

& speedy triai is in direct conflict with

Barker v. Wingo, 407 U.S. 514, 92 S.Ct.

2182, 33 L.Ed 101 (1972).

2 Whether the decision of the

Eleventh Circuit Court of Appeals

affirming the district court’s decision to

admit testimony in violation of the

Petitioner’s Sixth Amendment right to

confront the witnesses against him is in

direct conflict with Ohio v. Roberts, 448

U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597

(1980); California v. Green, 399 U.S. 149,

90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) and

Pointer v. Texas, 380 U.S. 400, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965).

ii.

ee Y

LIST OF INTERESTED PARTIES

TRIAL JUDGE

PETITIONER

UNITED STATES

OF AMERICA

ATTORNEY FOR

PETITIONER

ALLEGED VICTIMS

Lenore C. Nesbitt

Bassem Bourhan

Lynne W. Lamprecht,

Assistant United States

Attorney

Alvin E. Entin, Esq.

None

iii

.

r

Page

Opinions Below...... TELPOPCLEL TES cen a

JUTISGICCION... cece ieee ewe cee ees titan 2

Constitutional Provisions,

Statutes, and Regulations

a ey ee ee 3

SCACGMONE OF CHO CASB. . cc cscccccseses 6

(i) Course of Proceedings and

Disposition Below

(ii) Statement of Facts

Reasons for Granting the

tt Pee ee ee ee ee ee re Pee ee ae 16

(i) Whether the decision of the

Eleventh Circuit Court of

Appeals affirming the district

court’s denial of the

Petitioner’s motion to dismiss

for violation of his Sixth

Amendment right to a_ speedy

trial is in direct conflict with

Barker _v. Wingo, 407 U.S. 514,

74 OC. 2188, 33 L.Ba 361

(1972).

(ii) Whether the decision of the

Eleventh Circuit Court of

Appeals affirming the district

court’s decision to admit

testimony in violation of the

Petitioner’s Sixth Amendment

right to confront the witnesses

iv.

against is in direct conflict

with Qhio v. Roberts, 448 U.S.

56, 100 S.Ct. 2431, 65 L.Ed.2d

597 (1980); California v. Green,

399 U.S. 149, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970) and Pointer

v. Texas, 380 U.S. 400, 85 S.Ct.

1025, 13 L.Ed.2d 923 (1965).

Lally @.

NS 8 ua -_ ett SD OE Oona a eee OT Te

F RITI

Cases P Page

Barber v. Page,

390 U.S. 719, 22 S.Ct. 1318,

20 L.Ed.2d 255 (1968). ... . 22

Vv. ngo,

407 U.S. 514, 527, 92 S.Ct.

2182, 33 L.Ed.2d 101, 115

fiSees « « « Sr See

i

Berger y. lifornia, H

394 U.S. 314, 89 S.Ct. 540,

. 21 B.Ed.2d 508 (1969). . . . . 22

Burkett v. Cunningham,

826 F.2d 1208 (3rd Cir. 1987) 12

California v. Green,

399 U.S. 149, 90 S.Ct. 1930,

26 L.Ed.2d 489 (1970). ... . 22

Dasher v. Stripling,

685 F.2d 385 (llth Cir. 1982) 28

Qhio v. Roberts,

448 U.S. 56, 100 S.Ct. 2531,

2539, 65 L.Ed.2d 597 (1968) .. 28,

Pointer v. Texas,

390 U.S. 400, 85 S.Ct. 1065

33 Ibe BG.2G 923 (1965). .... 21

Strunk v. United States,

412 U.S. 434, 93 S.Ct. 2260, oe

oe. ye yee |

United States v. Amaya,

533 F.2d 188, 190 (5th Cir. 1976)

cert denied. 429 U.S. 1001,

$7 §.Ct. 1125, 51 L.Ed.2d 551

bog | a |

29

18

~~ Sea” YT

TABLE OF A RITIES

Cont ‘d

Cases Page

United States v. Marion,

404 U.S. 307, 92 S.Ct. 455,

30 L.Ed.2d 468 (1971) .... .11

vi

CASE NO.:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

BASSEM BOURHAN

Petitioner/Appellant,

vs.

UNITED STATES OF AMERICA,

Respondent /Appellee

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH JUDICIAL CIRCUIT

The Petitioner, BASSEM BOURHAN,

petitions for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Eleventh Circuit

in this case.

OPINIONS BELOW

The Judgment of the District Court is

reprinted herein. (App.1-7). The

district court’s ruling on the

Petitioner’s Motion to Dismiss, and its

Findings of Fact and Conclusions of Law

were made orally. The opinion of the

Court of Appeals for the Eleventh Circuit

affirming the Judgment of the District

Court in United States v. Bourhan, was

rendered on December 11, 1991, and is

reprinted herein. (App. 8-9). The

Mandate issued on January 7, 1992.

JURISDICTION

This petition arose in the first

instance from criminal charges filed in

the District Court for the Southern

District of Florida. The Judgment in a

-Criminal Case rendered by the Court

(App.i-7) was appealed to the United

States Court of Appeals for the Eleventh

Circuit pursuant to the jurisdiction

vested in the Court by 28 U.S.C. 1291.

This court has jurisdiction over this

petition pursuant to 28 U.S.C. 1254.

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS INVOLVED

Constitution of the United States,

Amendment VI

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the Assistance

of Counsel for his defense.

Rule 804, Federal Rules of Evidence

(b) Hearsay exceptions. The

| following are not excluded by the-hearsay

rule if the declarant is unavailable as a

witness:

(5) Other Exceptions: A

statement not specifically covered by any

of the foregoing exceptions but having

equivalent circumstantial guarantees of

trustworthiness, if the court determines

that (A) the statement is offered as

evidence of a material fact; (B) the

statement is more probative on the point

for which it is offered than any other

evidence which the proponent can procure

through reasonable efforts; and (C) the

general purposes of these rules and the

interests of justice will best be served

by admission of the statement’ into

evidence. However, a statement may not be

admitted under this exception unless the

proponent of it makes known to the adverse

party sufficiently in advance of the trial

or hearing to provide the adverse party

with a fair opportunity to prepare to meet

it, the proponent’s intention to offer the

statement and the particulars of it,

including the name and address of the

declarant.

STATEMENT OF THE CASE

The Petitioner, BASSEM BOURHAN, was

named in a_- twenty-two (22) count

indictment returned by a Federal Grand

Jury sitting in Miami, Florida on August

2, 1984. Mr. BOURHAN was charged together

with sixteen other individuals with a

variety of violations of federal law

relating to importation and attempts to

import quantities of methaqualone.

Mr. BOURHAN was named in Count l, 5,

6, 7, 8, 20, and 21 of the indictment.

Count 1 charged that this Defendant was a

member of a conspiracy to import

methaqualone into the United States from

Colombia, South America and the Bahamas in

violation of Title 21, United States Code,

Section 952(a) and Title 18 United States

Code, Section 2. Counts 6, 20, oan 21

charged Mr. BOURHAN with separate attempts

to import methaqualone into the United

States from Colombia, South America and

the Bahamas in violation of Title 21,

United States Code, Section 963 and Title

18, United States Code, Section 2. All of

the aforementioned violations were alleged

to have occurred during the period from

December, 1980 through October 1981.

The evidence presented at trial

related to a series of meetings and trips

as part of various efforts to import

quantities of methaqualone into the United

States. Government witness, Wilbur

Jackson testified that he met Mr. BOURHAN

in or about December, 1980 and shortly

thereafter flew with him from the Tamiami

airport to Bimini, Bahamas and then the

following day to Colombia, South America.

After arriving at a grass strip in

Colombia, the plane was refueled and

loaded with approximately thirty-two to

forty (32-40) boxes of quaaludes each

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weighing approximately fifty (50) pounds.

The aircraft then returned to Bimini where

the boxes were unloaded, taken to the

docks and loaded into three (3) vessels

for the trip to Miami.

Mr. Jackson then testified that in

January, 1981, this Defendant again flew

to Colombia to pick up more pills but upon

his return to the Bahamas, he was arrested

by the Bahamian defense force. Later that

month the Defendant returned to Colombia

where the plane was again loaded, returned

to Bimini and was off-loaded. Another

government witness, Johnny Crump,

testified that in October, 1981, Mr.

BOURHAN flew to Colombia a last time to

pick up another load of quaaludes but when

he arrived the pills were being replaced

by marijuana. Mr. BOURHAN refused to have

anything to do with marijuana and had no

further involvement with the charged

conspirators.

wt Sed a ERS AOI a

While the indictment was ordered

sealed at the time of its return, it

remained so for only five days. it was

unsealed on August 7, 1984 at the time of

the arrest of the first of the

codefendants. From the date the

indictment was returned until the date of

the Petitioner’s arrest, some five and one

half years later, the United States

Government made no effort whatsoever to

locate and bring to trial the Petitioner,

BASSEM BOURHAN.

When the Petitioner's trial began on

July 17, 1990, his trial counsel moved to

dismiss the indictment against him on the

ground that he had been denied his right

to a speedy trial as guaranteed by the

Sixth Amendment to the United States

Constitution. That motion was denied by

the trial court.

Thereafter, during the course of the

presentation of the government’s case in

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chief, the prosecutor learned that one of

the witnesses she intended to call had

become unavailable. As a result, the

government sought to introduce’ the

testimony of that witness from the trial

of some of the codefendants which had

occurred several years earlier, at a point

in time prior to the arrest of the

Petitioner, when he was not represented by

counsel and at a proceeding where none of

the involved parties had any interest or

motivation to protect this Petitioner’s

rights. Trial counsel for the Petitioner

objected to the introduction of this prior

testimony, since it violated the

Petitioner’s right to confront’ the

witnesses against him as provided by the

Sixth Amendment to the United States

Constitution. That objection was

overruled by the trial court and the prior

testimony was received in evidence.

After the presentation of all of the

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evidence, the jury retired to deliberate

and on July 24, 1990, they returned a

verdict finding the Petitioner, BASSEM

BOURHAN, guilty of each count of the

indictment in which he was named.

Thereafter, on September 25, 1990, the

trial court sentenced BASSEM BOURHAN to

serve a fifteen (15) year term of

imprisonment followed by a four (4) year

special parole term.

The Petitioner timely filed his

Notice of Appeal on October 2, 1990. The

opinion of the Court of Appeals for the

Eleventh Circuit, affirming the judgment

of the District Court, was rendered on

December 11, 1991 (App. 3) and on January

7, 1992, the mandate issued.

REASONS FOR GRANTING THE WRIT

(i) . The Sixth Amendment to the United

States Constitution guarantees . the

Defendant the right to speedy trial. This

protection afforded all Defendants in a

10

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criminal prosecution is activated when the

Defendant is indicted. United States v.

Marion, 404 U.S. 307, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971). Thus, from the moment

when the Government chooses to charge a

Defendant with a criminal violation, it

inherently undertakes the obligation to

make at least a reasonably diligent effort

to bring the Defendant to trial. "A

Defendant has no duty to bring himself to

trial; the State has that duty as well as

the duty to insuring that the trial is

consistent with due process." Barker v.

Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182,

33 L.Ed.2d 101, 115 (1972).

Barker, supra, is, without question,

the leading case and controlling precedent

with regard to a Defendant’s

constitutional right to a speedy trial.

In that case, this Supreme Court

recognized that the very nature of the

right to a speedy trial made it impossible

11

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to establish with precision a time period

within which a Defendant’s right had been

protected and beyond which infringement

occurred. The Court thereby created a

balancing test and listed four factors

which it felt were appropriate to consider

in an analysis of whether a Defendant’s

Sixth Amendment rights had been abridged.

"Length of delay, the reason for the

delay, the Defendant’s assertion of his

right, and prejudice to the Defendant"

Barker, supra., at 407 U.S. 530 are among

the factors are appropriate for

consideration in attempting to resolve an

issue such as that presented herein. None

of these four factors, in an of itself, is

either sufficient or necessary and each

case must be analyzed on its own

particular facts. Burkett v. Cunningham,

826 F.2d 1208 (3rd Cir. 1987).

Under the circumstances presented

herein, it is clear that BOURHAN’s speedy

12

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trial rights have been infringed. The

length of delay from the return of the

indictment on August 7, 1984, until the

Petitioner’s arrest on February 7, 1990,

was an unconscionably long five and one

half years. An additional five months

passed before trial commenced on July 17,

1990.

During a pre-trial hearing held on

May 16, 1990, it became clear that for

approximately two (2) years prior to the

return of the indictment in this case the

Petitioner BOURHAN had been a cooperating

witness in a criminal investigation then

being conducted in Martin County, Florida.

During the same time period, on at least

one occasion, BOURHAN left the United

States and returned to his homeland.

Thereafter, in 1984, the Defendant

was asked by the State Attorney’s Office

in Martin County to return to the United

States as a potential witness in an

13

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upcoming trial. BOURHAN complied with

that request and when that trial was

concluded he returned to his homeland.

Thereafter, the Petitioner was not

contacted, in any way, by anyone, from the

Federal or State prosecuting agencies to

advise him of the return of a Federal

indictment against him. His arrest on

February 7, 1990 was a mere happenstance

wholly unrelated to any efforts by the

United States to bring him before the

Court to face these charges. In fact, as

the record clearly demonstrated, the

United States Government made no effort

whatsoever during the five and one-half

years this indictment was pending to

locate the Petitioner. This, despite the

fact that his location was known to the

government and, by the exercise of even a

modicum of effort and due diligence the

United States could readily have located

the Petitioner and protected his right to

14

be brought to trial in a timely fashion.

At the time of the arrest of one of

the codefendants in 1984, a wall handing

was seized. This item was turned over to

the Petitioner’s trial counsel

approximately ten (10) days before his

trial in 1991. It contained BOURHAN’s

name, telephone number and then current

location. The Government made absolutely

no effort to follow up on this information

or on any of the several other sources of

information which would readily have led

to Petitioner’s being located and his

rights being protected. A simple check

through the Government’s various computer

Systems and indexing records would have

readily revealed that Special Agent Carter

Osleber of the Drug Enforcement

Administration, West Palm Beach, was a

member of the task force operating in

Martin County with which the Petitioner

was cooperating. Since the state

15

authorities had no problem bringing Mr.

BOURHAN back to the United States to

testify, it is reasonable to assume that

had the United States Attorney’s Office,

or its investigating agencies, exerted

even this slight degree of effort, the

Petitioner would easily have been located

and brought to trial at a point in time

when his right to a speedy trial could

have meaningfully been assured.

Further, a-check in the N.C.I.C.

computerized records would have led the

Government straight to Martin County and

the state prosecutors, who had

demonstrated the ability to readily

contact the Petitioner at a point in time

immediately surrounding the date this

indictment was returned. Even this

minimal effort was not made.

Contact with the Immigration and

Naturalization Service would have readily

revealed valuable information pinpointing

16

the Defendant’s location. When BOURHAN

returned to the United States to testify

in 1984, Assistant State Attorney Daniel

Morgan initiated the process that led to

the Petitioner receiving a visa to return

to the United States from Kuwait. Even

the most cursory review of the I.N.S.

records would have revealed that visa and

the accompanying information concerning

the Petitioner’s location.

The totality of the effort to locate

BOURHAN was a single meeting with his wife

and his parents who told the Government

that he had returned to Kuwait or Syria.

Still,armed with this information,the

Government did absolutely nothing. Not

only did the Government not initiate

extradition proceedings against the

Petitioner, but they didn’t even try to

find out if he could have been extradited.

In Strunk v. United States, 412 U.S.

434, 93 S.Ct. 2260, 37 L.Ed.2d (1973),

17

this Court found that a delay of ten

months from indictment to arraignment

violated the requirements of the Sixth

Amendment. Obviously, a delay of over six

times as long as that in Strunk, is

reprehensible and mandates vindication of

the Defendant’s rights by a disnissal of

the charges.

There should be no mistake. The

Petitioner does not contend that he is

entitled to the relief sought because the

Government could not locate him. The

Petitioner does not argue that’ the

subjects of an indictment should be

rewarded for being able to avoid capture.

It is not the failure to locate the

Defendant which violated his Sixth

Amendment rights but rather the absence of

diligent efforts to find him which

infringed upon his rights. The

Government’s failure in this regard also

effectively prevented the Defendant from

18

asserting his right to a speedy trial.

This right could not be asserted by a

Defendant who the Government made no

effort to locate, despite numerous readily

available avenues for finding and alerting

him to the pending charges.

The Government ’s failure, as

aforesaid, substantially prejudiced this

Petitioner’s right to a fair trial and

effectively denied him due process. Their

refusal to make a reasonable effort to

bring him to trial at a time reasonably

near the date on which he was charged,

prevented him from being tried together

with others similarly charged and raising

defenses inherently available only in a

joint trial. Further, by making no effort

to locate this Defendant, the Government

obtained the tactical advantage of trying

those Defendants against whom it had a

strong case, and thereafter negotiating

cooperation agreements with them and

19

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others to be used at the time when BOURHAN

was located. The Government cannot be

permitted to gain such an advantage over a

Defendant by failing to diligently perform

its obligation to bring a Defendant to

trial at the earliest possible moment.

The prejudice imposed upon Mr.

BOURHAN by the Government’s failure to do

its duty is made most clear by the

Government’s offer, and the trial court’s

acceptance, of the prior testimony of a

witness the Government claimed had become

unavailable. Thus, by denying’ the

Defendant his right to a speedy trial the

Government was also able to deny him the

right to confront the witnesses against

him. It is clear that the impact of the

Government’s failure to exercise due

diligence resulted in substantial

prejudice to Mr. BOURHAN and denied him a

fair trial.

Balancing all of the factors

20

suggested by this Court’s opinion in

Barker v. Wingo, supra, together with the

ease by which the Government could have

avoided this inexcusable delay, makes it

clear that the Petitioner has been denied

his right to a speedy trial. Dismissal

is, and must remain, the only possible

remedy and is the only relief that will

vindicate this Defendant’s constitutional

rights. Strunk v. United States, supra.

(ii) The right of a Defendant to be

confronted with the witnesses against him

has long been recognized as one of the

most cherished rights exercised by an

individual charged with a crime. "The

right of confrontation is an essential and

fundamental requirement for the kind of

fair trial which is this country’s

constitutional goal." Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d

923 (1965). “The right of confrontation

is basically a trial right. It includes

21

both the opportunity to cross examine and

the occasion for the jury to weigh the

demeanor of the witness." Barber v. Page,

390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d

255 91968). "One of the important objects

of the right of confrontation was to

guarantee that the fact finder had an

adequate opportunity to access’ the

credibility of the witness." Berger v.

California, 393 U.S. 314, 89 S.Ct. 540, 21

L.Ed.2d 508 (1969). It is through this

right of confrontation and cross

examination that the jury must evaluate

the credibility of the evidence presented.

Obviously, the right of confrontation

is not all encompassing since such an

‘interpretation would require all hearsay

statements to be declared unconstitutional

and inadmissible. As announced by this

Court in California v. Green, 399 U.S.

149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970):

While it may readily be conceded

that hearsay rules and the

22

confrontation clause are

generally designed to protect

similar values, it is quite a

different thing to suggest that

the overlap is complete and that

the confrontation clause is

nothing more or less than a

codification of the rules of

hearsay and the exceptions as

they existed historically at

common law. Our decisions have

never established such a

congruence; indeed, we have more

than once found a violation of

confrontation values even though

the statements in issue were

admitted under an arguably

recognized hearsay exception.

The question raised herein is the

interrelationship between the Defendant’s

right of confrontation guaranteed by the

Sixth Amendment to the United States

Constitution and the Federal Rules of

Evidence, Rule 804(b)(5). That

evidentiary rule provides for the

admission of a hearing statement if it is

q shown to be:

A statement not specifically

; covered by any of the foregoing

if exceptions but having equivalent

circumstantial guarantees of

trustworthiness if the court

determines that (A) the

statement is offered as evidence

23

of a material fact; (B) the

statement is more probative on

the point for which it is

offered than any other evidence

which the proponent can procure

through reasonable efforts; and

(C) the general purposes of

these rules and the interests of

justice will best be served by

admission of the statement into

evidence.

In this case, the Government offered,

over objection, and the Court received and

permitted to be read to the jury,

testimony of a Bahamian customs inspector,

Rudolph Cunningham. This testimony was

given by the witness at the trial of

several codefendants in 1985. At that

time the Petitioner was not a party to the

action because the Government had chosen

to make no attempts to locate him.

Further, no attorney who participated in

the cross examination of this witness was

acting on behalf of BOURHAN or had any

interest in attempting to protect his

interests and rights.

The testimony of Mr. Cunningham

24

related to the arrest of the Petitioner in

the Bahamas on January 10, 1981, the fact

that methaqualone was not classified as a

dangerous drug in the Bahamas at the time

of his arrest and the witness’ contention

that at the time of BOURHAN’s arrest there

was no market for quaaludes in the

Bahamas. This testimony was not

appropriately admitted under Rule

804(b)(5), since the arrest of the

Petitioner in the Bahamas was not a fact

material to the charges he faced. The

fact of his arrest was, at best,

corroborative of a_ collateral fact

testified to by one of the Government’s

informants and, at worst, wholly

irrelevant and immaterial to the issues

appropriately to be decided by the jury.

The Petitioner was not charged with

bringing quaaludes into the Bahamas but

rather with attempting to bring them into

the United States. Thus, the testimony in

25

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question clearly does not qualify under

Rule 804 because it did not relate to a

material fact.

Additionally, none of the

aforementioned testimony could be found to

be more probative than other evidence

which the Government could have procured

through reasonable effort. With respect

to the Defendant’s arrest, that fact had

already been proven by the testimony of

the Government’s witness, Wilbur Jackson

and was not being contested by the

defense. The legal ehanbitioution of

methaqualone at the time of the

Defendant’s arrest and the existence or

non-existence of a market for that drug in

the Bahamas, if material, could have been

testified to by any one of the vast array

of Bahamian and/or American officials and

agents with knowledge of the subject

matter equal to or greater than that of

Mr. Cunningham.

26

The introduction of this. prior

testimony runs completely contrary to the

interests of justice. It prevented the

Petitioner from availing himself of the

opportunity to cross examine this witness

and confront the only testimony which

arguably contradicted his defense that he

was not a participant in a conspiracy to

import methaqualone into the United

States, but, rather, believed he was not

violating any law because he refused to

bring drugs of any kind into the United

States.

The testimony offered at trial showed

unequivocally that BOURHAN refused to

bring drugs, such as marijuana, into the

Bahamas in violation of that country’s

laws.

He even refused to bring drugs, in

particular, marijuana, out of Colombia.

The United States government denied the

Petitioner an opportunity to confront this

27

a a ee eS A Oe at es Oe

crucial witness at the trial of his

codefendants in 1985. That infringement

of his rights was compounded by denying

him the opportunity to rigorously cross

examine this witness with the assistance

of any attorney dedicated to vindicating

his rights and aware of the defense he

desired to present to the jury selected to

decide his fate.

The protection provided to the

Defendant by the Confrontation Clause of

the Sixth Amendment to the United States

Constitution was intended "to protect the

integrity and reliability of the trial

mechanism." Dasher v. Stripling, 685 F.2d

385 (llth Cir. 1982). The right to

confront the witnesses against a Defendant

is of little value if it does not assure

that the Defendant has the means to

effectively test the evidence against him.

Ohio v. Roberts, 448 U.S. 56, 100, S.Ct.

2531, 2539, 65 L.Ed.2d 597 (1980). The

28

suggestion that the witness had been cross

examined at the time he testified and that

should be good enough to protect the

Petitioner’s rights is absurd. The rights

protected by the Sixth Amendment are

individual rights and can only _ be

protected by aggressive examination by the

Defendant through an attorney aware of his

defense strategy and dedicated to

vindicating that Defendant’s_ rights.

United States v. Amaya, 533 F.2d 188, 190

(Sth Cir. 1976), cert denied 429 U.S.

1101, 97 S.Ct. 1125, 51 L.Ed.2d 551

(1977). The introduction of the testimony

of Mr. Cunningham gives during a prior

trial in which BOURHAN was not a

participant, violated rights guaranteed to

him by the Sixth Amendment and requires

that his conviction be reversed.

CONCLUSION

For all of the foregoing reasons, the

Petition for Writ of Certiorari should be

29

granted.

Respectfully Submitted,

ALVIN E. ENTIN, ESQUIRE

Entin, Schwartz & Margules

2450 N.E. Miami Gardens Drive

Second Floor

Miami, Florida 33180

(305) 932-0550

PROOF OF SERVICE

COMES NOW, Alvin E. Entin, Esq., on

behalf of the Petitioner, BASSEM BOURHAN,

and states to this Court:

1) That on March » 4392, -the

attached Writ of Certiorari submitted on

behalf of the Petitioner was mailed at the

United States Post Office, Miami, Florida.

2) I certify that a true and accurate

copy of the foregoing Petition for Writ of

Certiorari has been furnished to Kenneth

W. Starr, Solicitor General of the United

States, 10th and Constitution, N.W.,

Washington, D.C. 20530.

3) Said statement is being submitted

30

to this Court pursuant to Rule 28.2 of the

Rules of the Supreme Court. | _—_—:

i

x P

’ ' ae ~ —

SEZ

La Z AEX

VALVEN ET/RNTIN, ESQUIRE

(_#ntin, Schwartz & Margules

2450 N.E. Miami Gardens Drive

Second Floor

Miami, Florida 33180

(305) 932-0550

SWORN TO AND SUBSCRIBED before me this

2" day of March , 1992.

° y P dl " -y J

beg 4) as, } A 5 3 j f

i L4G F ad sar HK“

NOTARY PUBLIC, STATE OF |

FLORIDA

My commission expires:

Pe Oo UAL SEAL

“eon ee Co *

F ce . PAULIMA V. GOTHELF

3 is : "ete * Onc, State of Florida

Rae ate eure cn Exp: Aug. 6 1904

Ee a ee ee og Ronis hes on No. CC 038383

31

CASE NO.:

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

BASSEM BOURHAN

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 84-502-CR-NESBITT

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

BASSEM BOURHAN,

Defendant.

/

NT _ IN A CRIMINAL E

THE DEFENDANT ENTERED A PLEA OF:

Not guilty to count(s) i, 6, 20,

21, 5, 7, 8

THERE WAS A:

Verdict of guilty as to counts(s)

i, 6, 20, 21, 5, 7, 8

THE DEFENDANT Is CONVICTED OF THE

OFFENSE(S) OF:

Conspiracy to import methaqualone and

marijuana 21:963 as to Count I.

Importation of methaqualone 21:952(a) as

to Counts 5, 6, and 8. Attempted

importation of methaqualone, 21:963 as to

Counts 6, 20 and 21.

IT IS THE JUDGMENT OF THIS COURT THAT:

As to Count I the Defendant is hereby

committed to the custody of the Attorney

General, or his authorized representative

for imprisonment for a term of five (5)

years. IT IS FURTHER ORDERED that as to

Counts 6, 20 and 21 the Defendant is

hereby committed to the custody of the

Attorney General, or his authorized

representative for imprisonment for a term

of five (5) years, with said sentence to

run concurrently with each other. IT IS

FURTHER ORDERED that as to each of Counts

5, 7 and 8 the Defendant is hereby

committed to the custody of the Attorney

General, or his authorized representative

for imprisonment for a term of five (5)

years, with said sentences to run

concurrently with each other. 6 6S

FURTHER ORDERED that the Defendant serve a

Special parole as to Counts 6, 20 and 21

shall run consecutively to Count I and

App. 3

that the sentences imposed to Counts 5S, 7

and 8 shall run consecutively to the

sentences imposed as to Counts 6, 20 and

21.

TOTAL SENTENCE: t 1 ars

imprisonment, four (4) years special

parole.

In addition to any conditions of

probation imposed above, IT IS ORDERED

that the conditions of probation set out

on the reverse of this judgment are

imposed.

CONDITIONS OF PROBATION

Where probation has been ordered the

Defendant shall:

l. Refrain frém violations of any

law (federal, state, and local) and get in

touch immediately with your probation

officer if arrested or questioned by a

law-enforcement officer.

2. Associate only with law-abiding

persons and maintain reasonable hours;

App. 4

3. Work regularly at a lawful

occupation and support your legal

dependents, if any, to the best of your

ability, (When out to work notify your

"probation officer at once, and consult him

prior to job changes);

4. Not leave the judicial district

without permission of the probation

officer;

5. Notify your probation officer

immediately of any changes in your place

of residence;

6. Follow the probation officer's

instructions and report as directed.

The Court may change the conditions

of probation, reduce or extend the period

of probation, and at any time during the

probation period or within the maximum

probation period of 5 years permitted by

law, may issue a varrant and revoke

probation for a violation occurring during

the probation period.

App. 5

IT IS FURTHER ORDERED that the defendant

shall pay a total special assessment of

$ pursuant to

Title 18, U.S.C. Section 3013 for Count(s)

as follows:

IT IS FURTHER ORDERED THAT counts

are DISMISSED on the motion to the United

States.

IT IS FURTHER ORDERED that the Defendant

shall pay to the United States attorney

for this district any amount imposed as a

fine, restitution or Special assessment.

The defendant shall pay to the clerk of

the court any amount imposed as a cost of

prosecution. Until all fines,

restitution, special assessments and costs

are fully paid, the Defendant “shall

immediately notify the United States

Attorney for this district of any change

name and address.

IT IS FURTHER ORDERED that-the clerk of

the court deliver a certified copy of this

App. 6

judgment to the United States Marshal of

this district.

The Court orders confinement to the

custody of the Attorney General and

recommends:

Date of Imposition of Sentence

Signature of Judicial Officer

:-S. District Judge

Name and Title of Judicial Officer

9/25/90 food

Date

RETURN

I have executed this Judgment as follows:

Defendant delivered on to

at the institution

designated by the Attorney General, with a

certified copy of this Judgment in a

Criminal Case.

United States Marshal

App. 7

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-5846

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BASSEM BOURHAN a/k/a SAM,

Defendant-Appellants.

Appeal from the United States District

for the Southern District of Florida

BEFORE: FAY, ANDERSON and DUBINA, Circuit

Judges.

JUDGMENT

This cause came to be heard on the

transcript of the record from the United

States District Court for the Southern

District of Florida, and was taken under

submission by the Court upon the record

and briefs on file, pursuant to Circuit

App. 8

Rule 34-3;

ON CONSIDERATION WHEREOF, it is not

hereby ordered and adjudged by this Court

that the judgment of convictions of the

said District Court in this cause be and

the same is hereby AFFIRMED.

ENTERED: December 11, 1991

FOR THE COURT: Miguel J. Cortez, Clerk

By: /S/ Karen McNabb

Deputy Clerk

ISSUE AS MANDATE: January 7, 1992

App. 9