# Petition for Writ of Certiorari — Bourhan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 815

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0527%3A1. Public record. Not legal advice.