Petition for Writ of Certiorari — Dickens v. United Parcel Service, Inc.

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\ \ Supreme Court, U.S.

9 9 DD) FILED

9] -] JUL 13 1999

No. OFFIGE OF THE CLeRK

seeeiieientetedl

in the

SUPREME COURT OF THE UNITED STATES

———————

OCTOBER TERM, 1992

Gerry D. Dickens,

Petitioner,

United Parcel Service, Inc., John

Maldonado and C.E. Roarke,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioner’s Application for a

Writ of Certiorari

T. GERALD TREECE

Of Counsel to the firm of

KIRKLIN, BOUDREAUX &

LEONARD

1100 Louisiana, Suite 1800

Houston, Texas 77002

Phone: (713) 757-0000

Fax: (713) 757-0178

QUESTION PRESENTED

Whether, consistent with the Due

Process Clause of the Fifth Amendment, the

United States Court. of Appeals for the

Fifth Circuit may decide this case relying

upon matters outside of the proper trial

court record by referring to a transcript

from an earlier mistrial of the case which

was never admitted in the second trial.

PARTIES

Plaintiff GERRY D. DICKENS,

Appellee and Petitioner.

Defendant UNITED PARCEL SERVICE,

INC. ("UPS"), Appellant and

Respondent. "

Defendant JOHN MALDONADO,

Appellant and Respondent.

Defendant CURTIS E. ROARKE,

Appellant and Respondent.

Attorneys for Plaintiff:

a. William T. Powell

Bs Glen M. Boudreaux

David Scott Curcio

Kirklin, Boudreaux &

Leonard

Ca Professor T. Gerald Treece

South Texas College of Law

Attorneys for Defendants:

Roger Townsend

William J. Boyce

Michael Moore

Nancy Patterson

Fulbright & Jaworski

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ... « « «© e « Vv

PETITION FOR A WRIT OF CERTIORARI . . 1

UPEINIVG@e BELOW ..«++2ee © © © @ 2

JURISDICTION . 7 7 o e o . . o . ° ° 2

CONSTITUTIONAL PROVISION INVOLVED . . 3

S''TATEMENT OF THE CASE .... «+e « « 4

REASONS FOR GRANTING CERTIORARI .. . 7

I. The Fifth Circuit Opinion

Relied Upon The Tainted

Mistrial Transcript .... 8

II. The Court Of Appeals

Violated Both FRAP 10 And

Due Process Of Law By Its

Improper Review Of This

CMe «se oe 8 eo © 8 14

neGe hUslUltlthl tl hl hl hl hl tlc hl tl lt 24 ’

TABLE OF AUTHORITIES

U.S. Supreme Court Cases

Bank of Columbia v. Okely,

4 Wheat. (17 U.S) 235 (1819)

Burlington Truck Lines, Inc.

v. United States,

371 U.S. 156 (1962)

Cleveland Board of Education v.

Londermill,

470 U.S. 532 (1985)

Daniels v. Williams,

474 U.S. 327 (1986)

Dent v. West Virginia,

129 U.S. 114 (1889)

Giaccio v. Pennsylvania,

382 U.S. 399 (1966)

Goldberg v. Kelly,

397 U.S. 254 (1970)

Griffin v. Illinois,

351 U.S. 12 (1956)

Hurtado v. California,

110 U.S. 516 (1884)

Kolender v. Lawson,

461 U.S. 352 (1983) ..

Pacific Mutual Life Insurance

Co. v. Haslip,

111 S.Ct. 1032 (1991) . 16,

Page

16,

14,

Perry v. Sindermann,

408 U.S. 593 (1972) ..« «

Smith v. Goguen,

415 U.S. 566 (1974) . «© «© ss

Wichita R. & Light Co. v. PUC,

260 U.S. 48 (1922)

Wolff v. McDonnell,

418 U.S. 539 (1974)

U.S. Court of Appeals Cases

Johnson v. Hugo’s Skate-way,

949 F.2d 1338 (4th Cir. 1991).

Kennedy v. Great Atlantic &

Pacific Tea Co.,

551 F.2d 593 (Sth Cir. 1977) 1i9,

Mattison v. Dallas Carrier Corp.,

947 F.2d 95 (4th Cir. 1991) 17-18

Price Brothers v. Philadelphia

Gear Corp.,

629 F.2d 444 (6th Cir. 1980)

Texas Court of Appeals Cases

Martinez v. Valencia,

824 S.W.2d 719 (Tex. App.--

El Paso 1992, no writ)

Other State Cases

Garnes v. Fleming Landfill, Inc.,

413 S.E.2d 897 (W. Va. 1991)

Skrypek v. Mazzocchi,

5990 N.E.2d 990 (111. 1992)

Zapffe v. Srbeny,

587 N.E.2d 177 (Ind. 1992)

Rules and Statutes

Federal Rule of Appellate

Procedure 10 (FRAP 10)

U.S. CONST. amend. v

28 U.S.C. 1254(1)

28 U.S.C.

28 U.S.C. § 1331

§ 1343

42 U.S.C. 1983

vil

No.

in the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

Gerry D. Dickens,

Petitioner,

United Parcel Service, Inc., John

Maldonado, and C.E. Roarke,

Respondents.

Petitioner’s Application for a

Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully requests that

a writ of certiorari issue to review the

judgment and opinion of the United States

Court of Appeals for the Fifth Circuit in

this case.

OPINIONS BELOW

The unpublished opinion of the Fifth

Circuit Court of Appeals dated, March 6,

1992, is included in the Appendix

beginning at page A-l. The order denying

rehearing by the court on April 15, 1992,

is also included in the Appendix at page

B-1. Additionally, various portions of

the "tainted" mistrial transcript as well

as various portions of the actual trial

transcript, and UPS’ Brief, are included

in Appendices C through F.

JURISDICTION

The opinion and judgment of the Fifth

Circuit was entered on March 6, 1992, and

a timely motion for rehearing was

overruled on April 15, 1992. The

jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1), and the

petitioner would especially point to the

fact that the Fifth Circuit has totally

departed from the accepted and usual

course of judicial proceedings so as to

require an exercise of this Court’s power

of supervision.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the

Constitution of the United States provides

in pertinent part,

"no person shall be .. .

deprived of life, liberty,

or property, without due

process of law".

U.S. CONST. amend. V.

STATEMENT OF THE CASE

The question in this case is whether,

consistent with the Due Process Clause of

the Fifth Amendment, a federal appellate

court may render its opinion in the case

by reliance upon a transcript from an

earlier trial between these parties which

resulted in a hung jury and thus a

mistrial. While the Court of Appeals

apparently relied upon both the tainted

transcript as well as the actual

transcript from the second trial, it is

clear the Court at best improperly

"meshed" the two transcripts together to

create a unconstitutional environment of

"facts" resulting in a denial of due

process to the petitioner.

Notwithstanding this unconstitutional

mesh of facts, from the court’s opinion,

we see that certain facts underlying this

controversy are fairly straightforward.

1. The petitioner-plaintiff, Gerry

D. Dickens, sued the defendants-

respondents, United Parcel

Service (UPS), C.E. Roarke, and

John Maldonado in Texas state

court for false arrest,

malicious prosecution,

intentional infliction of

emotional distress and violation

of his civil rights under 42

U.S.C. § 1983. Respondents then

removed the case to the Federal

District Court for the Southern

District of Texas. Jurisdiction

was based upon 28 U.S.C. § 1331,

1343.

The first trial of this cause

resulted in a hung jury and the

district court declared a

mistrial.

Following a second trial, the

jury returned a verdict for the

plaintiff on all claims and

awarded him the sum of

$6,400,000. The trial court,

Judge Kenneth Hoyt, subsequently

signed a judgment awarding

petitioner Dickens $400,000 in

actual damages, $6,000,000

punitive damages, and attorney’s

fees.

All post-trial motions were

denied and attempts. to levy

execution were met with a flurry

of legal maneuvers which are of

no moment to the instant

application.

The respondent took an appeal to

the United States Court of

Appeals for the Fifth Circuit,

which following briefing and

oral argument, reversed the

judgment of the district court

and "dismissed" the plaintiff-

petitioner’s case.

While the Court of Appeals

apparently used the wrong

standard to review the judgment,

it amazingly also used the wrong

"record", for the court’s

opinion is laced with crucial

references to the tainted

"mistrial transcript" which was

never even admitted into

evidence in the second case at

all.

REASONS FOR GRANTING THE WRIT

Both Federal Rule oof Appellate

Procedure 10 (FRAP 10) as well as the Due

Process Clause of the Fifth Amendment

require that a federal court of appeals in

reviewing actions of a district court look

only to the actual record of the case

which is being reviewed. In the instant

case, the opinion of the Fifth Circuit is

permeated with crucial references to the

tainted mistrial transcript. Indeed, it

seems as if magically the actual trial

transcript became enmeshed into the bogus

mistrial transcript and thus the reviewing

court not only violated the cardinal rule

of appellate review, i.e., that only the

actual record of the case be employed to

determine the facts of the case (see FRAP

10) but it also denied to this litigant

due process of law by not following what

the rule requires for an appellate review

of the "record".

I. The Fifth Circuit Opinion

Relied Upon The Tainted |

Mistrial Transcript.

A.) The Mercedes 190 error

The court’s obvious reliance on the

bogus transcript is found in its erroneous

references to a certain Mercedes 190

automobile. At the second trial, the

defendants fueled a theory that the

petitioner had engaged in theft and that a

certain "getaway" car was involved. The

defendants’ theory involved a "red

Corvette". The linchpin of the defendants

trial strategy involved linking’ the

petitioner somehow to a "red Corvette".

The point is that the red Corvette theory

was totally that of the defendants-

respondents in the second trial which

resulted in the final judgment against

them. At trial, the defendants-

respondents even questioned the petitioner

- about his knowledge of an alleged

conspirator driving a red Corvette (R. XI,

157 = 159; Ap. D). The defendants-

respondents even referred to the red

Corvette theory twice in its’ final

argument (R. XIII, 30, 33; Ap. E) and even

in its brief to the Fifth Circuit (see

Appellants Brief, p. 5, 15; Ap. F).

In its opinion, however, the Fifth

Circuit severely criticized the

petitioner’s counsel for reference to the

"red Corvette" evidence (Op. 5, n. 4; Ap.

A-9).

Amazingly, the Fifth Circuit’s

opinion has somehow transformed the red

Corvette into a Mercedes 190. The crucial

error was that there is no-_ mention

whatsoever of a Mercedes 190 found

anywhere in the actual trial transcript

under review.

Th. mystery of where the Mercedes 190

came from is solved by looking to the

mistrial transcript. Not Surprisingly, in

the tainted mistrial transcript, abundant

references are made to the mysterious

Mercedes 190 as being the car driven by

the alleged accomplice Williams - as

demonstrated by the cross-examination of

the star witness for the defendant, Mr.

Maldonado:

Q: What else led you _ to

Suspect Scooter Williams?

A: He lived a very high standard of

living. He -- when he

eventually left the company, he

drove a Mercedes, 190 Mercedes,

and UPS paid well at that time,

but not enough to buy a 190.

(See mistrial transcript - Record V page

381; Ap. C).

There is simply no mention of a

Mercedes 190 in the record of the second

trial at all, and it is imperative to note

that the mistrial transcript was never

admitted in the gecond trial.

Ironically, at page 5 of the Fifth

Circuit’s opinion, the court at footnote 4

even angrily chastises the petitioner by

saying:

“Again, counsel for

plaintiff-appellee

attempts to mischaracterize

the evidence. He suggests

at oral argument that

Scooter Williams was well

known at UPS as driving a

Red Corvette and that it is

incredible that he fled the

scene at 8:00 a.m. in the

middle of a shift change

without being observed. In

fact the record

demonstrates that while

employed by UPS, Scooter

drove a Mercedes Benz 190

sedan (emphasis ours) and

therefore that is the type

of car which he would be

known as driving by

Westpark facility

personnel...."

(Op. 5, n. 4; Ap. A-9).

Again, unfortunately, it is the Fifth

Circuit itself which was mischaracterizing

the record because it was relying upon the

tainted mistrial transcript.

B.) The Admitted "Facts" Error

While the court purports to rely on

only facts "admitted" by the petitioner

(see Op. p. 3, n. 1; Ap. A-4) and on

uncontroverted evidence (see Op. p. 6; Ap.

A-11), the court, by looking outside the

record and after concededly being angered

by what it perceived as_ petitioner

counsel’s mischaracterization of the

record, then summarily viewed the meshed

record with every presumption against the

petitioner rather than properly reading

all factual inferences in favor of the

jury’s verdict.

While the court viewed the

petitioner’s activity as "suspicious" and

as being “clearly comported with criminal

activity" (Op. p. 7; Ap. A-12), the jury

concluded that petitioner’s conduct was

routine. In fact, the Court, using an

improper record, then simply reviewed the

meshed facts and disagreed with the jury.

Thus, the court totally took the wrong

road using the wrong record and reached

the wrong conclusion.

It. The Court Of Appeals Violated

Both FRAP 10 And Due Process Of

Law By Its Improper Review Of

This Case.

The Due Process Clause, like its

forbearer in the Magna Charta, ".... was

“intended to secure the individual from

the arbitrary exercises of the powers of

government’, Hurtado v. California, 110

U.S. 516, 527 (1884) (quoting Bank of

Columbia v. Okely, 4 Wheat. (17 U.S) 235,

244 (1819))." Daniels v. Williams, 474

U.S. 327, 331 (1986). “The touchstone of

due process is protection of the

individual against arbitrary action of

government, Dent v. West Virginia, 129

U.S. 114, 123 (1889)." Wolff iv.

McDonnell, 418 U.S. 539, 558 (1974). This

Court’s decisions under the Due Process

Clause reflect this constitutional

imperative to protect litigants against

arbitrary deprivation of life, liberty or

property.

This Court has invalidated vaguely

worded state laws, for example, because

they leave the execution or application of

the law to the standardless discretion of

state officials, judges or juries. E.q.,

Kolender _v. Lawson, 461 U.S. 352, 358

(1983) (invalidating statute that "vests

virtually complete discretion in the hands

of the police"); Giaccio v. Pennsylvania,

382 U.S. 399, 402-03 (1966) (invalidating

a law that "leaves judges and jurors free

to decide, without any legally fixed

}

standards, what is prohibited and what is

not"); Smith v. Goquen, 415 U.S. 566, 574

(1974) (vagueness doctrine rooted

primarily in need of the "legislature [to]

establish minimal guidelines to govern law

enforcement’). Similarly, this Court has

refused to afford agency officials

"unlimited discretion" to exercise their

statutory authority, insisting on a

statement of reasons that "articulate[s]

[a] rational connection between the facts

found and the choice made." Burlington

Truck Lines, Inc. v. United States, 371

U.S. 156, 165, 168 (1962); see Goldberg v.

Kelly, 397 U.S. 254, 271 (1970); Wichita

(1922).

Most recently, in Pacific Mutual Life

Insurance Co. v. Hasli , this Court

effirmed that a state may not delegate

either to judges or juries unlimited

discretion to award punitive damages. 111

S.Ct. 1032 (1991). "One must concede that

unlimited jury discretion - or unlimited

judicial discretion for that matter - in

the finding of punitive damages may invite

extreme results that jar one’s

constitutional sensibilities." 111 S.Ct.

at 1043 (emphasis added). "As long as the

discretion is exercised within reasonable

constraints, [however,] due process is

satisfied. Id. at 1044. As several state

and federal courts have ruled in the

months since Haslip was decided, punitive

damages in the absence of such reasonable

constraints violate the Due Process

Clause. See Garnes v. Fleming Landfill,

Inc., 413 S.E.2d 897, 908 (W. Va. 1991)

(invalidating award of punitive damages

where constraints “were neither meaningful

nor adequate under the standards

established in Haslip"); Mattison _v.

Dallas Carrier Corp., 947 F.2d 95, 101-08

(4th Cir. 1991) (South Carolina); Johnson

v. Hugo’s Skate-way, 949 F.2d 1338, 1350-

52 (4th Cir. 1991) (Virginia). See also

Haslip, 111 S.Ct. at 1045 n. 10

("distinguish[ing] Alabama’s system from

the Vermont and Mississippi schemes about

which Justices [previously] expressed

concern...").

While one may reasonably argue as to

what “process is due" pursuant to the Due

Process Clause when the rules themselves

do not clearly answer that question, (see

Cleveland Board of Education Vv.

Londermill, 470 U.S. 532 (1985)), here,

however, the rules of fairness are set out

clearly in FRAP 10 - only the record of

the actual case itself is to be reviewed

by the appellate court. This surely makes

sense! If a court can look outside of the

record itself for its facts, then the

opinion itself is flawed. It would be no

different than having a law clerk go ona

fact finding mission to develop a record

unknown to the parties. The error would

be that the parties have a right to a

correct record. Thus in Kennedy v. Great

Atlantic & Pacific Tea Co., 551 F.2d 593

(Sth Cir. 1977), the court reversed when

court personnel made its own view of the

accident scene. Likewise in Price

Brothers v. Philadelphia Gear Corp., 629

F.2d 444 (6th Cir. 1980), the same error

was found when the judge in a bench trial

allegedly sent his law clerk to view the

site of the alleged wrong.

The common theme in these cases is

that there must be a record of the

proceedings on which the court based its

judgment and a court is not free to

arbitrarily create its own record. This

same fundamental rule of law, that

documents and exhibits not filed of record

in the trial court may not be considered

on appeal, is applied in the state courts.

See Martinez v. Valencia, 824 S.W.2d 719

(Tex. App.--El Paso 1992,° no writ);

Skrypek v. Mazzocchi, 590 N.E.2d 990 (Zi.

1992) (matters outside the record may not

be considered on appeal) in accord; Zapffe

v. Srbeny, 587 N.E.2d 177 (Ind. 1992).

Thus, the rules of appellate review

limit the reviewing court to the actual

record, not to a meshing of matters in the

record and those that are not. To hold

otherwise is to legally mandate pure

judicial arbitrariness - to salute the

will of men rather than the rule of law.

The very purpose of the Due Process Clause

is to prevent governmental arbitrariness.

(See Hurtado, supra). When a court does

not follow its own rules or when the court

creates a new environment of facts by

going outside an appellate record,

judicial arbitrariness must follow.

There can be no serious contention

that the petitioner lost a right secured

by the federal rules, i.e., a right to

have his judgment for $6.4 million dollars

reviewed by a court following the actual

record of the case. To hold otherwise is

merely to salute pure governmental

arbitrariness. See Goldberg v. Kelly, 397

U.S. 254 (1970) (where welfare benefits

could not be terminated without due

process); see also, Perry v. Sindermann,

408 U.S. 593 (1972) (where even "mutual

understandings" between individuals rose

to the level of due process protection

which could not be deprived without a fair

hearing).

Is the hearing fair merely pocause

there was one? Certainly not! Like in

criminal cases, due process is violated

when the indigent cannot afford a

transcript upon which to perfect their

appeal. See Griffin v. Illinois, 351 U.S.

12 (1956). The same is true when a

reviewing court goes further and creates a

transcript that is not the official record

of the case. If the poor are denied due

process by being denied the use of the

proper trial transcript, it certainly

follows that any litigant is denied due

process by a reviewing court that creates

its own "transcript" by going outside the

record. It was the trial transcript in

Griffin which Mr. Justice Black found was

at the very heart of the appellate

process, especially since the government

itself had established the right of appeal

and had limited arguments only to those

matters contained in that very trial

transcript.

The due process limitation against

governmental arbitrariness is’ clearly

violated in this case. The use of the

wrong record, the use of the

unconstitutionally meshed record, and the

court’s unfair attack on petitioner’s

counsel because he was in fact using the

correct record all smack of due process

violations. To deny the writ of

certiorari is merely to bless that very

arbitrariness which the Due Process Clause

was designed to prohibit.

The petitioner seeks only that which

the law already requires - review by an

appellate court employing only those

matters properly in the record. Thus the

petitioner requests that the writ be

granted and the Fifth Circuit be ordered

to consider this case under the true and

correct record of the proceedings.

CONCLUSION

. The petition for a writ of certiorari

should be granted and the case remanded to

the Fifth Circuit for a fair hearing using

the proper trial court record.

Respectfully submitted,

Ve Ya

T. Gerald Treece

1303 San Jacinto Street

Houston, Texas 77002

(713) 659-8695

Of Counsel to the firm of

Kirklin Boudreaux & Leonard

Glen M. Boudreaux

David Scott Curcio

KIRKLIN, BOUDREAUX &

LEONARD

1100 Louisiana

Suite 1800

Houston, Texas 77002

(713) 757-0000

(713) 757-0178 FAx

KKN103/PLDG/DICKENS2.DSC

(APPENDIX A)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 90-2935

GERRY D. DICKENS

(Plaintiff-Appellee)

UNITED PARCEL SERVICE, INC.

JOHN MALDONADO AND C.E. ROARKE

(Defendants-Appellants)

No. 91-2102

GERRY D. DICKENS

(Plaintiff-Appellee)

Vv.

UNITED PARCEL SERVICE, INC.

(Defendant-Appellant)

Appeals from the United States District

Court for the Southern District of Texas

(CA-h-86-4457)

(March 6, 1992)

Before GARZA, Reynaldo G., and GARWOOD,

Circuit Judges, and SCOTT, District

Judge.*

SCOTT, Nauman S., District Judge: **

* Senior District Judge of the Western

District of Louisiana, sitting by

designation.

** Local Rule 47.5 provides: "The

publication of opinions that have no

precedential value and merely decide

particular cases on the basis of well-

settled principles of law imposes needless

expense on the public and burdens on the

legal profession." Pursuant to that Rule,

the Court has determined that this opinion

should not be published.

Following his arrest for theft of

shipped property, plaintiff, Gerry D.

Dickens (Dickens), sued defendants-

appellants United Parcel Service (UPS),

C.E. Roarke (Roarke) and John Maldonado

(Maldonado) in Texas state court for false

arrest, malicious prosecution, intentional

infliction of emotional distress and

violation of his civil rights under 42

U.S.C. § 1983. Appellants then removed

the case to the Federal District Court for

the Southern District of Texas. After a

mistrial, a second trial was held before

Judge Hoyt in which a jury returned a

verdict for the plaintiff on all claims

for $6.4 million. Judge Hoyt subsequently

Signed a judgment that awarded Dickens

$400,000 in actual damages, $6,000,000 in

punitive damages, and attorney’s fees.

Judge Hoyt denied defendant’s post-trial

motions and signed a writ of execution for

A-3

| a

Dickens to seize $1,400,000 of yps-

equipment. UPS brought an emergency

motion to quash the writ, but the court

denied the motion and set a replevy bond

at $1,500,000. UPS brought a motion to

reconsider the denial of the motion to

quash, which was denied. Dickens then

seized a number of UPS’ trucks under this

writ of execution. This appeal followed.

This court has consolidated the appeal of

Dickens’ judgment with the appeal of the

motion to quash. We find the District

Court erred in permitting this case to go

to the jury. We reverse.

FACTS

Appellant UPS operates the Westpark

Facility,’ a distribution center, in

. We shall focus only on those

facts which Dickens admitted in his

testimony or in argument -- where he was

and what he did at the time of the

A-4

Houston, Texas. UPS Loss Prevention and

Delivery Information Department began

investigating a large number of lost

packages from the Westpark facility. It

was determined that many of these lost

packages were C.O.D. shipments of gold

jewelry being shipped to the Sharpstown

mall. Subsequent investigation determined

that the losses were in fact thefts which

were occurring at the Westpark pre-loading

dock, the areas where large trailers are

emptied and their contents sorted. Loss

prevention department member Juan E.

incident. These facts are not

controverted by plaintiff’s counsel’s

mischaracterizations and irrelevant

accusations such as: that UPS’

investigation was a conspiracy; that the

officers could not recognize Dickens or

see what he did at a distance of 130 feet

(Dickens confirmed their observations) ;

and failure to perform tests to prove

facts which were already admitted.

A~5

Maldonado* and off-duty Houston Police

Department Officer Curtis E. Roarke

established a surveillance point

approximately 130 feet away from the

loading dock in an adjacent building.

They drilled two dime size peep holes

through a metal door to observe the dock.

' Counsel for appellee maliciously

mischaracterizes Mr. Maldonado in the

following manner:

When you read the record about

Maldonado what you are going to

find is that Maldonado’s one of

these guys that was run out of

the and [sic] I don’t speak

factually, but, but, ah, but

sort of ah [sic] my belief here,

was that Maldonado was a

character who was run out of the

criminal justice system, his

type was run out of the criminal

justice system when Miranda

rights and things like that came

into place and he’s popped up

again in private surveillance.

In fact, the record reflects

that Maldonado was a UPS employee that

worked his way up through the ranks and

had never applied for any law enforcement

position other than simply inquiring about

employment as a Houston reserve police

officer.

A-6

On November 5, 1985 Maldonado and

Roarke took their position at’ the

surveillance point. At approximately 8:00

a.m. the two observed Dickens, with whom

Maldonado was familiar, checking empty

trailers and removing plastic wrapping

from the area of the loading dock. To

prevent theft, UPS had issued orders to

all employees that no hourly wage

employees should be on the docks.’ At one

point, they observed a package being

kicked or tossed out of the building on to

the loading dock. Dickens immediately

came out of the building, picked up the

package, wrapped it in plastic and placed

the package in or behind trailer F at the

loading dock. A short time later, Dickens

removed from trailer F a bundle of plastic

. This order was overridden by Mr.

Savanah who ordered Dickens to work on the

dock. Savanah was terminated for this

action.

A-7

which contained the box he had picked up

and placed it in trailer RE. He then

departed the facility for the day.

The two officers remained in position

watching the trailers. Later in the

morning another man arrived at the loading

dock. Maldonado recognized the man as

Thomas "Scooter" Williams (Williams), a

former UPS worker’ and high school

acquaintance of Dickens. After looking

around and lying under a trailer, Williams

opened trailer E and removed a wad of

plastic material. Maldonado and Roarke

then left their position and called for

Williams to. stop. Instead, Williams

dropped the wadded plastic which was found

to contain two packages and fled the scene

in a red Chevrolet Corvette parked

nearby.‘ The packages were opened and

found to contain gold earrings destined

for the Sharpstown Mall.

The following day, November 6, 1985

Maldonado and another UPS loss prevention

officer questioned various UPS employees.

They interviewed Dickens and then placed

him under arrest. Following the placement

of Dickens in handcuffs, he was escorted

through the building into the parking lot

where after a brief wait he was placed in

: Again, counsel for plaintiff-

appellee attempts to mischaracterize the

evidence. He suggests at oral argument

that Scooter Williams was well known at

UPS as driving a Red Corvette and that it

is incredible that he fled the scene at

8:00 a.m. in the middle of a shift change

without being observed. In fact the

record demonstrates that while employed by

UPS, Scooter drove a Mercedes Benz 190

sedan and therefore that is the type of

car which he would be known as driving by

Westpark facility personnel. Further the

record shows that the Corvette in which he

escaped was parked in an adjacent lot, and

that this activity occurred at around

10:00 a.m., fully two hours after the

loading crew had departed for the day.

A-9

a Houston Police patrol car for

transportation to the booking facility.

During this period many fellow’ UPS

employees saw Dickens in handcuffs.

Dickens has not alleged he was physically

harmed by the officers. After Dickens was

booked, he was called by Williams who

later arrived at the police station with

an attorney for Dickens.

Based on evidence Maldonado and

Roarke acquired, Dickens and Williams were

both prosecuted by the Houston District

Attorney. Dickens was indicted by the

Harris County grand jury. At trial

however, both Dickens and Williams were

acquitted. After his acquittal Dickens

filed the lawsuit which forms the basis

for this appeal. The lawsuit was tried

twice. The first trial resulted ina hung

jury. The second time-the jury returned

the verdict appealed here.

A-10

DISCUSSION

- The appellants had probable cause to

arrest Dickens.

We believe the uncontested evidence

presented at trial shows that Maldonado

and Roarke had probable cause November 6,

1985 to effect the arrest of Dickens. As

the trial court correctly charged the

jury, Dickens was required to prove the

absence of probable cause by "positive,

clear and satisfactory" evidence.

Probable cause is defined as "a reasonable

ground for belief of guilt." Brinegar v.

United States, 338 U.S. 160, 175 (1949).

Under Texas law, probable cause is

determined by whether’ the arresting

officers had "reasonable grounds from the

facts known to him... to believe that

the accused was guilty." Moran Utility

Co. v. Childs, 392 S.W.2d 536, 538

(Tex.Civ.App. Beaumont 1965). Based on

A-11

their observations of activities which

Dickens admits, combined with what they .

knew already, we find the officers had

probable cause. Because the facts which

indicate the existence of probable cause

were not in dispute, Texas law mandates

that this issue should have been decided

as a matter of law by the court. Parker

v. Dallas Hunting and Fishing Club, 463

S.W.2d 496, 500 (Tex.Civ.App.--Dallas

1971, no writ).

Both officers knew that thefts were

being conducted at the Westpark facility

reloading dock. Both officers’ saw

Dickens’ admitted behavior which clearly

comported with criminal activity. Dickens

admits that he picked up a box, wrapped it

in plastic and placed the box in trailer

F. Dickens later returned and transferred

the wrapped box to trailer E. At trial

Dickens attempted to show that the box he

A-12

i etaeieneini iia

placed in trailer E was empty, and by

using expert testimony that the officers

could not identify him reliably. Such

evidence was irrelevant since Dickens

admitted that behavior on which Maldonado

and Roarke based their suspicion.

Further support for reasonable cause

is found in the involvement of Scooter

Williams. After seeing Dickens deposit a

plastic wrapped box in trailer E and

departing, the officers saw Williams

arrive, open the trailer and remove a

plastic wrapped box. When opened, both

the box Williams picked up and another

still in the trailer, contained gold

jewelry destined for the location for

which jewelry had been repeatedly stolen

from in the past. No other boxes were

found in the trailer. It was therefore

perfectly reasonable for the officers to

presume that the box the officers had seen

A-13

Dickens place in trailer E was the box

Williams had taken, and that Dickens was

attempting to steal the box. Moreover, a

social relationship from high school

between Williams and Dickens was known by

Maldonado to have preceded their co-

employment at UPS. This further supports

the officers’ belief that Williams and

Dickens might be involved in a criminal

conspiracy. Thus, considering the

evidence in the light most favorable to

Dickens, we find that reasonable and

impartial minds could not have found that

Maldonado and Roarke lacked probably cause

for Dickens’ arrest.

The appellee contends that the fact

that no fingerprints were lifted from the

two jewelry boxes to compare them with

Dickens’ exemplars on file with UPS

Supports a finding of lack of probable

cause. However, such an argument neglects

A-14

Heal iainUImiaiial

el een

Dickens’ admission that he handled the

boxes. Similarly, Dickens urges that the

testimony of Dr. Merton Flom, a professor

of optometry, supports a finding of no

probable cause. Flom opined that

Maldonado and Roarke could not have seen

Dickens’ movements on the loading dock and

could not have accurately identified him.

We deem this testimony to be utterly

irrelevant as Flom simply testified that

the officers could not have seen those

actions which Dickens has admitted.

II. The effect of probable cause _ on

appellee’s claims.

Having determined that probable cause

existed for the arrest of Dickens, we now

turn to the various claims upon which

Dickens’ sued. Probable cause negates

Dickens’ claim for malicious prosecution,

the absence of which is a prima facie

element of that cause of action. Akin v.

A-15

Dahl, 661 S.W.2d 917, 919 (Tex. 1983),

cert. denied, 104 S.Ct. 1911 (1984). The

same is true for Dickens’ claim under 42

U.S.C. § 1983 for false arrest. Hinshaw

v. Doffer, 785 F.2d 1260, 1266 (5th Cir.

1986).

Dickens’ suit also claimed false

arrest under Texas law and Judge Hoyt

instructed that "[i]Jf probable cause

existed for the arrest of plaintiff he has

no claim for false arrest and false

imprisonment."> Under this charge, our

finding of probable cause mandates

reversal. Appellee’s have not alleged any

error in this charge and the correctness

of the charge is not before the court.

Indeed, the existence of probable cause

has generally been a bar to liability for

Texas law refers to the tort of

false arrest as false imprisonment and we

shall do the same here.

A-16

eileen eared

false arrest. As the Supreme Court

stated:

Under the prevailing view in

this country a peace officer who

arrests someone with probable

cause is not liable for false

arrest simply because the

innocence of the suspect is

later proved. ° . ° A

policemen’s lot is not_ so

unhappy that he must_ choose

between being charged with

dereliction of duty if he does

not arrest when he has probable

cause, and being mulcted in

damages if he does.

Pierson v. Ray, 386 U.S. 547, 555

(1967).°

“ A prima facie case for false

imprisonment requires three elements: (1)

a willful detention of a person; (2)

against the consent of the detainee; (3) a

detention without the authority of law.

Sears Roebuck & Co. v. Castillo, 693

S.W.2d 374, 375 (Tex. 1985).

Under Texas law, a _= police

officer may arrest, without first

obtaining a warrant, “persons found in

Suspicious places and under circumstances

which reasonably show that such persons

have been guilty of some felony .. ."

Tex. Code Crim. Proc. art. 14.03(a)(1).

Texas courts construe the "circumstances

which reasonably show" requirement as

mandating probable cause to make an

A-17

The record is clear that Dickens was

arrested only by Roarke, a Houston police

officer. Since Roarke was within his

rights as a peace officer to arrest

Dickens, no liability can exist for

Maldonado and UPS.

The final claim which Dickens brought

is for intentional infliction of emotional

distress as a result of his arrest. To

establish a claim for intentional

infliction of emotional distress the

plaintiff must show: (1) the defendant

acted intentionally or recklessly, (2) the

arrest. See e.g. Johnson v. State, 722

S.W.2d 417, 421 (Tex. Cr. App. 1986).

The arrest of Dickens’ fell

within the mandate of article 14.03(a)(1).

Roarke and Maldonado observed in a

Suspicious place, the loading dock and

trailers. The circumstances above related

showed probable ‘cause to the officers.

Additional suspicion was placed upon

Dickens when he was questioned immediately

prior to the arrest. Therefore, Roarke’s

arrest of Dickens was appropriate under

article 14.03(a)(1).

A-18

conduct was extreme and outrageous, (3)

the actions of the defendant caused the

plaintiff emotional distress, and (4) the

emotional distress suffered by the

plaintiff was severe. Tidelands Auto.

Club _v. Walters, 699 S.W.2d 939, 942

(Tex. App.--Beaumont 1985, writ ref’d

n.r.e.). We find that the evidence

adduced at trial failed as a matter of law

to demonstrate that the defendants’

conduct was "extreme and outrageous".

Texas law has not directly addressed

the question of law before us. When a

Suspect is arrested by an officer who has

probable cause to believe a crime has been

committed, can that arrest be considered

"extreme and outrageous" conduct? We

believe such an arrest, under the

circumstances presented here, as a matter

of law, cannot be considered extreme and

outrageous. Because Maldonado and Roarke

A-19

had probable cause to believe Dickens had

committed a crime, arresting him could not

be "extreme and outrageous." Although

Texas has not explicitly adopted a rule

which makes probable cause a defense to a

claim of intentional infliction of

emotional distress, several courts in

other jurisdictions have.’

Texas has, however, adopted comment g

of the Restatement (Second) of Torts § 46

(1965) which provides: “an actor is never

liable for intentional infliction of

emotional distress where he has done no

more than insist upon his legal rights in

a permissible way." Diamond Shamrock

Refining and Marketing Co. v. Mendez, 809

S.W.2d 514 (Tex.App.--San Antonio 1991,

See e.g., Southland Corp. v.

Bartsch, 522 So.2d 1053, 1056 (Fl. Ct.

App. 1988); Von Stein v. Brescher, 904

F.2d 572, 584 (llth Cir. 1990); Brewster

v. Woodward & Lothrop, Inc., 530 F.2d

1016, 1017 (D.C. Cir. 1976).

A-20

iia einai

writ granted). This comment was evidently

relied upon by the Florida court of

appeals which stated:

[t]o establish intentional

infliction of emotional

distress, the conduct as a

matter of law must be_= so

outrageous in character and

extreme in degree as to go

beyond all possible bounds of

decency. However, the conduct

is privileged and the actor is

never liable where he does no

more than insist upon his legal

rights in a permissible way,

even though the actor is well

aware that such insistence is

sure to cause emotional

distress.

Southland Corp. v. Bartsch, 522 So.2d

1053, 1056 (Fl. Ct. App. 1988). The

Bartsch court held that the existence of

probable cause to make an arrest negated

the “extreme and outrageous" requirement

for a claim of intentional infliction of

emotional distress. Under the facts

presented in this case, such a rule is

entirely appropriate. Under different

A-21

pln

circumstances, an arrest with probable

cause may not be conducted in a

“permissible way." However, there is no

allegation in the present case that the

arrest of Dickens was conducted in an

inappropriate manner. Dickens was placed

under arrest, handcuffed, and escorted out

of the UPS building to the parking lot

where a patrol car picked him up to

transport him for booking. No physical

abuse has been alleged, nor does any

evidence in the record reflect any

occurred. More importantly, there is

absolutely nothing which was purposely

done to embarrass oor _ unnecessarily

advertise Dickens’ arrest. The Judgment

of the District Court is

REVERSED and plaintiff’s case is

DISMISSED.

KKN103/PLDG/APPENDA.DSC

A-22

(APPENDIX B)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 90-2935

GERRY D. DICKENS,

Plaintiff-Appellee,

versus

UNITED PARCEL SERVICE, INC., Etc.,

JOHN MALDONADO And C.E. ROARKE,

Defendants-Appellants.

No. 91-2102

GERRY D. DICKENS

Plaintiff-Appellee,

versus

UNITED PARCEL SERVICE, INC., Etc.,

Defendant-Appellant.

Appeals from the United States District

Court for the Southern District of Texas

ON PETITION FOR REHEARING

(April 15, 1992)

Before GARZA, Reynaldo G., and GARWOOD,

Circuit Judges, and SCOTT, District

Judge. *

PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled and

numbered cause be and the same is hereby

DENIED.

ENTERED FOR THE COURT:

/S/ Will Garwood

UNITED STATES CIRCUIT JUDGE

* Senior District Judge of the Western

District of Louisiana, sitting by

designation.

(APPENDIX C)

(Record v. V)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

GERRY D. DICKENS, - Docket No. CA-H-

. 86-4457

Plaintiff, .

-VS- - Houston, Texas

- January 25, 1990

UNITED PARCEL SERVICE, .

INCORPORATED, JOHN °

MALDONADO, and C.E. °

ROARKE, . Volume ITI

Defendants. ‘

TRANSCRIPT OF TRIAL BEFORE

THE HONORABLE KENNETH M. HOYT

UNITED STATES DISTRICT JUDGE, and a jury.

APPEARANCES:

For the Plaintiff:By: WILLIAM T. POWELL

3100 Edloe

Suite 306

Houston, Texas 77027

For the Defendant: Fulbright & Jaworski

By: R. MICHAEL MOORE

3101 McKinney

Houston, Texas 77010

Fulbright & Jaworski

By: NANCY R. PATTERSON

3101 McKinney

Houston, Texas 77010

Court Reporter: Connie D. Murden,

RPR, CM

4176 West Neck Road

Virginia Beach,

Virginia

Proceedings recorded by stenographic

means, transcript produced by computer-

aided transcription.

Maldonado - Cross 381

small bags here for a while until they

started being opened here. Now, when I

first suspected Scooter, he was a belt

splitter up top and he opened the small

bags right there, and what was happening

was the small bags were being stacked

right there next to him. He would just

take the bag and lay it down, and then

when the belt slowed down or the packages

coming down the belt slow down, he would

take one and open it and he would just

drop the plastic. And why I first

Suspected Scooter is because the small

bags were there and there were small

packages disappearing.

C-2

Q. What did you do when you first

suspected Scooter?

A. Well, I did two things. I put

cameras in the rafters, which never showed

anything, and I also put a small, yellow

"hazardous material" box at the end of the

belt, and when I said that it’s an open

warehouse and any changes you make are

very visible, well, it was very obvious to

anybody that had any street sense that the

holes that were drilled on the side, there

could be a camera in there. So, what I

would end up getting is videotapes of hags

being put right in front of the holes. I

could never see anything.

Q. What else led you to suspect Scooter

Williams?

A. He lived a very high standard of

living. He -- when he eventually left the

company, he drove a Mercedes, a 190

Mercedes, and U.P.S. paid well at that

C-3

time, but not enough to buy a 190. He

also on several occasions came into the

building

(APPENDIX D)

(Record v. XI)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

GERRY D. DICKENS §

vs. § CA H 86-4457

§ Houston, Texas

UNITED PARCEL SERVICE, § May 31, 1990

INC., JOHN MALDONADO and § 9:00 a.m.

C.E. ROARKE §

Transcript of Proceedings

Volume III

Before the Honorable Kenneth Hoyt

and a jury

APPEARANCES:

For the Plaintiff:

Mr. William T. Powell

3100 Edlow, Suite 306

Houston, Texas 77027

For the Defendants:

Mr. Michael Moore

Ms. Nancy Patterson

FULBRIGHT & JAWORSKI

1301 McKinney Street

Houston, Texas 77010 -

Court Reporter:

Ms. Joyce K. Schaefer

Official Court Reporter

515 Rusk, Room 8602

Houston, Texas 77002

Proceedings reported by stenography,

transcript produced by computer-aided

transcription

Dickens - Cross by Moore

3-157

that you characterized as no big deal,

right?

A Well, yes. I would say so.

Q Who as that supervisor?

A I think her name was Cathy.

Q Is that Cathy Montz?

A Yes, sir.

Q What happened in this situation with

Cathy Montz?

A I was assigned to -- okay. There was

a book that a lot of items were misplaced

and you had to find the box or package

that there items went into, and I was

assigned to that detail that day. And so

when you found, I think this particular

one was a book and I couldn’t find the box

for. So I was wrapping it and she walked

D-2

up and she said I wasn’t doing something.

Well, she said I wasn’t doing my job. And

I don’t know, it was some works said back

and forward. I can’t remember exactly

what. And I was -- later on, I was wrote

up for it.

Q And you don’t remember really what

was said?

A She said that I cursed her and, you

know, or something like that and that I

didn’t responded to her command. And they

wrote me up for it.

Q Well, did you curse her during that

conversation?

A No, sir, I did not.

Q Not at all?

A No, sir.

Q On November 6, do you recall Mr.

Maldonado asking you what

Dickens - Cross by Moore 3-158

kind of car Scooter Williams drove?

D-3

iilaat aetna

A Yes, I think he -- yes, he did ask me

that.

Q Do you remember what you told him?

A I can’t remember exactly what I told

him.

Q Do you remember when I took your

deposition, don’t you, Mr. Dickens?

A Yes, sir.

Q If you would look at page 51 of your

deposition starting at line 6. Question:

"And what did you tell him when he asked

you what kind of car Mr. Williams drove?"

Answer: "Pardon me?"

Question: "He asked you what kind of

car Scooter Wiliiams drove?"

Answer: "Yes, sir."

Question: "What did you tell him?"

Answer: "At that time I thought he

was driving a red Corvette. I heard he

was."

Did I read that correctly?

D-4

A Yes, sir.

Q Does that refresh your recollection?

Mr. Powell: Optional

completeness, Your Honor, before he

begins. Line 15.

Question: "Had you ever seen him in a

red Corvette?"

What was your answer?

Dickens - Cross by Moore 3-159

THE WITNESS: "No, sir."

BY MR. MOORE:

Q Let’s go on to line 17.

Question: "How did you know he drove

a red Corvette?"

Answer: Word gets around. Guys at

work." Right?

A Yes, sir.

Q Shortly after your arrest, you began

working full-time at 7-up Bottling, right?

A Approximately about a month. Month -

~ right about a month, yes, sir.

D-5

Q And that was the same company you had

been working part-time for?

A Yes, sir, it is.

Q You got on full-time with them,

right?

A Yes, sir.

Q How long did you work for them full-

time?

A If I am not mistaken, full-time

employment was from ’85 through ‘86. No,

I am sorry. I am sorry. "6S -- I only

stayed full-time with 7-Up maybe about a

month. And Dr. Pepper Bottling Company

bought 7-Up out. And they only kept 17

employees and they had heard I had done

such a good job, I was one of the 17

fortunately that was able to go to Dr.

Pepper.

Q So how long did you work for pr.

Pepper?

(APPENDIX E)

(Record v. XIII)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

GERRY D. DICKENS

CA H 86-4457

Houston, Texas

June 4, 1990

10:40 a.m.

vs.

UNITED PARCEL SERVICE,

INC., JOHN MALDONADO and

C.E. ROARKE

MANMANANADNAAN

Transcript of Proceedings

Volume V

Before the Honorable Kenneth Hoyt

and a jury

APPEARANCES:

For the Plaintiff:

Mr. William T. Powell

3100 Edlow, Suite 306

Houston, Texas 77027

For the Defendants:

Mr. Michael Moore

Ms. Nancy Patterson

FULBRIGHT & JAWORSKI

1301 McKinney Street

— Houston, Texas 77010

Court Reporter:

Ms. Joyce K. Schaefer

Official Court Reporter

515 Rusk, Room 8602

Houston, Texas 77002

Proceedings reported by stenography,

transcript produced by computer-aided

transcription

5-30

That would be suspicious to me. But I

wouldn’t have jumped right then, I would

have waited, just like they waited. And

what happens? Hour, hour and a half

later, Scooter Williams shows up, goes

right to the trailer. Opens the trailer,

grabs the boxes. When they gave chase, he

dropped them and ran. Got into a red

Corvette, left.

John and Officer Roarke went back to

the trailer, found two boxes of jewelry,

just like what had been stolen time and

time again.

Now, Mr. Powell is a good lawyer,

excellent lawyer. When Mr. Maldonado was

on the stand, he tried to convince Mr.

Maldonado that there were only three

trips. If you think about what John

E-2

testified to, he consistently testified to

four trips. Once he went outside, checked

the trailers E through A, put some plastic

in behind F, when back in. Walked along

picking up bags inside the building. He

jumps back out. Puts them in a third time

-- that is twice. Third time, a box

appears. It falls out, was kicked out,

Mr. Dickens jumps down, grabs it, sticks

it in F, comes back inside. Fourth time

comes back out, puts everything in trailer

E. Fourth time comes back out, puts

everything in trailer E. Four trips.

That is what he testified to every time he

has testified.

Officer Roarke, that is_ right,

Officer Roarke didn’t know Gerry Dickens’

name. When Mr. Powell says he couldn’t

identify him, that is what he is talking

about, didn’t

5-33

the door to trailer E. That is what Mr.

Maldonado testified to. That is what Mr.

Roarke testified to. That is what Mr.

Maldonado’s notes prepared that day say.

And what did Mr. Dickens say, yep, sure

did. Had a problem with that door.

Saw Mr. Dickens walk around in front

of the trailers, within 80 feet of the

peepholes. That is what he says he did.

John Maldonado saw Scooter Williams

drive off in a red Corvette. What kind of

car did Mr. Dickens say Scooter had?

The pictures that are taken that day

showed that the angles would allow them to

see. That is what they show. No, you

can’t identify people in these little

pictures. Little pictures are, what,

three by three? That doesn’t mean they

couldn’t see.

There is an awful lot of detail, an

awful lot of detail for two people who

couldn’t see.

What would the plaintiff have you

believe in this case? Well, first of all,

have you believe he is an all American boy

and a good employee. And to show that, he

brought his former supervisor up and he

brought an expert up. Of course, the

expert interviewed Mr. Dickens, his mom,

his sister and his fiancee. He better

have got a good story from him. They knew

what he was there for. He was there to

gather evidence to testify.

(APPENDIX F)

NO. 90-2935

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GERRY D. DICKENS,

Plaintiff-Appellee,

UNITED PARCEL SERVICE, INC.,

JOHN MALDONADO AND C.E. ROARKE,

Defendants-Appellants.

Appeal from the United States District

Court for the Southern District of Texas,

Houston Division, Hon. Kenneth M. Hoyt

BRIEF OF APPELLANTS

Roger Townsend

Katherine D. Hunt

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

(713) 651-5151

(713) 651-5246 (FAX)

Attorneys for Appellants

OF COUNSEL:

FULBRIGHT & JAWORSKI

by Maldonado, because they had engaged in

several altercations in the past (R. X:

155; XI: 96-97); also, "Scooter" was known

as a flashy dresser who wore a large

amount of gold jewelry (R. XI: 155-56).

Dickens had known "Scooter" since the

seventh grade (R. III: 155), and "Scooter"

had been a co-worker with Dickens at

U.P.S. (R. XI: 96, 138). In addition,

they had been high school classmates and

teammates on the track team (R. XI: 95).

"Scooter’s" father had even been Dickens’s

agent when he had tried to play

professional football (R. XI: 155).

Maldonado and Roarke first observed

"Scooter" lying underneath the trailer

where Dickens had placed the package (R.

X: 211, 213; XII: 109, 149). "Scooter"

arose, looked furtively left and right,

opened the door, reached inside the

F-2

trailer, and removed a package (R. XII:

109, 150).

As Maldonado and Roarke came forward,

"Scooter" saw them, dropped the package,

and fled in his red Corvette (R. XII: 75,

112), despite Roarke’s yelling, "Stop,

police!" (R. XII: 150). The package

"Scooter" dropped was addressed to 7500

Bellaire (Sharpstown Mall) and contained

gold jewelry (R. XII: 24, 33, 114-15,

153). Another package containing gold

jewelry and addressed to a jewelry store

was found in the trailer (R. XII: 23-24,

114-15, 153). The two packages together

contained jewelry valued at approximately

$2,000 (R. XII: 25).

Suspecting a theft ring, Maldonado

and Roarke reviewed the situation with

U.P.S. supervisors and waited until the

next morning before questioning the U.P.S.

employees in the pre-loading area (R. X:

F=-3

228; XII: 75-76, 118). They questioned

several employees and then questioned

Dickens (R. X: 43, 109, 123, 176, 228;

XII: 77, 119-20, 156). Dickens’s answers

were found to be less than convincing: he

said his job was to clean out the trailers

(R. XI: 101, 103), but he had been

observed-and admitted

observed, and Dickens admitted, that he

completed his shift and left the facility

(R. XI: 106; XII: 109, 149).

A short time later, Maldonado and

Roarke observed "Scooter" Williams (a

former employee known to wear. gold

jewelry), underneath the trailer in which

Dickens had placed the package. "Scooter"

arose, looked suspiciously left and right,

opened the trailer door, and removed a

package (R. XII: 109, 149-150). As

Maldonado and Roarke left their

F-4

_ ae

surveillance position, "Scooter" dropped

the package and fled in his red Corvette

as Roarke shouted, "Stop, police!" (R.

XII: 109-110, 112, 150-151).

Maldonado and Roarke returned to the

trailer and found another package as well

(R. XII: 23-24, 114-15, 153). The package

"Scooter" dropped was addressed to 7500

Bellaire (Sharpstown Mall); the- one

remaining in the trailer was addressed to

a jewelry store (Plaintiff’s Ex. E). Both

packages contained gold jewelry (R. XII

24-25, 33, 35, 153). On the following

morning, Dickens was given the opportunity

to exculpate himself, but gave a

physically impossible story, i.e., when he

put the package in the trailer both the

trailer and the package were empty (R. XI:

105, 142-43, 146; XII: 120). These

undisputed facts establish a reasonable

ground for believing that Dickens was

involved in criminal activity.

One of the cases most frequently

cited for its discussion of probable cause

is Draper v. United States, 358 U.S. 307

(1959). The begrudging acknowledgement in

Justice Douglas’s dissent poignantly

applies to the facts in Dickens: "The

Court is quite correct in saying that

proof of ‘reasonable grounds’ for

believing a crime was being committed need

not be proof admissible at the trial. It

could be inferences from

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.