United States v. Manuel Sidan-Azzam

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UNITED STATES of America, Plaintiff-Appellee, v. Manuel SIDAN-AZZAM, Defendant-Appellant.

No. 71-2109.

United States Court of Appeals, Fifth Circuit.

April 7, 1972.

Rehearing and Rehearing En Banc Denied May 12, 1972.

459 F.2d 1309

Wheeler‘s claim of attorney-client privilege is without merit. The procedure used by Judge Wortendyke in making his determination is not new and was agreed to by the litigants. The finding of attorney-client privilege in this type of proceeding has ample precedent. See

Natta v. Hogan, 392 F.2d 686 (10 Cir. 1968);

In re Natta, 410 F.2d 187 (3 Cir. 1969). The court having examined the documents submitted in camera, finds the arguments advanced by appellant to be without merit. Therefore the judgment of the district court will be affirmed.

VAN DUSEN, Circuit Judge (concurring in part and dissenting in part).

Since, in my opinion, Documents 16-19 and 21-24, several of which contain only lists of patent numbers which are a matter of public record, are not protected by the attorney-client privilege, I would modify the district court order of July 27, 1971, to include Items 16-19 and 21-24 in paragraph 1 of that order and to delete those numbers from paragraph 2 of such order, and remand the case to the district court for appropriate action.

In all other respects, I concur in the foregoing opinion.

Lawrence E. Hoffman, Miami Beach, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., George A. Kokus, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

The key question on this appeal is whether the trial judge, to whom the case was submitted without a jury, was warranted in adducing from the circumstantial evidence inferences which excluded every reasonable hypothesis of innocence. Holding that the trial judge could reasonably so conclude, we affirm the conviction of the defendant on all counts charging him with violation of the narcotics laws of the United States. Title 21 U.S.C. §§ 173, 174; Title 26 U.S.C. § 4704(a); and Title 26 U.S.C. § 4705(a).

We recognize the well established rule that where the evidence relied on to sustain a verdict is circumstantial, it must be such that the trier of fact could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt.

Surrett v. United States, 421 F.2d 403 (5th Cir. 1970);

Riggs v. United States, 280 F.2d 949 (5th Cir. 1960). This test is not simply whether in our opinion the evidence excludes every reasonable hypothesis of innocence, but rather whether the trier of fact might reasonably so conclude.

United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971);

Harper v. United States, 405 F.2d 185 (5th Cir. 1969);

Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969);

Odom v. United States, 377 F.2d 853 (5th Cir. 1967);

Williamson v. United States, 365 F.2d 12 (5th Cir. 1966);

Rua v. United States, 321 F.2d 140 (5th Cir. 1963); and

Vick v. United States, 216 F.2d 228 (5th Cir. 1954).

The evidence reveals that on three occasions a codefendant on trial with appellant sold narcotics to a government agent and an informer. On two of these occasions, the appellant was observed just prior to the sale arriving at the co-defendant‘s house with a package of some sort and departing shortly after the co-defendant‘s return from completing the sale of narcotics. On one of these occasions, monitored telephone conversations revealed that the co-defendant told the prospective purchaser that the “man” had not arrived yet and he had not received the “load” until almost the precise moment that the appellant entered the co-defendant‘s house, at which time the prospective purchaser was informed that “the stuff is here” and “the man finally arrived.” It is these telephone conversations, which the trier of fact might reasonably infer could only refer to the appellant, together with the other circumstantial evidence in the case, that distinguishes the case from

Panci v. United States, 256 F.2d 308 (5th Cir. 1958) upon which the appellant so heavily relies.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc. (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

Case Details

Case Name: United States v. Manuel Sidan-Azzam

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 12, 1972

Citation: 457 F.2d 1309

Docket Number: 71-2109

Court Abbreviation: 5th Cir.