United States v. Ramon C. Garza and Alfredo R. Menchaca

punishment The Act does not increase the offense change ingredients

nor necessary to establish

or the ultimate facts 24, Graham,

guilt. 450 U.S. See Weaver 960, 12, 964 n. 29 n. 101 S.Ct. Utah, (1981),citing Hopt L.Ed.2d 17 202, 210, 574, 590, 28 L.Ed. 262

U.S. 4 S.Ct.

(1884). Miller, supra, the Third v.U.S. Reform Act of

Circuit found that the Bail procedural and did not offend

1984 was post

ex facto clause. in which changes

The Act the manner dealt with af

convicted defendants will be presumption

ter conviction. It contains upon con of immediate detention favor requirement

viction rather than the former enlarged on defendant be a convicted However, conditions.

bail absent certain who

this court held that a defendant has guilty by jury and sen

has been found necessarily entitled to bail

tenced is

pending of law. appeal as matter (5th Cir.1976),

Bright, 541 F.2d denied, 97 S.Ct.

cert. (1977). though the

L.Ed.2d 780 Even disadvantage of the

change works to the

defendant, change merely procedural it is post offend the ex facto

and does not Goldberg, Judge, filed concur- Circuit Florida, 432 U.S. clause. Dobbert v. See ring opinion. 53 L.Ed.2d (1977). application for release is DENIED. America, STATES UNITED

Plaintiff-Appellee, Alfredo R. C. GARZA

Ramon Defendants-Appellants. Menchaca,

No. 84-1504. Appeals, Court

Fifth Circuit. 26, 1985.

Feb. 29,1985. March

Rehearing Denied Escobar, Jr., Antonio,

Manuel G. San Tex., Munoz, Uvalde, Rogelio Tex., for Menchaco. III, Conley, Weiner,

James E. David R. Antonio, Tex., San for Garza. charged appellants arrested Atty., Daniel indictment Eversberg, U.S. Helen M. and without warrants Powell, Attys., persons without Asst. U.S. Maeso, Sidney cause, long them for Matesich, probable detained Tex., M. Antonio, Mildred San repeated ques- subjected them to periods, Silver, Bradford Dunsay Wm. Jessica take them before a tioning, and failed to Justice, Wash- Dept, of Reynolds, U.S. Ap- required by Texas law. magistrate as D.C., plaintiff-appellee. ington, for charged one count also with pellants were holding person involuntary in servi- a of charged Additionally, Menchaca was tude. trying to justice of for obstruction with GOLDBERG, POLITZ and WIL- Before informing from the co-employee a prevent LIAMS, Judges. Circuit appellants. by violations FBI about federal jury trial the convict eight-day After an POLITZ, Judge: Circuit § 242 appellants of one substantive ed Alfredo R. Mencha- and Ramon G. Garza 36 hours in holding prisoner for a for count by jury of challenge their convictions ca 49", measuring 32" an isolation cell §§ 241 and of 18 U.S.C. violations water, bedding toilet.1 lights, or without § Garza, 1503, claiming that to 18 U.S.C. as acquitted of seven sub Appellants were making evi- in certain the trial court erred § counts, involuntary ser the stantive charge rulings, giving jury in its dentiary justice of count and the obstruction vitude collaterally estop parts declining to and in charge. jury The could not reach a verdict They contend prosecution. further of the of the conspiracy count and on four on the supported by suf- verdicts are not that the § 242 counts and a mistrial resulted. infra, As discussed we ficient evidence. mistrial, grand jury Following the the per- challenges but are find merit some charging indictment a six-count returned that the trial errors did not result suaded § § conspiracy and the four the constitutionally infirm trial an unfair or and, hung jury had counts on which and, overwhelming evidence because addition, of charging with a violation Garza categorized as guilt, appropriately are of § firing deputy sheriff 18 U.S.C. 1503 Accordingly, error. we affirm. harmless witness had testified as who jointly Appellants first trial. at the Background and Procedural Facts counts and the tried on the first five assuming office as sheriff Shortly after charges. guilty of on all returned verdicts Texas, Men- County, Garza hired of Zavala days later Garza separate In a trial a few investigator. Menchaca special chaca as a § remaining guilty of the found deputy as a could not be commissioned appeal This follows. count. prevent- prior sheriff because conviction Evidentiary Rulings I. being job. for that him from certified Prior A. convictions years after Garza became and a half Two judge maintain that the trial Appellants in a he Menchaca were named sheriff he al reversible error when charging of committed indictment violations 15-count §§ prosecution to introduce evidence 1584. lowed the 1512 and 18 U.S.C. convictions, felony one prior Menchaca’s charged conspiracy and They in 1952 illegal importation of meat involving the denial of counts substantive importation of mari illegal for the persons and and one rights arrested the civil issue was addressed The huana in 1954.2 This County jail. confined the Zavala one-year 1954 he was United States. On October received a sus- 1. Garza and Menchaca years probation. importing pounds pended of marihuana sentence and five convicted of appeal registering shipment paying was no of this conviction. There without imposed. granted presiden- special tax He was Menchaca was convicted 2. On March pardons tial for these offenses. pounds smuggling of fresh into the lA beef cer, time as that that until such during the court both before by the in, in, you’re if comes comes it ever trial. mind, your that in the back hold sought motion, appellants limine By an in concerning you give and I’ll instructions pre- At a of this evidence. prevent use may use that information. you how trial the court shortly hearing trial attempted prove admissibility prosecutor evidence The later questioned offering copies of court matter would be subject the conviction that the but stated any vigorously objected records. Defendants in the cross-examination appropriate might alia, prejudicial offer. arguing, Menchaca inter character witnesses value, outweighed probative argued that the evidence effect far prosecutor intent, offering citing 403. Concerned about prove Fed.R.Evid. relevant to danger felony conviction and the the fairness of evidence Menchaca’s syllogism. peace might offi- “cloud the issue” and as that its use his certification prevented validly jury”, could the court ruled: “at Only so certified “confuse the one cer. time, pur- Menchaca violat- I’ll them for the Texas law. admit under arrest so the he made arrests record and not allow pose when of the ed Texas law arrest- them further.” deprive those to introduce intended Government Menchaca The court deferred to use the No further effort was made of their civil Prior to morning of trial. in the evidence. convictions ruling until the disposed of all court selecting jury the the reference to the convictions The final involving motions, including that pending closing phase of the in the rebuttal came No definitive prior offenses. Menchaca’s response in to defendants’ argument when merely repeated resulted, ruling the court government witnesses be- attack on several ruling and deferred inclinations prior its prosecu- the prior their convictions cause of necessary at trial. until the defense case “But half of tor stated: felon, as during testimony the testimo- of a convicted arose has been The issue next Villarreal, well, Counsel general counsel for that’s Mr. Menchaca.” and ny Alfred following colloquy Enforce- ensued: objected on Law and the the Texas Commission ob- Education. Over and BENCH) ment Standards (AT THE testified Villarreal jection of defendants does the What evidence THE COURT: qualified to be a not Menchaca was that jury have of convictions? “Mr. Men- officer because police certified testimony of Mr. Villar- The ORTIZ: MS. felony conviction.” prior chaca maintains why he real, was that who testified the immediately admonished court The offi- a law enforcement ineligible to be jury: cer. jury, the at this gentlemen of Ladies the extent of it? Was that THE COURT: though time, you that even I caution will Yes, sir. MS. ORTIZ: that is his that has testified this witness I’ll right. All overrule THE COURT: disqualification of as the basis belief objection. the Menchaca, time as it’s until such Mr. COURT) (IN OPEN just hold up, you will actually connected gentlemen of Ladies and THE COURT: your mind and not in the back objection. the jury, I’ll overrule the testi- there’s been except that consider it prior reference to fact, not, Villarreal’s prov- in If it is mony it. about by the properly cabined convictions you instruct will up, then the Court en in clos prosecutor’s remark court but I will instruct entirely____ disregard it The convic improper. ing argument was although you’re aware you now that being prov Not proven. were never tions Mr. Villarreal be- testimony that ... relevant. they not fact, felony en was, that there lieves Lemaire, 946-47 712 F.2d disqualify that would [Men- conviction Cir.1983), upon citing our drawing (5th offi- peace being qualified from chaca] Typically, evidence of an arrest v. Beec- United States en banc decision witness; Cir.1978), impeachment of a (5th be used for we held: hum, F.2d 898 permitted. only evidence of convictions is Beechum, of an Indeed, evidence under But the case before us is Fed.R.Evid. 609. to intent offense is relevant extrinsic atypical. police Here the defendants are in fact occurred and only if the act officers. of the witnesses had Several Thus, as in fact committed it. defendant arrested, depu sometimes Garza’s been that the to a predicate determination arrests, past past ties. Evidence of relevant, extrinsic act police general involvement with the establishing that offer must particular, perti defendants would be (citations the act. committed defendant jury’s in the essential determination of nent omitted) credibility. evidence would be rele Such coun- have sustained The trial court should bias, prejudice ulteri- vant to the issue of or jury recalled for the objection and sel’s Alaska, of the or motive witness. Davis v. to con- that it was not earlier admonition testimony of part Villarre- sider Perkins, 723 F.2d 1165 Carrillo v. proven. were later al unless convictions Cir.1984); Wainwright, Greene instructed that should have been (5th Cir.1981). In F.2d 272 United States proven. had not been the convictions Croucher, Cir. Hearsay exclusion B. 1976)we held: “The issue of [the witness’] relationship with state and federal both law urge of their Appellants reversal officials, in connection enforcement with because the court would not convictions case, participation highly his was and other officers to tes permit Menchaca credibility relevant to his as a witness they by way told tify what were about prosecution.” complaints against those arrested. The ev hearsay. was barred as This was idence discretionary it is within the While The offered in ex error. statements were authority the trial court to limit cross-ex The planation of the arrests. evidence amination, authority play “comes into prove to Meneha offered to what was said only permitted after there has been as others, prove and the not to the truth of ca right matter of sufficient cross-examina The offered what was said. evidence was satisfy Amendment.” tion to the Sixth the fact of an assertion and not as as Mayer, 556 F.2d 250 United States v. of a fact and was therefore not assertion (5th Cir.1977); Perkins, v. Carrillo 801(a),(c). hearsay. Fed.R.Evid. Smith Cir.1984). (5th F.2d 1165 The trial court (5th Cir.1982); Gonzales, 670 F.2d 522 Lub questioning prohibiting erred in this line of . Lots, Pro bock Feed Inc. v. Iowa Beef on cross-examination. (5th Cir.1980). cessors, 630 F.2d 250

Harmless Error Limitation on cross-examination C. errors, Despite these a reversal of appellants’

Appellants next attack their convic convictions not warranted. trial disallowed After a studied examination of the record tions because the court that these errors did not proof the arrest records of several we are convinced and, prejudice the defense because government witnesses. guilt, overwhelming the arrest evidence of were in limine to block moved Connecticut, pretrial Fahy six At a harmless. records of witnesses. (1963) argued that the hearing, defense counsel S.Ct. (evidentiary rulings subject im er to harmless arrest records were admissible rule); peachment purposes, Daughtry, to reflect on the wit ror United States v. (5th Cir.1974)(castigation testifying against the F.2d 1019 of an nesses’ motive for jury’s guilty); other verdict of not police officers. The evidence United defendant (5th Lipscomb, 435 F.2d 795 Cir. This was error. was barred. circumstances justify v. Per- were asserted to war- 1970)(evidentiary rulings); Carrillo Cir.1984) (limita- (5th persons arrests. kins, F.2d 1165 rantless Other arrested cross-examination). To withstand brought magistrate were before the tion of never beyond a harmless error must be adjoined jail. attack the office No indict- whose Chapman v. doubt. brought against Sanchez, reasonable ments were Bur- Califor- 824, 17 L.Ed.2d nia, Diaz, Pena, rell, Rodriguez or Marti. Perkins, F.2d Carrillo sheriff, County deputy A former Zavala Cir.1984); (5th States v. Rodriguez, did the of- Jose who most of Cir.1978). Be- Crumley, 565 F.2d paperwork, he fice’s testified that and Men- harmless an error be considered fore chaca arrested Marti and Julio Herrera- doubt, reviewing beyond reasonable orders Castillo on from Garza. There were the so- determine that “absent court must warrants, warnings no no Miranda were effect, the evi- unconstitutional determined arrested, given, but these men were sup- remains not sufficient dence booked, questioned. They jailed and overwhelming as the verdict but so port [is] brought magistrate. Oscar beyond guilt the accused establish the Saucedo, employed by jailer, P. Garza as a Harryman v. Es- reasonable doubt.” booking regular duty. filled out cards as a Cir.1980) (en telle, that Menchaca directed him to He testified further ob- banc). And as we therein arresting place name as the officer Garza’s served: Rodriguez’s charge him on card and to “it is neces- Fahy, stated As the Court “investigation.” The same true for the case and sary to the facts of review Saucedo confirmed that others arrested. trial” to deter- adduced at the evidence set forth in the the arrests indictment unlawfully admit- the effect of the mine Ramirez, Deputy jail- also a warrantless. “upon the other evidence ted evidence er, substantially the same facts testified upon the conduct of adduced at trial concerning the arrests of Burrell and San- defense.” Crys- The former Chief of Police chez. prescript provides “an harmless error The Diaz and Pena were City tal testified that uncompro- exacting standard that must be by city officers and one of Garza’s arrested applied.” misingly Id. a line- deputies. Shortly after their arrest they not identified up held but were was The Evidential Fabric by city police. they were released and proof of the The record abounds with Menchaca, lineup, immedi- present for the Menchaca. wrongful acts of Garza and Diaz and Pena and took ately re-arrested witnesses, supported Testimony of several county jail. disputed to the It is them evidence, portrayed the by documentary accompanied Menchaca to Garza whether occurring repeatedly rights violations civil that lineup. Deputy Meister testified County Sheriffs office. in the Zavala orders, brought in Menchaca’s Pena on was per- that five of the Booking cards reflect held, warrant, booked, without a arrested indictment, Eugene San- in the sons named questioned, was not taken before and but Burrell, Diaz, chez, Miguel Humberto Roy magistrate. Rodriguez were arrested and Jesus Pena persons acknowledged that some Garza “investigation” or on no held and warrants, charged without arrested were Documentary evidence charge at all. booked, ques- “investigation,” jailed, Rodriguez was arrested Gar- that shows magis- a and never taken before tioned 8, 1981 and was held without April za on responsibility for trate. He disclaimed April he was charge until when errors, to his assigning the blame these Miguel magistrate. finally taken before a why peo- jailers. asked deputies and When 6, 1982 and arrested on October Marti was time and long periods held for ple were magistrate a until October not taken before magis- charged or taken issued were before were ever 1982. No warrants trate, responded they were Garza and no arrest of these individuals for the sign charges, reappearing the victim to come and a Those six as overt “waiting for complaint.” superseding conspir- Menchaca likewise disclaimed acts in the indictment responsibility, asserting count, it was the acy are as follows: duty of to secure warrants and others April 8,1981, 1. On Defendant RAMON magistrate take those arrested before Rodriguez G. GARZA arrested Jesus delay. Both Garza and without undue probable “theft” without cause and with- that there was no such Menchaca conceded obtaining out a warrant for his arrest. “investigation.” crime as Thereafter, April from until his appearance magistrate initial before the Garza and Menchaca’s defense was that 14, 1981, April on Defendants RAMON they merely doing jobs their and were G. They mistakes. main- GARZA ALFREDO R. MENCHA- sometimes made Rodriguez CA held probable tained that there cause to Jesus the Zavala named, persons County interrogated that Zava- Jail and arrest all of Jesus Rod- 16,000 County population riguez alleged la had a about the theft without many people passed through jail their taking magistrate. him said before few, only including very those named 24, 1981, 2. From November until his indictment, improperly were arrested 1,1981, release on December Defendants processed. RAMON G. GARZA and ALFREDO R. MENCHACA held Juan Salazar-Pena in evidence, evidentiary

Given this rul- County interrogated Zavala Jail and meaningful ings complained of had no im- alleged Juan Salazar-Pena about an theft pact on the evidence adduced at trial or on taking magistrate. without him hearsay the conduct of the defense. The charges against No were ever filed Juan probable exclusion related to the alleged Salazar-Pena for the theft. cause dimension of the warrantless arrests. existed, Assuming probable cause the evi- 3, 1982, January 3. On Defendant AL- uniformly dence shows that the arrests FREDO R. MENCHACA arrested Eu- booking warrantless and that after gene “burglary” Sanchez for and “hit prisoners days named were held several probable and run” without cause and being charged, several weeks without obtaining without a warrant for this ar- brought magistrate, before a and advised Thereafter, 2, 1982, January rest. from they of their meantime January until his release on De- repeatedly questioned. The exclusion of fendants RAMON G. GARZA and AL- witnesses, the arrest records of some Eugene FREDO R. held MENCHACA error, though harmless. testimo- County in the Zavala Sanchez Jail and ny of those witnesses was corroborated interrogated Eugene Sanchez about the other, testimony unchallenged the of wit- alleged burglary taking without him be- by documentary nesses and evidence. Pre- magistrate. charges fore a No termitting challenged testimony, the the ev- against Eugene ever filed Sanchez guilt idence of overwhelms. The allowance alleged burglary. the of the comment Villarreal that Mencha- 13, February 1982, 4. On Defendants conviction, prior felony ca maintained a and RAMON G. GARZA and ALFREDO R. prosecutor in the remark rebuttal the Roy MENCHACA arrested Burrell for that Menchaca was a convicted felon do not “burglary” probable without cause and jury’s undermine our confidence in the deci- obtaining without a warrant for his ar- beyond sions. The errors a were harmless Thereafter, 13, February rest. from Harryman reasonable doubt. v. Estelle. 1982, 15, February until his release on Estoppel II. Collateral 1982, Defendants RAMON G. GARZA government Menchaca maintains that the and ALFREDO R. MENCHACA held collaterally estopped relitigating from Roy County was Burrell in the Zavala Jail charges interrogated six substantive of which he and Roy Burrell the about acquitted alleged or mistried in the burglary taking first trial. without him be- charges magistrate. estop

fore a No The doctrine collateral pel relitigation any bars against Roy Burrell for the issue that has ever filed prior been determined in a final and valid alleged burglary. Swenson, judgment. 436, Ashe v. 6, 1982, AL- 5. On Defendant October 1189, Unit Migu- arrested FREDO R. MENCHACA Lee, (5th v. 622 F.2d 787 States Cir. “burglary” probable el Marti for without 1980). estoppel When collateral is asserted obtaining cause warrant and without a by an accused we must determine what Thereafter, for his from October arrest. “were in necessarily facts determined” the 6, appearance his a 1982 until before government the first case and whether has 18, 1982, magistrate October Defend- on “relitigate necessarily tried facts estab ants G. GARZA and ALFREDO RAMON against lished it in the first trial.” United Miguel R. held the MENCHACA Marti Mock, 341, v. States 604 F.2d County interrogated Zavala Jail and Mi- Cir.1979); By United v. Lee. States re guel alleged burglary Marti about turning general a on guilty verdict magis- him taking without before said by stating five counts and it was unable GARZA trate. Defendants RAMON G. sixth, jury reach verdict on the did no R. MENCHACA then ALFREDO than more announce that it was not con Miguel County held in the Marti Zavala beyond vinced a reasonable at doubt of days sixty-six Jail an until additional § least one of essential element 23, his release on December 1982. jury may wanting fense. The have found 12, 1982, 6. AL- On Defendant October specific deprive the element intent to Julio FREDO R. MENCHACA arrested individuals their civil For what for “burglary” without Herrera-Castillo reason, ever concluded that probable obtaining cause without lacking that a crime was committed. Thereafter, arrest. from warrant for his finding That does not the inquiry terminate 12, until appearance October his alleged us because acts overt magistrate before a on October of a support conspiracy charge need not be AL- Defendants RAMON G. GARZA and necessary crimes. “It is not that the overt FREDO R. MENCHACA held Herr- Julio illegal.” Khamis, act States be United Zavala County era-Castillo in Jail and (5th Cir.1982). “An act interrogated Julio Herrera-Castillo about danger nature of no innocent alleged burglary taking without him can if society suffice it furthers the crimi Jones, magistrate. before said RA- Defendants nal venture.” United States (5th Cir.1981), citing F.2d MON G. GARZA and ALFREDO R. Willis, F.2d held Herrera- MENCHACA then Julio Cir.1978). Conspiracy to commit an of County Castillo in Zavala for an Jail fense commission of substantive of thirty-two days additional until his re- separate fense are and distinct crimes. on lease November 1982. Khamis; United States v. United States allegations correspond These to substan- Garcia, (5th Cir.1981). F.2d “Under 2,11, 9, respectively, 8 and tive Counts conspiracy charge was ac- first indictment. Menchaca required only prove to that at least one 2, 4, 6, quitted on Counts 8 and 9 and was one of conspira overt act taken the on granted a mistrial Count 11. the it conspiracy; tors in furtherance of trial, Prior to his second Menchaca prove need not that the substantive offense allegations to moved strike the contained v. was consummated.” United States through Overt Acts 1 7. He collat- (5th Cir.1984). claimed Todd, 146, 151-52 estoppel. eral The district court held that Merely appellants acquitted because § jury acquitted charges the could have for more than of the substantive 242 does not litigation upon reason and therefore involv- mean that the facts which one the ing charges these incidents was not were based cannot later be used as barred. 1210 the This is consistent with Su- in furtherance of instruction overt acts

non-criminal preme teachings to the substantive the term will- conspiracy commit that the Court’s Swenson; § Ashe v. fully implies offenses. 242 conscious in 18 U.S.C. Gonzalez, F.2d Cir. deprive v. wrong States to purpose to do and intent 1977). right guaranteed by the another Con- of statutes, stitution, federal or decisional 11 does not Finally, the mistrial on Count States, law. v. United Screws charged. offense of the reprosecution bar (1945). 65 S.Ct. 89 L.Ed. 1495 We relitigation of that necessarily follows It correctly underlying charge the that the court defined issues conclude the factual Somerville, 410 v. proscribed. Illinois find the court did willfully, not and we that not 35 L.Ed.2d by declining repeat abuse discretion its Westoff, F.2d this, v. United States requested jury definition when the (5th Cir.1981). aiding abetting. recharging on III. Instructions Jury Sufficiency IV. the Evidence the trial court

Garza claims failing recharge jury the on the erred light findings In of our and conclusions court “willfully” when the definition overwhelmingly the evidence estab- repeated the granted jury’s request the guilt, not appellants’ lishes we need discuss abetting.” “aiding and As a definition contentions that the evidence further their “ extent, necessity, general rule ‘the support their fails to convictions. any supplemental instructions character Ramon G. Gar- several convictions of are within the discre to the matters ” Alfredo R. are AF- za and Menchaca district court.’ United tion of the FIRMED. (5th Cir.1982), Andrew, F.2d Braverman, 522 quoting United States v. (7th Cir.1975). A F.2d conviction GOLDBERG, concurring: Judge, Circuit not be reversed because a trial

will well-argued Although I concur in the requested give instruc court’s failure court, I opinion a few words to of the add whole, charge, if as a accu tion the taken express today’s my understanding of deci- rately legal issues and not reflects does sion. jury to on an not allow the convict offense First, I have serious reservations about charged the indictment. United States Fischel, (5th Cir.1982); increasingly widespread 686 F.2d 1082 use of the Thetford, F.2d United States rule to harmless error affirm erroneous Cir.1982). may case, The court decline a rulings. present In I trial court requested charge if it has been stated else join in court’s that the er- conclusion in the instructions. United States where a reason- beyond rors below were harmless (5th Cir.1983). Robinson, 700 F.2d doubt, able since court reached that undertaking only after a careful conclusion The district court defined “willful record. I want to em- review of the But language in the exact Pattern ly” phasize not decision should be Circuit, differing for the Fifth Instructions general- read as an endorsement of a more punctuation which have been rule. usage ized error harmless reporter: choice of the court view, my rules of combination of strict “willfully,” as that term has The word procedure on hand —rules criminal the one used from time to time in these been strongly support I the wide- which the act com- instructions means that —and rule spread use of the harmless error on voluntarily purposely mitted only lead decision- the other can to ad hoc something specific intent the law to do reflecting justice making, impartial but pur- say, That with a forbids. is to bad regarding personal beliefs of the court disobey disregard either to to pose or guilt. law. defendant’s case, question states that that he present brought In the court must be before a magistrate in hearsay eight exclusion was harm- fewer than the to the erroneous two Llaguno days involved here.1 Min question the evidence in relat- less because Cf. gey, Cir.1984) (de 739 F.2d only probable to the cause dimension of forty-two proba tention for hours and detentions. I without the warrantless arrests gives ble cause determination rise to agree Contrary this conclusion. with § claim); City Bernard v. Palo claim, the defendants’ the fourth amend- of Alto, (9th Cir.1983) requires judicial ment a determination of (probable hearing cause must be held no probable prerequisite cause as a to extend- twenty-four arrest); more than hours after liberty following ed restraint of arrest. Houston, City Sanders v. F.Supp. 103, 114, Pugh, Gerstein of (S.D.Tex.1982) (same), aff'd, 854, 863, (1975). S.Ct. 43 L.Ed.2d 54 This (5th Cir.1984) (no published F.2d 1379 opini probable cause determination be made on).2 short, although the defendants Id. promptly either before or after arrest. may be correct that neither a warrantless Thus, at 95 S.Ct. at 869. if an arrest arrest, itself, by bring nor failure to a pursuant is made to a valid warrant issued magistrate, by itself, detainee before a de magistrate, by a then since there was al- prives a detainee of his constitutional ready probable prior a cause determination rights, the commission of both offenses arrest, brought the detainee need not be implicates fourth and fourteenth magistrate subsequent a to arrest. before contrary amendments. The cases to the McCollan, 137, 143, Baker v. U.S. cited the defendants either were decided (1979). S.Ct. 61 L.Ed.2d 433 If Pugh prior Gerstein v. or did not involve warrant, an arrest is made without a how- periods detention, extended and thus do ever, regardless then of whether the ar- govern present not case. resting probable officer believes that cause exists, promptly the detainee must be regard Finally, estop- to the collateral brought magistrate probable before a for a issue, pel opinion I read the court’s to be Gerstein, cause determination. 420 U.S. at impossibility, case, based on the 117-19, arresting 95 S.Ct. at 864-65. The determining what factual issues were nec- probable officer’s belief that cause exists is trial, essarily determined at the initial only validity relevant to the of the warrant- principle on the that in support overt acts arrest; negate less it does not the need for conspiracy of a section 241 need not be prompt probable determination of cause performed deprive people an intent to magistrate. a neutral and detached acquit- their If civil the earlier precisely necessarily finding While we have never determined tals were based on a “promptly” specific how a detainee must the defendants lacked the in- be brought deprive people magistrate, rights, before a there is no tent to of their civil Rodriguez days magistrate days, 1. Jesus was held for six without in less than five at which the magistrate, being brought magistrate grounds before a Juan Sala- would consider whether ex days, Roy Gerstein, for Burrell for zar-Pena seven isted an arrest warrant. See days days two once and for three a different 25; Schall, n. U.S. at 124 95 S.Ct. at 868 n. cf. concerning These were the four incidents — time. at-, (approved U.S. 104 S.Ct. at 2416-17 erroneously which evidence was excluded as juvenile pretrial procedures detention that re hearsay, only are the incidents that and hence formal, quired probable adversarial cause de need be considered here. days termination confinement, within three to six required but that also detainees to — —, Martin, 2. Although in Schall v. brought judge appear before be an initial (1984), the Court confinement). twenty-four ance within hours of dicta, suggested, in that Gerstein should be read Thus, formal, probable even if a adversarial approved pretrial procedures sup to have constitutionally cause determination is not re plied probable a formal cause determination arrest, quired days ap within two an initial arrest, days procedures re within five pearance magistrate required. before a appearance ferred to called for an initial 1212 that the would I

then believe GALINDO, Plaintiff-Appellant, as Moises using the incidents precluded from be conspiracy. support overt acts CORP., et identity on the PRECISION AMERICAN

I base this conclusion' Defendants, al., requirement intent under sec specific 241 242. States v. tions See United 910, (D.C.Cir.1976),

Ehrlichman, F.2d 921 Corporation, Georgia Pacific 1120, denied, rt. Defendant-Appellee. ce 1155, 51 L.Ed.2d 570 cf. 84-2488 No. 1250, McClean, F.2d Summary Calendar. Cir.1976). (2nd Although, majority as notes, necessary are not a ele overt acts Appeals, United States Court conspiracy, ment of a section Fifth Circuit. allege acts as government did the overt conspiracy. evidence of the existence 11, March 1985. view, proba my In the overt acts were Rehearing Rehearing En Banc Denied they conspiracy offense if tive of the April 1985. deprive people performed with an intent they If of their constitutional faith, good they are ir

performed in then conspiracy to to the existence of a

relevant people intentionally of their

deprive civil

rights.3 opinion not

Thus, in the court’s I concur not specific intent is I believe

because sup- acts necessary element of overt conspiracy, but be- a section

port of specific issue of I that the

cause believe at the necessarily not decided

intent was opinion, As I read the court’s

earlier trial. conclusion of the court. is also the again ‘jeopardy’ is sub to which a defendant argued are that where overt acts It could be 3. facts, prove guilt attempts his evidentiary jected collateral state rather than ultimate when the though apply, depends estoppel since even by relitigating should not fact which a settled issue guilty is believe that a defendant relitigated not upon issue is one of whether the of beyond fense, of a substantive a reasonable doubt ‘evidentiary’ merely an fact ‘ultimate’ fact or might be circum his actions nevertheless prosecution. In both instances the second conspir of the existence of stantial evidence acy. guilty prove attempting the defendant state Mariani, F.2d United States Cf. he than the one of which of an offense other Cir.1984) (2nd ("Seemingly innocent acts 865-66 relitigated acquitted. In both instances the complicity individually may indicate taken prove some element of is offered to collectively reference to and with when viewed instances the defend second offense. In both general.”); United States v. the circumstances Monica, charges again against or ant is forced to defend Cir.1961) (2nd 401-02 allegations in the which he overcame factual innocent; might but (single have been incident 213-14; also United Id. at see earlier trial.” guilt), together cert. indicate several incidents Cir.1979). Mock, F.2d States v. denied, S.Ct. pre previously ruled on the While we have not however, sup (1962). argument, is not This case, persuaded by presented I am cise issue Wingate Wainwright, ported In our cases. the Second Circuit in Unit conclusion of Cir.1972), example, we F.2d 209 464 rejected (1979), Mespoulede, F.2d 329 States v. crime of which use of evidence of a conspiracy estoppel applies in that collateral previously acquitted as had been the defendant merely evidentia the overt acts are cases where subsequent in a of a course of conduct evidence proved beyond ry a reasonable and need not be stated, so, per doing we "We do trial. Id. at 334-35. doubt. quality any meaningful in the difference ceive

Case Details

Case Name: United States v. Ramon C. Garza and Alfredo R. Menchaca

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 26, 1985

Citation: 754 F.2d 1202

Docket Number: 84-1504

Court Abbreviation: 5th Cir.