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Audelio ARZOLA-AMAYA, Santiago Rosas-Arzola, Edward V.
Charles Louis Roberts, El Paso, Tex., for Audelio Arzola-Amaya & maynard.
Earl Hanson, Los Angeles, Cal., for Santiago Rosa-Arzola.
Gary B. Weiser, El Paso, Tex., Harold Greenberg, Los Angeles, Cal., for Alvarez.
Luis E. Islas, El Paso, Tex., for Salazar.
Jesus Javier Estrada-Hernandez, Bastrop, Tex., pro se.
Thomas J. McHugh, LeRoy Morgan Jahn, Asst. U.S. Attys., San Antonio, Tex., for U.S.
Before POLITZ and JOLLY, Circuit Judges, and HUNTER*, District Judge.
On September 16, 1988, the grand jury for the El Paso Division of the Western District of Texas returned a superseding indictment charging Audelio Arzola-Amaya ("Arzola-Amaya") as a principal administrator, organizer, and the leader of a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848(b). In addition, all six Appellants, Arzola-Amaya, Santiago Rosas-Arzola ("Rosas-Arzola"), Edward V. Maynard, Edison Alvarez, Jorge Humberto Salazar, and Jesus Estrada-Hernandez ("Estrada-Hernandez") were charged with conspiracy to possess a quantity of cocaine in excess of five kilograms with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count 2), and with the sustantive offense of possession of cocaine with intent to distribute. Appellants Arzola-Amaya, Rosas-Arzola, Alvarez, Salazar and Estrada-Hernandez were also charged with conspiracy to possess marijuana with intent to distribute, as well as the substantive offense of possession of marijuana.
Arzola-Amaya was also charged with subscribing to a false tax return in violation of 26 U.S.C. Sec. 7206(1) (Counts 17, 18 and 19).
Arzola-Amaya, convicted on 18 counts: conducting a continuing criminal enterprise; possession of cocaine with intent to distribute; conspiracy to possess marijuana with intent to distribute; possession of marijuana with intent to distribute; and subscribing to a false income tax return, for a net sentence of life imprisonment, a fine of $1,000,000 and $450 in assessments.
Rosas-Arzola, convicted of conspiracy to possess in excess of five kilograms of cocaine, for which he received a term of imprisonment of seven years and a $50 assessment.
Maynard, convicted on one count of conspiracy to possess in excess of five kilograms of cocaine, for which he received a term of imprisonment of ten years and a $50 assessment.
Alvarez, convicted of possession of more than five kilograms of cocaine with intent to distribute and possession of marijuana with intent to distribute, for a net sentence of 15 years imprisonment followed by a 5 year special parole term and $100 in assessments.
Salazar, convicted of possession of more than 5 kilograms of cocaine with intent to distribute and possession of marijuana with intent to distribute, for a net sentence of 15 years imprisonment followed by a special parole term of 5 years and $100 in assessments.
Estrada-Hernandez, convicted of conspiracy to possess in excess of 5 kilograms of cocaine; possession of more than 5 kilograms of cocaine with intent to distribute; conspiracy to possess marijuana with intent to distribute; and possession of marijuana with intent to distribute, for a net sentence of 15 years imprisonment followed by a 5 year special parole term and $400 in assessments.
On appeal, each raises myriad grounds for reversal. After examining all of their arguments, however, we find no cause to reverse their convictions and therefore affirm the trial court's judgment.
The indictment and convictions of Appellants arose from the activities of the Audelio Arzola-Amaya drug trafficking organization. The evidence reveals that during the period of time (1980 through 1987), Arzola-Amaya's trafficking of cocaine and marijuana grew from a small one man enterprise into a very large organization, international in scope. Cocaine was its primary commodity. Cash was its main staple. Arzola-Amaya's participation went from cocaine source for street dealers to chief executive officer of a multi-national operation, distributing over 500 kilos of cocaine a month at the time of his arrest.
The government's case included the testimony of Robert Marquez, Albino Renteria, Teresa and William Anchondo, each of whom worked as a cocaine distributor for Arzola-Amaya. Other witnesses corroborated the details of their testimony. The June 1987 Montoya Street incident which the trial judge described as "one of those coincidences that would seem too far fetched if used in fiction"--removed all doubts as to the enterprise and the major participants.
Unfortunately for appellants, the intricate web of illegal activity engaged in by the Arzola-Amaya drug trafficking organization began to unfold in October and November of 1985 when Robert Marquez, an unindicted co-conspirator, contacted the Drug Enforcement Administration ("DEA") by letter from his cell in a Texas Department of Corrections Prison, relating information he possessed. He had been incarcerated following his conviction and sentencing in July of 1985 for delivery of cocaine. The source of this cocaine was Arzola-Amaya. After reading in the newspaper about two large cocaine seizures, and being motivated by fear of further implication in the activities of the Arzola-Amaya organization, Marquez met with DEA agents and informed them that the cocaine confiscated in these seizures belonged to the Arzola-Amaya organization which was "moving" 500 kilos of cocaine a month. Marquez had been associated with Arzola-Amaya since 1978. He paid Arzola-Amaya between $300,000 and $500,000 for cocaine in 1983 and approximately $500,000 in 1984.
In 1980, co-defendant Albino Renteria1 worked as a television repairman for his uncle, Thomas Marquez. During this same period of time, while residing in Big Spring, Texas, he worked as a cocaine distributor for Arzola-Amaya. Renteria was initially recruited into the narcotics business by his cousin, Tony Marquez, who introduced him to Arzola-Amaya.
Renteria's role in the organization was to act as a courier.2 His first two trips involved working directly under Tony Marquez. At that time, it appears that the organization was just getting started. Arzola-Amaya tried to borrow money from Tony Marquez to buy a kilogram of cocaine. Tony Marquez refused to give Arzola-Amaya money; he did not trust him.
Some time later, Tony Marquez again approached Renteria and recruited him to transport cocaine directly for Arzola-Amaya. Renteria and Arzola-Amaya met in El Paso. They discussed Renteria's transporting cocaine. Renteria agreed and Arzola-Amaya gave him a piece of paper on which were written his beeper number and the address, "1205 Overland".3 He was instructed to call upon his return from Miami and to meet again in El Paso.
In 1981, Renteria made his first of many trips to Miami. There, he met Arzola-Amaya's source of cocaine, Colombian drug dealer Armando Ramirez. Ramirez and Renteria wrapped the cocaine and put it in a suitcase with women's clothing. Filling the suitcase with women's clothing was a technique utilized by this group to disassociate the male courier from the cocaine which was secreted inside the suitcase in the event of a seizure or discovery.
Renteria returned to El Paso on the same flight as Ramirez. They sat apart on the plane and never acknowledged one another's presence. They traveled this way so that in the event the courier, Renteria, were arrested, Ramirez would not be associated with him. Once in El Paso, Renteria delivered the cocaine to Arzola-Amaya. The sole basis for the relationship between Renteria and his boss, Amaya, was drug dealing, and Renteria's only involvement in the organization was as a drug courier.
About this time, Renteria approached Arzola-Amaya about quitting the organization, but according to his testimony, Arzola-Amaya threatened to kill him if this occurred. Renteria proposed that his sister-in-law, Teresa Anchondo, would be a good candidate to transport drugs in his stead and would take his place. Arzola-Amaya agreed provided Renteria accompanied her on the first trip to Miami. Renteria and Teresa Anchondo made a trip to Miami together in May of 1983 and returned with a suitcase packed with cocaine wrapped in a gauze or fiber glass-like material. The cocaine was delivered to Arzola-Amaya as before. The trip was Renteria's last for Arzola-Amaya, but Teresa Anchondo later made five more trips to Miami. Teresa's son, "Willie" Anchondo, was recruited to accompany her on these trips or go in her place when she was unavailable.
Teresa and Willie Anchondo's participation in Arzola-Amaya's organization did not end with these ventures to Miami. In April of 1985, Teresa was contacted by Arzola-Amaya about making the first of two trips from El Paso to Los Angeles, California. Teresa and Willie Anchondo went with Constana, the pilot, to a ranch southeast of El Paso where two pickup trucks were parked. Attached to the pickup trucks were propane tanks filled with cocaine. The Anchondos drove the trucks to Los Angeles, delivered the keys to Arzola-Amaya's brother Manuel Arzola-Amaya, and flew back to El Paso.
On May 19, 1985, Los Angeles Police Department Narcotic officers observed Manuel Arzola and David Candalaria loading cardboard boxes filled with cocaine into a pickup truck. Surveillance agents followed the pickup truck to a house in Pasadena, California. A search warrant was executed, Manuel was arrested, and 528 pounds of cocaine was seized. This was the largest cocaine seizure on record in the Los Angeles area.
A search warrant was then executed at Rosas Electric, and 13 kilograms of cocaine was seized at this location. During the execution of this search warrant, the officers saw a light blue pickup truck in the garage; this pickup truck bore paper Texas license plates and had a large propane tank attached to its bed. The officers attached no significance to the pickup truck, and when they returned to investigate further, it was not there. In El Paso, Teresa Anchondo continued waiting and making calls to Arzola-Amaya's office, finally going to the law office as she had before. There, Teresa saw Maynard, Escalera and a man in a blue suit. The men were talking about a man named "Flores", who was being detained and how they needed more money and a lawyer in New Mexico. Escalera left the office for a short period of time, and when he returned, he was very excited and said, "They have picked up the truck on Santa Fe.... I don't know about you people, but I am leaving. I am going to Mexico."
On July 13, 1985, a pickup truck, driven by Henry Harrison Flores was stopped at the United States Border checkpoint in Almogordo, New Mexico. The pickup truck had a propane tank attached to its bed and bore paper license plates as had been noted regarding trucks carrying prior cocaine shipments. The propane tank was discovered to contain 246 pounds of cocaine. On July 17, 1985, four days later, 263 pounds of cocaine was seized from inside a propane tank attached to the bed of a pickup truck parked at the El Paso residence of Flores. This truck had been purchased by "J.C. Quinones", an alias sometimes used by Arzola-Amaya. The characteristics of both of these seizures were strikingly similar, down to the handwriting on the cocaine packages. Authorities further discovered among Arzola-Amaya's personal effects a receipt for the purchase of two propane tanks; the numbers on the receipt matched the numbers on the attached tank seized from the El Paso residence.
In April of 1986, Teresa Anchondo was contacted by Escalera, who asked her to drive a motor home to California. Teresa and Willie Anchondo then drove the motor home to Andrews, Texas where they spent the night. The next morning the Anchondos drove to a ranch where the Winnebago was loaded with cocaine, stashed in every conceivable way throughout the motor home. Willie Anchondo estimated the vehicle contained between 1,000 and 2,000 pounds of cocaine. The Anchondos drove the vehicle to Ontario, California. Waiting for them were Arzola-Amaya, Maynard, and Escalera. Rosas-Arzola denies that he was there.
On May 27, 1987 at a United States Border Patrol checkpoint near Yuma, Arizona, $354,000 in cash was seized from a Suburban automobile6 bound for El Paso from California. Cocaine residue was also discovered in specially modified compartments found in the vehicle. Rosas-Arzola submitted on behalf of Arzola-Amaya and A-Z Productions a "Motion for Mitigation of Forfeiture" for the money seized. Arzola-Amaya claimed the money as his own, and Rosas-Arzola made numerous trips from El Paso to Arizona in regard to this claim.
Arzola-Amaya was under investigation by the El Paso Organized Crime Drug Enforcement Task Force for nearly two years, but it was not until June 1987, when in the words of the Court "by one of those coincidences that would seem too far-fetched if used in fiction," DEA Special Agent David Petz and his wife, sold their house at 5837 Montoya Street in El Paso, Texas to Arzola-Amaya.
On June 17, 1987, a contract to sell the property was entered into between Mrs. Petz and Cham Property, acting for Arzola-Amaya. Appellant Maynard delivered $40,000 in cash, wrapped in foil. Petz loaned a set of keys to the real estate agent. The keys were given to Maynard.
During the evening of June 22, 1987, and prior to the June 23rd scheduled closing date, Agent Petz and his wife visited the residence on Montoya to make a final inspection and obtain any remaining personal property. In the master bedroom, they found three U-haul cardboard boxes about which they knew nothing. Other than the three U-haul boxes and some cans of black pepper and boxes of corn starch, the house was empty; it did not contain furniture, appliances, or clothing. The Petzes examined the boxes. They discovered several smaller packages wrapped in tape. Believing that these smaller packages might contain a controlled substance, the Petzes immediately left the premises and contacted Ernesto Perez, Resident Agent in Charge of the El Paso DEA office.
The following day, June 23, 1987, before the scheduled closing on the property at 12:00 noon, Agent Petz, along with other DEA agents, returned to the residence to determine whether the packages within the U-haul boxes contained a controlled substance. A sample was taken and upon examination, was found to be cocaine. Twenty-four hour surveillance of the property was initiated and continued for four days.
The sale of the property was finalized. One hour later, surveillance agents observed Arzola-Amaya arrive at the Montoya Street property. He remained for approximately ten minutes, and was observed leaving and talking on a walkie talkie in the front yard. He remained at the scene for a little over an hour, and was followed to his new residence at 502 Leslie Ward Street in El Paso. Two days later, on June 25, 1987, Estrada-Hernandez was also observed at the residence on Montoya Street. He remained there less than an hour.
On June 26, 1986 Estrada-Hernandez, Alvarez and Salazar arrived at the Montoya property in a pickup truck owned by Arzola-Amaya. Estrada-Hernandez was driving. The three men entered the house. Alvarez and Salazar carried U-haul cardboard boxes and a plastic bag into the residence. While Alvarez and Salazar remained inside, Estrada-Hernandez went outside and watered the grass while continuously looking around as though he were conducting "counter surveillance". The three then left the property in Arzola-Amaya's pickup truck, with Estrada-Hernandez driving. They were followed to a gas station near the residence. Estrada-Hernandez made a telephone call. Shortly thereafter, Arzola-Amaya and Rosas-Arzola arrived in Arzola-Amaya's Toyota. Arzola-Amaya transferred to the pickup truck. Alvarez, Salazar and Estrada-Hernandez got into the Toyota with Rosas-Arzola, who was preparing to drive away when all the men were arrested and returned to the Montoya Street residence. A warrant-based and consensual search of the premises was made yielding 415 pounds of cocaine and 19 pounds of marijuana, corn starch boxes, black pepper cans and beer bottles. Salazar's finger prints were found on the boxes and Estrada-Hernandez's on the beer bottles.
1. Whether the evidence adduced at trial is sufficient to sustain the convictions of Rosas-Arzola, Maynard, Alvarez, Salazar, and Estrada-Hernandez.
2. Whether the Court erred in denying appellants' motion to have the jury polled regarding trial publicity.
3. Whether Arzola-Amaya's waiver of his conflict-free representation precludes his successful assertion of an ineffective assistance of counsel claim, and whether his co-appellants have any grounds to complain about not being present at the conflict hearing.
4. Whether a mistrial was mandated for Arzola-Amaya because the name of one of his trial counsel came out during the testimony.
5. Whether Rosas-Arzola, Maynard, Alvarez, and Salazar were entitled to a severance.
6. Whether Estrada-Hernandez' right to a speedy trial was violated.
7. Whether there was error in the court's charge on mere presence.
8. Whether Estrada-Hernandez' Fourth Amendment rights were violated in the search of his person and the house located at 5837 Montoya Street in El Paso, Texas.
Rosas-Arzola, Maynard, Alvarez, Salazar, and Estrada-Hernandez assert that the evidence adduced at trial was insufficient to support their convictions. When a challenge is made to the sufficiency of the evidence to sustain an appellant's conviction, the question on appeal is whether there is substantial evidence, viewed in the light most favorable to the government, to uphold a jury's guilty verdict. United States v. Kaufman, 858 F.2d 994, 999 (5th Cir.1988); see United States v. Alvarado Garcia, 781 F.2d 422, 423 (5th Cir.1986) citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Stated another way, the question is whether a reasonable jury could find the defendants guilty beyond a reasonable doubt. United States v. Gardea-Carrasco, 830 F.2d 41, 43 (5th Cir.1987); United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Without restating all the evidence in the "overview", supra, we will review the evidence as to each defendant separately.
To establish Rosas-Arzola's guilty of conspiracy to possess with intent to distribute, as well as the guilt of the remaining appellants as to their own conspiracy indictments, the government must prove beyond a reasonable doubt: (1) the existence of an agreement between two or more persons to violate the narcotics laws; (2) the defendant knew of the conspiracy, and (3) the defendant voluntarily participated in the conspiracy. United States v. Kaufman, 858 F.2d 994, 999 (5th Cir.1988); United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.1986); United States v. Littrell, 574 F.2d 828, 832 (5th Cir.1978). Each element of the conspiracy charge must be proved beyond a reasonable doubt. No element need be proved by direct evidence, but may be inferred from circumstantial evidence. An agreement may be inferred from "concert of action." United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). Voluntary participation may be inferred from "a collocation of circumstances." United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir.1988); United States v. Marx, 635 F.2d 436, 439 (5th Cir.1981); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.1979), cert. denied sub. nom. Bertolotti v. United States, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979).
In this case, the jury convicted the defendant on a conspiracy charge while acquitting on the substantive offense. There is nothing necessarily inconsistent, in law or logic, with such a result and we do not hold that a conviction for conspiracy and acquittal of the substantive offense may never properly arise from the same facts and trial. We do suggest however, that such a result should engage our judicial skepticism. A critical analysis of the facts is required when such a contrariety of results does appear.
But see United States v. Heller, 625 F.2d 594, 597 (5th Cir.1980).
Once we have established the basic contours of the factual situation here we conclude that a rational and fair minded jury could and did find the defendant guilty of the conspiracy charge while acquitting him on the substantive offenses.
In May of 1985 when Teresa Anchondo returned from a cocaine "delivery" trip to Los Angeles, California, Rosas-Arzola was present at the Montoya Street law office with Arzola-Amaya, Maynard, Escalera, Castana, and an unidentified man. Teresa identified Rosas-Arzola as Santiago indicating her familiarity with him. On approximately June 6th or 7th of 1987, Rosas-Arzola arrived in El Paso. He testified that he made the trip to pick up his ten year old car that had been in a traffic accident six months earlier. He says that he learned much to his chagrin that his vehicle was not ready. He remained in El Paso and contacted Arzola-Amaya at A-Z Productions. Rosas-Arzola visited Arzola-Amaya on five or six occasions at the recording studio. It would be difficult to ignore the fact that while waiting in El Paso, Rosas-Arzola made three trips to Phoenix, Arizona to file claims on behalf of Arzola-Amaya for $354,000. This money had been seized from a vehicle in which agents found cocaine residue 85% pure. The automobile containing the cocaine residue was registered to one of Arzola-Amaya's addresses in El Paso. Appellant's uncorroborated explanation of the reasons for his presence in El Paso is inherently implausible. We have previously indicated that "a less than credible explanation" is part of the overall circumstantial evidence from which knowledge may be inferred. United States v. Richardson, 848 F.2d 509, 513 (5th Cir.1988).
In June of 1987, Rosas-Arzola met Arzola-Amaya's "people" just after they left 415 pounds of cocaine at the 5873 Montoya Street "stash house." He was in an automobile with Arzola-Amaya, and was preparing to drive away at the time of his arrest. His explanation is that he was visiting Arzola-Amaya and just went along for the ride. He asserts, as he must, that he did not know Alvarez, Salazar and Estrada-Hernandez; no introductions were made; he had no idea where he was driving them; or for that matter, he did not even know his way around the city. This explanation could certainly be unpersuasive to a reasonable juror in light of other evidence. DEA agent Chris Thompson, testified that it appeared Rosas-Arzola was familiar with Estrada-Hernandez, Salazar and Alvarez. No introductions were made. They appeared to know each other. Then too, we have Teresa Anchondo's testimony that when she delivered a Winnebago loaded with 1,000 to 2,000 pounds of cocaine to Arzola-Amaya in California, a man Teresa identified as Rosas-Arzola was there.
We reiterate--our evaluation of the evidence convinces us that a rational and fair-minded jury could have found Rozas-Arzola guilty of the conspiracy count beyond a reasonable doubt.
Maynard played an important role in the conspiracy. He had knowledge of most of its activities. He was identified by four of the prosecution's chief witnesses as an important member of the organization. When Marquez received cocaine from Amaya at the Big Spring, Texas airport, he was there. When Renteria delivered cocaine from Miami to El Paso, he was there. Arzola-Amaya told Renteria and Teresa Anchondo on separate occasions that they would be paid for their courier services as soon as Maynard consummated certain sales. Maynard was the "front man" for the purchase of the Montoya Street "stash house." He tendered $40,000 in cash wrapped in foil to Arzola-Amaya's real estate agent and in return received the keys to the residence. He was observed at the house, alone, on the day before the seizure of 415 pounds of cocaine.
It is eminently clear that Maynard was Arzola-Amaya's close associate in the conspiracy and the evidence certainly was sufficient for a rational jury to find knowledge, intent, and participation beyond a reasonable doubt.
Appellants Estrada-Hernandez, Alvarez, and Salazar contend the evidence against them was not sufficient, and that, as a result, their convictions should be overturned. After reviewing the record, briefs and oral argument, we disagree with this assessment.
Estrada-Hernandez was identified by Arzola-Amaya's secretary as an associate. He was at the Montoya Street "stash house", alone, on the day before the seizure of the 415 pounds of cocaine. On June 26, 1987, Alvarez, Salazar and Estrada-Hernandez arrived at the Montoya property in a Dually pickup truck. The truck was owned by Arzola-Amaya. Estrada-Hernandez was the driver. The three men entered the house. Alvarez and Salazar carried U-haul cardboard boxes and a plastic bag into the house. Alvarez and Salazar remained inside, Estrada-Hernandez went outside and watered the grass. Alvarez then exited the house, returned to the truck and reentered with a large roll of colored tape. The three left the house, entered the pickup truck and drove away. They were followed to a gas station. Estrada-Hernandez made a telephone call and shortly thereafter, Arzola-Amaya and Rosas-Arzola appeared on the scene, in Arzola-Amaya's Toyota. Rosas-Arzola was the driver. Arzola-Amaya changed over to the Dually pickup truck. The others changed over to the Toyota which Rosas-Arzola was preparing to drive away when all were arrested and returned to the Montoya residence. The agents executed a search warrant. They discovered 415 pounds of cocaine and 19 pounds of marijuana. Among other items seized were U-haul cardboard boxes, rolls of tape, empty cornstarch boxes and empty cans of black pepper. Salazar's fingerprints were found on a cardboard box which contained cocaine. Estrada-Hernandez' fingerprints were found on beer bottles.
These three appellants have presented no competing version of facts either at trial or on appeal which seriously challenges the sufficiency of the evidence to support their convictions.
A court must first look at the nature of the news material in question to determine whether it is innately prejudicial; factors such as the timing of the media coverage and its possible effects on legal defenses are to be considered. Second, the court must ascertain the likelihood that the publicity has in fact reached the jury. The prominence of the media coverage and the nature and number of warnings against viewing the coverage become relevant at this state of the inquiry.
Id. at 542 (citing United States v. Herring, 568 F.2d 1099, 1105 (5th Cir.1978).
From December 1, 1987, the first day of the trial, through December 15, 1987, a blitz of newspaper articles appeared on the front pages of the El Paso and Juarez newspapers. Headlines appeared on newspapers located in vending machines throughout the downtown area and surrounding the courthouse.
The Herring case on which Appellants rely is easily distinguishable from the case before us. In Herring, this court found that the trial court's initial cautionary instruction regarding publicity was inadequate in two respects: First, "particular emphasis or detail [was] placed on ... the ... publicity problem," and second, "it was ... arguable that the text of [the] instruction did not explicitly direct the jury to shun any publicity"; the jury members were merely told to "pay no attention" to any publicity. See Herring, 568 F.2d at 1101 & n. 6.
By comparison, in the case now before the Court, the trial court first inquired of the panel at general voir dire whether anyone had heard anything about the case through the news media. After it learned that no one had, the trial court went on to say, "if it suddenly dawns on you that you have heard about it ..., well please go ahead and raise your hand and bring it up then."
Does anyone recall ever having heard anything about this case? In other words have you ever heard about it through the news media, either radio, television, newspapers or whatever, or have you heard about it some other way by someone telling you things or hearing conversations or whatever? If anyone recalls ever having heard anything about the case, please raise your hand at this time. Anyone that remembers ever having heard anything about this case before today, please raise your hand.... If, during the course of the questioning it suddenly dawns on you that you have heard about it, that you saw something on television or read a newspaper story or anything like that, well please go ahead and raise your hand and bring it up then.
There may be during the trial ... publicity about the case in the news media. You are not permitted to read about it in the newspaper and you are not permitted to watch or listen to anything that is broadcast about the trial on television or radio. So please guard your conduct in that regard and don't slip up and find yourself exposed to any kind of news media publicity about the case at a time that you are serving as a juror.
The record reveals that the conduct of this trial was strictly and correctly controlled. An examination of the newspaper articles reveals that for most part, they followed the trial testimony. The trial judge found that "although there was extensive news media coverage of the trial, most of it took the form of reports of the actual trial proceedings, and these matters had occurred in the presence of the jury in the first place."
The cautionary instructions were made on two separate occasions. The judge was very careful and very specific. These collective admonitions concerning media coverage were adequate safeguards to ensure that appellants received a fair trial free from prejudice.
The indictments leveled many counts, some of which resulted in guilty verdicts and others in not guilty verdicts. The jury's ability to discern a failure of proof of guilt of some of the alleged crimes indicates a fair minded consideration of the issues and reinforces our belief and conclusion that the media coverage did not lead to the deprivation of appellants right to an impartial trial.
Appellant Arzola-Amaya argues that (a) he was deprived of effective assistance of counsel because of a conflict between him and his trial counsel, Anchondo; (b) the court did not adequately advise him at his conflict of interest hearing of the consequences of a conflict; and (c) the government was obligated to disclose the details of the conflict and did not do so. The other appellants attempt to capitalize on these arguments, contending that they were prejudiced by Anchondo's continued representation of Arzola-Amaya. However, none of these claims have merit.
The Sixth Amendment guarantees a defendant in a federal criminal trial the right to "counsel reasonably likely to render and rendering" reasonably effective assistance. The guarantee of conflict-free counsel was originally addressed in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), where the Supreme Court held that, "the Sixth Amendment contemplates that 'assistance of counsel' be 'untrammeled and unimpaired' by a court order requiring that one lawyer shall simultaneously represent conflicting 'interests.' " Glasser, 315 U.S. at 70, 62 S.Ct. at 466. The Glasser ruling was reaffirmed in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Mere speculation about a conflict, however, is insufficient to establish ineffective representation. United States v. Soudan, 812 F.2d 920, 925-26 (5th Cir.1986), cert. denied, 481 U.S. 1052, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987); United States v. Alvarez, 580 F.2d at 1255 (5th Cir.1978).
(5) Appellant Arzola-Amaya's decision was conscious and voluntary.
As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by a counsel with a conflict of interest ... The court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney's possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney ... and that he voluntarily waives his Sixth Amendment protections. (emphasis added).
Arzola-Amaya must show an actual conflict of interest which prejudiced his defense. To meet the Sixth Amendment test, he must demonstrate that his attorney, Anchondo, actively represented conflicting interests in this case, that is--himself and Arzola-Amaya--and that this conflict adversely affected Anchondo's performance. Burger v. Kemp, 483 U.S. 776, ----, 107 S.Ct. 3114, 3121, 97 L.Ed.2d 638 (1987).
At trial, Arzola-Amaya was represented by two attorneys--Richard Esper and Anchondo. He does not complain that he was inadequately or ineffectively represented by Esper, who was his lead attorney and handled the examination of the majority of witnesses at trial as well as all communications with the government. Esper argued in summation to the jury. Anchondo did not. Arzola-Amaya informed the court that it was his desire to have Anchondo continue to represent him. He also acknowledged that his attorney's name, "Danny Anchondo," could come out at trial. The trial court found that Arzola-Amaya waived any conflict and fully understood and appreciated the situation. The record fully supports these findings. There is little more than this that the court or the government could have done, short of seeking to remove Attorney Anchondo from the case, against the stated wishes of Arzola-Amaya.
Maynard, Rosas-Arzola, Alvarez and Salazar each complained that they were prejudiced by the trial court's failure to include them in Arzola-Amaya's conflict hearing. During oral argument, the issue of whether these appellants were informed of Arzola-Amaya's relationship with Anchondo was vigorously disputed. The supplemental record supports the governments position that appellants certainly should not have been surprised when Anchondo's name was mentioned at the trial. They were on notice of the alleged relationship and fully capable of filing appropriate motions. The supplemental record reveals that appellants were informed as to Attorney Anchondo's relationship with Arzola-Amaya. His name was mentioned twenty times in witness Robert Marquez's five-page statement dated March 27, 1987. Then, too, Attorney Anchondo's law office was identified as a meeting place used by members of Arzola-Amaya's organization. (See statement of Teresa Anchondo.) This Jencks Act material was provided to all defense counsel on November 27, 1987, three days before the trial began on November 30, 1987.
Moreover, appellants have not identified any factual basis for the claim of harm or prejudice from the reference to lawyer Anchondo. This contention is meritless absent prejudice.8 The reference to Anchondo, as made, was relevant and material. And we find nothing in the record demonstrating that the reference hampered any of the complaining counsel in the representation of their clients.
Appellants' complain that the trial court erred when it denied their motions for a severance. We disagree. The basis for this contention is not clear. It is apparently pegged on the Anchondo connection.
The general rule is that persons who are indicted together should be tried together. United States v. Harrelson, 754 F.2d 1153, 1174 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). Denial of a Rule 14 motion for a severance is reviewable only for abuse of discretion. United States v. Manzella, 782 F.2d 533, 540 (5th Cir.1986). Reversal is warranted only when the appellant can demonstrate compelling prejudice against which the trial court was unable to afford protection. United States v. Manzella, 782 F.2d at 540, United States v. Harrelson, 754 F.2d at 1174.
Estrada-Hernandez suggests four additional grounds which he argues require setting aside his conviction: (1) his trial did not begin within the time constraints of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (2) the trial court did not utilize the "mere association" charge requested; (3) that certain evidence introduced was the product of an alleged "illegal arrest and seizure" and (4) the concurrent sentences should not be permitted to stand. We address each contention briefly.
(1) Relevant dates in the instant case include July 29, 1987 when Estrada-Hernandez entered a not guilty plea, and November 30, 1987, the trial date. Estrada-Hernandez' filing of his "Motion for Leave to File Supplemental Motion" on August 7, 1987 began a delay which lasted through the motion hearing on September 23, 1987, and order of October 24, 1987. Only forty-four days of the permissible seventy had elapsed.
(2) We find no merit to the argument that the trial judge erred in not giving the charge that he requested on the "mere association" doctrine. The trial judge did not use the exact language requested, but he clearly, completely and correctly covered this issue in his instructions. We have here a matter of semantics, not substance.
(3) Estrada-Hernandez's convictions were not the product of an "illegal search and seizure and arrest". He refers specifically to the search of the "stash house" at 5837 Montoya Drive in El Paso, Texas and his arrest on June 26, 1987. The burden to prove such a Fourth Amendment violation is upon appellant. United States v. Parks, 684 F.2d 1078, 1083 (5th Cir.1982). He must establish that he had a legitimate and reasonable expectation of privacy in the premises which were searched. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). At the risk of belaboring, the obvious, this defendant had no recognizable right or interest in the Montoya house. Our analysis could end here, but there is more--there was a valid warrant. As to the arrest-probable cause exists "when the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trust-worthy information are sufficient in themselves to warrant in a person of reasonable caution the belief that an offense has been committed." U.S. v. Espinoza-Seanez, 862 F.2d 526 (5th Cir.1988). United States v. Tarango-Hinojos, 791 F.2d 1174, 1176 (5th Cir.1986), citing United States v. Woolery, 670 F.2d 513, 515 (5th Cir.1982), cert. denied, 459 U.S. 835, 103 S.Ct. 78, 74 L.Ed.2d 75 (1982). The probable cause was more than adequate. No useful purpose would be served by reiterating the circumstances.
(4) Finally, Estrada-Hernandez seeks the vacating of his convictions under Counts 3, 20 and 21 under the so-called concurrent sentencing doctrine. There is no merit to this contention even if we were to assume that the doctrine has continued vitality. Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987).
We are convinced after careful and exhaustive review of the voluminous record that each defendant received a fair trial.
The convictions and sentences imposed are AFFIRMED.
Q. Why did you need to get a lawyer in New Mexico?
A. Because this Flores had been arrested.
Q. Had he been arrested--where had he been arrested?
Q. So what happens next?
A. Okay, this Felipe leaves the office and is gone for about half an hour. They have papers on top of his desk. They have--We just all sat there. And then Arzola said to these people, "Now you see why we need Danny (Anchondo) in the District Attorney's office."
Mr. Roberts: Your Honor, I object and again move for a mistrial on this matter.
The Court: The objection's overruled. She's just relating what went on.
Mr. Hanson: We join in that objection.
Mr. Esper: I renew it as well, Your Honor.
The Court: The objections are overruled. Go ahead.

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The U.S. Supreme Court ruled this week in an important decision that mandatory arbitration clauses inserted by employers into employment contracts block employees from joining a class action lawsuit against the employer for wage theft or other violations of labor standards. The case is called Epic Systems Corp. v. Lewis. The decision has attracted considerable attention south of the border. The lead majority decision was written by President Trump’s recent appointee to the bench, Justice Gorsuch.
‘mandatory arbitration clauses’ that force contract disputes to an arbitrator and foreclose an employee’s access to the courts. The narrow issue in the Epic case is whether arbitration clauses block access to class action lawsuits for failure of an employer to comply with employment standards laws. Secondly, the case deals with a particular aspect of American labor law which has no parallel in Canada. It considers whether the American statutory right of nonunion employees to engage in “concerted actions” guarantees a right of employees to participate in class action lawsuits against their employer even if they have signed an arbitration clause.
Here’s a quick run down of the decision.
The “policy” debate he is referring to relates to the reality that employers, owing to their superior power that permits then to in most cases dictate terms of employment contracts, can avoid class action lawsuits simply by inserting an arbitration clause into every contract. The majority brushes that concern away. The opening sentence of the decision sets the tone: ”Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” This language paints a picture of employer and employee voluntarily agreeing to refer their disputes to arbitration, and then one party (the employee) later rescinding on this agreement and trying to bypass arbitration. It is the Court’s role to hold the parties to their agreement and enforce the Arbitration Act, which requires arbitration agreements to be enforced.
In the NLRA and its forerunner, the Norris-LaGuardia Act (NLGA), Congress acted on an acute awareness: For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937). The Court today subordinates employee-protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984).
The ability to bring a class action lawsuit for group violations of labor standards is one way that employees can band together. But Epic Systems confirms that employers can easily avoid that mechanism simply by writing into all of their standard employment contracts a mandatory arbitration clause.
Another way that employees can band together to meet their employer’s gaze is through collective, concerted action. Unionization and collective bargaining are the most obvious manifestation of the exercise of collective action, and since the 1930s, American labor law has protected a limited right of workers to combine and to engage not only in formal collective bargaining through a union, but also to engage in “other concerted activities for the purpose of …mutual aid or protection”.
In Epic, the plaintiffs argued that the statutory right to engage in concerted activities is effectively blocked by a ruling that prevents class action lawsuits and requires instead litigation of individual complaints via a private arbitration mechanism. In other words, the plaintiffs argued that the labor relations statute (the NLRA) prohibited mandatory arbitration clauses insofar as they blocked the right of workers to join together in bringing a class action lawsuit against their employer for labor rights violations. That argument was dismissed by the majority, which ruled that the NLRA was not intended to prohibit employers and employees from agreeing to refer their disputes to arbitration. Rather, the NLRA protection of concerted activities is primarily concerned with collective bargaining and “self-organizing”.
The Epic Systems decision raises some interesting comparative law questions for us north of the border. Let’s begin with the basic question of whether an arbitration clause could prevent Canadian employees from bringing a class action lawsuit against their employer for labour violations. Mandatory arbitration clauses in employment contracts are less common in Canada. But they do exist, and may become more common, and Canadian courts have enforced them.
I have only looked at Ontario cases. See for example Morrison v Ericsson Canada 2016 ONSC 3908 (CanLII), where the court stayed a constructive dismissal lawsuit filed by an employee because the contract required arbitration in Texas. Also Robert v. Markandu, where the court stayed a wrongful dismissal lawsuit because the contract required arbitration of contract disputes.
The recent Canadian case most similar to Epic Systems is Heller v. Uber Technologies decided earlier this year. In that case, the plaintiff filed a class action lawsuit on behalf of Uber drivers alleging multiple violations of the Ontario Employment Standards Act. The contract the driver signed with Uber included an arbitration clause requiring contractual disputes to be heard by an arbitrator in Amsterdam. The plaintiff argued that Uber drivers were employees and therefore covered by employment standards legislation.
Justice Perell of the Ontario Superior Court stayed the action, ruling that the arbitration clause must be enforced, even in the case of alleged violations of employment standards legislation and even though he acknowledged that employees “have no bargaining power” and therefore that the employer can effectively impose mandatory arbitration clauses on employees. Perell ruled essentially that it was up to the government to legislatively block mandatory arbitration clauses for public policy reasons, which in the case of the ESA, the government had not. The arbitrator in Amsterdam could decide whether or not an Uber driver was an employee and therefore covered by the Ontario ESA. Therefore the class action lawsuit was stayed.
More so than in the US, I think it reasonable to expect that Canadian governments (especially a Liberal or NDP government) will be open to legislating a ban on forced arbitration clauses in contracts of adhesion, including employment contracts.
Canadian nonunion employees would have an even weaker freedom of association argument than the plaintiffs in Epic. That’s because Canadian labour law does not protect a stand alone right to engage in “concerted activities”. A group of nonunion employees who engage in collective actions related to work but who do so on their own, without any union involvement or aspirations, are not protected by labour relations legislation.
You can see why this matters by looking at some American cases. This post by Professor Ben Sachs & Sharon Block on OnLabor describes several cases involving nonunion workers who engaged in collective action and were protected by the NLRA right to engage in “concerted activity”. One involved 18 employees fired for participating in pro-immigration protests. Another involved a group of nonunion workers who created a YouTube video criticizing their employer for safety issues. Twitter or other social media campaigns by nonunion American workers designed to pressure for better working conditions would also be protected concerted activity in the US. The classic example is Washington Aluminum, where nonunion employees walked off the job to protest the temperature in the factory.
In all these cases, the fact that the nonunion workers acted in concert for a purpose related to their jobs meant they were protected from reprisals by the NLRA. None of these direct employee actions would be covered by Canadian labour relations statutes’ protection of “union activities”. And certainly there is no argument to be made that a group of workers bringing a class action lawsuit against their employer are protected by labour relations legislation.
… the scope of NLRA § 7’s protections is critically important to workers’ collective action in the contemporary labor market, and so the Court’s future direction on this subject matters enormously. Indeed, for the vast majority of workers who are not currently in a traditional union, and who may never have the opportunity to join one, the scope of § 7 activity outside the union and collective bargaining context is all that matters. Thus, a definition of “concerted activity” limited to traditional union organizing and bargaining would leave all of those workers with no protection when they try to stand up for themselves.
This is an important observation for the Canadian context. During the recent review of labour laws in Ontario, a number of organizations and scholars (including me) argued that the Liberals should introduce a Canadian version of Section 7 of the NLRA, that protects the right of workers to engage in “concerted activities” in aid of better working conditions. That idea was dismissed by the two commissioners hired to propose changes and by the Liberals.
As Canadian private sector union density continues its decline, this question of whether nonunion workers should have a right to protected “concerted activity” separate from the right to engage in “union activities”, will become more important. American labor law scholars expressed relief that the Epic case did not directly attack the idea that “concerted activity” includes more than just the right to unionize and engage in collective bargaining. Yet fears remain that a right wing Supreme Court may move in this direction in the coming years. Most Americans are not aware that Canadian law does not protect a general right to “concerted activities” for private sector workers. If the US Supreme Court does move to narrow the scope of “concerted activities”, by ruling that it really only protects collective bargaining and union rights, then we would witness an unusual example of American labor law mimicking a less expansive Canadian model.
This is definitely something to keep our eyes on.

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How does the shopping cart system work?
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A consumer means any natural person who is acting primarily for purposes which are not related to his or her trade, business or profession.
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Held: A "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. Pp. 441 U. S. 425 -433.
(a) The individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared with the state's interests in providing care to its citizens who are unable, because of emotional disorders, to care for themselves and in protecting the community from the dangerous tendencies of some who are mentally ill, that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. Pp. 441 U. S. 425 -427.
(c) To meet due process demands in commitment,proceedings, the standard of proof has to inform the factfinder that the proof must be greater than the "preponderance of the evidence" standard applicable to other categories of civil cases. However, use of the term "unequivocal" in conjunction with the terms "clear and convincing" in jury instructions (as included in the instructions given by the Texas state court in this case) is not constitutionally required, although states are free to use that standard. Pp. 441 U. S. 431 -433.
In re Winship, 397 U. S. 358 , 397 U. S. 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
The intermediate standard, which usually employs some combination of the words "clear," "cogent," "unequivocal" and "convincing," is less commonly used, but nonetheless "is no stranger to the civil law." Woodby v. INS, 385 U. S. 276 , 385 U. S. 285 (1966). See also C. McCormick, Evidence § 320 (1954); 9 J. Wigmore, Evidence § 2498 (3d ed.1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money, and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this Court has used the "clear, unequivocal and convincing" standard of proof to protect particularly important individual interests in various civil cases. See, e.g., Woodby v. INS, supra at 385 U. S. 285 (deportation); Chaunt v. United States, 364 U. S. 350 , 364 U. S. 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 125 , 320 U. S. 159 (1943) (denaturalization) .
In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual's interest in not being involuntarily confined indefinitely and the state's interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 (1976); Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 -526 (1958).
There are significant reasons why different standards of proof are called for in civil commitment proceedings, as opposed to criminal prosecutions. In a civil commitment, state power is not exercised in a punitive sense. [ Footnote 4 ] Unlike the delinquency proceeding in Winship, a civil commitment proceeding can in no sense be equated to a criminal prosecution. Cf. Woodby v. INS, 385 U.S. at 385 U. S. 284 -285.
In addition, the "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the "moral force of the criminal law," In re Winship, 397 U.S. at 397 U. S. 364 , and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.
Patterson v. New York, supra at 386 U. S. 208 . Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.
-- to adopt the criminal law standard [ Footnote 5 ] gives no assurance that the more stringent standard of proof is needed or is even adaptable to the needs of all states. The essence of federalism is that states must be free to develop a variety of solutions to problems, and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum. See Monahan & Wexler, A Definite Maybe: Proof and Probability in Civil Commitment, 2 Law & Human Behavior 37, 41-42 (1978); Share, The Standard of Proof in Involuntary Civil Commitment Proceedings, 1977 Detroit College L.Rev. 209, 210. We conclude that it is unnecessary to require states to apply the strict criminal standard.
In Woodby v. INS, 385 U. S. 276 (1966), dealing with deportation, and Schneiderman v. United States, 320 U.S. at 320 U. S. 125 , 320 U. S. 159 , dealing with denaturalization, the Court held that "clear, unequivocal, and convincing" evidence was the appropriate standard of proof. The term "unequivocal," taken by itself, means proof that admits of no doubt, [ Footnote 9 ] a burden approximating, if not exceeding, that used in criminal cases. The issues in Schneiderman and Woodby were basically factual, and therefore susceptible of objective proof, and the consequences to the individual were unusually drastic -- loss of citizenship and expulsion from the United States.
We noted earlier that the trial court employed the standard of "clear, unequivocal and convincing" evidence in appellant's commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the "clear and convincing" standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court. [ Footnote 10 ] Accordingly, we remand the case for further proceedings not inconsistent with this opinion.
We noted earlier the court's holding on harmless error. See supra at 441 U. S. 422 .


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Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors.
1. What a mess! This is perhaps the only way to describe the events that have transpired in the examination conducted by the U.P. Secondary Education Services Selection Board. We have reached the present stage of judgment after eight long years of uncertainty for, and three evaluations of the answer sheets of, more than 36,000 candidates who took the examination for recruitment as Trained Graduate Teachers way back in January 2009. Hopefully today, their travails, as those of the U.P. Secondary Education Services Selection Board, will come to a satisfactory end.
2. On 15th January, 2009 the U.P. Secondary Education Services Selection Board (for short the "Board") published an advertisement inviting applications for recruitment to the post of Trained Graduate Teachers in Social Science. The recruitment was to be in accordance with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and the Rules framed thereunder.
3. More than 36,000 candidates took the written examination held pursuant to the advertisement and the result of the written examination was declared by the Board on 18th June, 2010. It may be mentioned that the written examination was based on multiple choice answers which were to be scanned on OMR sheets.
4. The candidates who qualified in the written examination were called for an interview held between 16th and 26th July, 2010. Eventually, the combined result (written examination and interview) was declared on 14th September, 2010. According to the appellants, they were successful in the written examination as well as in the interview and were amongst those who were in the select list for recruitment.
5. Some candidates who were not successful in the written examination or in the interview filed writ petitions in the Allahabad High Court between 2010 and 2011. All these writ petitions were dismissed by a learned Single Judge. The reasons for dismissal of these writ petitions were that there was no provision for re-evaluation of the answer sheets in the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 or the Rules framed thereunder. Reliance was also placed by the learned Single Judge for dismissing writ petitions on the decision of this Court in Himachal Pradesh Public Service Commission v. Mukesh Thakur1 in which this Court considered a large number of its earlier decisions and held: "Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation."
(a) The correct answer of question no. 24 in History paper would be option (1).
(b) For question no. 25, History paper, option (2) is correct.
(c) Option (2) is the correct answer of question no. 36 of History paper.
(d) Option (2) is correct answer in respect to question no. 37 of History paper.
(e) Question no. 40 of History paper is wrongly framed.
(f) In question no. 43, there may be two correct answers, i.e. options (1) and (3).
(g) In question no.32 of Civics Paper, option (3) would be the correct answer.
The learned Single Judge then proceeded to observe: "It cannot be doubted that being a selection body for appointment of Teachers in Secondary Schools, the Selection Board was under a pious as well as statutory obligation to hold selection very carefully, meticulously and in the most honest and correct manner. The job of Selection Board could not have been completed by mere holding a selection without caring whether examination is being conducted correctly and properly, whether all the questions have been framed in a proper manner, whether the answer(s), if it is multiple choice examination, have been given with due care and caution so as to leave no scope of error or mistake therein etc.
In fact if such a mistake is committed, it causes a multi-edged injury to an otherwise studious, intelligent and well conversant student who understand the subject, well knows the relevant details and correct answers but suffers due to sheer negligence of the examining body. The obligation of examining body cannot be allowed to whittle out in any manner for any reason whatsoever. For the fault of examining body, a candidate cannot be made to suffer."
7. On this basis, the learned Single Judge passed a judgment and order dated 8th February, 2012 directing re-examination of the answer sheets of these 77 writ petitioners. It was further directed that in case these writ petitioners are selected then those at the bottom of the select list would automatically have to be pushed out.
8. In must be recorded that the learned Single Judge did refer to and cite several decisions of this Court on the subject or re-evaluation but unfortunately did not appreciate the law laid down. The learned Single Judge relied on Manish Ujwal v. Maharishi Dayanand Saraswati University2 but failed to appreciate that the six disputed answers under consideration in that case were demonstrably wrong and this was not in dispute and even the learned counsel appearing for the University did not question this fact. The decision is clearly distinguishable on facts.
9. Be that as it may, the issue that remained in Manish Ujwal was of the appropriate orders to be passed. While considering this, the following cautionary measures were suggested: "....it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students."
10. Feeling aggrieved by the decision of the learned Single Judge, the Board preferred Special Appeal No. 442 of 2012 before the Division Bench of the High Court. Some candidates also preferred Special Appeals directed against the judgment and order dated 8th February, 2012. The Special Appeal filed by the Board was dismissed by a Division Bench of the High Court on 13th March, 2012. In some other Special Appeal filed by a candidate, it was stated by the Board on 11th April, 2012 that the answer sheets of all the candidates would be re-evaluated in the light of the judgment of the learned Single Judge.
11. Following up on this, the judgment and order passed by the learned Single Judge was implemented on 10th September, 2012 and the re-evaluated results of the written examination of all candidates were declared. As a result of the re-evaluation, it appears that some candidates, who were declared successful in the combined result declared on 14th September, 2010 were now declared unsuccessful. The appellants before us were not affected by the re-evaluation of the written examination and continued in the select list.
12. Thereafter, a set of petitions was filed including some before this Court and eventually it came to pass that those aggrieved by the order passed by the Division Bench on 13th March, 2012 could file review petitions.
13. On 12th May, 2014 the Board published the final select list of candidates who had qualified in the written examination as well as in the interview. In this final select list, the appellants did not find a place and, therefore, they challenged the order of the learned Single Judge dated 8th February, 2012. According to the appellants the learned Single Judge had incorrectly re-evaluated the seven disputed questions and had arrived at incorrect answers to these questions.
14. The Division Bench heard all the review petitions as well as the appeals and passed an order dated 28th April, 2015 referring the seven disputed questions/answers for consideration by a one-man Expert Committee. On or about 18th May, 2015 the Expert Committee gave its Report to which the appellants filed objections. Eventually, by the judgment and order dated 2nd November, 2015 the Division Bench directed a fresh evaluation of the answer sheets on the basis of the Report of the Expert Committee. This decision of the Division Bench is under challenge before us.
15. During the pendency of the appeals in this Court, the third re-evaluation was completed by the Board. The result of the third re-evaluation has been kept in a sealed cover. The sealed cover was initially filed before us but later returned to learned counsel for the Board.
16. We are pained that an examination for recruitment of Trained Graduate Teachers advertised in January, 2009 has still not attained finality even after the passage of more than eight years. The system of holding public examinations needs to be carefully scrutinised and reviewed so that selected candidates are not drawn into litigation which could go on for several years. Be that as it may, we have still to tackle the issues before us.
17. It was submitted by learned counsel for the appellants that the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and the Rules framed thereunder do not provide for any re-evaluation of the answer sheets and, therefore, the learned Single Judge ought not to have undertaken that exercise at all. Reference was made to the following passage from Mukesh Thakur which considered several decisions on the subject and held: "In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates.
If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
18. A complete hands-off or no-interference approach was neither suggested in Mukesh Thakur nor has it been suggested in any other decision of this Court - the case law developed over the years admits of interference in the results of an examination but in rare and exceptional situations and to a very limited extent.
19. In Kanpur University v. Samir Gupta3 this Court took the view that ".... the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct."
(iii) Prompt decision be taken to exclude the suspect question and no marks be assigned to it.
(1) Any candidate who has appeared at the Higher Secondary Certificate examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book and whether the supplements attached to the answer book mentioned by the candidate are intact. No revaluation of the answer book or supplements shall be done.
(2) Such an application must be made by the candidate through the head of the junior college which presented him for the examination, within two weeks of the declaration of the examination results and must be accompanied by a fee of Rs 10 for each subject. (3) No candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other documents as these are treated by the Divisional Board as most confidential."
21. The question before this Court was: Whether, under law, a candidate has a right to demand an inspection, verification and revaluation of answer books and whether the statutory regulations framed by the Maharashtra State Board of Secondary and Higher Secondary Education governing the subject insofar as they categorically state that there shall be no such right can be said to be ultra vires, unreasonable and void.
(ii) Cases where a right of inspection and re-evaluation of answer sheets was claimed.
With regard to the first group, the High Court held the above Regulation 104(3) as unreasonable and void and directed the concerned Board to allow inspection of the answer sheets. With regard to the second group of cases, it was held that the above Regulation 104(1) was void, illegal and manifestly unreasonable and therefore directed that the facility of re-evaluation should be allowed to those examinees who had applied for it.
23. In appeal against the decision of the High Court, it was held by this Court that the principles of natural justice are not applicable in such cases. It was held that: "The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners."
24. On the validity of the Regulations, this Court held that they were not illegal or unreasonable or ultra vires the rule making power conferred by statute. It was then said: of "The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act.
The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case.....".
It was also noted by this Court that: "..the High Court has ignored the cardinal principle that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Legislature or its delegate and to strike down as unreasonable a bye-law (assuming for the purpose of discussion that the impugned regulation is a bye-law) merely on the ground that the policy enunciated therein does not meet with the approval of the Court in regard to its efficaciousness for implementation of the object and purposes of the Act."
25. Upholding the validity of Regulation 104, this Court then proceeded on the basis of the plain and simple language of the Regulation to hold that "The right of verification conferred by clause (1) is subject to the limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and the further restriction imposed by clause (3), prohibiting disclosure or inspection of the answer books."
This Court then concluded the discussion by observing: "As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.
It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case."
26. In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission the question under consideration was whether the High Court was right in directing re-evaluation of the answer book of a candidate in the absence of any provision entitling the candidate to ask for re-evaluation. This Court noted that there was no provision in the concerned Rules for re-evaluation but only a provision for scrutiny of the answer book "wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book." This Court reiterated the conclusion in Paritosh Bhupeshkumar Sheth that "in the absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued."
27. The principle laid down by this Court in Paritosh Bhupeshkumar Sheth was affirmed in Secy., W.B. Council of Higher Secondary Education v. Ayan Das6 and it was reiterated that there must be finality attached to the result of a public examination and in the absence of a statutory provision re-evaluation of answer scripts cannot be permitted and that it could be done only in exceptional cases and as a rarity. Reference was also made to Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Board of Secondary Education v. Pravas Ranjan Panda7 and President, Board of Secondary Education v. D. Suvankar8.
28. The facts in Central Board of Secondary Education v. Khushboo Shrivastava9 are rather interesting. The respondent was a candidate in the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the Central Board of Secondary Education (for short "the CBSE"). Soon after the results of the examination were declared, she applied for re-evaluation of her answer sheets. The CBSE declined her request since there was no provision for this. She then filed a writ petition in the Patna High Court and the learned Single Judge called for her answer sheets and on a perusal thereof and on comparing her answers with the model or key answers concluded that she deserved an additional two marks. The view of the learned Single Judge was upheld by the Division Bench of the High Court.
29. In appeal, this Court set aside the decision of the High Court and reiterating the view already expressed by this Court from time to time and allowing the appeal of the CBSE it was held: "We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth that in the absence of any provision for the re-evaluation of answer books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his marks.
The decision in Pramod Kumar Srivastava v. Bihar Public Service Commission was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda in which the direction of the High Court for re-evaluation of answer books of all the examinees securing 90% or above marks was held to be unsustainable in law because the regulations of the Board of Secondary Education, Orissa, which conducted the examination, did not make any provision for re-evaluation of answer books in the rules. In the present case, the bye-laws of the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or re-evaluation of answer sheets.
Hence, the appellants could not have allowed such re-examination or re-evaluation on the representation of Respondent 1 and accordingly rejected the representation of Respondent 1 for re-examination/re-evaluation of her answer sheets...... In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. ....."
30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions.
(v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse - exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty.
While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities.
The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination - whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.
33. The facts of the case before us indicate that in the first instance the learned Single Judge took it upon himself to actually ascertain the correctness of the key answers to seven questions. This was completely beyond his jurisdiction and as decided by this Court on several occasions, the exercise carried out was impermissible. Fortunately, the Division Bench did not repeat the error but in a sense, endorsed the view of the learned Single Judge, by not considering the decisions of this Court but sending four key answers for consideration by a one-man Expert Committee.
34. Having come to the conclusion that the High Court (the learned Single Judge as well as the Division Bench) ought to have been far more circumspect in interfering and deciding on the correctness of the key answers, the situation today is that there is a third evaluation of the answer sheets and a third set of results is now ready for declaration. Given this scenario, the options before us are to nullify the entire re-evaluation process and depend on the result declared on 14th September, 2010 or to go by the third set of results. Cancelling the examination is not an option. Whichever option is chosen, there will be some candidates who are likely to suffer and lose their jobs while some might be entitled to consideration for employment.
35. Having weighed the options before us, we are of opinion that the middle path is perhaps the best path to be taken under the circumstances of the case. The middle path is to declare the third set of results since the Board has undertaken a massive exercise under the directions of the High Court and yet protect those candidates may now be declared unsuccessful but are working as Trained Graduate Teachers a result of the first or the second declaration of results. It is also possible that consequent upon the third declaration of results some new candidates might get selected and should that happen, they will need to be accommodated since they were erroneously not selected on earlier occasions.
36. Learned counsel for the appellants contended before us that in case her clients are not selected after the third declaration of results, they will be seriously prejudiced having worked as Trained Graduate Teachers for several years. However, with the middle path that we have chosen their services will be protected and, therefore, there is no cause for any grievance by any of the appellants. Similarly, those who have not been selected but unfortunately left out they will be accommodated.
(1) The results prepared by the Board consequent upon the decision dated 2nd November, 2015 of the High Court should be declared by the Board within two weeks from today.
(2) Candidates appointed and working as Trained Graduate Teachers pursuant to the declaration of results on the earlier occasions, if found unsuccessful on the third declaration of results, should not be removed from service but should be allowed to continue.
(3) Candidates now selected for appointment as Trained Graduate Teachers (after the third declaration of results) should be appointed by the State by creating supernumerary posts. However, these newly appointed Trained Graduate Teachers will not be entitled to any consequential benefits.
38. Before concluding, we must express our deep anguish with the turn of events whereby the learned Single Judge entertained a batch of writ petitions, out of which these appeals have arisen, even though several similar writ petitions had earlier been dismissed by other learned Single Judge(s). Respect for the view taken by a coordinate Bench is an essential element of judicial discipline. A judge might have a difference of opinion with another judge, but that does not give him or her any right to ignore the contrary view. In the event of a difference of opinion, the procedure sanctified by time must be adhered to so that there is demonstrated respect for the rule of law.
39. With the above directions, the appeals and miscellaneous applications are disposed of.

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