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MOSQUEDA v. MITCHELL

October 23, 1993

MARCOS MOSQUEDA, Petitioner,
v.
ROBERT MITCHELL, Respondent.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Marcos Mosqueda has filed a petition for habeas corpus relief pursuant to 28 USC 2254 challenging a state court conviction for criminal possession of controlled substances. On December 3, 1986 petitioner was convicted of such crimes; he was sentenced to imprisonment for 9 years to life. Petitioner challenges his conviction on three grounds and questions the logical justification for his sentence. For the reasons set forth below, I deny the petition.

 II

 Petitioner alleges that his arrest was not supported by articulated facts and hence the fruits of search and seizure incident to the arrest should have been suppressed and the indictment dismissed.

 Suppression of evidence is not required by the text of the Fourth Amendment, which seeks to protect the public against unreasonable searches and seizures. Suppressing the fruits of illegal searches or seizures is, rather, a judicially created remedy adopted to compensate for inadequacies in other means of insuring compliance with the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). The suppression remedy was imposed in order to deter police misconduct contrary to the Fourth Amendment, not to protect the guilty from truthful evidence relevant to factfinding. See Linkletter v. Walker, 381 U.S. 618, 636-40, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965).

 Against this background, where state remedies for alleged illegal searches and seizures are available (whether or not pursued), post-conviction federal habeas corpus relief is not, because to provide it would do little to insure compliance with the Amendment while adding significantly to post-conviction litigation irrelevant to actual guilt or innocence. Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976).

 Petitioner's objection to the grounds for his arrest, apart from the search and seizure, cannot form an independent basis for challenging his conviction. The conviction stands on its own, based on proof adduced and a verdict rendered. No arrest is, indeed, prerequisite to an indictment or conviction. Errors, if any, at the arrest stage (apart from any illegal search or seizure) are irrelevant to the conviction or sentence. See generally United States v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986); John v. People, 1992 U.S. Dist. LEXIS 15113, 1992 WL 261282 (91 Civ 7634, SDNY Sept 29, 1992); Brown v. Doe, 803 F. Supp. 932 (SDNY 1992), later decision 811 F. Supp. 156 (SDNY 1993).

 III

 Petitioner argues that the state court failed to instruct the jury on principles of agency law and that there was no evidence he was a drug dealer. Evidence was offered, however, that petitioner provided samples of cocaine (Tr. 43) and bragged that he did not "do" amounts of less than a gram of cocaine (Tr. 49). The jury could properly find petitioner a principal in sale of narcotics without considering issues of agency.

 There is no contention here that the jury was not properly instructed on the elements of the crime charged, including the element of requisite intent, and told that it must find those elements beyond a reasonable doubt in order to convict. No authority is cited for the proposition that additional instructions relating to agency are required by the Constitution of the United States. Juries are competent based on their ordinary experience, which they are instructed to draw upon in any event, to draw proper inferences from circumstances leading them to find or not to find conscious, deliberate involvement in criminal activity. There is no basis for finding a constitutional requirement for additional - and doubtless confusing rather than helpful - verbiage designed to elucidate the mental processes required. See Solis v. Walker, 799 F. Supp. 23, 25 (SDNY 1992).

 IV

 Petitioner argues that he was denied a fair trial because a codefendant who had pleaded guilty was not called as a witness by defense counsel. The codefendant was interviewed by petitioner's attorney ...


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