Opposition Brief — James J. Rosemond, Petitioner v. United States

Supreme Court briefDec 9, 2020

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No. 20-464

In the Supreme Court of the United States

JAMES J. ROSEMOND, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

BRIAN C. RABBITT

Acting Assistant Attorney

General

FRANCESCO VALENTINI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in rejecting petitioner’s Sixth Amendment claim under McCoy v. Louisiana, 138 S. Ct. 1500 (2018), where petitioner’s defense

attorney pursued petitioner’s objective of acquittal by

contesting petitioner’s guilt at trial and petitioner did

not inform the district court that he disagreed with his

attorney’s trial strategy at any point before or during

the trial.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D.N.Y.):

United States v. Rosemond, No. 10-cr-431 (Nov. 14,

2018)

United States Court of Appeals (2d Cir.):

United States v. Grant, No. 14-3941 (Nov. 25, 2015)

United States v. Johnson, No. 15-2367 (Aug. 30,

2016)

United States v. Rosemond, No. 15-940 (Nov. 1,

2016)

United States v. Rosemond, No. 18-3561 (May 1,

2020)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 7

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) ....5, 6, 7, 8, 9, 10

People v. Flores, 246 Cal. Rptr. 3d 77

(Cal. Ct. App. 2019)............................................................. 13

Rehaif v. United States, 139 S. Ct. 2191 (2019) .................. 12

State v. Huisman, 944 N.W.2d 464 (Minn. 2020) ............... 11

United States v. Audette, 923 F.3d 1227

(9th Cir. 2019) ................................................................ 11, 13

United States v. Gary, 954 F.3d 194

(4th Cir. 2020), petition for cert. pending,

No. 20-444 (filed Oct. 5, 2020) ...................................... 11, 12

United States v. Holloway, 939 F.3d 1088

(10th Cir. 2019) .................................................................... 11

United States v. Read, 918 F.3d 712

(9th Cir. 2019) ................................................................ 12, 13

United States v. Wilson, 960 F.3d 136

(3d Cir. 2020), petition for cert. pending,

No. 20-6427 (filed Oct. 16, 2020), and petition for

cert. pending sub nom. Moore v. United States,

No. 20-6099 (filed Oct. 16, 2020) ........................................ 11

Constitution, statutes and rule:

U.S. Const. Amend. VI.......................................5, 7, 10, 11, 13

18 U.S.C. 922(g) .................................................................... 12

(III)

Statutes and rule—Continued:

Page

18 U.S.C. 924(a)(2) ................................................................. 12

18 U.S.C. 924(c)(1)(A)(iii) .................................................... 2, 3

18 U.S.C. 924( j) .................................................................... 2, 3

18 U.S.C. 1958 ...................................................................... 1, 3

Sup. Ct. R. 10(a) ..................................................................... 13

In the Supreme Court of the United States

No. 20-464

JAMES J. ROSEMOND, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1A32) is reported at 958 F.3d 111. The order of the

district court (Pet. App. A33-A41) is reported at 322

F. Supp. 3d 482. A prior opinion of the court of appeals

(Pet. App. A42-A83) is reported at 841 F.3d 95.

JURISDICTION

The judgment of the court of appeals was entered on

May 1, 2020. The petition for a writ of certiorari was

filed on September 28, 2020. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of New York, petitioner

was convicted of conspiring to commit murder for hire,

in violation of 18 U.S.C. 1958; murder for hire, in violation of 18 U.S.C. 1958; possessing a firearm during and

(1)

in relation to a crime of violence, in violation of 18 U.S.C.

924(c)(1)(A)(iii); and murder through the use of a firearm, in violation of 18 U.S.C. 924( j). 2018 Judgment 12. The court sentenced him to an aggregate term of life

plus 30 years of imprisonment. Id. at 3. The court of

appeals affirmed. Pet. App. A1-A32.

1. Petitioner was the head of a music management

company in Manhattan that represented hip-hop, rap,

and R&B artists, and was also the head of a large

cocaine-trafficking business. Pet. App. A4 & n.1. He

was involved in a long-running and violent feud with GUnit, a hip-hop group that included Curtis Jackson (also

known as 50 Cent), Marvin Bernard (also known as

Tony Yayo), and Jayceon Taylor (also known as The

Game). Id. at A5. The feud began in 2005 after Taylor,

who was represented by petitioner’s company, was

ousted from G-Unit and publicly insulted by Jackson.

Ibid. In response, petitioner sent an associate to confront Jackson; the confrontation ended in a shooting.

Ibid. The next year, petitioner and Bernard became involved in a physical altercation at an awards ceremony;

that altercation, too, ended in a shooting. Id. at A5-A6.

The violence escalated further in 2007, when Bernard

and two associates accosted petitioner’s 14-year-old son

on the street, pushed him against a wall, and threatened

him with what appeared to be a gun. Id. at A6.

After the incident involving his son, petitioner told

one of his associates that his feud with G-Unit would not

end “until they carrying a coffin.” Pet. App. A283. He

told another associate that “these dudes ain’t gon be

happy until they go to a funeral.” Id. at A613. Petitioner followed through on those statements by committing or paying others to commit numerous acts of vio-

lence against G-Unit, including shooting at a house belonging to Bernard’s mother, shooting at a house belonging to an associate of G-Unit, throwing a Molotov

cocktail at a truck belonging to an associate of G-Unit,

attempting to shoot Jackson, burning one of Jackson’s

cars, trying to lure G-Unit’s manager to a restaurant

where he would be shot, and shooting at a van filled with

G-Unit associates in an attempt to “make it a coffin.”

Id. at A7 (citation omitted).

Ultimately, petitioner hired two associates to kill

Lowell Fletcher, one of the men who had accosted his

son. Pet. App. A7-A12. He also instructed two more

associates to act as “back-up shooters in case something

went wrong.” Id. at A12. On September 27, 2009, petitioner’s team lured Fletcher to a street in the Bronx and

shot him five times in the back, killing him. Id. at A11A12, A53. Petitioner paid the shooters with a kilogram

of cocaine, worth approximately $30,000. Id. at A53.

2. Based on the Fletcher murder, a grand jury in the

Southern District of New York indicted petitioner for

conspiring to commit murder for hire, in violation

of 18 U.S.C. 1958; murder for hire, in violation of

18 U.S.C. 1958; possessing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

924(c)(1)(A)(iii); and murder through the use of a firearm, in violation of 18 U.S.C. 924( j). D. Ct. Doc. 237

1-4 (Dec. 9, 2013). The first trial resulted in a hung jury

and a mistrial. See Pet. App. A13. After the second

trial, the jury found petitioner guilty on all counts, and

the district court sentenced him to a total term of life

plus 20 years of imprisonment. 2015 Judgment 1-2. The

court of appeals, however, vacated the convictions on

the ground that the district court had made an erroneous evidentiary ruling. Pet. App. A62-A80.

In November 2017, petitioner was tried for the third

time. Pet. App. A14. In his opening argument, petitioner’s lawyer stated that the government “will present no evidence to prove that [petitioner] intended that

Fletcher be murdered, as opposed to being shot or injured.” Id. at A116. Similarly, in his closing argument,

the lawyer acknowledged that petitioner had planned

and paid for Fletcher’s shooting, but stated that “[t]he

only thing planned here was where the shooting was going to take place” and that “[t]here was never a plan to

shoot Lowell Fletcher to death.” C.A. App. A1551; see

id. at A1543 (“[T]here is no evidence that [petitioner]

paid the going rate for a homicide. He paid for a shooting.”); id. at A1587 (“[I]t is unimportant if [petitioner]

hired * * * others to shoot Fletcher. * * * The one and

only important question is, [d]id the prosecution prove

to you beyond a reasonable doubt * * * that [petitioner]

intended anyone, including Lowell Fletcher, to be

killed.”). The jury found petitioner guilty on all counts.

Pet. App. A35.

Before sentencing, petitioner, represented by new

counsel, moved for a new trial based on the assertion

that trial counsel had “adopted [a trial] strategy ‘over

[petitioner’s] express opposition.’ ” C.A. App. A1734. In

particular, petitioner claimed that he had asked trial

counsel “to argue to the jury * * * that [he] had never

asked, directed or paid anyone to shoot at Lowell

Fletcher,” but that trial counsel instead argued that,

“even if [petitioner] had paid individuals to shoot at the

victim, [he] did so without the intent to murder the victim.” Id. at A1705-A1706. Petitioner stated that he had

previously failed to raise the issue with the district

court because he believed that counsel had “final authority about what trial tactics to pursue and what arguments to present to the jury.” Id. at A1705.

The district court denied petitioner’s motion. Pet.

App. A33-A41. The court observed that, in McCoy v.

Louisiana, 138 S. Ct. 1500 (2018), which was decided

shortly after petitioner’s trial, this Court had held that

a defendant in a capital case “has the right to insist that

counsel refrain from admitting guilt,” even when counsel believes that “confessing guilt offers the defendant

the best chance to avoid the death penalty.” Pet. App.

38 (quoting McCoy, 138 S. Ct. at 1505). The court then

stated that, “[e]ven if [it] were to assume that McCoy is

not limited to capital cases, [petitioner’s] motion would

[still] fail.” Id. at A39. The court explained that, in this

case, petitioner and counsel “both maintained [petitioner’s] innocence,” but simply “disagreed about the

best course to attempt to avoid conviction.” Ibid. The

court observed that “it is well established that the determination of which arguments to advance to achieve

acquittal falls squarely within the purview of defense

counsel.” Id. at A40. The court sentenced petitioner to

a total term of life plus 30 years of imprisonment. Id. at

A14.

3. The court of appeals affirmed. Pet. App. A1-A32.

As relevant here, the court of appeals rejected petitioner’s Sixth Amendment claim under McCoy. Pet.

App. A16-A19, A22-A27. The court acknowledged that,

under McCoy, “it is the defendant’s prerogative, not

counsel’s, to decide on the objective of his defense.” Id.

at A23 (quoting McCoy, 138 S. Ct. at 1505). The court

observed, however, that “[o]nce a defendant decides on

an objective”—e.g., acquittal—“ ‘trial management is

the lawyer’s province’ ” and counsel must decide, inter

alia, “ ‘what arguments to pursue.’ ” Ibid. (quoting

McCoy, 138 S. Ct. at 1508) (brackets omitted). And the

court explained that “[c]onceding an element of a crime

while contesting the other elements falls within the ambit of trial strategy.” Ibid.

The court of appeals observed that, in this case, petitioner and counsel “shared the same goal: acquittal.”

Pet. App. A25. It noted that, “[i]n pursuit of that goal,

[counsel] never conceded that [petitioner] was guilty of

the charged crimes; instead, [counsel] merely conceded

one element as part of his strategy to argue that the

government had failed to meet its burden to prove [petitioner] intended for Fletcher to be killed.” Ibid. The

court thus found this case to be “far different from

McCoy, where the attorney immediately conceded that

his client was guilty of the charged crime.” Ibid.

The court of appeals also found that petitioner’s argument “loses force when its nuance is considered.”

Pet. App. A26. Petitioner claimed that “he did not want

[counsel] to tell the jury he paid to have Fletcher shot

because he ‘viewed it as a concession that he had committed an immoral and shameful act.’ ” Ibid. (brackets

and citation omitted). Yet, the court observed, petitioner “ ‘asked [counsel] to argue to the jury instead . . .

that [he] had paid [an associate] only to bring Fletcher

to [him]’ ”—meaning that petitioner “was comfortable

admitting to the jury that he paid for a kidnapping, but

* * * drew the line at paying for a shooting.” Id. at A27

(citation omitted). The court also noted that petitioner

“ran a drug operation and was involved in a series of

violent acts,” “many of which involved the use of guns.”

Id. at A27. “While avoiding the shame that comes with

admitting to a criminal act can be a genuine concern,”

the court reasoned, “that concern seems highly unlikely

here.” Ibid.

ARGUMENT

Petitioner renews his contention (Pet. 15-25) that he

was denied his rights under the Sixth Amendment when

defense counsel argued that he was not guilty of the

charged offenses because, even if he intended to have

Fletcher shot, he did not intend to have the victim

killed. The court of appeals correctly rejected petitioner’s contention, and its decision does not conflict

with any decision of this Court, any other court of appeals, or any state court of last resort. Further review

is unwarranted.

1. In McCoy v. Louisiana, 138 S. Ct. 1500 (2018),

this Court “h[e]ld that a defendant has the right to insist that counsel refrain from admitting guilt, even

when counsel’s experience-based view is that confessing

guilt offers the defendant the best chance to avoid the

death penalty.” Id. at 1505. The Court explained that,

under the Sixth Amendment, a counseled defendant retains the “[a]utonomy to decide that the objective of the

defense is to assert innocence.” Id. at 1508. And it concluded that, “[w]hen a client expressly asserts that the

objective of ‘his defence’ is to maintain innocence of the

charged criminal acts” rather than to avoid the death

penalty, “his lawyer must abide by that objective and

may not override it by conceding guilt.” Id. at 1509

(quoting U.S. Const. Amend. VI).

In reaching those conclusions, however, the Court

distinguished “choices about what the client’s objectives

in fact are” from “strategic choices about how best to

achieve a client’s objectives.” McCoy, 138 S. Ct. at 1508.

The Court emphasized that “[t]rial management is the

lawyer’s province” and that “[c]ounsel provides his or

her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise,

and what arguments to conclude regarding the admission of evidence.’ ” Ibid. (citation omitted). The Court

also distinguished “intractable disagreements about the

fundamental objective of the defendant’s representation” from “strategic disputes about whether to concede

an element of a charged offense.” Id. at 1510.

In this case, the court of appeals correctly rejected

petitioner’s contention that his rights under McCoy had

been violated. Petitioner and counsel “shared the same

goal: acquittal.” Pet. App. A25. Counsel never overrode that goal; he “zealously defend[ed] [petitioner’s]

innocence,” and he “never conceded that [petitioner]

was guilty of the charged crimes.” Ibid. Rather, in pursuit of that shared goal, counsel “conceded one element

as part of his strategy to argue that the government had

failed to meet its burden to prove [petitioner] intended

for Fletcher to be killed, a necessary element to convict

on a murder-for-hire charge.” Ibid. That decision fell

within the scope of the lawyer’s proper role: making

“strategic choices about how best to achieve a client’s

objectives.” McCoy, 138 S. Ct. at 1508; see id. at 1510

(describing decisions about “whether to concede an element of a charged offense” as “strategic”).

Moreover, this case does not present the kind of

“stark scenario” and “intransigent objection” at issue in

McCoy. 138 S. Ct. at 1510. Unlike the defendant in

McCoy, petitioner did not oppose the “assertion of his

guilt at every opportunity, before and during trial, both

in conference with his lawyer and in open court.” Id. at

1509. Nor did he fire his attorney and attempt to seek

out a new one. See id. at 1515 (Alito, J., dissenting)

(“[W]here a capital defendant and his retained attorney

cannot agree on a basic trial strategy, the attorney and

client will generally part ways[.] * * * The client will

then either search for another attorney or decide to represent himself.”). Instead, with full awareness of the

strategy that the lawyer he had hired would pursue, he

proceeded to trial with that counsel and allowed him to

pursue it. See Pet. App. A34.

2. Petitioner’s contrary arguments lack merit. As a

threshold matter, petitioner’s reliance (Pet. 22) on “the

McCoy dissent” for the proposition that “the defense

lawyer in that case” conceded one element of the crime,

but not all elements, is unavailing. The correct reading

of the record was an explicit point of dispute between

the majority and dissent in McCoy. See 138 S. Ct. at

1512 (Alito, J., dissenting). Regardless of that factual

disagreement, however, all nine Justices agreed about

what legal rule the Court applied: counsel “may not admit her client’s guilt of a charged crime over the client’s

intransigent objection to that admission,” but may make

“strategic” choices about “whether to concede an element.” Id. at 1510 (majority opinion); see id. at 1512

(Alito, J., dissenting). Petitioner errs in seeking to

change that legal rule by invoking the dissent’s rather

than the Court’s interpretation of the facts.

There also is no merit to petitioner’s effort (Pet. 23)

to characterize his alleged dispute with his lawyer as a

disagreement about the “objectives” of his defense.

McCoy recognized an autonomy right “to decide that

the objective of the defense is to assert innocence,” 138

S. Ct. at 1508 (emphasis added); it did not suggest that

an approach at trial to a single element can likewise be

characterized as a similarly fundamental “objective.”

Indeed, McCoy expressly distinguished “intractable

disagreements about the fundamental objective of the

defendant’s representation” from “strategic disputes

about whether to concede an element of a charged offense.” Id. at 1510. Petitioner accordingly cannot simply

recharacterize a dispute about whether to concede a

particular element as a disagreement over objectives

rather than strategy.

In any event, as the court of appeals observed, petitioner’s arguments about the objectives of his defense

lack force in the circumstances of this case. See Pet.

App. A26-A27. Petitioner argues that he sought to

avoid the opprobrium “conceding that he ‘had committed an immoral and shameful act.’ ” Pet. 23 (citation

omitted). As the court pointed out, however, petitioner’s

own preferred trial strategy involved “admitting to the

jury that he paid for a kidnapping.” Pet. App. A27. In

addition, “[t]he evidence at trial demonstrated that [petitioner] ran a drug operation and was involved in a series of violent acts.” Ibid. Thus, “[w]hile avoiding the

shame that comes with admitting to a criminal act can

be a genuine concern, that concern seems highly unlikely here.” Ibid.

Finally, petitioner errs in asserting (Pet. 23) that it

is “irrational” for the scope of the right recognized in

McCoy to “depend on what the government chooses to

charge.” McCoy itself refers repeatedly to guilt or innocence of “the charged criminal acts.” 138 S. Ct. at

1509; see id. at 1505, 1510. That limitation reflects the

text of the Sixth Amendment: the Amendment guarantees “the accused” the right “to have the Assistance of

Counsel for his defence,” and the scope of the “defence”

in any particular case will necessarily be a function of

the crimes of which he has been “accused.” U.S. Const.

Amend. VI.

3. Contrary to petitioner’s contention (Pet. 15-22),

the decision below does not conflict with any decision of

any other court of appeals or state court of last resort.

Rather, as the court of appeals observed, other courts

have rejected claims that the Sixth Amendment is violated when a defense attorney, over the defendant’s objection, concedes particular facts or elements without

conceding guilt of the charged offenses. Pet. App. A24;

see United States v. Audette, 923 F.3d 1227, 1236

(9th Cir. 2019); United States v. Holloway, 939 F.3d

1088, 1102 n.8 (10th Cir. 2019); State v. Huisman, 944

N.W.2d 464, 468 (Minn. 2020). Petitioner’s contrary citations do not show otherwise.

In United States v. Wilson, 960 F.3d 136 (2020), petition for cert. pending, No. 20-6427 (filed Oct. 16, 2020),

and petition for cert. pending sub nom. Moore v. United

States, No. 20-6099 (filed Oct. 16, 2020), the Third Circuit rejected two defendants’ claims under McCoy, explaining that “[w]hether to contest a crime’s jurisdictional element is not a fundamental decision reserved

for the defendant.” Id. at 143 (emphasis omitted). Petitioner focuses on (Pet. 16) Wilson’s statement that the

jurisdictional element at issue in that case was “quite

separate from [the defendants’] conduct, mental states,

or involvement in the robberies.” 960 F.3d 144. That

passing observation, however, does not indicate that the

panel would have held that concession of a nonjurisdictional element over the defendant’s objection violates

the Sixth Amendment—a situation that the case did not

present. Ibid. And even if it would have, any statement

regarding nonjurisdictional elements was dictum and

would not bind a future panel of the Third Circuit.

In United States v. Gary, 954 F.3d 194 (4th Cir.

2020), petition for cert. pending, No. 20-444 (filed Oct.

5, 2020), a criminal defendant pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C.

922(g) and 924(a)(2), before this Court held in Rehaif v.

United States, 139 S. Ct. 2191 (2019), that conviction of

that crime required proof that the defendant knew not

only that he possessed a firearm but also that he was a

felon. Id. at 2194; see Gary, 954 F.3d at 198. The

Fourth Circuit concluded that, by failing to apprise the

defendant of the mens rea requirement later articulated

in Rehaif, the district court had “violated [the defendant’s] right to make a fundamental choice regarding his

own defense in violation of the Sixth Amendment autonomy interest.” Id. at 205. The government has filed a

petition for a writ of certiorari seeking review of the

Fourth Circuit’s decision, but regardless of whether the

decision was correct, it does not conflict with the decision in this case. That case involved a district court’s

advice to the defendant about the elements of an offense

in the course of a plea colloquy; this case, by contrast,

involves defense counsel’s strategic choice to concede a

single element during trial.

In United States v. Read, 918 F.3d 712 (2019), the

Ninth Circuit concluded that the defendant’s “Sixth

Amendment rights were violated when the trial judge

permitted counsel to present an insanity defense against

[the defendant’s] clear objection.” Id. at 719. The court

stated that an insanity defense “is tantamount to a concession of guilt” and, “like a concession of guilt, carries

grave personal consequences that go beyond the sphere

of trial tactics,” including “ ‘the stigma of insanity’ ” and

“the prospect of ‘indefinite commitment to a state institution.’ ” Id. at 720-721 (citations omitted). This case,

unlike Read, involves a strategic choice to concede one

element of the crime, not the presentation of an insanity

defense. Such a concession is not “tantamount to a concession of guilt” and does not carry the risk of “grave

personal consequences” such as “ ‘indefinite confinement to a state institution.’ ” Ibid. (citation omitted). In

addition, since Read, the Ninth Circuit has elsewhere

reaffirmed the principle that “tactical decisions” about

which arguments to make remain “within the attorney’s

province.” Audette, 923 F.3d at 1236.

In People v. Flores, 246 Cal. Rptr. 3d 77 (Cal. Ct.

App. 2019), a criminal defendant repeatedly and unambiguously complained to the trial court that his defense

counsel wanted to admit, over his objection, “acts alleged as the actus reus of the charged crimes.” Id. at

85. A California intermediate appellate court found a

violation of the Sixth Amendment, concluding that the

defendant was “entitled” to maintain “innocence of the

alleged acts.” Id. at 86. But because Flores was decided

by a state intermediate court rather than a state court

of last resort, any tension between Flores and the decision below would not warrant this Court’s review. See

Sup. Ct. R. 10(a) (stating that, in deciding whether to

grant a writ of certiorari, the Court considers whether

a court of appeals “has decided an important federal

question in a way that conflicts with a decision by a state

court of last resort”).

Finally, petitioner errs in arguing (Pet. 21) that

“[t]he district court in this case held that McCoy is limited to death penalty cases,” but that other courts “have

applied McCoy’s principle to non-capital cases.” In fact,

the district court expressly declined to decide the issue:

“While the Court well understands [petitioner’s] contention that the narrow holding of McCoy should be extended beyond capital cases[,] * * * there is no need to

decide [that issue] here. Even if the Court were to assume that McCoy is not limited to capital cases, [petitioner’s] motion would fail.” Pet. App. A39 (footnote

omitted). In any event, petitioner is seeking review of

the judgment of the court of appeals, not the judgment

of the district court. As petitioner acknowledges (Pet.

21), the court of appeals “did not address” whether

McCoy applies only in capital cases. Rather, the court

decided petitioner’s claim within McCoy’s framework.

That decision does not warrant further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.