Petition — Madison v. United States

In the

SUPREME COURT

of the United States

No. ¢4 72 204

No.

UNITED STATES OF AMERICA,

Respondent

vs.

FREIDA MADISON and

ROGER MADISON,

Petitioners

Petition for a Writ of Certiorari from the United

States Court of Appeals for the Fourth Circuit.

HERBERT JEROME BASS

Suite 1410

Number Two Penn Center Plaza

Philadelphia, Pennsylvania 19102

LAWRENCE E. FREEDMAN

(STEPHEN J. McCLURE on brief)

P.O. Box 25

Alexandria, Virginia 22313

Attorneys for Petitioners

i

SUBJECT INDEX

Page

Table of Citations ..-«-«e«ecereeseecece ce & &

Report of Opinions . ...+.+ +++ +2 © © # « 1

Statement of Grounds for Invoking

Jurisdiction of this Court .....s.-.

Questions Presented for Review .....+.-s. 2

Relevant Statutes and Constitution

_

Peevdeieme «cc cereeveveveeees 3

Statement of the Case ...+-e+«-+-ce-eceeee 4

(a) Regarding First Question

for Review .....-. a a ae 5

(b) Regarding Second Question

See GewGew oe sc cece eee ee ee 7

(c) Regarding Third Question

for Rewlew . « «cee eeeveeve 8

a ee a a a ee a ae a oe a

(a) Regarding First Question

8) ee a a a a a 2

(b) Regarding Second Question

Sew Bewhew . cc ce wmweseceeee se |

(c) Regarding Third Question

a a a a ee

Certificate of Service ...+s«+se-2e-eeececee 2h

Copy of Decision of United States

Court of Appeals, 73-2130,

73-2131, decided March 6, 1975 ..... 23

ii

English v. State

259 A.2d 822, 8 Md. 330, 1969 .

Glasser v. United States

315 U.S. 60, 62 S.Ct. 457 (1941)

Notaro v. United States

363 Fed.2d 169, 9th Cir., 1966

People v. Green

248 N.E.2d 116, 42 111.2d 555, 1969 .

Tolbert v. United States

55 A.2d 91, D.C., 1947 ...

United States v. Bueno

447 Fed.2d 903, 5th Cir., 1971

United States v. Chase

372 Fed.2d 453, 4th Cir., 1967

United States v. DeVore

423 Fed.2d 1069, 4th Cir., 1970.

United States v. Hampton

74-5822, Cert. granted, Mar. 31, 1975

___ Fed.2d (8th Cir., 74-1416,

dec. Dec. 11, 1974) ..

United States v. Higginbotham

451 Fed.2d 1283, 8th Cir., 1971 .

United States v. Jett

491 Fed.2d 1078, lst Cir., 1974

United States v. Johnson

495 Fed.2d 242, 10th Cir., 1974

United States v. Moseley

496 Fed.2d 1012, Sth Cir., 1974

16

19

19

10

17

16

ll

17

13

iii

United States v. Oquendo

490 Fed.2d 161, 5th Cir., 1974. .

United States v. Russell

19 S.Ct. 1637, 411 U.S. 423, 1973

United States v. Watson

489 Fed.2d 504, 3rd Cir., 1973.

United States v. West

fed.2d (3rd Cir., dec.

a 2. | ee

United States v. Williams

473 Fed.2d 507, 5th Cir., 1973.

United States v. Workopich

479 Fed.2d 1142, 5th Cir., 1973

Page

12

10

- 16

13

16

. 12

= a

a

PETITION

for a

WRIT of CERTIORARI

in the

SUPREME COURT

of the United States

UNITED STATES DF AMERICA,

Respondent

vs.

FREIDA MADISON and

ROGER MADISON

Petitioners

COME NOW your Petitioners, Roger Madison and

Freida Madison, husband and wife, and respectfully

pray this Court to grant them a writ of

certiorari in respect to judgments of conviction

entered against them by the United States District

Court for the Eastern District of Virginia, affirmed

by the United States Court of Appeals for the

Fourth Circuit.

l

REPORT OF OPINIONS

No opinions were delivered in the instant case

either by the United States District Court for the

Eastern District of Virginia, Alexandria Division,

nor by the United States Court of Appeals for the

Fourth Circuit.

STATEMENT OF GROUNDS

FOR INVOKING JURISDICTION

OF THIS COURT

On May 10, 1973, the United States District

Court for the Eastern District of Virginia,

Alexandria Division, entered judgments of convic-

tion against each of the Petitioners on two counts

of distribution of controlled substances and one

count of possession of controlled substances with

intent to distribute (Criminal Docket 67-73-A). It

is these judgments of conviction which Pe*itioners

ask this Court to review.

On June 15, 1973, Petitioner Roger Madison was

sentenced to eight years on each count concurrently

to be eligible for parole after two years with a

special parole of three years; Petitioner Freida

2

Madison was sentenced to five years on each count

concurrently, but execution was suspended and she

was placed on supervised parole for five years.

On June 15, 1973, appeal was noted to the

United States Court of Appeals for the Fourth Cir-

cuit (73-2130, 73-2131). Oral Argument was heard

on February 6, 1975. All the questions presented

by this Petition were raised in that appeal.

On March 6, 1975, the United States Court of

Appeals for the Fourth Circuit affirmed the judg-

ments of conviction against both Petitioners. On

April 5, 1975, this Petition for a writ of

certiorari was filed with this Court.

The statutory provision believed to confer on

this Court jurisdiction to review the judgment in

question by writ of certiorari is the United States

Code, Title 28, Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether, when Petitioner's uncontradicted

testimony was that government employee SE22084 had

supplied Petitioners with the contraband drugs

which the Petitioners were charged with distribut-

ing or intending to distribute, tls Trial Court

erred either in refusing to grant Petitioners’

motion for acquittal on the grounds of entrapment

as a matter of law, or in failing to instruct the

3

jury that the government must prove beyond a

reasonable doubt that government employee SE22084

had not supplied Petitioners with the contraband

drugs.

2. Whether the jury charge given by the Trial

Court improperly shifted the burden of proof from

the government to Petitioners by failing to include

an instruction that inferences adverse to the

government's case sufficient to raise a reasonable

doubt could be permissibly drawn from the govern-

ment'’s failure to produce government employee

SE22084 where this witness was inaccessible to

Petitioners, but, as a government employee, was

accessible to the government, and by making a

comment on the evidence that required the jury to

speculate on matters not in evidence.

3. Whether Petitioners were denied counsel of

their own choosing when the Trial Court refused to

grant a brief continuance of trial because retained

counsel of Petitioners’ choice was temporarily too

ill to represent them at trial.

RELEVANT STATUTES

AND

CONSTITUTIONAL PROVISIONS

Petitioners were convicted of violations of

the United States Code, Title 21, Section 84l(a)(1),

which in relevant part reads: “Except as

authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally td manu-

facture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a

controlled substance."

All three questions presented for review in

this case involve the Fifth Amendment to the Con-

stitution of the United States, which in relevant

part reads: “No person shall .. . be deprived of

life, liberty, or property, without due process of

law."

The third question presented for review in

this case also involves the Sixth Amendment to the

Constitution of the United States, which in rele-

vant part reads: "In all criminal prosecutions,

the accused shall enjoy the right .. . to have the

Assistance of Counsel for his defence."

STATEMENT OF THE CASE

Petitioners were each indicted at the term of

the federal Grant Jury sitting in the Eastern

District of Virginia, Alexandria Division, in

March, 1973, of three counts of possession of

contraband drugs with intent to distribute and

three counts of distribution of contraband drugs,

all in violation of the United States Code, Title

21, Section 84l1(a)(1). A tury trial was held on

5

May 10, 1973, Judge Albert V. Bryan, Jr.,

presiding.

(a) Statement of facts material to the first

question presented for review.

At trial, the government presented testimony

from two government agents who had obtained contra-

band drugs from Petitioners on two separate occa-

sions, and the government agent who had arrested

Petitioners in possession of contraband drugs on a

third occasion. In his testimony, Petitioner Roger

Madison admitted distributing the contraband drugs

on the first two occasions and also possessing the

contraband drugs on the third occasion with intent

to distribute.

Roger Madison further testified that govern-

ment employee SE22084, known only to him by the

cover name "Rebecca Burley," had entered into a

sexual relationship with him, revealed she was a

user of contraband drugs, and thereafter often

importuned him to sell contraband drugs for the

purpose of supplying her with money. She feigned

an inability to consummate these sales herself, and

6

asked him to act in her place without revealing her

involvement. When he finally agreed to sell

contraband drugs for her, government employee

SE22084 not only arranged the time, place,

purchaser and terms for each sale, but also pro-

vided all the contraband drugs involved. He also

testified that his wife's participation was the

result of his deceptions of her about the nature of

the proceedings and of his relationship with govern-

ment employee SE22084.

Government employee SE22084 was not called by

the government to testify in rebuttal of Roger

Madison's testimony, nor did the government offer

any other rebuttal evidence. It was also uncontra-

dicted that these three occasions were Petitioners’

sole contact with contraband drugs, and that Peti-

tioners had never before been involved in these

drugs as sellers, purchasers or users.

At the close of the evidence, Petitioners'

counsel moved for a judgment of acquittal, citing

United States v. Bueno, 447 Fed. 2d 903 (Fifth Cir.,

1971). The Trial Court denied the motion, denying

7

Petitioners any further reliance on Bueno by finding

Petitioners’ case distinguishable (TR 84).

(b) Statement of facts material to the second

question presented for review.

At trial, Petitioners’ counsel requested the

Court to instruct the jury that the government's

failure to produce the testimony of government

employee SE22084 in rebuttal of Roger Madison's

testimony could justify an inference that her testi-

mony would be adverse to the government's case.

Government employee SE22084 was, as a government

employee, a witness accessible to the government,

but not even her true name was available to the

Defense since the government objected to its revela-

tion even at trial. The Trial Court refused to

grant this missing witness instruction, and Peti-

tioners' counsel was thus unable to argue to the

jury that a reasonable doubt could easily and justi-

fiably arise from her failure to testify in rebuttal

of Roger Madison's testimony (TR 97-98).

In instructing the jury, the Trial Court made

the following comment on the evidence, set out here

8

in relevant part (TR 95):

"The issue of entrapment depends on whether

either of the defendants was an innocent person in

whose mind the idea of criminal activity was

implanted by someone acting on behalf of the govern-

ment. Was that the case, or did the defendants

already have a disposition to commit a crime and the

person acting on behalf of the government merely

presented the opportunity? Which of these is true,

of course, depends on the testimony of Mr. Roger

Madison as to how he first became involved, why he

became involved and his testimony concerning how he

behaved after he became involved.

If you believe his testimony, he and his wife

are entitled to acquittal. Whether or not you do

believe it, it is entirely up to the jury."

Counsel for Petitioners objected to this com-

ment on the grounds that, since there was no

evidence of previous disposition to commit a crime,

the comment would cause the jury to go outside the

evidence and conjecture about disposition to commit

crime. The Court overruled the objection (TR 96-97).

(c) Statement of facts material to the third

question presented for review.

After their arrest, Petitioners retained

Herbert Bass of Philadelphia, Pennsylvania, to

renrresent them, who, in accordance with the local

rules of Court, associated himself with J. Ronald

Lynch of Alexandria, Virginia, as local counsel.

9

Mr. Bass was to have total responsibility for the

trial, and Mr. Lynch was to be merely local counsel

of record. Trial was set for May 3, 1973.

Prior to trial, Mr. Bass became ill with

chronic spastic collitis with acute exhaustion.

Approximately ten days before trial, Mr. Bass was

advised by his personal physician to refrain from

trial work for at least three weeks and a report

from his physician was provided the Trial Court. On

the basis of this, Mr. Bass immediately sought a

continuance of the trial for thirty days.

The Trial Court refused to grant this request

for a continuance unless Mr. Bass would certify not

only that he was unable to carry on trial work, but

also that he was unable to appear in his office for

any reason. Although too sick to carry on trial

work, he could not certify that he would be unable

to appear at his office for any reason during the

whole three week period. On the morning of May 3,

1973, Mr. Bass was at home sick in bed.

The Trial Court refused to permit Petitioners

to be represented any longer by Mr. Bass, a ruling

10

at least partially due to the Court's expressed

hostility to non-local counsel, the Court ordered

Petitioners to obtain local counsel within twenty-

four hours. After all but directing Petitioners to

retain Mr. Lynch, the Court granted a one week con-

tinuance as a matter of courtesy to local counsel.

Trial was thereafter held on May 10, 1973, with Mr.

Lynch representing Petitioners.

ARGUMENT

I. Whether, when Petitioner's uncontradicted

testimony was that government employee SE22084 had

supplied Petitioners with the contraband drugs

which the Petitioners were charged with distribut-

ing or intending to distribute, the Trial Court

erred either in refusing to grant Petitioners'

motion for acquittal on the grounds of entrapment as

a matter of law, or in failing to instruct the jury

that the government must prove beyond a reasonable

doubt that government employee SE22084 had not

supplied Petitioners with the contraband drugs.

The first question presented for review by

Petitioners is whether the doctrine of entrapment

set forth by the United States Court of Appeals for

the Fifth Circuit in United States v. Bueno, 447

Fed.2d 903 (1971) has continuing validity in the

light of this Court's decision in United States v.

Russell, 19 S.Ct. 1637, 411 U.S. 423 (1973).

ll

Petitioners urge on this Court three inter-

related reasons for granting certiorari in respect

of this first question presented for review:

(a) There is great conflict among the Courts

of Appeals of the various Circuits in their deci-

sions on the Bueno entrapment defense presented in

Petitioners’ case.

(b) This Court, on March 31, 1975, has already

granted a writ of certiorari in United States v.

Hampton, 74-5822 (Eighth Circuit, 74-1416, dec.

Dec. 11, 1974), a case remarkably similar to that of

Petitioners, differing only in that Petitioners’

case presents some aspects of the Bueno entrapment

defense in sharper focus.

(c) The entrapment question presented by Peti-

tioners' case has not been, but should be settled,

by this Court.

The facts and the resulting rule of the Bueno

doctrine are crucially different from the facts and

rationale involved in this Court's Russe«il decision.

These differences are the source of the conflicting

decisions among the Circuits. Russell dealt with

12

whether a government agent could infiltrate an

already established and ongoing drug operation even

to the extent of supplying the enterprise with a

necessary but legal chemical, Russell, supra, p._.

1643. This Court sanctioned such limited participa-

tion as a necessary procedure for apprehension of

persons already engaged in ongoing secret criminal

activity.

The Bueno Court however faced a different

situation. In that case, the government agents were

not infiltrating an ongoing drug operation, but

rather supplying the very contraband with whose

possession the Defendant was charged, and then the

government turned around and re-purchased the “ame

contraband, with whose sale the Defendant was

charged. Relying on these crucial distinctions, the

Fifth Circuit has asserted that the Bueno doctrine

has continued validity notwithstanding Russell,

United States v. Workopich, 479 Fed.2d 1142 (Fifth

Circuit, 1974), United States v. Oquendo, 490 Fed.2d

161, (Fifth Circuit, 1974), and United States v.

Moseley, 496 Fed.2d 1012 (Fifth Circuit, 1974).

13

Recently, the Third Circuit joined the Fifth

Circuit in this position, United States vy. West,

____ ‘Fed.2d ss (Third Circuit, dec. Feb. 25, 1975;

see 16 CrL 2526).

Furthermore, both the Fifth and fhird Circuits

rely on the fact that the Russell decision, while

citing the Bueno case, not only did not by its

express terms overrule Bueno, Workopich, supra,

p. 1145, West, supra, but also expressly stated

that this Court "may some day be presented with a

situation in which the conduct of law enforcement

agents is so outrageous that due process principles

would absolutely bar the government from invoking

judicial processes to obtain a conviction,"

Russell, p. 1643. The Fifth and Third Circuits

have found that the police conduct encompassed by

the Bueno rule is precisely such a situation.

Other Circuits faced with analogous situations

have come to the opposite conclusion. In United

States v. Jett, 491 Fed.2d 1078 (First Circuit,

1974), and United States v. Johnson, 495 Fed.2d

242 (Tenth Circuit, 1974), the First and Tenth

14

Circuits respectively have held the Russell bars

reliance on the Bueno defense. This Court has

granted a writ of certiorari in United States v.

Hampton, supra, in which the Eighth Circuit inter-

preted Russell to imply that Bueno is overruled.

Finally, in the instant case, the Fourth Circuit

has, impliedly and without a written opinion,

denied Petitioners’ claim that both the express

holding in Russell and the pragmatic requirements

of criminal detection underlying its rationale

distinguish that case from Petitioners’.

Furthermore, Petitioners’ case brings into

clearer focus questions not presented by Hampton.

In Hampton, the alleged government "drug source”

testified in rebuttal of Hampton's testimony. At

Petitioners’ trial, government employee SE22084 did

not testify, and no other rebuttal evidence was

offered. Thus, unlike Hampton, Petitioners’ case

presents the question, decided in the affirmative

by Bueno, supra, p. 906, Oquendo, supra, p. 163,

Moseley, supra, p. 1015, and West, supra, whether

the burden of disproving entrapment beyond a

15

reasonable doubt requires the government to come

forward with some evidence rebutting the Bueno

defense, usually by producing the alleged government

“drug source." The instant case also involves Peti-

tioners who had never participated in drug offenses

before, a factor heavily relied on by the Third

Circuit in West, supra, to justify its demand that

the government make some attempt to disprove the

Bueno entrapment defense. Petitioners urge on this

Court that whatever reasons moved this Court to

grant certiorari in the Hampton case should argue

even more strongly for the Petition in their case.

In sum, the Circuits are in conflict about

whether Russell vitiates Bueno. This Court has not

yet had before it, in Russell or any other case, a

strict Bueno entrapment case. Prior cases before

this Court involved the limits of permissible means

of infiltrating ongoing drug operations, not situa-

tions in which the government created the drug

operation itself by selling contraband to itself

through the intermediary of an eventual defendant.

The permissible limits of such creative activity

16

have not been, but should be, settled by this

Court.

Il. Whether the jury charge given by the

Trial Court improperly shifted the burden of proof

from the government to Petitioners by failing to

include an instruction that inferences adverse to

the government's case sufficient to raise a reason-

able doubt could permissibly be drawn from the

government's failure to produce government employee

SE22084 where the witness was inaccessible to

Petitioners, but, as a government employee, was

accessible to the government, and by making a com-

ment on the evidence that required the jury to

speculate on matters not in evidence.

The crux of this second question presented for

review involves the implications of the government 's

burden of disproving entrapment beyond a reasonable

doubt, once the defense presents evidence to raise

the issue. This burden is conceded by the govern-

ment in its brief below, and is well established in

decisions of Courts of Appeal, United States v.

DeVore, 423 Fed.2d 1069 (Fourth Circuit, 1970),

Notaro v. United States, 363 Fed.2d 169 (Ninth

Circuit, 1966), United States v. Watson, 489 Fed.2d

504 (Third Circuit, 1973), United States v.

Williams, 473 Fed.2d 507 (Fifth Circuit, 1973).

While the Trial Court properly included in its

general instructions on entrapment an explanation of

17

the government's burden of disproving entrapment,

both the Trial Court's refusal to give the missing

witness instruction and the comment on the evidence

effectively shifted the burden to Petitioners.

It is hornbook law that a reasonable doubt may

not only arise from the evidence produced, but also

from the lack of evidence, United States v.

Higginbotham, 451 Fed.2d 1283 (Eighth Circuit, 1971).

The lack of testimony in rebuttal from government

employee SE22084 would justify an inference that her

testimony would have corroborated Petitioners'

entrapment defense since, as a government employee,

she was accessible to the government, but inacces-

sible to Petitioners who do not even know her real

name, and therefore properly required the missing

witness instruction, United States v. Chase, 372

Fed.2d 453 (Fourth Circuit, 1967). By refusing to

give the missing witness instruction, the Trial

Court precluded the defense from establishing a

reasonable doubt from the lack of testimony by

government employee SE22084, thereby releasing the

government from the burden of coming forth with any

18

evidence to disprove entrapment beyond a reasonable

doubt.

The Trial Court's later comment on the evidence

completed this shift of the burden of proof. The

Trial Court posed the issue before the jury in the

following terms: "Did the defendants already have a

disposition to commit a crime and the person acting

on behalf of the government merely presented the

opportunity? . . . If you believe (Petitioner's)

testimony, he and his wife are entitled to acquittal"

(TR 94-95). However, the issue properly before the

jury was whether the government had proved beyond a

reasonable doubt that Petitioners had a prior dispo-

sition to create a crime, and whether Petitioner's

testimony, even if not affirmatively believed,

raised a reasonable doubt. Because there was no

evidence before the jury that Petitioners had any

disposition to crime prior to the importunings of

government employee SE22084, the jury was required

to speculate on matters not in evidence in order to

fill in the holes in the government's case.

Petitioners maintain that this improper

19

shifting of the burden of proof so far departed from

the accepted and usual course of judicial proceed-

-—-s

ings judged in the light of the constitutional

requirements of due process as to call for an exer-

cise of this Court's power of supervision.

III. Whether Petitioners were denied counsel

of their own choosing when the Trial Court refused

to grant a brief continuance of trial because

retained counsel of Petitioners’ choice was tempo-

rarily too ill to represent them at trial.

The gravamen of Petitioners’ third question

presented for review is whether the Trial Court so

abused its discretion and departed from the accepted

and usual course of judicial proceedings as to call

for an exercise of this Court's power of supervision.

Denial of a brief continuance for good cause

shown to permit counsel of Petitioners' choice to

represent them at trial amounts to a denial of

Petitioners’ Sixth Amendment right to counsel,

Glasser v. United States, 62 S.Ct. 457, 315 U.S. 60

(1941), Tolbert v. United States, 55 A.2d 91 (D.C.,

1947), People v. Green, 248 N.E.2d 116, 42 111.2d

555 (1969). In English v. State, 259 A.2d 822,

8 Md. 330 (1969), it was held to be an abuse of

20

judicial discretion to deny defendants a postpone-.

ment of trial in order to allow defendants to be

represented by counsel employed by them, rather than

by the son and associate of their employed counsel.

There is no doubt that good cause was shown for

a continuafce: Petitioners’ retained counsel, Mr.

Bass, was too ill to carry on trial work adequately,

since both he and his doctor had eertified that Mr.

Bass was suffering from chronic spastic collitis

with acute exhaustion, and required a three week

respite from trial work. Despite the Court's

attempted justification, the mere fact that a lawyer

can occasionally appear in his office is no reason

to conclude that he is physically capable of the far

more demanding and exhausting work of a trial.

Evident in the Trial Court's comments was a marked

hostility toward non-local counsel, and toward

Petitioners because they had not retained local

counsel (Hearing TR 5, 9, 10, 11).

The continuance sought, in addition to being

for good cause shown, was for only a brief period,

30 days. No threat to the public interest in

21

speedy trials was presented by the request since

Petitioners were arrested on March l, 1973. In

sum, the refusal of the requested continuance

represents an abuse of discretion amounting to a

denial of Petitioners’ Sixth Amendment right to

counsel of their own choice, which Petitioner asks

that this Court appropriately correct by the exer-

cise of this Court's power of supervision.

Respectfully submitted,

HERBERT JEROME BASS

WRENCE E. FREEDMAN

(STEPHEN J. McCLURE on brief)

Attorneys for Petitioners

Date: April 5, 1975

Certificate of Service

I hereby certify that 3 true copies of the

foregoing Petition for a Writ of Certiorari were

mailed by first class mail, postage prepaid on the

5th day of April, 1975, to the following:

William B. Cummings,

United States Attorney

Eastern District of Virginia

Post Office Box 749

Alexandria, Virginia 22313

22

The Solicitor General

Department of Justice

Washington, DC 20530

WRENCE E. FREEDMAN

oOo

23

UNITED STATES COURT OF APPEALS

for the Fourth Circuit

Nos. 73-2130

73-2131

UNITED STATES OF AMERICA, Appellee,

versus

FRIEDA MADISON and

ROGER MADISON, Appellants.

Appeal from the United States District Court for

the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., District Judge.

Argued: February 6, 1975. Decided: March 6, 1975.

Before RUSSELL, FIELD and WIDENER, Circuit Judges.

Herbert Jerome Bass (Freedman, Freedman and Swersky

on brief) for Appellant in Nos. 73-2130 and 73-2131;

James R. Hubbard, Assistant United States Attorney

(David H. Hopkins, United States Attorney and K.

Gregory Haynes, Assistant United States Attorney,

on brief) for Appellee in Nos. 73-2130 and 73-2131.

PER CURIAM:

Roger and Frieda Madison, husband and wife,

appeal their convictions on three counts of

possession with intent to distribute and distribu-

24

tion of controlled substances in violation of 21

U.S.C. 841(a)(1). Upon consideration of the briefs,

record and oral argument, we find no reversible

error and accordingly affirm the convictions.

AFFIRMED.

”