Opposition — Chiappe v. United States

% Stpreme Court, U. $V

FILED iy

| MAR & 1978

|_MICHAEL RODAK, JR., CLERK

No. 77-686

Gn the Supreme Court of the Wnited States

OctToBER TERM, 1977

FRANCOIS CHIAPPE, PETITIONER

v.

United StaTEs OF AMERICA

ON PETITION FGR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

. MICHAEL J. KEANE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

’

Page

Ee 1

i 1

Questions presented__.-__--__-------_______- 2

www ema 2 2

a iedipecueemee - -

eT ewowoece 15

CITATIONS

Cases: | |

Berenyt Vv. Immigration Director, 385 U.S. |

ESE 7

Brady v. Maryland, 373 U.S. 83_---__=_- Bun: @

Frisbie v. Collins, 342 U.S. 519_.._-_____ 5

Ker vy. Illinois, 119 U.S. 436_-.--_._______ | 5

Rossi v. United States, 545 F. 2d 814, cer-

tiorari denied, 430 U.S. 907__-.________ 3

Umted States vy. Baker, 419 F. 2d 83, certi-

orari denied, 397 U.S. 976___.._________ 13

United States v. Cowsen, 530 F. 2d 734,

certiorari denied, 426 U.S. 906________ 12

United States v. Fairchild, 526 F. 2d 185,

certiorari denied, 425 U.S. 942_._______ 13

United States v. Kenny, 462 F. 2d 1205

certiorari denied sub nom. Kropke vy.

United States, 409 U.S. 914___-_________ 14

United States vy. Lira, 515 F. 2d 68, certi-

orari denied, 423 U.S. 847_..._._____ 8

United States v. Magnano, 543 F. 2d 431,

certiorari denied, 429 U.S. 1091________ 13-14

United States v. Ravich, 421 F. 2d 1196,

certiorari denied, 400 U.S. 834_.______ 12, 13

(1)

EL

il

Cases—Continued

United States v. Robinson, 560 F. 2d 507,

-certiorari denied, No. , T1886, Febru-

ary 27, 1978__-..---+-=-+-=-------- qo cit

United States v. Toscanino, 500 F, 2d 267,

on remand, 398 F. Supp. 916----------

United States v. Tramunti, 513 F. 2d 1087,

certiorari denied, 423 U.S. 832--------

United States v. Walters, 477 F. 2d 386,

certiorari denied, 414 U.S. 1007--------

United States v. Wiener, 534 F. 2d 15,

certiorari denied, 429 U.S. 820--------

United States v. Wixom, 529 F. 2d 217----

United States ex rel. Lujan v. Gengler, 510

F. 2d 62, certiorari denied, 421 U.S. 1001--

Statutes and rules:

91 U.S.C. (1964 ed.) 173..--------------

21 U.S.C. (1964 et.) 174.--~------------

Federal Rules of Evidence:

Rule 403-.---.--- anos

Rule 801(d)(2)(C)----- .

13

14

3 te Sapreme Goto he Wid Sie

Ovroszs, Tznm, 1977

_ =

No. 77-686

Francois CHIAPPE, putieonstinis

Vv.

Unerep States or Amenica

ON PETITION POR A WRIT OF CERTIORARI TO THE UNITE

B

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 4

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The court of appeals affirmed without opinion (Pet.

App. 37-38). The opinion of the district court (Pet.

App. 33-36) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on June 20, 1977. The petition for a writ of certiorari

was filed on November 14, 1977, and is therefore sub-

stantially out of time under Rule 22(2) of the Rules of

this Court. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(2).

(1)

BEST COPY AVAILABLE

2

QUESTIONS PRESENTED

1. Whether petitioner’s indictment was obtained by

the deNberate presentation of misteuding, testimony to: }

the grand jury.

2. Whether petitioner’s presence at trial was secured

by illegal actions of the United States government.

3. Whether petitioner was denied a fair trial be-

cause the government failed to produce court records

of his prosecution for bank robbery in Argentina in

1968.

4. Whether the district court abused its discretion

in admitting into evidence certain items seized from

petitioner and-his wife after the. termination of the

are y. ;

. Whether petitioner was denied effective assist-

pee counsel. . ‘ :

STATEMENT

Following a jury-trial in the United States District

Court for. the Eastern District of New York, peti-

tioner was convicted of conspiracy to distribute

heroin, in violation of 21 U.S.C. (1964 ed.) 173 and

174. He was sentenced to 20 years’ imprisonment and

fined $20,000. The court of ema affirmed without

‘opinion (Pet, App. 37-38).

The evidence at trial showed that tla a

French national residing in Buenos Aires, Argentina,

was a principal participant ‘in a major heroin smug-

gling conspiracy operating between. France, South

America, and the United States from 1965 until ear)y

1968. Besides initially financing the operation (Tr.

3

99-100), petitioner provided the French heroin con-

nection for co-conspirators Francois Rossi and Michel

Nicoli, two other French nationals residing in Buenos

Aires, who transported the heroin to buyers in New

York (Tr. 101-110, 127-135, 142-151, 157-163, 191-

199, 283-287). Later, in 1967, the conspirators re-

cruited Miguel Russo to assist them in transporting

the heroin from South America and France to the

United States (Tr. 174-175, 204-205, 215-216, 219-

221, 227-228, 231-232, 235-238, 278-280).’

ARGUMENT

_1. Petitioner contends (Pet. 8-11) that the govern-

ment obtained his indictment by the deliberate pres-

entation of misleading testimony to the grand jury.

Specifically, petitioner claims that the government

was aware from its pre-indictment interviews with

Nicoli that he had repeatedly asserted that the con-

spiracy involving petitioner had terminated in Decem-

ber 1967, yet the government deceived the grand jury

by “conveniently omitt[ing]” (id. at 9) any reference

to the termination of the conspiracy in its questioning

of Nicoli in order to avoid the statute of limitations.’

These claims are without merit.

* After pleading guilty to various narcotic offenses, Nicoli tes-

tified for the government at petitioner’s trial. Following a separate

jury trial, Rossi was convicted on the same indictment. His con-

viction was affirmed on appeal. 545 F. 2d 814 (C.A. 2), certiorari

denied, 480 U.S. 907. Russo was convicted along with petitioner

and received the same sentence.

* Petitioner’s indictment was returned on February 15, 1973.

Thus, petitioner had to be involved in the conspiracy on or after

February 16, 1968, to be convicted (Tr. 1094).

4

Nicoli testified at trial that he, petitioner and Rossi

arranged a heroin trip in early 1968 (Tr. 278). Accord-

ing to Nicoli, he went to Miami on February 14, 1968,

to pick up three kilos of heroin that were to be de-

livered from Buenos Aires (Tr. 279-280). Upon his

arrival in Miami, hovcver, Nicoli was questioned by

customs agents for about two hours. He therefore pro-

ceeded to New York without the heroin and arranged

with the buyer there to have a courier obtain the nar-

eoties (Tr. 283-284). The buyer then paid Nicoli

$28,000, which he split with petitioner and Rossi on

February 16, 1968 (Tr. 284-287).

In response to the government’s questions at trial,

Nicoli admitted that certain statements he had made

to federal agents prior to petitioner’s indictment

(Govt. Exs. 3500-4, 3500-5) were not completely

truthful because he was then attempting to conceal

petitioner’s involvement (Tr. 624-633). Nicoli also

told the jury that the heroin transaction mentioned

during his grand jury testimony (see Pet. 9) actu-

ally occurred in March 1968 and was unrelated

to the trip in February 1968 involving petitioner

(Tr. 634-637).

Thus, petitioner simply alludes to inconsistent state-

ments made by Nicoli of which the jury was fully

aware. There is no evidence to suggest that the gov-

ernment obtained petitioner’s indictment knowing

that it was barred by the statute of limitations. In-

deed, the district court explicitly charged the jury at

trial that it had to acquit petitioner unless it found

that he was involved in the February 16, 1968, drug

transaction (Tr. 1386-1387).

5

2. Petitioner contends (Pet. 11-19) that his pres-

ence at trial was secured by illegal actions of the

federal government. It is settled, however, that a

court’s power to bring a person to trial upon crim-

inal charges is not impaired by his forcible abduction

into the jurisdiction. Ker v. Illinois, 119 U.S. 436;

Frisbte v. Collins, 342 U.S. 519. Even assuming that

this rule is inapplicable where a government actively

secures the defendant’s presence in its jurisdiction

through particularly shocking and abusive conduct

(see United States v. Toscanino, 500 F. 2d 267 (C.A.

2)), the record in this case demonstrates that peti-

tioner is not entitled to relief.

At a post-trial hearing on January 7, 1977, peti-

tioner claimed that on May 21, 1976, he was forcibly

and violently seized by unknown individuals in Argen-

tina and was beaten, blindfolded, bound in a strait

jacket and confined for five or six days (Tr. II 15-20,

22).° Petitioner further alleged that, during his con-

finement, he heard English spoken and observed the

presence of a person later identified as Special Agent

Robert Palombo of the Drug Enforcement Adminis-

tration (Tr. II 27, 34, 70-71; Tr. III 36-38). Peti-

tioner did not contend that he was mistreated by

agents of the United States after he had been de-

livered to their custody at the Buenos Aires airport

on May 26, 1976 (Tr. II 38).

oe, “Tr. II” refers to the transcript of the January 7, 1977, hear-

ing. “Tr. III” refers to the transcript of the January 14, 1977,

hearing. Upon their arrival in this country, petitioner and Miguel

Russo had told the same district judge that they had not been

abused by American agents in Argentina (May 27, 1976, Tr. 7-8).

6

Federal agents denied any participation, either di-

rectly or indirectly, in whatever mistreatment peti-

tioner may have received from the Argentine author-

ities. Assistant United States Attorney Bernard Fried

testified that, prior to petitioner’s expulsion from

Argentina, he had met with various officials of the

Department of Justice, including an agent from the

D.E.A. district office in Buenos Aires, to discuss the

proper treatment of fugitives who might be expelled

by the new government in Avgentina (Tr. II 76-77).

Fried personally conveyed the government’s concern

for proper treatment of such fugitives, in light of

United States v. Toscanino, supra, to American of-

ficials in Argentina, including the United States Am-

bassador, and asked that they notify the Argentine

government (Tr. II 77-81). Fried also stated that

upon petitioner’s arrival in the United States he ques-

tioned him about his treatment in Argentina and that,

although petitioner claimed that he had been physi-

cally abused by the Argentinian police, he did not

contend that he had seen any Americans during that

time or that he had heard English spoken (Tr. II

87-89). In addition, Agent Palombo testified that he

had never seen petitioner until petitioner had been

brought aboard the airplane at Buenos Aires airport

on the evening of May 26, 1976 (Tr. III 19-20).

After a full evidentiary hearing, the district court

“reject[ed] the testimony of [petitioner] * * * con-

cerning the presence of English-speaking people at the

time of his arrest and during his incarceration in

Argentina[,] believing it to be a fabrication crudely

designed to fit the Toscanino standards for defeatiag

7

personal jurisdiction otherwise obtained over non-

resident aliens” (Pet. App. 36) and rejected petition-

er’s testimony ‘‘that he was beaten repeatedly dur-

ing” his period of incarceration in Argentina “as

unworthy of belief” (id. at 35, n. *). The court instead

found that (Pet. App. 36):

the United States advised the Argentinian

Government of the pending narcotic charges

against Chiappe and others, and its intention

of prosecuting the charges if it obtained juris-

diction over them. It urged the Argentinian

Government to avoid any acts which might

place United States jurisdiction over de-

fendants in doubt. No United States official or

agent participated in any decision relating to

the time or manner of effecting Chiappe’s

arrest or his subsequent incarceration in Ar-

gentina. Nor was any American official or

agent present at the time of Chiappe’s arrest or

during his inearceration in Argentina. The first

contact any United States official or agent had

with Chiappe was aboard the Braniff airplane

at Buenos Aires Airport on May 26, 1976, at

about 9:30 P.M. prior to take-off on its flight

to John F. Kennedy International Airport.

These factual determinations, based on the district

court’s resolution of conflicting testimony, do not war-

rant further review. Berenyt v. Immigration Director,

385 U.S. 630, 635.‘

‘The district court did find that petitioner, believing that he

was being kidnapped by guerrillas, had resisted arrest and as a

result had been assaulted by Argentine police (Pet. App. 35). But

the United States government “can hardly be expected to monitor

the conduct of representatives of each foreign government” where

it “plays no direct or substantial role in the misconduct and the

256-403-- —-2

8

Jd. Petitioner contends (Pet. 23-32) that he was

denied a fair trial because the government did not

produce the Argentine court records of his prosecu-

tion for bank robbery in 1968.

At trial, Alberto Borsalino, an Argentine police

official, testified that on Mav 17, 1968, he arrested

petitioner and his wife on suspicion of bank robbery

and seized a false identification card and a passport

from petitioner and $19,000 from petitioner's wife,

which she said had been given to her by petitioner

(Tr. 952-954, 957, 976-977). Officer Borsalino further

stated that petitioner had not been tortured while in

his custody (Tr. 978-979). At a hearing during trial

to determine the admissibility of the seized evidence,

petitioner asserted that he was arrested on May 15,

1968, that he was tortured by Officer Borsalino, and

that he had not given his wife the money (which the

foreign police have acted not as United States agents but merely

on behalf of their own government * * *.° United States v. Lira,

515 F. 2d 68, 71 (CLA. 2), certiorari denied. 423 U.S. 847. Since.

us the district court found. there was no United States involvement

in the misconduct of the Argentine police, “no purpose would be

served by holding the [United States] Government responsible

for [those] actions” (ibid.), See United States v. Toscanino. supra,

on remand, 398 F. Supp. 916, 917 (E.D. N.Y.). Nor is there merit

to petitioner’s claim (Pet. 14-15) that American authorities were

“guilty of mistreatment and denial of procedural justice” becanse

they kept petitioner blindfolded and strait-jacketed until at least

15 minutes into the flight to the United States. Since petitioner

was under arrest, lie was properly restrained until the plane was

airborne. In any event, such restraint and blindfolding was not

“outrageous and reprehensible” conduct requiring the extraordi-

nary remedy of divestiture of the district court’s jurisdiction.

Vnited States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (C.A. 2),

certiorari denied, 421 U.S. 1001.

9

government claimed was the proceeds of petitioner's

nareotics activities) (Tr. 812-818, 830, 834, 838-839).

Petitioner now contends that he was precluded

from showing that Officer Borsalino testified falsely

about the date of arrest, the fact of torture and the

return of the $19,000 to petitioner’s wife by the

Argentine court because the government failed to

produce the Argentine robbery file, as requested by

the court and defense counsel. He further claims that

certain of the Argentine court documents that he

obtained after trial show that the prosecutor permitted

Officer LBorsalino “to give deliberately false testi-

mony” (Pet. 26). These claims are not supported by

the record.

To begin with, since the government did not possess

the Argentine court records, their production was not

required under Brady v. Maryland, 373 U.S. 83.

> During the hearing held to determine whether the evidence

seized incident to the 1968 arrest was admissible, the district court

asked the government to inquire whether any record was made

“when [petitioner] complained to the judge and where a doctor

talked about his injuries and what the judge said” (Tr. 836). Thus,

the judge did not order production of the entire robbery case file,

but rather asked the government to determine whether there was

any record supporting or refuting petitioner’s claim that he had

been tortured and that he had complained about his treatment to

un Argentine judge. Nevertheless, shortly thereafter, the court

stated that it did not need the record to determine whether the evi-

dence was admissible (Tr. 840-841). When defense counse] ob-

jected to the court’s decision to rule on the motion without. the

Argentine documents, the court suggested that he produce them

(Tr. 840-841). The court then found that the evidence was admis-

sible because no American government agent had participated,

directly or indirectly, in petitioner’s arrest or search and because

any acts of brutality were unrelated to the search and seizure (Tr.

844-845).

10

While an attorney for the government did review the

file during a trip to Argentina, he simply made a

cursory examination of approximately 2,000 pages of

records written in Spanish, which he neither under-

stood nor spoke, for the sole purpose of finding photo-

graphs and false identification. There is not a shred of

evidence to suggest that the government attorney un-

covered and then deliberately suppressed any exculpa-

tory material. Indeed, during his examination of

Judge Rene Niklison, who had been present during

the prosecutor’s review of the Argentine documents,

petitioner made no showing that the records contained

any material helpful to the defense or any evidence

that contradicted Officer Borsalino’s testimony.

Furthermore, the records were on file in a pubiie

building in Buenos Aires and hence were available

io petitioner. His counsel was present in Argentina

when the government attorney reviewed the docu-

ments, but he chose not to examine them (Tr. 771).

When, during trial, the district court offered him “the

rest of the week to fly down.to Argentina” to examine

the records, defense counsel declined the opportunity,

responding “I have no need to’’ (Tr. 772). Petition-

ers attorney also decided not to ask petitioner’s

counsel at his 1968 trial in Argentina to obtain the

records for him."

* During his trip to Argentina, defense counsel conferred with

lor, Baderman, the Argentine attorney who had represented peti-

tioner at the time of the 1968 arrest (Tr, 253-254, 835-836). In

denying petitioner's motion for a new trial based on the allegedly

newly discovered evidence, the district court concluded that peti-

tioner could have obtained the evidence prior to trial by the exer-

cise of due diligence (March 4, 1977, Tr. 22).

11

In any event, the documents produced by petitioner

in support of his motion for a new trial do not sup-

port his claim that Officer Borsalino lied at trial,

much less that the government permitted the false

testimony to be given. Even assuming that those rec-

ords show that petitioner was arrested on May 15

instead of May 17, 1968, and that he may have been

tortured while in the custody of the Argentine police,

that does not prove that Officer Borsalino knowingly

testified falsely about the date of arrest or that peti-

tioner was tortured while he was in Borsalino’s cus-

tody. Indeed, the district court expressly found that,

although petitioner may have been physically abused

by Argentinian officials, that mistreatment was un-

related to the arrest and search effected by Officer

Borsalino (Tr. 844-845). Furthermore, none of the

documents are or contain statements of Officer Borsa-

lino, and therefore they could not have been used to

impeach him.’

Finally, there is no substance to petitioner’s claim

that the government deliberately withheld informa-

tion that the $19,000 was returned to petitioner’s wife

by an Argentine court as being ‘‘legitimately” her

money. The 1968 robbery prosecution against peti-

tioner and his wife had been “provisionally” dis-

7 Petitioner misrepresents an exchange between defense counsel

and the district court during Officer Borsalino’s testimony at the

mid-trial hearing (see Pet. 30). The judge’s comments about “not

[being] interested in nonsense” (Tr. 695) and his warnings to

defense counsel not to waste time (Tr. 696, 698) related to ques-

tioning about the treatment accorded to petitioner’s wife after the

arrest and search, questioning that the judge ccrrectly viewed as

irrelevant to the admissibility of the evidence against petitioner.

12

missed by the Argentine court, but the case was subject

to being reopened if new evidence was produced (Tr.

770). As a result, although the money was returned

to petitioner’s wife, there had been no official deter-

mination as to its origin. Petitioner was of course

fully aware at trial that the court had returned the

money (see Tr. 767-768), and the government made

no effort to conceal that fact.

4. Petitioner contends (Pet. 19-23) that the dis-

trict court abused its discretion in admitting into

evidence certain items seized after the termination of

the conspiracy that allegedly were unrelated to the

narcotics offense.

As noted above, the government introduced a false

pessport and identification papers seized from peti-

tioner and $19,000 seized from his wife incident to

their arrest by Argentine authorities on May 17, 1968.

Photographs showing petitioner together with co-

conspirators Nicoli and Rossi, which had been seized

during a subsequent search of petitioner’s residence

later that day, were also admitted. These evidentiary

rulings were correct.

A district court has wide discretion in determining

whether the probative value of relevant evidence is

outweighed by the danger of unfair prejudice (United

States v. Cowsen, 530 F. 2d 734, 738 (C.A. 7), cer-

tiorari denied, 426 U.S. 906; United States v. Ravich,

421 F. 2d 1196, 1204-1205 (C.A. 2), certiorari denied,

400 U.S. 834), and the decision to admit such evidence

will not be disturbed on appeal unless it is clear that

the probative value of the evidence is “substantially

13

outweighed” by its prejudicicl effect. See, ¢.9., Fed.

R. Evid. 403; United States v. Wixom, 529 F. 2d 217,

220 (C.A. 8); United States v. Fairchild, 526 F. 2d

185, 189 (C.A. 7), certiorari denied, 425 U.S. 942.

’ The photographs were strong evidence that peti-

tioner knew the other co-conspirators at the time of

the conspiracy. Likewise, the false passport and the

identification papers, even assuming that they were

never used in the narcotics conspiracy, were similar

to the implements used by the conspirators to smuggle

the heroin and hence were admissible ‘‘to establish

opportunity or preparation to commit the crime

charged * * *.” United States v. Ravich, supra, 421

F, 2d at 1204. See also United States v. Robinson, 560

F. 2d 507, 513 (C.A. 2) (en banc), certiorari denied,

No. 77-5466, February 27, 1978; United States v.

Wiener, 534 F. 2d 15, 18 (C.A. 2), certiorari denied,

429 U.S. 820; United States v. Walters, 477 F. 2d 386,

388-389 (C.A. 9), certiorari denied, 414 U.S. 1007;

United States v. Baker, 419 F. 2d 83, 86-87 (C.A. 2),

certiorari denied, 397 U.S. 976.

Finally, the money seized from petitioner’s wife

was properly admitted as circumstantial evidence of

petitioner’s participation in the conspiracy.’ United

~ ® Contrary to petitioner’s apparent suggestion (Pet. 20), it was

unnecessary for the government to show that petitioner’s wife was

involved in the conspiracy. Although the $19,000 in United States

currency was seized from petitioner’s wife, it was admitted into

evidence as money possessed by him on the basis of his wife’s state-

ment that he had given the money to her (Tr. 957). The court im-

mediately instructed the jury that petitioner “is not bound by what

his wife said unless under al] the circumstances you find that ‘she }

was authorized to speak for [him] with reference to the ow”.ership

14

States v. Magnano, 543 F. 2d 431, 437 (C.A. 2), certi-

orari denied, 429 U.S. 1091; United States v. Tra-

munti, 513 F. 2d 1087, 1105 (C.A. 2), certiorari

denied, 423 U.S. 832; United States v. Kenny, 462 F.

2d 1205, 1219 (C.A. 3), certiorari denied sub nom.

Kropke v. United States, 409 U.S. 914. Although the

money was seized approximately three montbs after

the termination of the conspiracy and was thought by

Argentine police to be the proceeds of a bank robbery

(Tr. 970-971), these factors affected only the weight,

not the admissibility, of the evidence. See United States

v. Tramunti, supra, 513 F. 2d at 1105. As the trial judge

observed, the fact that the seizure occurred in the course

of a bank robbery investigation “doesn’t mean the arti-

cles seized are unrelated to the deal in narcotics” (‘Tr.

961).

_ 5. Finally, petitioner’s claim (Pet. 32) that he was

denied effective assistance of counsel is insubstantial.’

His counsel’s failure to obtain the court files in

Argentina would be significant only if petitioner was

prejudiced by the oversight, but, as discussed above,

petitioner has made no showing that those files sup-

port his claim that the government deliberately

suppressed exculpatory evidence or that Officer Bor-

of that money” (Tr. 957). See Fed. R. Evid. 801(d)(2)(C).

Moreover, as noted above, the return of the money to petitioner’s

wife by the Argentine court did not render it inadmissible. Peti-

tioner erroneously characterizes that return as a determination

that the money “legitimately” belonged to his wife (Pet, 21),

whereas the court had simply dismissed the bank robbery case

because of lack of evidence,

* Petitioner’s present counsel was associated with his trial coun-

sel until the latter’s recent death.

15

salino intentionally testified falsely. Indeed, the dis-

trict court concluded “with absolute certainty” that

the file “could not have changed the verdict” (March

4, 1977, Tr. 23).

Similarly, as to petitioner’s claim that the prosecu-

tion was barred by the statute of limitations, this

defense was raised by petitioner’s attorney at trial

and rejected by the jury. The evidence proved that a

conspiracy involving petitioner continued until Feb-

ruary 16, 1968, which was less than five years prior to

return of the indictment.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wape H. McCres, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Fer,

MICHAEL J. KEANE,

Attorneys.

Marcu 1978.

0.8. GOVERNMERT PRINTING OFFICE: 1978