Opposition — Brackett v. United States

Supreme Court, U.& .

FILED

MAR 18 1978

| MICHAEL RODAK, JR. CLERK

No. 77-7638

a)

7

Gn the Supreme Gourt of the United S

OcroBper TERM, 1977

Watrer S. BRACKETT, PETITIONER

v.

Unrrep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

LOUIS M. FISCHER,

Attorneys,

Department of Juatice,

Washington, D.C. 205.30.

Page

TER GEE cenccnsansncsudemneessenennemcieiwne l

SITIIEN: tidnemmretisinendenenninteneteiitiiienitaetiaeds —— 1

(Juestions presented neqequesseeseucesceooscesesesensosese 2

a aR ene ee ETE 2

BERT cancocnscnnsnensedganeeunsensnwensasnnaneess ‘

EE a ee a A ee 5

CITATIONS

Cases:

Adama v. Iilinoia, 450 U.S. 278.....-.-.----------...- 6

Arsenault v. Massachusetts, 393 U.S, 5... 5

Bailey v. Holley, 530 F. 2d 169.........---2-- 12

Brager v. United States, 5327 F. 2d 895.....----- 12,13

Brown v. Cow, 481 F. 2d 622, certiorari denied, 414

Cah Wi nciestniasensitsigintiantitatnmaineaiedinndiniaie 4,7

Brown v. Wainwright, 587 F. 2d 154, certiorari denied,

SN Ry nie a a on 5.7.8

Coleman v. Alabama, 399 U.S, 1..------ 6

DeVerse v. United States, 536 F. 2d 804, certiorari

eae eae 13

Dorszynski v. United States, 418 U.S, 424.......---- Passim

ITankerson v. North Carolina, 482 U.S. 233_.......---- 4,8

Harris v. Procunier, 498 F, 2d 576_.......-_-___ . 57,8

Hoyt v. United ee 12

Jackson v. United States, 510 F, 2d 1335... _§ 10, 12

Kemplen v. Maryland, 428 F. 24 169.........-.-..-- 6

Kent v. United States, 383 U.S. 541....--.----_ 2,3

MVeConnell vy. Rhay. SE Ee ne >

McCray v. United States, 542 F. 2d 1246_.....---___ 12

McK nabb vy. United States, 551 F. 2d 101......-.-__- ll

Mackey v. United States, 401 U.S. 667_....-.---.__ 8

Martin v. United States, 248 F. 2d 651.........____ _- 14

Mempa v. United States, 389 U.S, 128_....-..-_-__ 6

(T)

Il

Cases—Continued ee

Mordecai vy. United States, 421 F. 2d 1133, certiorari — page

denied, 307 U.S. 977..---<<00--- 22 - ooo - + oo =o eee 7,38

Michigan v. Payne, 412 U.S. 47--------------------- 4

Owens v. United States, 383 F, Supp. 780 affirmed, 515

F. 2d 507, certiorari denied, 423 U.S. 996...------. 9%, 12

Rivera v. United States, 542 F. 2d 478...------------- 13

Robinson v. United States, 536 F. 2d 1109.....------- 12

Sanders v. United States, 373 U.S. 1.---------------- 14

Smith v. Yeager, 459 F. 2d 124.--------------------- i,7

Stovall vy. Denno, 388 U.S. 203......---------------- 4

Tasby v. United States, 535 F. 2d 464.--------------- 1}

T ollett v. ITenderson, 411 U.S. 258..-..-.----------- 4

Torres v. United States, 469 F. 2d 651_-...-..---.------ l4

l'nited States vy. Lowe, 367 F. 2d 44.--------.----- _ 14

United States v. Kaylor, 491 F, 2d 1133, reversed on

other grounds sub nom. United States v. Hopkins,

418 1735. 900... coccecccccececeoeccoesesesescocece= 12

United States v. Peltier, 422 U.S. 531..-------------- t

United States v. Scruggs, 558 Se 11.13

United States vy. Silla, 555 F. 2d 703...-.------------ ll

United States v. Tucker, 404 U.S, 445...------------- 14

W ilhite vy. United States, 281 F. 2d 642_-.......-.------ 4

Williams v. United States, 401 U.S. 646.-..-.-------- 4,8, 9

Statutes:

68 TIS. SBBb.. ccncccccccesoccececceceecescascoeces 3.14

Su the Supreme Gourt of the United States

OcroBeR Term, 1977

Water 8. BRACKETT, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the panel of the court of

appeals (Pet. App. 21) is not reported. The opinion

of the court of appeals on rehearing en bane (Pet.

App. 1-19) is reported at 567 F. 2d 501.

JURISDICTION

The judgment of the court of appeals was entered

on December 10, 1975, and was affirmed on rehearing

en bane on July 18, 1977. The Chief Justice extended

the time for filing a petition for a writ of certiorari

to November 28, 1977, and the petition was filed on

(1)

2

that date. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether this Court’s decision in Kent v. United

States, 383 U.S. 541, should be applied retroactively.

2. Whether this Court’s decision in Dorszynski

v. United States, 418 U.S. 424, should be applied

retroactively.

3. Whether petitioner’s claim that the sentencing

court improperly took into consideration prior convic-

tions was presented with sufficient specificity to re-

quire the district court to hold an evidentiary hearing.

STATEMENT

On November 7, 1960, petitioner was indicted for

first degree murder in connection with an assault that

caused the death of a guard at the National Training

School for Boys (Pet. App. 2). At the time, he had

been convicted on at least three previous occasions,

twice in state courts and once in federal court (Pet.

C.A. Brief 42-43, n. 17). In the course of his murder

trial before the Honorable Alexander Holtzoff, in

the District Court for the District of Columbia, peti-

tioner pleaded guilty to the lesser offense of man-

slaughter. Judge Holtzoff subsequently sentenced peti-

tioner, who was then fifteen years old, to a term of

five to fifteen years’ imprisonment (Pet. App. 2-3).

Petitioner was twice paroled, and his parole was

twice revoked for commission of subsequent criminal

offenses. After his third release on parole, petitioner

eee nee

3

was again convicted on state charges, and he is now

serving a state sentence. Because of his history of

parole violations, petitioner still has a significant por-

tion of his 1961 sentence left to serve (Pet. 8 n. 4).

In 1969, petitioner filed a motion under 28 U.S.C.

2255 to vacate his conviction and sentence. After al-

lowing that motion to lay dormant for several years,

petitioner renewed it in 1974 (Pet. App. 47-57). The

district court denied the motion without a hearing

(Pet. App. 20), and the court of appeals affirmed by

order (Pet. App. 21). Following rehearing en bane

on the issue of the retroactivity of this Court’s opin-

ion in Dorszynski v. United States, 418 U.S. 424, the

court of appeals again affirmed (Pet. App. 1-19).

ARGUMENT

1. Petitioner argues (Pet. 13-19) that he is en-

titled to the retroactive application of this Court’s de-

cision in Kent vy. United States, 383 U.S. 541. In that

case, this Court held that a juvenile was entitled to

notice, a hearing, and assistance of counsel before the

juvenile court for the District of Columbia could

Waive its jurisdiction. Petitioner apparently seeks

to have his case remanded so that a new waiver

hearing may be held (Pet. 19), although he is now

32 years old (Pet. 5 n.1) and therefore outside the

jurisdiction of the juvenile court. Petitioner points

to a split among the circuits and state courts in

urging review. We submit that the holding in Kent

should not be applied retroactively, and that in light

of the diminishing importance of the question, there

is no need for review by this Court.

4

We note at the outset that by pleading guilty in

the adult court, petitioner waived his claim that his

juvenile waiver hearing did not meet statutory or

constitutional standards. See Smith v. Yeager, 459 F.

2d 124 (C.A. 3); Wilhite v. United States, 281 F. 2d

642, 644 (C.A.D.C.) (Burger, J.); ef. Tollett v. Hen-

derson, 411 U.S. 258; Brown y. Cox, 481 F. 2d 622,

628 n.16 (C.A. 4) (en bane), certiorari denied, 414

U.S. 1136.

In any event, Kent should not be given retroactive

effect. Whether a ruling of this Court in a criminal

case 1s made retroactive turns on (1) the purpose of

the new rule, (2) the extent of the reliance by the

courts or other authorities on the old rule, and (3)

the effect of retroactive application on the administra-

tion of justice. See, e.g., Michigan v. Payne, 412 U.S.

47; Stovall vy. Denno, 388 U.S. 293. In particular, the

Court has focused on whether the major purpose of

the new rule is “ ‘to overcome an aspect of the erim-

inal trial that substantially impairs its truth-finding

function and so raises serious questions about the ac-

curacy of guilty verdicts in past trials.’’’ Hankerson

v. North Carolina, 432 U.S. 233, 243 (emphasis in

original) ; United States v. Peltier, 422 U.S. 531, 535;

Williams v. United States, 401 U.S. 646, 653.

The rule announced in Kent was not intended to

contribute to the accuracy of the truth-finding proce-

ess, nor did it correct a practice that raised serious

questions about the accuracy of guilty verdicts in

prior cases. Instead, Kent merely established that the

waiver hearing was a sufficiently important stage of

5

the criminal process to require certain procedural pro-

tections, even though it did not in any way affect

the determination of guilt or innocence. As the Ninth

Cireuit stated in Harris v. Procunier, 498 F. 2d 576,

579:

First, a certification hearing is not a trial,

but a hearing. Juvenile proceedings are not in-

tended to be adversarial. Second, the function

of a certification hearing is not to gather facts

for the purpose of conducting criminal proceed-

ings against the juvenile, but to determine

whether it would be proper for the juvenile

court to continue to assert jurisdiction over the

juvenile. While we in no way discount the

thrust of Kent to provide due process guaran-

tees at the certification hearing, we do not see

that it is the type of constitutional rule which is

directed at, or in any way impairs, the truth-

finding function.

See also Brown v. Wainwright, 537 F. 2d 154, 156-157

(C.A. 5), certiorari denied, 430 U.S. 970.

Petitioner seeks support for his contention in

McConnell vy. Rhay, 393 U.S. 2, and Arsenault v. Mas-

sachusetts, 393 U.S. 5, in which this Court held retro-

active the right to counsel at arraignments at which

pleas are entered and defenses may be waived, and

at deferred sentencing proceedings. Both of these set-

tings, however, are unlike a juvenile waiver hearing

in that they directly involve questions going to guilt

or mnocence. An uncounseled plea or waiver of an

affirm:tive defense may result in the conviction of a

defendant otherwise legally entitled to a verdict of

not guilty. And in the deferred sentencing procedure,

6

as the Court pointed out in Mempa v. Rhay, 389 U.S.

128, 136-137, the defendant’s continued liberty often

turns on a factual determination of guilt or innocence

of subsequent, uncharged criminal conduct. The juve-

nile waiver hearing, by contrast, does not involve a

determination of guilt or innocence, but merely re-

solves whether the juvenile or adult system will make

that determination.

The retroactivity question here is therefore much

more like that presented in Adams vy. Illinois, 405 U.S.

278, than that presented in the eases relied on by peti-

tioner. In Adams, this Court held that even though

a preliminary hearing is a “critical stage of the crimi-

nal process”? at which the defendant is constitution-

ally entitled to counsel, see Coleman v. Alabama, 399

U.S. 1, that rule would not be applied retroactively

because the purposes of the rule did not bear suf-

ficiently on the factfinding process at trial. 405 U.S. at

281. Because the juvenile waiver hearing is similarly

unrelated to the truth-finding process, the rights estab-

lished by Kent should not be held retroactive.

Petitioner is correct that there is a split in the cir-

cuits on this issue, but the split is of diminishing

importance and does not require resolution by this

court. The Fourth Cireuit early held Kent retro-

active, Kemplen vy. Maryland, 428 F. 2d 169, but

every other circuit that has considered the question

has ruled that Aent should not be given retroactive

effect, and this Court has denied certiorari on each

7

oceasion.' Even the Fourth Circuit has significantly

retreated from its original position on the matter.

Brown v. Cox, 481 2d 622 (C.A. 4) (en banc), cer-

tiorari denied, 414 U.S. 1136. There is no need for

review by this Court now.

Several additional factors present in this case cut

against applying Aent retroactively here. First, peti-

tioner’s offense was so serious and his lack of ame-

nability to the juvenile correctional process so clearly

apparent that it may be said with confidence that a

juvenile waiver hearing with full Aent procedural

protections would not have produced a different re-

sult. Petitioner was indicted for first degree murder

(Pet. 5), and the sentencing court described the

offense as particularly gruesome (Pet. App. 29; Tr.

201). A remand under these circumstances would

therefore be meaningless. Brown v. Wainwright,

supra, 537 F. 2d at 157-158; Harris v. Procunier,

supra, 498 F. 2d at 579; Brown v. Cox, sv-nra, 481 F.

2d at 627-628; Mordecai vy. United States, supra,

421 F. 2d at 1138.

Second, the retroactive application of Kent in this

and other similar cases would have an adverse effect on

the administration of justice. Petitioner is now 32 years

*See Mordecai v. United States, 421 F, 2d 1133 (C.A.D.C.),

certiorari denied, 397 U.S. 977; Harris v. Procunier, 498 F. 2d

576 (C.A. 9) (en banc), certiorari denied, 419 U.S. 970; Brown

v. Wainwright, 587 F. 2d 154 (C.A. 5), certiorari denied, 430

U.S. 970. See also, Smith v. Yeager, 459 F. 2d 124, 127 (C.A. 3)

(suggesting that full retroactivity for Kent would be in-

appropriate).

257-463— 78——_2

8

old and beyond the jurisdiction of the juvenile court.

Not only would a waiver hearing be difficult to recon-

struct, but assuming that it is found that waiver should

not have been granted, the remedy petitioner seeks is

full release. Although such a remedy was contemplated

as a possible result in Kent itself, it should not automat-

ically be applied in cases in which the juvenile waiver

preceded the announcement of the rule in Kent. Yet

assuming that full release is not the proper course, there

is no real remedy available te petitioner at this point.

As the Fifth Circuit in Brown ¥. Wainwright correctly

noted (537 F. 2d at 157):

[Ijf we should determine that the juvenile

court judge’s decision to waive jurisdiction was

improper, we have no appropriate remedy to

grant Brown. Obviously, the juvenile court can-

not now take over Brown’s case, in that it no

longer possesses jurisdiction over him and its at-

tempts to now offer “non-punitive” rehabilition

to a 27 year old man who has been in prison for

twelve years and who has three more sentences

to serve would be ludicrous.

See also Harris v. Procunier, supra, 498 F. 2d at 579;

Mordecai v. United States, supra, 421 F. 2d at 1138.

Finally, petitioner’s claim arises on a collateral chal-

lenge to his conviction, which further militates against

applying Kent retroactively here. See Hankerson v.

North Carolina, supra, 432 U.S. at 264-248 (Powell,

J., concurring in the judgment); Mackey v. United

States, 401 U.S. 667, 675-702 (Harlan, J.); Williams

v. United States, 401 U.S. 646, 665-666 (Marshall J.,

concurring in part and dissenting in part).

9

2. For many of the same reasons, there is no merit

to petitioner’s claim that this Court’s decision in

Dorszynski v. United States, 418 U.S. 424, should be

given retroactive application here.

In Dorszynski, this Court: held that it would require

district courts, in electing not to sentence under the

Youth Corrections Act, to make an explicit finding

that the defendant would not benefit from youth

offender treatment. The Court made it clear that the

Youth Corrections Act was not intended to limit the

district court’s sentencing discretion or to confer a

substantive right on the youth offender to particular

sentencing treatment. The only purpose of requiring

an explicit finding of “no benefit,” the Court held,

was to relieve the appellate courts from having to de-

termine from the record in each case whether an im-

plicit finding of no benefit had been made and thus

whether the district court had been aware of and had

actually exercised its discretion in electing not to sen-

tence under the Youth Corrections Act. 418 U.S. at

443-444. See also Owens v. United States, 383 F. Supp.

780, 785-787 (M.D. Pa.), affirmed, 515 F. 2d 507 (C.A.

3), certiorari denied, 423 U.S. 996. The rule an-

nounced in Dorszynski thus does not even remotely

contribute to the accuracy of the fact-finding process

or serve to “overcome an aspect of the criminal trial

that substantially impairs its truth-finding function

and so raises serious questions about the accuracy of

guilty verdicts in past trials.” Williams v. United

States, supra, 401 U.S. at 653. Instead, it merely

facilitates the very narrow appellate inquiry as to

10

whether the district court has exercised its diseretion

in sentencing the youthful offender.

In this case, because the court of appeals found

that the district judge had not made an explicit find-

ing of no benefit, it examined the record and con-

cluded that an iuplicit finding had been made. The

district court was thus found te have properly exer-

cised its statutory discretion under the Youth Cor-

rections Act; all that the court of appeals found

niissing Was the explicit finding that would have made

the appellate court’s job easier. To contend that a

defendant enjoys a right to a more explicit finding

than was made here, and that the right to that finding

should be applied retroactively on collateral attack

to invalidate his sentence, is to read much more into

Dorszynski than is there. See Jackson v. United

States, 510 F.2d 1335, 1337 (C.A. 10).

We submit, initially, that the sentencing court’s

explicit reference to the Youth Corrections Act and

its express finding that sentencing under that Act was

inappropriate would be sufficient to satisfy the re-

quirements of Dorszynski, even if that case were held

to apply retroactively. In Dorszynski, the Court

stated (418 U.S. at 444):

Literal compliance with the Act can be satisfied

by any expression that makes clear the

sentencing judge considered the alternative of

sentencing under the Act and decided that the

youth offender would not derive benefit from

treatment under the Act.

At sentencing, counsel for petitioner specifically re-

quested that the court sentence under the Youth

11

Corrections Act (Pet. App. 41), and the court spe-

cifically declined to do so (Pet. App. 43), noting that

petitioner “needs incarceration in a maximum securi-

ty institution’ (Pet. App. 43). While it doubtless

would have been preferable for the sentencing court

to have used the precise terms of the statute in ex-

ercising its sentencing discretion, the incantation of

the statutory formula is not required by Dorszynski.

See United States v. Silla, 555 F. 2d 703, 707-708

(C.A. 9); MeKnabb v. United States, 551 F. 2d 101,

105 (C.A. 6); United States v. Scruggs, 538 F. 2d 214

(C.A, 8). In Dorszynski, the Court vacated the sen-

tence because it was unclear from the record whether

the sentencing court realized the defendant was eligi-

ble for sentencing as a youth offender. Here, by con-

trast, the record makes it clear beyond eavil that the

court realized it had the choice and deliberately chose

to sentence petitioner as an adult.

Even if the sentencing court's findings were not suf-.

ficient to satisfy the *‘explicit finding” requirement of

Dorszynski, that should not be grounds for vacating

petitioner’s 1961 sentence. The disparity between what

Dorszynski requires—even giving: that case its most

generous construction—and what was done here is so

minimal as to call for application of the principles of

harmless error. Moreover, while there is, as petitioner

contends, a technical split in the circuits on the ques-

tion of the retroactivity of Dorszynski, the split is not

as sharp as petitioner suggests, and the matter is not

of sufficient importance to require resolution by this

Court.

12

Petitioner relies on decisions by the Fourth, Fifth,

and Eighth Circuits giving Dorszynski retroactive ef-

fect’ The Fourth and Fifth Circuits, however, have

applied Dorszynski retroactively without any analysis

of the issue. See McCray v. United States, 542 F. 2d

1246 (C.A. 4); Robinson v. United States, 536 F. 2d

1109 (C.A. 5); Hoyt v. United States, 502 F, 2d 562

(C.A. 5).

Of the three courts that have applied Dorszyuski

retroactively, only the Eighth Circuit has discussed

the issue, and that court has required only a

very limited inquiry on the part of the sentencing

judge in response to a collateral attack on a sentence

for failure to satisfy the requirements of Dorszynskt.

See Brager Vv. United States, 527 F. 2d 895 (C.A. 8).

Under the Eighth Cireuit’s ruling, if the sentencing

judge is able to make explicit findings that he con-

sidered the applicability of the Youth Corrections Act

at the time of sentencing and determined that the de-

fendant would not benefit from sentencing under the

Act, Dorszynski would be satisfied. Moreover, the

court noted that this determination could ordinarily

he made without holding an evidentiary hearing and

without having the defendant present in court. Brager

v. United States, supra, 527 F. 2d at 898-899.

* Rv contrast, the Second, Third, Tenth and District of Colum-

bia Circuits have held the principles of )orszynski non-retroac-

tive. See United States v. Naylor, 491 F. 2d 1133 (CLA. 2) (en

bone), vacated on other grounds sv) nom. United States v.

Hopkins, AIS US. 909; Owens v. United States, 333 F. Supp.

7) (M.D. Pa.). affirmed, 515 F. 2d 507 (C.A. 3), certiorari

denied, 423 U.S. 996; Jackson v. United States, 510 F. 2d 1335

(CLA. 10); see also Batley v. Holley, 530 F.2d 169, 173 (CLA, 7).

13

The Eighth Circuit’s rule would ordinarily not have

a significantly adverse affect on the administration of

justice, since it would usually require only a nune pro

func supplementation of the record by the sentencing

judge.’ In eases such as this one, however, where the

sentence is an old one and the sentencing judge has

died, the burden is substantially greater. In those

cases, the new judge would apparently be required to

vacate the original sentence or to hold a hearing to

redetermine whether the defendant would have ob-

tained no benefit from sentencing as a youth offender.‘

In light of the substantially greater burden involved

in such cases, we submit that the decision of the court

of appeals in this case to apply Dorszynski only to

cases still on direct appeal was a sensible and proper

accommodation of the policies underlying retroactivity

law.*

3. Petitioner’s final claim (Pet. 25-28) is that the

sentencing court took into consideration prior convic-

tions allegedly obtained in violation of his right to

* That is precisely what has happened in a series of Eighth

Circuit cases following Brager. See Rivera v, United States, 5A2

F. 2d 478: DeVerse v. United States, 536 F, 2d 804, certiorari

denied, 429 U.S, 897; Zashy v. United States, 535 F. 2d 464.

*We note that the Eighth Circuit in Breger did not discuss

these problems of remedy in cases in which the sentencing judge

was no longer available, but left them for the district court to

wrestle with. Brager v. United States, supra, 527 F. 2d at 899.

*In any event, it appears likely that even the Eighth Circuit

would not have found a violation of Porszynski here, In a deci-

sion following Brager, that court held that a sentencing judge's

comments that were very similar to the comments made in this

case satisfied the “explicit finding” requirement of Dorszynsk/.

(1 ited States vy. Scruggs, 538 F.2d 214.

14

counsel, contrary to this Court’s decision in United

States v. Tucker, 404 U.S. 443. Although the sentene-

ing court focused primarily on the seriousness of the

offense, the court did note that petitioner had “a bad

record before this present commitment” (Pet. App.

42-43).

In his Section 2255 motion, petitioner alleged

simply that at the time of sentencing “the trial judge

took into consideration past convictions of plaintiff

(although he was a juvenile) when he was not repre-

sented by counsel”? (Pet. App. 48, 52). The govern-

ment responded (Pet. App. 64) that this conclusory

statement, which failed to allege specifically what

prior convictions the court had relied on and in what

manner the court had relied on them, was insufficient

to entitle petitioner to a hearing under Section 2255.

The district court, by order (Pet. App. 20), agreed

with the government that no hearing was required.

The district court was correct in not holding a hear-

ing on the basis of petitioner’s conclusory allegation.

Although Section 2255 provides that the district court

shall hold a hearing “[u]nless the motion and the files

and records of the case conclusively show that the

prisoner is entitled to no relief,” a hearing is not re-

quired unless the motion contains sufficient factual

allegations to support the claim for relief. Sanders vy.

United States, 373 U.S. 1,19; Torres v. United States,

469 FP, 2d 651 (CLA. 9); United States v. Lowe, 367 F.

2d 44 (CLA. 7); Martin v. United States, 248 F. 2d

651, 652 (C.A.D.C.). A denial on this ground, of

course, is not a denial on the merits, and petitioner is

15

apparently free to present his claim, with appropriate

specificity, to the district court. Review by this Court

is therefore unnecessary and unwarranted.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wave H. McCree, Jr.,

Solicitor General.

BensJaMiIn R,. CIvitettt,

Assistant Attorney General.

SripNEY M. GLAZER,

Lovis M. FIscuer,

Attorneys.

Marcu 1978,

€.8, GOVERNMENT PRINTING COPTER, to7Te