Petition — Stephenson v. United States

FILED

Seprema Court, U. T

MAY 5 1978

nn. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

May Term, 1978

„ 77-1585

WALTER LEE STEPHENSUN and

KATIE CHARLOTTE STFPHENSON - - Petitioner

versas

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR A WRIT OF CERTIONARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

H. PAUL HAYNES

$449 Taylor Boulevard

Louisville, Kentucky 40215

(502) 367-9292

WESTERFIELO-BONTE CO., 619 W. KENTUCKY-?.©. BOX 3251, LOUISVILLE, KY.

The trial court erred by not suppressing evidence

which was a product of an illegal and unconstitutional

search and seizure.

The trial court committed prejudicial error when it

failed to offer defendant’s recommended instructions

that, in order for the defendant to be found guilty of

possession of a firearm under 18 U.S.C. App. 1202 (A),

possession had to be within the knowledge of the

defendant.

The trial court erred by sentencing the defendant,

Walter Lee Stephenson, as a dangerous special of-

fender under 18 U.S.C. 3575 when the defendant did

not receive notice a reasonable time before trial as

required by the statute.

hc oh 0 aokve meee 17

Appendix A—Order of the Court of Appeals for the

, AAA ee ee. oo ° 19

Appendix B Order denying petition for rehearing... 20

N

—

iso pia

AUTHORITIES CITED

Cases:

Henson v. Commonwealth, 347 8. W. 94 546 (Ky.

. AA ˙

Johnson v. United States, 383 U. S 10 (1948) ......

Neal v. Commomvealth, 292 8. W. 314 (6th Gir, 1927)

People v. Cogwell, 288 N. E. 2d 729 (II. 1972) .....

Pera v. United States, 11 F. 2d 772 (9th Cir. 1928)

Roach v. Parratt, 407 F. Supp. 703 (Neb. 1976)

Rooker v. Commonwealth, 508 8. W. 24 570 (Ky.

1974) 7erea ee ewe wee eee „% ˙§——ͤ „ „„ B !kP

Rose v. United States, 513 F. 2d 1251 (8th Cir. 1975)

Ruth v. Commonwealth, 298 S. W. 2d 300 (Ky. 1957)

Schoeneman v. United States, 317 F. 2d 173 (D. C.

1963) „„ ne ee „„ „ een ee deen „„

Sgro v. United States, 287 U. S. 206 (1982) ........

State v. Joseph, 337 A. 2d 523 (R. I. 1975)

Thornton v. Commonwealth, 68 8. W. 2d 707 (6th

% A dp ces ccdececsec. cece

United States v. Bailey, 637 F. 2d 845 (Sth Cir. 1976)

* States v. Besase, 521 F. 2d 1306 (6th Cir.

5) CCS HSCESOCOCOS SH TE SLASH ROPES eee e CEES Cee

United States v. Cable, 446 F. 2d 1007 (8th Cir.

„„ ß nish. tao

United States v. Duardi, 384 F. Supp. 874 (W.D. Mo.

i RE ES eer ree, a eens

United States v. Edwards, 397 F. Supp. 617 (M.D.

CCC

United States v. Harris, 482 F. 2d 1115 (3rd Cir.

„

iii

Cases: (Cont’d) —

United States v. Johnson, 461 F. 2d 285 (10th Cir. j

n indent ec:

United States v. McKenzie, 446 F. 2d 949 (6th Cir.

. ̃ ̃ e's bade ³˙ 3A ²⁰ 11

United States v. Noland, 495 F. 2d 529 (5th Cir.

TTP. AA anan¥e wksdc 16

United States v. Tramunti, 377 F. Supp. 6 (S. D.

3 4she-d nn 004k 84 dukes oe eceuie cha) cin 17

United States v. Ventresca, 380 U. S. 102 (1965).... 11

United States v. Wiley, 478 F. 2d 415 (8th Cir. 1973) 14

Whitely v. Warden, 91 S. Ct. 1031 (197177 12

Other Authorities:

18 U.S.C. App. Section 1202 (A) ))) 2, 3, 4, 6, 14

18 U.S.C. Section 357555. 2, 3, 4, 6, 7, 15, 16, 17

May Term, 1978

No. —ů— —

WAUrIn Lee SrrrnENSOx and

Karm CHARLOTTE STEPHENSON - - Petitioner

v.

Untrep States or AMERICA - - Respondent

PETITION FOR A WRIT OF CERTIONARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, Walter Lee and Katie Charlotte Ste-

phenson, prays that a writ of certiorari be issued to

review the judgment of the United States Court of

Appeals for the Sixth Circuit.

OPINION BELOW

The District Court for the Western District of

Kentucky found the defendants guilty on a jury ver-

dict without written opinion. The opinion of the Cir-

euit Court of Appeals, printed in Appendix A hereto,

infra, has not yet been reported.

of the defendant ?

3. Did the trial court err by sentencing the defend-

ant, Walter Lee Stephenson as a dangerous special

offender under 18 U.S.C. 3575 when the defendant re-

ceived notice a few hours before trial and not at a

reasonable time prior to trial as required by the statute?

18 U.8.C. appendix Section 1202 (A) provides as

follows:

(a) Any person who—

(1) Has been convicted by a court of the

United States or of a State or any political sub-

division thereof of a felony,or . . .

and who receives, possessed, or transports in com-

merce or affecting commerce, after the date of

enactment of this act, any firearm shall be fined

not more than $10,000, or imprisoned for not more

than two years or both.

18 U.S.C. Section 3575 (A) and (E) provides as

follows:

(A) Whenever an attorney charged with the

prosecution of a defendant in a court of the United

States for an alleged felony . . . believes that

the defendant is a dangerous special offender such

attorney, a reasonable time before trial or ac-

ceptance by the court of a plea of guilty or nolo

eontendre, may sign and file with the court, and

may amend,a notice

STATEMENT OF THE CASE

On February 11, 1977, Mr. and Mrs. Walter Lee

Stephenson, Defendants, herein, were arrested by the

Louisville Division of Police and charged with violat-

ing Title 18 U.S.C. Appendix, Section 1202 (A)(1).

Probable cause was established at a Preliminary Hear-

ing conducted on April 15, 1977, and both Defendants

both defendants guilty of violating Title 18, Appendix,

Section 1202 (A) (1), United States Code, They hereby

appeal that verdict. Furthermore, Walter Lee Ste-

found him to be a Special Dangerous Offender, pur-

The Court of Appeais for the Sixth Circuit affirmed

the judgment of the District Court on February 24,

1978. Petition for Rehearing was denied on March 22.

1978.

A. Pre-Trial

Walter Lee and Katie Charlotte Stephenson reside,

as husband and wife, at 2500 Kentucky Street, Louis-

ville, Jefferson County, Kentucky. The Defendant,

Walter Stephenson, has lived on that street for ap-

proximately eleven (11) years. Both defendants were

secure in their residence, on February 11, 1977, when a

search was conducted by law enforcement officers, em-

ployed by the City of Louisville. The offers acted

under authority of a search warrant issued to them the

previous day, February 10, 1977, by the Honorable 8.

Rush Nicholson, Jefferson County Circuit Judge.

Judge Nicholson’s decision as to whether there ex-

isted probable cause for issuance of the search warrant

was predicated solely on an affidavit prepared and

typed by Detective William Greer, City of Louisville

Division of Police.

In the affidavit, necessary to support issuance of

the search warrant, the law enforcement officer stated

that he had received information from a reliable, con-

fidential informer on January 9, 1977, at 1630 hours.

At the hearing on the Motion to Suppress, Officer

Greer, intending te correct the defect, stated that the

date in the affidavit was an error. He said that the

informant actually called him on February 9, not Janu-

ary 9, as stated in the affidavit.

During the search, a Smith and Wesson, Model 37,

.38 caliber revolver bearing the serial number 600614

was found in the bedroom, in Katie Stephenson’s

dresser drawer. There was also testimony at trial that

“‘nareoties and drugs’’ were also discovered in the de-

fendants’ residence. However, the Government did

not produce these items nor did it produce or refer to

any laboratory reports on the discovered substances.

The confiscation of the weapon resulted in an ac-

tion by the plaintiff, United States of America, charg-

ing the defendants with a violation of Title 18, U.S.C.

Appendix, Section 1202 (A)(1), Unlawful Possession

of a Firearm. | |

The defendant moved to suppress the evidence alleg-

ing the facts in the affidavit, as stated, were stale and

too remote in time, being thirty-two (32) days old when

the search warrant was issued. A motion to suppress

the evidence accompanied by a memorandum in support

‘was tendered on May 18, 1977. On June 1, 1977, a hear-

ing was held, and this motion to suppress was overruled.

On the morning of the trial, June 1, 1977, the

Government issued a Notice to defendant, Water Lee

Stephenson of its intention to proceed under Title 18,

U.S.C. 3575, charging the defendant as a Special

Dangerous Offender which carries a maximum sentence

of twenty-five (25) years.

B. The Sentencing Hearing

It was introduced by the government at the Sen-

tencing Hearing, conducted on June 24, 1977, that de-

fendant, Walter Lee Stephenson, was convicted on

June 24, 1965, in the Circuit Court of Jefferson County,

Kentucky, of Storehouse Breaking and received a pro-

bated sentence of one year and one day. On October

7

11, 1965, defendant was convicted in the United States

District Court for ue Western District of Kentucky

for Theft from Interstate Shipment and received a

sentence of one year and one day. Defendant was

paroled on July 31, 1966. Defendant pleaded guilty

to Malicious Shooting and Wounding and was sen-

tenced to five years in prison on November 19, 1970.

The victim in this ease was shot one time and three

people went to prison for it. Defendant was released

from prison on December 22, 1972.

Prior to the Sentencing Hearing, defense counsel

moved to strike the Notice on grounds that the Notice

tendered the morning of the trial was untimely and

failed to meet the statutory requirements under Title

18, Section 3575 (A).

REASON FOR GRANTING THE WRIT

Proceeding by use of a Search Warrant is drastic.

Its abuse led to the adoption of the Fourth Amendment

of the Constitution of the United States. The law is

well established that probable cause to justify the is-

suance of a search warrant must exist at the time the

warrant is issued. In the instant case, the law en-

forcement officer did not act promptly on the informa-

tion he received from his informer. He waited thirty-

two (32) days to obtain a warrant. In essence, by

using this aged information he obtained and performed

a search of defendant’s premises without probable

cause.

Courts have traditionally spoken in terms of near-

ness of remoteness in time when deciding the validity

* — —

of a search warrant. In Schoeneman v. United States,

317 F. 2d 173 (D.C. 1963), the Court stated “we could

find no cases which sustained a search warrant issued

more than 30 days after finding of the evidence which

constituted the basis for the search.” Earlier, the

Supreme Court stated that the crucial issue was

whether the affiant had reasonable grounds at the time

of his affidavit and the issuance of the warrant for

the belief that the law was violated, at that time, on

the premises to be searched. Dunbar v. United States,

403 F. 2d at 193 (9th Cir. 1968). In determining

whether probable cause exists, the court is not re-

quired to determine whether the offense charged has

in fact been committed, but it is concerned with the

question of whether there is reasonable grounds to

believe at the time of the affidavit that the law was

being violated on the premises to be searched.’’ United

States v. Besase, 521 F. 2d 1306 (6th Cir. 1975).

In the present situation, the facts upon which the

law enforcement o cer relied were stable, remote and

unrelated to the facts at the time of the issuance of the

warrant. In Sgro v. United States, 287 U. 8. 206 at

211 (1932), the Supreme Court, although dealing with

a statute prescribing the time limitation for an af-

fidavit, made clear the relationship between the time-

liness of an affidavit and a finding of probable cause.

While the statute does not fix the time within which

proof of probable cause must be taken by the judge

or commissioner, it is manifest that the proof must be

of facts so closely related to the time of the issuance of

the warrant as to justify a finding of probable cause at

that time.“

~~

In Neal v. Commonwealth, 292 8. W. 2d 14 (Ky.

1927), the Court said, it is the rule in this jurisdic-

tion that the affidavit supporting a search warrant must

contain a statement of facts showing the source of the

information which must be of such recent occurrence

as to create a probable cause fur the belief that the

forbidden articles were possessed at the time the search

was made.”’

In United States v. Harris, 482 F. 2d 1115 (3rd Cir.

1973), the Court stated that the question of staleness

of probable cause depends more on the nature of the

unlawful activity alleged in the affidavit than the dates

and times specified therein. Whether the facts alleged

in the affidavit were stale and/or too remote in time to

justify probable cause cannot be qualified by simply

counting the number of days between the occurrence of

the facts relied upon and the issuance of the affidavit.

Where the affidavit recites a mere isolated violation,

it would not be unreasonable to imply that probable

cause dwindles rather quickly with the passage of time,

however, where the affidavit properly recites facts indi-

cating activity of a protracted and continuous nature,

a course of conduct, the passage of time becomes less

significant.” United States v. Johnson, 461 F. 2d 285

(10th Cir. 1972). The affidavit in the instant case was

based on activity which was not of a protracted nature,

nor was the activity recited in the affidavit a course of

conduct, or continuous. Thus, the passage of thirty-

two (32) days mitigates the possibility that the viola-

tion still existed and completely erodes all probable

cause for the unreasonable search of the defendant’s

premises.

10

It is well established that whether or not the affi-

davit is sufficient must be determined by what appears

on its face, and the courts cannot go behind the affi-

davit for the purpose of testing its sufficiency. Thorn-

ton v. Commonwealth, 53 8. W. 2d 606, (Ky., 1932).

The requirement is fundamental and the / facts must

show that the property was known to be at the place to

be searched so recently as to justify the belief that the

property is still there at the time of the issuance of the

search warrant.“ Manual For United States Commis-

stoners, p. 24. Probable cause must be determined as

of the time the warrant is issued and not with the bene-

fit of hindsight.“ Giondenello v. United States, 78

S. Ct. 1245 (1958).

The Fourth Amendment requires probable cause.

The error in the instant case is flagrantly obvious: a

search warrant was issued which was solely predicated

upon an affidavit based upon stale and remote facts

which were insufficient to establish probable cause.

The Supreme Court has held since Aguilar v. Tezas,

378 U. S. 108 (1964), that the inference of probable

cause drawn by a magistrate must rest on specific facts.

Because of the staleness and remoteness of the infor-

mation of this informant, no “specific” facts existed

upon which probable cause could be based. In the

absence of such empirically demonstratable facts, the

magistrate may not exercise the inference-drawing

function since the sole input of information is the

officer’s conclusion. The police officer is therefore

undertaking the inference-drawing process reserved to

the magistrate. From what is supposed to be an inde-

pendent, critical evaluation of the circumstances, the

11

magistrate’s probable cause finding diminishes to

nothing more than a rubber stamp approval of the

conclusions of the officer.“ 19 UCLA Law Review, 96

at 101: United States v. Ventresca, 380 U. S. 102, 106

(1965), quoting Johnson v. United States, 333 U. 8.

10, 13-14, (1948).

Officer Greer, who obtained the search warrant in

question stated, during the hearing on the motion to

suppress, after I receive the information from the

informant, we try not to go over 24 hours before we

type the warrants and try to serve them. Sometimes

the people are not home, we have to go a day or two.

But the search warrant is 99 percent of the time typed

and signed by the judge within 24 hours after we

receive the information.“ Thus, the officer obtaining

the search warrant supports defendants’ contention

that thirty-two (32) days is too remote to justify prob-

able cause.

To support this stale information, the prosecution

in a response to a Motion to Suppress, contended that

the dates in the affidavit were erroneous; they called it

oversight or a clerical error. In support of their con-

tention, they cited two cases during the hearing on the

motion to suppress. In the first case, United States v.

McKenzie, 446 F. 2d 949, (6th Cir. 1971), the affidavit

was typed on a form wherein the printed date read

1922 instead of 1923. In the second case, Pera v. United

States, 11 F. 2d 772 (9th Cir. 1928), the court con-

sidered a typing error where one digit made the date

an error. -Also, the court stated that no objection was

made to the form or sufficiency of the warrant at the

trial. These cases are clearly distinguishable from the

instant ease.

In the present case the error was not a typographical

error; the month was not misspelled; the wrong digit

was not typed, but, the police officer swore one date was

accurate in his affidavit and, in an effort to rehabilitate

this defect, swore ai the hearing that he had made a

mistake. Exactness as to when he received the confi-

dential information is essential in order for the issuance

of the search warrant. :

Issuance of a search warrant should not be auto-

matic. The issuing official is required to carefully

read, question and understand the facts which support

such a drastic invasion of a citizen’s home. In Rooker

v. Commonwealth, 508 S. W. 2d (Ky. 1974), the court

held, ‘‘where a judge issues a search warrant based

upon an affidavit which he does not read, he makes no

determination of probable cause but merely serves as

a rubber stamp for the police. Such aetion is improper

even though the affidavit actually shows probable cause

for the issuance of the warrant.’

The Supreme Court specifically held in Whitely v.

Warden, 91 S. Ct. 1031 (1971) :

Under the cases of this court an otherwise in-

closed to the issuing magistrate. A contrary rule

would, of course, render the warrant requirement

of the Fourth Amendment meaningless.

Thus, in the case at bar, the judicial officer would

be a mere rubber stamp if the police officer can, subse-

quent to the execution of the warrant, amend their facts

in the affidavit on which the probable cause rests.

Another reeent case supporting defendants’ conten-

tion is Roach v. Parratt, 407 F. Supp. 703 (Neb. 1976),

in which the Court stated, it is necessary to view the

sufficiency of an affidavit in determining the legality

of a search warrant. Also, Harness v. Commonwealth,

475 S. W. 2d 485 (Ky. 1971), declared that, it is im-

proper to go behind allegations of the affidavit in sup-

port of the search warrant to establish probable cause.

Henson v. Commonwealth, 347 S. W. 2d 546 (Ky.

1961), State v. Joseph, 337 A. 2d 523 (RI. 1975), and

Ruth v. Commonwealth, 298 S. W. 2d 300 (Ky. 1958),

ali hold that the sufficiency of the warrant must be

measured by what appears within the four corners“

of the affidavit.

In the present case, the admitted inaccuracy of the

facts contained in the supporting affidavits could not

support the issuing officer’s inference or conclusion

that probable cause existed. Thus, the search of de-

fendant’s premises was not based upon probable cause,

and all evidence seized was in violation of their consti-

tutional rights under the Fourth Amendment of the

United States Constitution and should have been duly

suppressed by the District Court.

A “Request for Instructions” was timely submitted

to the Court by the defense counsel. The instruction

which was requested and denied was as follows:

To constitute possession of such a firearm, it

must be established beyond a reasonable doubt:

14

(a) That the defendant exercised control, or had

the right to exercise control over the firearm, and,

(b) that the defendant had knowledge of the pres-

ence of the firearm.”

At trial, counsel for the defendant renewed his re-

quest for the instruction. This request was denied.

The counsel for the defendant cited several cases that

supported his requested instruction.

In United States v. Cable, 466 F. 2d 1007 (8th Cir.

1971), in a proceeding under this same statute, 18

U.S.C.A. App. 1202 (A), the Court stated that the

elements of this offense are (1) The knowing and

willing (2) possession of a firearm (3) by one previ-

ously convicted.“ (Emphasis added.)

United States v. Goodiz, 524 F. 2d 515 (5th Cir.

1975), stated a necessary element of the receiving

crime is that he knowingly received a firearm” (Em-

phasis added). Other cases that held knowledge is an

essential element of this offense are: Rose v. United

States, 513 F. 2d 1251 (8th Cir. 1975), United States v.

Wiley, 478 F. 2d 415 (8th Cir. 1973), and People v.

Cogwell, 288 N. E. 2d 729 (Ill. 1972).

None of the Court’s instructions adequately pro-

vided the jury with the guidance that both defendants

must have knowledge of the presence of the firearm in

order to be found guilty. An essential part of the case

for the defense was that the defendant could not have

known the gun was in his house. Thus, by not instruct-

ing the jury in regard to the requirement of knowledge,

he was prejudiced.

—

It is specifically required by the Dangerous Special

Offender statute, 18 U.S.C. 3575, that: ‘‘Whenever an

attorney charged with the prosecution . . . has

reason to believe that the defendant is a dangerous

special offender, such attorney, a reasonable time before

trial or acceptance of a plea of guilty or nolo contendre

may sign and file with the Court and may amend, a

notice (Emphasis added).

In the instant case, the attorney for the government

filed his notice with the court and the defendant on the

day of trial, June 1, 1977, contrary to the requirement

in the statute. This resulted in great and substantial

prejudice to the defendant because he prepared for

trial on the charge under which he had been arraigned

and not for the additional charge. The defendant, who

anticipated a maximum two (2) year sentence was

suddenly confronted, on the date of his trial, with a

possible maximum sentence of twenty-seven (27) years.

The above stated statute specifically states that

notice is to be given not just a few hours before trial

but a reasonable time before trial.“ This was not

complied with, and no explanation was offered.

Counsel for the defendant moved the District Court

to strike this notice, at the sentencing hearing. This

was the earliest possible time for counsel to object to

the untimely notice. The statute specifically states:

In no case shall the fact that the defendant is

alleged to be a dangerous special offender be an

issue upon the trial of such felony, be disclosed to

the jury, or be disclosed before any plea of guilty

or nolo contendre or verdict or finding of guilty to

the presiding judge without the coneent of the

1 (Emphasis added.) 18 U.S.C. 3575 (A)

F. Supp. 617 (M.D. Fla. 1974), the court stated that if

the government-plaintiff decides to invoke the statute,

then he must „do so by filing the notice a rea-

sonable time before trial or acceptance by the court of

a plea of guilty or nolo contendre. In this he has no

discretion. To accept the contrary suggestion would be

to hold that the notice may be filed at any time, and that

the provision of the statute just quoted is superfluous

or without any meaning at all.

The Court went on to add that United States v.

Noland, 495 F. 2d 529 (5th Cir. 1974), is supportive if

not compelling authority for their result. In the case,

United States v. Bailey, 537 F. 2d 845 (5th Cir. 1976),

the Court noted, that prior to pleading, it is essential

as a matter of fairness to notify the defendant that he

may, under the recidivist statute, receive enhancement

of the maximum sentence if he is adjudged to be a

‘Dangerous Special Offender.’’’ (Emphasis added).

At the Hearings on S30 before Subeommittee No. 5

of the House Committee on the Judiciary, 91st Con-

gress, 2nd Session (1970), The Justice Department con-

cluded that a reasonable time before trial was a time

— —

— —

17

prior to pleading which would permit the defendant as

a matter of fairness, to know and understand that he

may receive an enhanced sentence.

The procedural requirements of notice under this

statute must be strictly followed or the notice shall be

held invalid. United States v. Daurdi, 384 F. Supp.

874 (W.D. Mo. 1974), United States v. Tramunti, 377

F. Supp. 6 (S.D. N. V. 1974), both of which involve 21

U.S.C. 849, a drug enhanced-sentencing statute almost

identical to the statute in question, 18 U. S. C. 3575.

The defendants’ constitutional right of due process

has been violated, and the special dangerous offender

sentencing should be reversed for the defendant, Walter

Lee Stephenson.

For the foregoing reasons, the Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

H. Paul Haynes

3449 Taylor Boulevard

Louisville, Kentucky 40215

Attorney for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

von THE SIXTH CIRCUIT

No. 77-5252

Usrrep States o Amuntoa 6 - «= -~—Ss Plaiitiff-Appellee

v.

Water Lez Sreruenson and

Karm Cuartorrs Srepuznson - Defendants-Appellants

Before: Wniox, Ce.uzsaeeze, and Kerra, Cirouit Judges.

This cause having come on to be considered on the record

on appeal, and on the briefs and oral argument of counsel

for the parties, the Court being fully advised in the premises

concludes that the District Court did not err in instructing

the jury on the elements of an offense under 18 U.S. C. App.

§ 1202 (a)(1), possession of firearms by a convicted felon.

The Court further finds that the other claims raised by

Appellants are without merit.

It is Onperep that the judgment of the District Court be,

and it hereby is affirmed.

Entered by Order of the Court

Clerk

Issued as Mandate: March 31, 1978

Costs: None

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

No. 77-5252

Unrrep Starzs or America - Plaintiff-A ppellee

—

.

Watrer Lez Sreruenson and

Karm Cuantorre StePHenson’” - Defendants-A ppellants

ORDER

Before: Weick, CeLEsrerze, and Kxrrn, Circuit Judges.

Appellants having filed a petition for rehearing with this

Court, and this Court having considered said petition and

being duly advised in the premises,

It is Onperep that the petition for rehearing be, and it is

hereby denied.

Entered by Order of the Court

Clerk

ere