# Petition — Stephenson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 822

## Text

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

---

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