Petition — Washington v. United States

Supreme Court, U.

FILED

JAN 19 1979

in the

MICHAEL RODAK, JR., CLERK

Supreme Court

of the

United States

OCTOBER TERM, 1978

No._%8=11 91

JOHN JOSEPH CERRELLA and

THOMAS JOSEPH CHIANTESE,

Petitioners

Us.

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GEORGE D. GOLD and

THOMAS G. MURRAY,

MORAN AND GOLD, P.A.

and

JAMES J. HOGAN

950 South Miami Avenue

Miami, Florida 33130

(305) 373-5475

Attorneys for Petitioners

—

——

—

INDEX

Page

R ˙⸗A a ccing rds qekbe ces 2

, ͥͤ% ͤͤ 2

QUESTIONS PRESENTEU³¹VDDPUPUPU UHH... . 3

STATEMENT OF THE CASE... q ꝶ 4

REASONS FOR GRANTING THE WRIT ........ 7

2

The decision below raises significant and

recurring problems concerning the harmful

effect of a long decried jury instruction on

the due process rights of criminal defen-

% ͤ——Kĩ ks ce eees

The procedure adopted by the Fifth Circuit

in its decision sub judice raises a substan-

tial question of equal protection of the

— — eee eee

The instant decision of the Fifth Circuit is

in derogation of the standards governing

retroactivity, established and never

deviated from by this Court. ..............

10

n

‘Went

ay PY

INDEX (Continued)

Page

4. The Fifth Circuit has expanded the con-

cept of judicial discretion beyond the

bounds of reason, to the substantial

derogation of the Fifth and Sixth Amend-

ment rights of criminal defendants. ....... 11

c e.. 13

ii

CITATIONS

CASES: Pages

Chevron Oil Company v. Huson,

OE et e 10

Desist v. United States,

, ee ee 10

Linkletter v. Walker,

e 11

Mann v. United States,

319 F. 2d 404 (5th Cir. 1963) 4, 5, 8, 9, 10

Milam v. United States,

$22 F. ad 104 (Sth Cir. 1963) .........cccccccces 11

Milton v. Wainwright,

nne 10

Reynolds v. Sims,

e 9

Stovall v. Denno,

388 U.S. 293 (1967) ........ me ee ern ene 10

United States v. Chiantese,

546 F.2d 135, 136 (5th Cir. 1977) .............. 5, 8

United States v. Doe,

nee 11

iii

„ *

CITATIONS (Continued)

CASES: Pages

United States v. McKinney,

429 F.2d 1019 (5th Cir. 1970)ʒ:.

United States v. Petersen,

524 F.2d 167 (4th Circ. 1975) ..................

Winebrenner v. United States,

BGT oe Gee Cee Cit, 1946)... oo cc ccc ccc ccccs

iv

MISCELLANEOUS: Pages

Devitt & Blackmar, Federal Jury Practice

& Instructions, 1970 §13.06, P. 277”˖ ꝛ 77777 5, 8

Hobbs Act (Title 18 819511ͤ))) 9 cc cece eee 4

/ PO Gs hese hak Gacke covccecs 2

Sandstrom v. Montana, Case No. 78-5384 ....... 3, 7, 8

— :::. Q ˙ͤ— 2

v

in the

Supreme Court

of the

United States

OCTOBER TERM, 1978

NO.

JOHN JOSEPH CERRELLA and

THOMAS JOSEPH CHIANTESE,

Petitioners

vs.

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, JOHN JOSEPH CERRELLA and

THOMAS JOSEPH CHIANTESE, respectfully pray

that a Writ of Certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Fifth Circuit entered in this proceeding on October

27, 1978.

OPINION BELOW

The opinion of the Court of Appeals, not yet re-

ported, appears in the Appendix hereto. No opinion was

rendered by the District Court for the Southern District

of Florida.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on October 27, 1978. The Petitioners

were granted an extension of time to file their petition

for rehearing and suggestion for rehearing en banc;

which pleadings were timely filed on November 27,

1978. On December 13, 1978, the petition for rehearing

and suggestion for rehearing were denied. A timely mo-

tion for stay of the mandate was denied by the Fifth Cir-

cuit on December 19, 1978, and the mandate issued on

that date. Counsel had erroneously computed the thirty

(30) day period of Rule 22, Supreme Court Rules, in

which to file the instant petition from the date of the

mandate rather than from the date of the entry of the or-

der denying the petition for rehearing. When counsel

learned of his error, he immediately notified the Clerk of

the Supreme Court by telephone and was advised that

the thirty day provision of Rule 22 was not jurisdic-

tional. It is therefore prayed that, given the magnitude

of the Constitutional issues presented herein, that this

Court will exercise its discretion in favor of reviewing the

instant admittedly untimely petition. Undersigned

counsel accepts full blame for the late filing of the peti-

tion, and earnestly hopes that any sanctions the Court

may deem appropriate be directed to him rather than to

the petitioners, who are currently incarcerated, serving

sentences of sixteen and thirteen years respectively.

This Court’s jurisdiction is invoked under 28 U.S.C.

91254 (1).

—

2

QUESTIONS PRESENTED

1. Did a jury instruction to the effect that a jury

may infer that a person intends all the natural and

probable consequences of acts knowingly done or

knowingly omitted, unless that person presents evidence

to the contrary, erroneously shift the burden of proof to

the petitioners, thereby depriving them of due process of

law? See Sandstrom v. Montana, Case No. 78-5384 cer-

tiorari granted, 1/8/79.

2. Are the petitioners, who timely objected at trial

to a long condemned jury instruction and who raised the

issue on appeal, denied equal protection of the law by

the prospective only application of the Circuit Court

of Appeals’ decision further condemning that

instruction.

3. Does the prospective only application of the

Fifth Circuit’s decision sub judice conflict with the

retroactivity principles announced in numerous deci-

sions of this Court?

4. May atrial judge refuse to hold a hearing after

learning of derogatory comments by a juror directed to

defense counsel, which comments prima facie

demonstrate potential prejudice to the Fifth and Sixth

Amendment rights of the petitioners, and call into ques-

tion the integrity of the fact finding ‘process?

STATEMENT OF THE CASE

Petitioners were each convicted in the United

States District Court for the Southern District of Florida

of attempting to interfere with interstate commerce by

extortion, in violation of the Hobbs Act (Title 18, Sec-

tion 1951). On appeal to the United States Court of Ap-

peals for the Fifth Circuit each Petitioner’s conviction

was reversed on two grounds, to wit:

(a) The trial court, over objection, erroneously

shifted the burden of proof on the issue of intent by in-

structing the jury as follows:

As a general rule it is reasonable to infer that

a person ordinarily intends all of the natural

and probable consequences of acts knowingly

done or knowingly omitted. So, unless the

evidence in the case leads the jury to a different

or contrary conclusion, the jury may draw the

inference and find that the accused intended

all the natural and probable consequences

which one, standing in like circumstances and

possessing like knowledge, should reasonably

have expected to result from any act knowingly

done or knowingly omitted by the accused.”

(Emphasis added).

The Fifth Circuit, in reversing on account of this in-

struction having been given, noted that this instruction,

which notoriously came to be known in the Circuit as

the Mann instruction: — taking its name from Mann

v. United States, 319 F.2d 404 (5th Cir. 1963), cert.

denied 375 U.S. 986 (1964) — has been repeatedly con-

demned both by panels within the Circuit as well as by

4

many other Federal Courts. It has even been referred to

as an “invitation to reversible error”. Devitt and

Blackmar, Federal Jury Practices and Instructions,

1970, Section 13.06 p. 277, United States v. Chiantese,

546 F.2d 135, 136 (5th Cir. 1977).

(b) The trial court erroneously declined to con-

duct a hearing in the face of derogatory and severely

deprecating comments amongst at least two jurors

directed toward defense counsel. The Fifth Circuit

originally held:

Olur survey of decisions by this Circuit,

other Circuits, and the Supreme Court leads us

to conclude that at a minimum the lower court

should have conducted an inquiry into the

alleged misconduct to determine what prej-

udice, if any, resulted therefrom and thereafter

take appropriate action. The Court erred in its

failure to do so.“ United States v. Chiantese,

546 F.2d at 138.

The case was then reheard en banc, the panel

opinion was vacated, and the case remanded to the

panel. United States v. Chiantese, 560 F.2d 1244 (5th

Cir. 1977). The en banc Court, addressing only the jury

instruction issue, again condemned the infamous

Mann instruction”, stating:

We therefore direct that in all trials com-

menced 90 days after the date of this

opinion:

No district court in this circuit shall include

in its charge to the jury an instruction on proof

of intent which is couched in language which

could reasonably be interpreted as shifting the

burden to the accused to produce proof of in-

nocence,” 560 F.2d at 1255.

The Court further held that the error would not be

cured by prior or subsequent statements or instructions

of the trial judge. Ibid. The case was remanded to the

panel for further consideration. The en banc Court did

not address jury misconduct”’ issue.

On remand, the panel retreated from its earlier

decision on both issues. The Court unable to apply the

post-90 day rule of law, found that in the instant case,

the prejudice from the condemned Mann instruction

was balanced by other remarks and instructions by the

trial judge. Further, although the en banc Court had not

addressed the issue of the trial court’s failure to conduct

a hearing into the jury misconduct, the panel deviated

from its initial decision and held that the failure was

harmless error.

In their petition for rehearing and suggestion for

rehearing en banc, Petitioners, argued, first, that the

“prospective only“ application of the en banc Court’s

decision conflicted with the governing standards of

equal protection of the laws and of retroactivity es-

tablished by this Court’s utter refusal to conduct any

inquiry into the highly prejudicial and inflammatory

remarks of the jurors conflicted with numerous decisions

of this Court and several Courts of Appeal.

On December 13, 1978, the Fifth Circuit denied the

petition for rehearing and suggestion for rehearing en

banc. Further, on December 19, 1978, the Court denied

Petitioners’ Motion for Stay pending application to this

Court for a writ of certiorari, and issued its mandate on

that date.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW RAISES SIGNIFI-

CANT AND RECURRING PROBLEMS CONCERN-

ING THE HARMFUL EFFECTS OF A LONG

DECRIED JURY INSTRUCTION ON THE DUE

PROCESS RIGHTS OF CRIMINAL DEFENDANTS.

That the first issue presented by the instant peti-

tion is appropriate for certiorari review by this Court is

attested to by the fact that this Court has granted a writ

of certiorari in Montana v. Sandstrom, Case No.

78-5384, a case which addresses the identical issue

raised herein. In Sandstrom, the jury was instructed

that a “person intends the ordinary consequences of his

voluntary acts.“ This Court is being asked to decide

whether that instruction deprived the defendants of due

process of law.

In the instant case, the jury was told:

„As a general rule it is reasonable to infer that

a person ordinarily intends all the natural and

probable consequences of acts knowingly done

or knowingly omitted. So, unless the evidence

in the case leads the jury to a different or con-

trary conclusion, the jury may draw the in-

ference and find that the accused intended all

the natural and probable consequences which

one, standing in like circumstances and

possessing like knowledge, should reasonably

have expected to result from any act knowingly

done or knowingly omitted by the accused.”

(Emphasis added).

Thus, through the use of nearly identical language,

the defendant in Sandstrom and the instant petitioners

were deprived of due process of law.

The recurring nature of the above question was at-

tested to by the Fifth Circuit’s en banc decision, which

recited a litany of Fifth Circuit cases dating back to

Mann v. United States, 319 F.2d 404 (5th Cir. 1963),

which universally condemn the same or similar jury in-

structions. Furthermore, the Court recognized that the

instruction has been termed an invitation to reversible

error’. Devitt and Blackmar, Federal Jury Practice and

Instructions, 1970, §13.06 P. 277; United States v.

Chiantese, 546 F.2d 135, 136 (5th Cir. 1977).

The Fifth Circuit’s opinion reflects its frustration a

its inability to provide guidance to trial courts who per-

sist in using the repugnant jury instruction. The fifteen

year history of Fifth Circuit cases addressing the issue

raised by the instruction is hardly a paragon of con-

sistency. It was due to the Fifth Circuit’s failure to give

full and uniform effect to the Mann decision, which held

the instruction to be plain error, and which decision has

never been overruled, that the Fifth Circuit felt com-

pelled to utilize the extraordinary procedure it has now

adopted, of applying its decision in futuro. In this, the

Fifth Circuit is clearly in error. The Fifth Circuit and

other Courts of Appeal, are apparently in desperate

need of this Court’s assistance and guidance in this case.

2. THE PROCEDURE ADOPTED BY THE

FIFTH CIRCUIT IN ITS DECISION SUB JUDICE

RAISES A SUBSTANTIAL QUESTION OF EQUAL

PROTECTION OF THE LAWS.

The Fifth Circuit’s en benc decision, which follows

a host of federal judicial precedents and further con-

demns the repugnant jury instruction in question, but

which denied relief to the instant petitioners by delaying

the effect of its decision for a rather arbitrarily contrived

ninety (90) days, clearly flies in the face of time-honored

decisions of this Court which establish equal protection

principles now considered virtually fundamental.

Reynolds v. Sims, 377 U.S. 533 (1964). The Fifth Circuit

has arbitrarily and unreasonably created two classes of

criminal defendants, and endorsed widely divergent

treatment for each class. Thus, defendants tried before

the expiration of the magical ninety (90) day period may

be placed in the position of having to prove lack of

criminal intent if the trial judge fortuitously balances

his Mann instruction with other instructions, while

defendants tried after the ninety (90) day period who are

victimized by a Mann instruction are entitled to a new

trial in the absence of overwhelming evidence of guilt. It

is earnestly hoped that this Court will speak loudly and

clearly in discouraging the Circuit Courts from adopting

this prospective only procedure which is so repugnant to

basic concepts of fairness and equal protection of the

laws. Further, certiorari review by this Court is essential

to restore harmony between the decisions of this Court

and the Circuits, which can only be accomplished by

quashing the deviant decision of the Fifth Circuit.

3. THE INSTANT DECISION OF THE FIFTH

CIRCUIT IS IN DEROGATION OF THE STAND-

ARDS GOVERNING RETROACTIVITY, ES-

TABLISHED AND NEVER DEVIATED FROM BY

THIS COURT.

As Justice Stewart has recognized, a question of

prospectivity or retroactivity is not even properly before

the Court unless the decision in question marks a sharp

break in the web of the law.” Milton v. Wainwright, 407

U.S. 371, 381 n, 2 (1972) (Stewart, Jr., dissenting). One

year before, this Court had held in Chevron Oil Com-

pany v. Huson, 400 U.S. 97, 106 (1971) that a decision to

be applied non-retroactively:

must establish a new principle of law, either

by overruling clear past precedent on which

litigants may have relied. . . or by deciding an

issue of first impression whose resolution was

not clearly foreshadowed. . .”

In flagrant disregard of these principles and in

direct conflict with the above decisions of this Court, the

Fifth Circuit has elected to withhold the application of

its decision sub judice for ninety (90) days. This

prospective only” application was elected despite the

fact that the Fifth Circuit’s decision can hardly be re-

garded as a “sharp break in the web of the law,” given

the fifteen year history of cases castigating usage of the

Mann instruction. Clearly, the issue of retroactivity vel

non should not have even been before the Fifth Circuit.

Further, even if the issue of retroactivity was properly

before the en banc Court, the issue was wrongly decided,

in direct conflict with this Court’s decisions in Stovall v.

Denno, 388 U.S. 293 (1967); Desist uv. United States, 399

10

o-—

U.S. 244 (1969); Linkletter v. Walker, 381 U.S. 618

(1965). The conflict between the en banc decision of the

Fifth Circuit and the above decisions of this Court is an

appropriate setting for review by this Court in an exer-

cise of its certiorari jurisdiction.

4. THE FIFTH CIRCUIT HAS EXPANDED

THE CONCEPT OF JUDICIAL DISCRETION

BEYOND THE BOUNDS OF REASON TO THE

SUBSTANTIAL DEROGATION OF THE FIFTH

AND SIXTH AMENDMENT RIGHTS OF

CRIMINAL DEFENDANTS.

The decision of the Fifth Circuit upholding the trial

Judge’s rather astounding decision to do “nothing” in

the face of vituperative and vitriolic comments of a juror

directed at defense counsel generates the very type of

conflict among the Circuit which makes certiorari

review by this Court proper and compelling. The Fifth

Circuit’s decision conflicts with United States v. Peter-

son, 524 F.2d 167 (4th Cir. 1975); United States v. Doe,

513 F.2d 709 (ist Cir. 1975); Winebrenner v. United

States, 147 F.2d 322 (8th Cir. 1945), and is internally in-

consistent with its own decisions in Milam v. United

States, 322 F.2d 104 (5th Cir. 1963) and United States v.

McKinney, 429 F.2d 1019 (5th Cir. 1970). k

In its initial decision, the Fifth Circuit held that the

trial judge’s failure to conduct an inquiry into the inci-

dent constituted reversible error, citing numerous cases

as well as Wright, Federal Practice and Procedure, Vol.

2 %554, P. 491 (1969), which states:

Blecause of the seriousness of possible mis-

conduct affecting the jury, the court must

11

make a full investigation when such ground is

alleged on a motion for new trial, in order to

determine whether the incident occurred as

alleged, and if so, whether it can be said with

assurances to have been harmless.” (Emphasis

supplied).

The en banc decision of the Fifth Circuit did not ad-

dress the issue. In its latest decision, however, the Fifth

Circuit has held that the trial court did not abuse its dis-

cretion in refusing to hold a hearing. Such a retreat by

the Court sua sponte from its earlier decision requiring

reversal has lead the Court on the path of error and into

direct conflict with decisions of this Court.

It is submitted that not only does the Fifth Circuit’s

decision on the four issues cited above conflict with deci-

sions of this Court and other Courts of Appeal, but the

issues raise question of substantial importance to the

administration of criminal justice, which questions

make the appropriateness of certiorari review even more

com 4 :

12

ee

— —

CONCLUSION

The petitioners submit that this petiticn raises a

substantial question of due process of law already before

the Court in Montana v. Sandstrom, Case No. 78-5384.

In addition, the petitioners have raised another equally

substantial question of due process, as well as questions

of equal protection of the laws, and retroactivity of deci-

sions. For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Fifth Circuit.

Respectfully submitted

GEORGE D. GOLD and

THOMAS G. MURRAY,

MORAN AND GOLD, P.A.

and

JAMES J. HOGAN

950 So. Miami Ave.

Miami, Florida 33130

(305) 373-5475

BY Thomas G. Murray

for GEORGE D. GOLD

13

Appendix

in the

Supreme Court

of the

United States

OCTOBER TERM, 1978

FO

JOHN JOSEPH CERELLA and

THOMAS JOSEPH CHIANTESE,

Petitioners

Us.

THE UNITED STATES OF AMERICA,

Respondent

APPENDIX

INDEX TO APPENDIX

EXHIBIT Page

*

Decision of United States Court of Ap-

peals, Fifth Circuit United States v.

Chiantese (Case No. 75-3534, 10/27/78). .. App. 1

Denial of Petition for Rehearing and

Suggestion for Rehearing En Banc.

DD 1 V App. 21

Denial of Motion for Stay pending Petition

for Writ of Certiorarr i App. 22

App. i

UNITED STATES of America,

Plaintiff-Appellee,

U.

Thomas Joseph CHIANTESE

and John Joseph Cerrella,

Defendants-Appellants.

No. 75-3534.

United States Court of Appeals,

Fifth Circuit.

Oct. 27, 1978.

After defendants were convicted in the United

States District Court for the Southern District of Florida

at Ft. Lauderdale, Norman C. Roettger, Jr., J., of at-

tempting to interfere with interstate commerce by extor-

tion, in violation of the Hobbs Act and the conviction

was reversed on appeal, 546 F.2d 135, the case was

reheard en banc and remanded to the panel, 560 F.2d

1244. The Court of Appeals, Tjoflat, Circuit Judge, held,

inter alia, that although an instruction given by the trial

court was objectionable because it could be read as

shifting the burden of proof on the issue of criminal in-

tent from the Government to the defendant, no reversi-

ble error occurred.

Affirmed.

App. 1

1. Criminal Law — 823(9)

Though instuction given by trial court during

prosecution for violation of Hobbs Act was objectionable

in that it could be read to shift burden of proof on issue

of criminal intent from Government to defendant, re-

versible error did not occur in view of other instruggjons

concerning Government’s burden of | , curative in-

structions given by trial judge, and existence of other

evidence of objective conduct demonstrating criminal

intent. 18 U.S.C.A. §§2, 1951.

2. Criminal Law — 868, 1155

Decision to hold hearing to determine whether juror

misconduct has occurred is within sound discretion of

trial judge, and his ruling will not be reversed unless it

constitutes abuse of such discretion.

3. Criminal Law — 868

Trial judge did not abuse discretion in refusing to

hold hearing to determine whether juror misconduct oc-

curred when member of jury, speaking to alternate

jurors, criticized cross-examination conducted by defen-

dant’s attorney.

4. Criminal Law — 868, 1174(2)

Where jury misconduct involves influences from

outside sources, failure of trial judge to hold hearing

constitutes abuse of discretion and is therefore reversi-

ble error, since presumption of prejudice arises when

outside influence is brought to attention of trial court.

App. 2

5. Threats — 7

Evidence was sufficient to demonstrate that con-

duct of defendants in threatening valet parking lot

owner affected interstate commerce as required to show

violation of Hobbs Act. 18 U.S.C.A. §1951.

6. Threats — 7

Evidence in Hobbs Act prosecution was sufficient

to establish that defendant aided and abetted extortion

attempt. Fed.Rules Crim.Proc. rule 32(c)(1), 18

U.S. C. A.

7. Criminal Law — 986

Where trial court afforded defendants and their

counsel opportunity to say anything on defendants’

behalf that would be of assistance to court in determin-

ing sentence, it was not abuse of discretion to decline to

order presentence report. Fed.Rules Crim.Proc. rule

32(c)(1), 18 U.S. C. A.

Appeal from the United States District Court for

the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and

TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us on remand from the court

sitting en banc. Our initial disposition reversed the con-

victions of Chiantese and Cerrella' because the district

court had employed what has come to be known as the

Mann instruction.”? United States u. Chiantese, 546

F.2d 135 (5th Cir. 1977). The trial judge incorporated

the following version of the Mann charge in his final in-

structions to the jury:

As a general rule it is reasonable to infer that

a person ordinarily intends all the natural and

probable consequences of acts knowingly done

or knowingly omitted. So, unless the evidence

in the case leads the jury to a different or con-

trary conclusion, the jury may draw the in-

ference and find that the accused intended all

the natural and probable consequences which

one, standing in like circumstances, and

possessing like knowledge, should reasonably

have expected to result from any act knowingly

done or knowingly omitted by the accused.

Record, vol. 1, at 790; id., vol. 4, at 593-94 (emphasis

supplied). The instruction is objectionable because the

emphasized language may be read to shift the burden of

proof on the issue of criminal intent from the Govern-

ment to the defendant. E.g., Mann v. United States, 319

F.2d 404, 409 (5th Cir. 1963), cert. denied, 375 U.S. 986,

84 S.Ct. 520, 11 L.Ed.2d 474 (1964).

'The defendants were convicted of attempting to interfere with

interstate commerce by extortion, in violation of the Hobbs Act, 18

U.S.C. 582, 1951 (1976). .

The cognomen derives from our decision in Mann v. United

States, 319 F. 2d 404 (5th Cir. 1963), cert. denied, 375 U. S. 986, 84

S.Ct. 520, 11 L.Ed.2d 474 (1964), in which we held that employ-

ment of the prohibited instruction constituted plain error.

App. 4

To reach our original disposition, we felt compelled

to formulate a rule of automatic reversal. The district

courts of this circuit had continued to give the instruc-

tion, perhaps because several of our cases, although in-

veighing against the charge, had found its use not

reversible error. We also intimated that the court had

erred in not conducting a hearing to determine whether

a conversation among the jurors concerning the attorney

for Chiantese was impermissibly prejudicial.

This case was reheard before the court en banc to

reexamine this panel’s holding on the Mann issue.

United States v. Chiantese, 560 F.2d 1244 (5th Cir.

1977) (en banc). Judge Clark, writing for the en banc

court, exhaustively reviewed the history of the Mann

charge and its confused story in this circuit. Jd. at 1246-

55. Invoking the court’s supervisory powers, he set forth

the district courts explicit guidelines, which, by the

terms of the opinion, were to apply to trials co: .menced

after ninety days of its publication. He prohibited the

district courts from employing the Mann instruction in

any of its forms but refused to establish a per se rule of

reversal. The sanction for giving the instruction is that,

in determining the prejudicial effect of the instruction,

this court will not consider charges by the trial judge

correctly setting forth the Government’s burden of

proof. Convictions may still be upheld if it is deter-

mined under the circumstances of the given case that

3A number of our cases had determined that the error in giving

the instruction was not basis for reversal when viewed in light of

other, curative instructions. E. g., United States v. Netterville, 553

F.2d 903 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 719,

54 L.Ed.2d 752 (1978); United States v. Roberts, 546 F.2d 596 (5th

Cir.), cert. denied sub nom. Mancini v. United States, 431 U.S. 968,

97 S.Ct. 2927, 53 L.Ed.2d 1064 (1977).

App. 5 .

the harm engendered by the instruction does not rise to

the level of reversible error, but this determination

“shall not include consideration of whether a defective

charge has been cured by prior or subsequent state-

ments.” Id. at 1255.

Accordingly, the en banc court vacated “‘[t]hat por-

tion of the panel opinion in this action predicating rever-

sal of the convictions of the defendants on the use of the

Mann charge” and remanded the case to us “with direc-

tions to reconsider the rights of the defendants in light of

this decision.” Jd. at 1256. In compliance with these

directives, we determine that the instruction given

below does not require reversal.

We have also found it necessary to reexamine our

discussion of the district court’s handling of the juror’s

misconduct. On reconsideration, we determine that our

original thoughts were in error, and we hold that the

failure of the judge to conduct a hearing to determine

the effect of the conversation does not require reversal.

The defendants assert three additional grounds for

reversal, none of which has merit. We discuss them

below. Therefore, we affirm the convictions of Chiantese

and Cerrella.

The Mann Instruction

[1] The en banc opinion requires us to apply the

standards governing cases tried before the effective date

of the guidelines set forth in that opinion. The en banc

court directed that its prophylactic measures apply in

all trials commenced 90 days after the date of this

opinion,” 560 F.2d at 1255, and that they are to be ap-

App. 6

plied prospectively only.“ Id. at 1256. Therefore, we

shall weigh the prejudice of the instruction given below

in the context of the charge as a whole. See note 3 supra.

We think that whatever untoward effect the

prohibited instruction may have had in this case was

vitiated by other instructions concerning the Govern-

ment’s burden of proof. The record is replete with state-

ments to the effect that the Government has the burden

of proving guilt beyond a reasonable doubt“ and this

‘The en banc court has fashioned a purely prospective” rul-

ing, that is, one which “does not apply even to the parties before the

court.” Linkletter v. Walker, 381 U.S. 618, 621-22, 85 S.Ct. 1731,

1733, 14 L.Ed.2d 601 (1965) (footnote omitted). Although rare, rul-

ings of purely prospective application are not without precedent.

E. g., England v. Louisiana State Bd. of Medical Examiners, 375

U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

That the standards enunciated by the en banc court do not ap-

ply to this case is wholly consonant with the reasoning of the court,

which recognizes that our precedents over 14 years furnish no con-

sistent or predictable rule that would encourage the change.” 560

F.2d at 1255. In view of the “ineffective communication” between

this court and the district courts, the en banc court postponed the

effect of its ruling by the 90 day period. Id.

Even in the context of nonsupervisory adjudication, federal

courts apparently do not lack power to fashion such relief. See

Linkletter v. Walker, 381 U.S. at 622 n. 3, 85 S.Ct. at 1733. Of

course, purely prospective rulings are wholly within this court’s

supervisory powers, which were explicitly invoked by the en banc

court in this case. 560 F.2d at 1255.

For example, the court gave the following instructions; The

Government has the burden of proving guilt beyond a reasonable

doubt before a jury can return a verdict of guilty.”’ Record, vol. 3, at

33. The Government is required to establish each of these ele-

ments beyond reasonable doubt.“ Id., vol. 4, at 593.

App. 7

burden never shifts to the defendant,® that a defendant

need not call witnesses or come forth with evidence to

avoid conviction,’ that the jury should consider the in-

structions as a whole and not individually,“ and that the

law presumes a defendant to be innocent and this

presumption alone is sufficient to acquit unless the jury

finds guilt beyond a reasonable doubt.“

„The burden, as I said, is always upon the prosecution to

prove guilt beyond a reasonable doubt.” Record, vol. 3, at 36. The

burden is always upon the prosecution to prove guilt beyond a

reasonable doubt. This burden never shifts to a defendant. . . .”

Id., vol. 4, at 590.

„ Tlhe defendant may or may not produce any evidence. A

defendant does not have to do so. A defendant really doesn’t even

have to cross examine the Government’s witnesses.’’ Record, vol. 3,

at 33. The jury will always bear in mind that the law never im-

posses upon a defendant in a criminal case the burden or duty of

calling any witness or producing any evidence and no adverse in-

ferences may be drawn from the failure to do so.“ Id., vol. 4, at 589,

accord, id. at 590, 593.

The jury should not single out any one single instruction or

ignore any one instruction, but consider all of them as stating the

law applicable to the case. Record, vol. 3, at 34.

The law presumes a defendant to be innocent of crime, thus a

defendant, although accused, begins the trial with a clean slate —

with no evidence against him. And the law permits nothing but

legal evidence presented before the jury to be considered in support

of any charge against an accused. So, the presumption of innocence

alone is sufficient to acquit a defendant unless the jury is satisfied

beyond a reasonable doubt of the defendant’s guilt after careful and

impartial consideration of all the evidence in the case.

Record, vol. 3, at 35.

App. 8

The law as it stood before the en banc opinion in

this case, and therefore the law applicable here, was

that the use of Mann instructions is reversible error

only when they mislead the jury to the extent that they

tend to reverse the burden of proof in the jury’s mind

. . . The complained-of instruction must remain un-

cured in the context of the full charge to require over-

turning the jury’s verdict’’ United States v. Netterville,

556 F.2d 903, 917 (5th Cir. 1977) (citations omitted),

cert. denied, 434 U.S. 1009, 98 S.Ct. 719, 54 L.Ed.2d 752

(1978). We think it manifest that the instructions given

by the court below would leave no doubt in a juror’s

mind that the burden of proof on the issue of criminal

intent remains invariably upon the government. Id.,

United States v. Roberts, 546 F.2d 596, 598-99 (5th Cir.

1977), cert. denied, 431 U.S. 968, 97 S.Ct. 2927, 53

L.Ed.2d 1064 (1977); United States v. Duke, 527 F.2d

386, 391-93 (5th Cir.), cert. denied, 426 U.S. 952, 96

S.Ct. 3177, 49 L.Ed.2d 1190 (1976). Moreover, several of

these curative instructions were given in close proximity

to the Mann charge, io a factor found to mitigate the ef-

fect of the proscribed instruction. See United States v.

Durham, 512 F.2d 1281, 1288 (5th Cir.) (noting

significance of close proximity but finding even remotely

placed instructions sufficient to cure Mann error), cert.

denied, 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102

(1975); United States v. Jenkins, 442 F.2d 429, 438 (5th

Cir. 1971).

We find the curative instructions given by the trial

judge sufficient to rectify the Mann error, but we take

note of an additional ground to sustain our disposition.

10 The Mann instruction appears at pages 593-94 of volume 4 of

the record. Curative instructions appear at pages 589, 590, and 593.

See notes 5-7 supra.

App. 9

It is established in this circuit that the giving of the

Mann charge is not always fatal if there is evidence

before the jury of objective conduct demonstrating

criminal intent.'! United States v. Durham, 512 F.2d at

1288; United States v. Wilkinson, 460 F.2d 725, 733 (5th

Cir. 1972); Helms v. United States, 340 F.2d 15, 18-19

(5th Cir. 1964); cert. denied, 382 U.S. 814, 86 S.Ct. 33,

15 L.Ed.2d 62 (1965). We believe the facts developed at

trial demonstrated ample objective conduct to support a

jury finding on the intent issue.

This case concerns the competition between two

valet parking services operated at bars and night clubs

in the Fort Lauderdale, Florida, area. Chiantese and

Cerrella owned one service, and the other was owned by

Mark Parnass, the chief government witness. The

evidence adduced at trial indicated that the defendants

had repeatedly threatened Parnass in an attempt either

to force him to join in a “partnership” with them or to

get out of the parking lot business. Parnass testified that

Cerrella told him to pay one third of his business profits

This ground for upholding verdicts where Mann charges are

given apparently survives the en banc opinion in this case. As the

en banc opinion states:

If, despite our action today, the error should recur, the

weighing of its harm to the accused shall remain a judicial

matter to be resolved in the context of each case where it

occurs. Such weighing, however, shall not include con-

sideration of whether a defective charge has been cured by

prior or subsequent statements.

560 F.2d at 1255.

App. 10

to Cerrella or go out of business. !? He also testified that

Cerrella threatened that he and Chiantese knew where

Parnass and his family lived and that we will hurt you

if we have to.” Record, vol. 3, at 153. Additionally, a

tape recording of a conversation between Parnass and

Cerrella, which had been made by means of a transmit-

ter placed on Parnass, was played for the jury. During

that conversation, Cerrella told Parnass to get out of the

parking lot business, Or I’m gonna put you in a box.“

Id., vol. 4, at 411. The recording also contained the

following statement by Cerrella: “I ain’t coming back

with another deal. . . [Y]ou can tell the Feds, you can

tell the __ __ local cops. I'll put you in the

hospital, you'll come out and know I did it and I'll put

you in again.” Id. at 412.

In view of this evidence, it is clear that the jurors

were not reduced solely to presuming intent. . . . [T]he

government’s case did not rest upon mere implications

of evil motive, but was supported by affirmative objec-

tive evidence of that particular element of the alleged

crime.” United States v. Wilkinson, 460 F.2d 725, 733

U

'2Parnass’s testimony was as follows: He [Cerrella] said, If

you want to stay in the parking lot business, we are going to take a

third.’ . . . And I said, Are you saying you want to buy into my

business?“ He said, ‘No. We don’t buy, we take.“ Record, vol. 3,

at 135.

App. 11

(5th Cir. 1972). We find the employment of the Mann

charge in this case not reversible error.!“ 6

The Juror’s Remarks

During the course of the trial, Chiantese’s attorney

informed the court that he had observed a member of

the jury conversing with another juror and two alternate

jurors. The attorney also related that a student who had

been working at his firm had overheard a juror state to

two alternate jurors during cross-examination by

Cerrella’s attorney, Stupid. Stupid. He's a pain in the

.” Record, vol. 4, at 407. Chiantese’s attorney re-

quested that the judge voir dire the jury to determine if

the statement had in fact been made and, if so, what ef-

fect it had had on those hearing it. The court declined,

reasoning that an exchange between jurors was not

analogous to the typical jury prejudice case, in which

outside influences impermissibly taint the verdict. The

judge also observed that the statements did not relate to

the case itself but to the attorney’s conduct and that

“{jlurors obviously form impressions of counsel as the

trial goes on.” Id. at 408.

'3In United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977), we

found error in the giving of a Mann instruction. Chiantese’s and

Cerrella’s case is clearly distinguishable. In Schilleci, we placed

emphasis on the failure of the trial judge to admonish the jury to

view the charge as an integrated whole.” Jd. at 525. Additionally,

we noted, there was very little objective conduct on the part of the

defendant/s].” Id. Here the judge expressly instructed the jury to

consider the charge as a whole, see note 8 supra, and there was an

abundance of objective conduct from which the jury could find the

requisite intent.

App. 12

[2,3] We must begin with the recognition that the

decision to hold a hearing to determine whether juror

misconduct has occurred is within the sound discretion

of the trial judge and that his ruling will not be reversed

unless it constitutes an abuse of that discretion. United

States v. Hendrix, 549 F.2d 1225, 1227 — 29 (9th Cir.),

cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74

(1977); United States v. Khoury, 539 F.2d 441, 443 (5th

Cir. 1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 739, 50

L.Ed.2d 752 (1977); Tillman v. United States, 406 F.2d

930, 938 (5th Cir.), vacated on other grounds, 89 S.Ct.

2143, 395 U.S. 830, 23 L.Ed.2d 742 (1969). We find the

trial judge within his discretion in declining to hold a

hearing in this case.

[4] We realize that in instances where the jury

misconduct involves influences from outside sources,

the failure of the trial judge to hold a hearing constitutes

an abuse of discretion and is therefore reversible error.

United States v. Herring, 568 F.2d 1099, 1103-06 (5th

Cir. 1978); Richardson v. United States, 360 F.2d 366,

369 (5th Cir. 1966). This is so because a presumption of

prejudice arises when the outside influence is brought to

the attention of the trial court, Remmer v. United

States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654

(1954), and it is incumbent upon the Government to

rebut that presumption at a hearing. Id, Richardson v.

United States, 360 F.2d at 369. But here there was no

outside influence, and we consider this a point of

distinction.

The insinuation of outside influences is inimical to

the premises upon which our system of justice rests. As

Justice Holmes wrote, The theory of our system is that

the conclusion to be reached in a case will be induced

App. 13

only by evidence and argument in open court, and not

by any outside influence, whether of private talk or

public print.” Patterson v. Colorado, 205 U.S. 454, 462,

27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). Although we cer-

tainly do not sanction the actions of the juror in this

case, we do not think they rise to the magnitude of the

fundamental prejudice inherent in cases of outside in-

fluence. The juror’s statements concerned the manner in

which Cerrella’s attorney conducted himself in making

his case. Her observations related to an aspect in-

severable from our adversary system of justice, an

aspect we would be naive to presume is not considered

by jurors.

We do not think, therefore, that the principles

governing outside influence should control here.

Another line of precedent is closer to our case, but we do

not find it controlling. It concerns the impropriety of

jurors discussing a case among themselves before they

retire to arrive at a verdict. The primary reason for

prohibiting such discussion is that the members of the

jury may form opinions about the case before all the

evidence is in and before the arguments of counsel and

instructions of the court have been heard. Winebrenner

v. United States, 147 F.2d 322, 328 (8th Cir. 1945), cert.

denied, 325 U.S. 863, 65 S.Ct. 1197, 89 L.Ed. 983 (1945).

A juror, having formed an opinion, may be reluctant to

consider the remaining evidence objectively.

Our case does not fit well in this mode of analysis

because the juror’s remarks did not concern the merits

of the defense. Of course, the jury may form opinions

about a defendant’s case because of the way his counsel

conducts it, but the juror here did not commit herself to

any outcome in the case or demonstrate a prejudgment

App. 14

of the evidence. See United States v. Burke, 496 F.2d

373, 377 (5th Cir. 1974). She simply reacted to the ap-

parently overzealous cross-examination by Cerrella’s at-

torney.'* Cf. Tillman v. United States, 406 F.2d 930,

936-38 (5th Cir.) (upholding trial judge’s exercise of dis-

cretion in not declaring mistrial, after questioning

jurors, when it was reported that a juror had said defen-

dants should be hung), vacated on other grounds, 395

U.S. 830, 23 L.Ed.2d 742, 89 S.Ct. 2143 (1969).

The precedent most apposite here is Milam v.

United States, 322 F.2d 104 (5th Cir. 1963). In Milam, a

juror was overheard saying to two other jurors that if he

were a witness in the case, he would sue the defense

lawyer . for all he was worth for the way he was

harassing witnesses.” Id. at 110. The trial judge refused

to grant a mistrial but did, however, hold a hearing, af-

ter which he decided to replace the juror who had made

the remark and to allow the attorney to remain in the

courtroom for consultative purposes” only. Id. at 111.

We affirmed the trial judge’s ruling and made the

following observations, which are of pertinence here:

The jurors had not talked about the case, they

had expressed no feelings as to the outcome,

and the two listening jurors had not replied to

the remark. One juror made one remark about

one defense counsel. The juror was discharged,

the defense counsel resigned from the case, and

the trial proceeded. We find no error.

“The judge at one point admonished Cerrella’s attorney to

lower his voice. Record, vol. 4, at 388.

App. 15

Id. What we must determine here is whether Milam sets

forth the outer boundaries of the trial judge’s discretion

in a case like this. We hold that it does not and find the

judge’s actions below proper.

In determining whether to conduct a hearing in a

case such as this, the court must balance the probable

harm resulting from the emphasis such action would

place upon the misconduct and the disruption involved

in conducting a hearing against the likely extent and

gravity of the prejudice generated by that misconduct.

We, as an appellate tribunal, are in a poor position to

evaluate these competing considerations; we have only

an insentient record before us. The trial court is in a far

better position to judge the mood at trial and the

predilections of the jury. The trial court, therefore, must

enjoy a broad discretion in these matters. One hundred

years ago the Supreme Court so recognized: it must be

made clearly to appear that upon the evidence the Court

ought to have found the juror had favored such.an opi-

nion that he could not in law be deemed impartial. The

case must be one in which it is manifest the law left

nothing to the ‘conscience or discretion’ of the court.”

Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed.

244 (1878).

Assuming that the juror made these statements, as

we must in the absence of a hearing below, Richardson

v. United States, 360 F.2d 366, 369 (5th Cir. 1966), we do

not think the juror could not in law be deemed impar-

tial.“ Her remarks did not concern the defendants’ case

and they did not relate to any fact, within or extrinsic to

the evidence before the jury. We cannot say that the

trial judge abused his discretion in determining that the

potential prejudice was outweighed by the probable

harm resulting from the conduct of a hearing.

App. 16

Additional Issues

[5] The defendants assert that the evidence was

not sufficient to demonstrate that their conduct affected

interstate commerce, a jurisdictional prerequisite to a

violation of the Hobbs Act, 18 U.S.C. §1951 (1976).

The Supreme Court has recognized that the Hobbs Act

“speaks in broad language, manifesting a purpose to use

all the constitutional power Congress has to punish in-

terference with interstate commerce by extortion, rob-

bery, or physical violence.” Stirone v. United States,

361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252

(1960). Hence, All that is required is that trade be af-

fected by extortion in any way or degree. United

States v. Nakaladski, 481 F.2d 289, 298 (5th Cir. 1973)

(quoting Carbo v. United States, 314 F.2d 718, 732 (9th

Cir. 1963)); United States v. Amato, 495 F.2d 545, 548

(5th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42

L.Ed.2d 286 (1974). We find the potential effect on

Section 1951 provides in pertinent part as follows:

(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or com-

modity in commerce, by robbery or extortion or attempts

or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a plan

or purpose to do anything in violation of this section shall

be fined not more than $10,000 or imprisoned not more

than twenty years, or both.

App. 17

Parnass’s business, had the extortionate scheme carried

through, sufficient to satisfy these minimal standards.“

[6] Chiantese contends that the evidence was in-

sufficient to establish that he aided and abetted the ex-

tortion attempt. It is true that Cerrella was the primary

motivator of the extortionate plan. He was the one who

made the threats. It is also true that Chiantese was

present at the meetings where Cerrella uttered these

threats. Parnass characterized Chiantese’s role in these

meetings as follows: after Mr. Cerrella would threaten

me or whatever [Chiantese] would take the part of being

the good guy and say: ‘It will be all right. We will do

something together.“ Record, vol. 3, at 285-86. On two

occasions, Chiantese arranged meetings by calling

Parnass and telling him that Cerrella wanted to see him.

During the last meeting, at which Parnass agreed to

„Join forces“ with Chiantese and Cerrella, it was

decided that Chiantese would take care of everything”’

and that Parnass would not deal with Cerrella. Jd. at

165. Subsequently, Chiantese informed Parnass that he,

Chiantese, would start replacing Parnass’s employees

and would work out the details of coordinating the

operation.“ Id. at 167. Chiantese also suggested to

Parnass that they expand their business and that

someone might “run over [the operator of a competing

lot] with a car.“ Id. at 181.

There was testimony to the effect that Parnass purchased

from New York apparel for his employees, Record, vol. 3, at 105-06,

and that out-of-state automobiles parked at his lot on a continuing

basis. Id. at 103-05; id., vol. 4, at 356-63. Parnass’s lot was insured

by an out-of-state company, id., vol. 3, at 107, and he purchased

gasoline for his lot’s automobile with credit cards issued by out-of-

state companies, id. at 108.

App. 18

Viewing the evidence in the light most favorable to

the Government, as we must under Glasser v. United

States, 315 U.S. 60, 62 S.Ct. 475, 469, 86 L.Ed. 680

(1942), we find ample evidence to support the verdict

against Chiantese. To establish aider and abettor

liability, the evidence must show that the defendant

ein some sort associate himself with the venture, that

he participate in it as something that he wishes to bring

about, that he seek by his action to make it succeed.’ ”’

United States v. Trevino, 556 F.2d 1265 1269 (5th Cir.

1977) (quoting Nye & Nissen v. United States, 336 U.S.

613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949)). It can-

not be doubted that Chiantese was fully aware of the ex-

tortionate plan. He was present at the crucial meetings.

We think that the jury would be entirely justified in

making the reasonable inference that Chiantese played

the “good guy” in a bad guy“ - good guy” scheme. In-

deed, that is what Parnass suggested at trial. That

Chiantese contacted Parnass to set up meetings at

Cerrella’s request, after Chiantese was well aware of

Cerrella’s motives, and that Chiantese was to serve as

the representative of Cerrella’s interests in the final

plan, abundantly indicates that Chiantese desired that

the plan carry through.

[7] The final ground asserted by the defendants is

that the trial judge abused his discretion in declining to

order a presentence report. The court did afford the

defendants and their counsel the opportunity to say

anything on the defendant’s behalf that would be of

assistance to the Court . . . in determining [the] sen-

tence the Court is going to impose.” Record, vol. 4, at

610. Although the defendants themselves did not accept

the invitation, counsel for both of them did point out

that both defendants were first-time offenders, that no

App. 19

*

actual harm had come to Parnass or his family, and that

no money had actually changed hands. Chiantese's at-

torney noted also that his client had not initiated the ex-

tortion attempt. Under these circumstances, the failure

to order a report prior to sentencing was not an abuse of

discretion. See United States v. Kane, 450 F. 2d 77 (5th

Cir. 1971), cert. denied, 405 U.S. 934, 92 S. Ct. 954, 30

L.Ed.2d 810 (1972); United States v. Fannon, 403 F.2d

391, 394 (7th Cir. 1968), vacated on other grounds, 394

U.S. 457, 89 S.Ct. 1224, 22 L.Ed.2d 416 (1969).

Conclusion

For the foregoing reasons, we find no reversible

error. Therefore, the convictions of Chiantese and

Cerrella are

AFFIRMED.

Fed. R. Crim. P. 32(c)(1), as it read at the time of sentencing

below, did not require the court to state its reasons for not having an

investigation. An amendment to the rule, effective December 1,

1975 (three months after Chiantese and Cerrella were sentenced),

imposed such a requirement. Nevertheless, the court did state that,

given the evidence before him, he did not see the need for a presen-

tence report. “A lifelong career as a choir boy and do-gooder in

church and civic organizations would not really take the sting at all

out of the evidence that has been presented in the courtroom.”

Record, vol. 4, at 615.

App. 20

United States Court of Appeals

FIFTH CIRCUIT

van

COWARD W WADSWORTH OFFICE OF THE CLERK 800 CAMP STREET

os December 13, 1978

hw OFLEAN®S, LA. 70130

TO ALL PARTIES LISTED BELOW:

NO. 75-3534 - U.S.A. v. THOMAS JOSEPH CHIANTESE

and JOHN JOSEPH CERRELLA

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing, and

no member of the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition () for rehearing

en banc has also been denied,

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate,

Very truly yours,

EDWARD W. WADSWORTH, Clerk

neee Horror

cc: Messrs. George D. Gold

James J. Hogan

Thomas G. Murray

Mr. Frank B. Hester

Ms. Ann T. Wallace

App. 21

In THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 11 ,

— * er :

—

UNITED STATES OF AHERICK,

versus

THOMAS JOSEPH CHIANTESE and JOHN JOSEPH CERRELLA,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Florica

ORDO E R:

XXX} The motion of APPFL.LANTS

for stay of the issuance of the mandate pending petition for writ

of certiorari is DENIED. See Fifth Circuit Local Rule 15, as

amended January 11, 1972.

( ) The motion of APPELLANTS

for stay of the issuance of the mandate pending petition for writ

of certiorari is GRANTED to and including January 12 970 9

the stay to continue in force until the final disposition of the

case by the Supreme Court, provided that within the period above

mentioned there shall be filed with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that the certiorari

petition has been filed. The Clerk shall issue the mancate upon

the filing of a copy of an order of the Supreme Court Genying the

writ, or upon the expiration of the stay granted herein, unless

the above mentioned certificate shall be filed with the Clerk of

this Court within that time.

( ) The motion for a further stay of the issuance of the mandate is

GRANTED to and including „ under the same

coneitions as set forth in the preceding paragraph.

away NN ‘. 2

„ 18 ORDERED ‘that the motion for a further stay of the issuance

cafthe mandate is' DENIED.

zei“ beg

0 i

ts) Mee 27

v 78, JOHN R. BROW?

CnIEF JUUGE

App. 22

—— —