Petition — Cecil v. United States

In The

Supreme Court of the United States

October Term, 1978

No. 8 “.. 661

co)

JAMES RICHARD CECIL,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

i

ae

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Rosert S. Bercer

Davies AND Sarnt-VELTRI

1034 Logan Street

Denver, Colorado 80203

Attorney for Petitioner

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

TABLE OF CONTENTS

Pages

Opinions Below

Jurisdiction

Question Presented

Constitutional Provisions Involved

Statement

Reasons for Granting the Writ

Conclusion

Appendix

Appendix

Appendix

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Appendix

Appendix

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Appendix

TABLE OF AUTHORITIES

CasEs :

Abney v. United States, 431 U. 8. 651 (1977) ......... 4

Ashe v. Swenson, 397 U.S. 436, 448-460 (1970) ........... 6

Blockburger v. United States, 284 U. 8. 299 (1932) .. 4

Sanabria v. United States, — U.S. —, 57 L. Ed.

2d 43 (1978) 4,5

Troutman v. United States, 100 F.2d 628 (10th

Cir. 1938) ... 5

ii

TABLE OF AUTHORITIES—Continued In The

Sines Supreme Court of the United States

United States v. Atkinson, 512 F.2d 1235 (4th October Term, 1978

Cir., 1975) .... 5

United States v. Herbert, 502 F.2d 890 (10th .

Cir., 1974) 5

No.

United States v. Orzechowski, 547 F. 2d 978 (7th

iy AD ciniead Siieied send aaa ln eae cepacia uaaiaamee ce mee 5 v

United States v. Stevens, 521 F. 2d 334 (6th Cir.,

1976). ._..... SN ge mae ke ANS ie ea 5 JAMES RICHARD CECIL,

Petitioner,

STATUTES: vs.

wee an UB. S. SOR ta) (3) 2, 3,5 UNITED STATES OF AMERICA,

a Wee MEADE is OE GD ca he ccc cen 2 Respondent.

CONSTITUTION : | —

Constitution of the United States, Fifth Amendment... 3

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

a

ie sien

James Richard Cecil, your Petitioner, respectfully

prays that a Writ of Certiorari be issued to review the

judgment of the United States Court of Appeals for the

Tenth Circuit entered in the above-entitled cause of

March 8, 1979.

°

OPINIONS BELOW

This cause was decided by a panel of the United

States Court of Appeals for the Tenth Cireuit on March

8, 1979, in an Opinion which has been designated as not

for routine publication. The Opinion is reproduced as

Appendix D hereto.

On April 3, 1979, the Court of Appeals denied the

Petitioner’s Petition for Rehearing and Suggestion of Ap-

propriateness of Rehearing en bane (see Appendices E

and F). No opinion was written and the Order has not

been officially reported.

a -—~Q--— —_— -—- — -——

JURISDICTION

The judgment of the United States Court of Appeals

was entered on March 8, 1979 (see Appendix D). A timely

Petition for Rehearing with Suggestions for Appropriate-

ness of Rehearing en bane was denied on April 3, 1979

(see Appendices EF and F).

The jurisdiction of this Court is invoked under Title

28 U.S.C. § 1254 (1).

QUESTION PRESENTED

Does a judgment of acquittal on an indictment charg-

ing possession with intent to distribute cocaine in viola-

tion of Title 21 U.S.C. §841 (a) (1) present a Double

Jeopardy bar to a subsequent indictment charging posses-

sion with intent to distribute cocaine and distribution of

cocaine if both indictments arise from the same transac-

tion.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Fifth Amendment.

No person shall be held to answer for a capital or

otherwise infamous crime unless on a presentment or

indictment of a g.and jury, except in cases arising in the

land or naval forces, or in the militia, when in actual serv-

ices in time of war or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty or property without due process of law; nor shall

private property be taken for public use without just com-

pensation.

STATEMENT

The petitioner was arrested on May 11, 1978, at the

seene of a transaction involving the sale of cocaine to

undercover narcotics agents. He and others were then

named in a single count indictment alleging possession

with intent to distribute cocaine in violation of Title 21

U.S.C. § 841 (a) (1) (see Appendix A). The petitioner

+

was acquitted in a separate bench trial. The trial Court’s

ruling was essentially that although the government had

proven a case of aiding and abetting a distribution, it had

not proven any element of possession (see Appendix B).

Thereafter an indictment was returned alleging in one

count both possession with intent to distribute cocaine

and distribution of cocaine (see Appendix C). This indict-

ment was based upon the same transaction as that for

which the petitioner had already been acquitted. The

petitioner filed a Motion to Dismiss raising the obvious

Double Jeopardy issue. The trial Court denied the Motion

and an immediate Appeal was perfected upon the author-

ity of Abney v. United States, 481 U.S. 651 (1977). In an

unpublished Opinion a panel of the United States Court of

Appeals for the Tenth Circuit affirmed the District

Court’s denial of the Motion to Dismiss. A Petition for

Rehearing was denied and the panel has stayed its man-

date pending the disposition of this Petition. The peti-

tioner has not been tried on the second indictment.

--~—-— -——0-—- ee: enn eo

REASONS FOR GRANTING THE WRIT

The Court of Appeals Opinion relied upon the “same

evidence” test announced in Blockburger v. United States,

284 U.S. 299 (1932). The opinion, however, does not dis-

cuss this Honorable Court’s recent decision in Sanabria v.

United States, -— U.S. —, 57 L. Ed. 2d 43 (1978). In that

decision this Court specifically held that the “same evi-

dence” test does not apply to successive prosecutions aris-

ing under Title 18 U.S.C. § 1955, because that test is only

used to determine whether a single transaction may give

rise to separate prosecutions, convictions and/or punish-

ments under separate statutes. Sanabria, supra, at page

57, footnote 24. Petitioner contends that this case falls

squarely within the Rule announced in Sanabria and that

the Opinion here is in conflict with it.

Since the Opinion finds distribution and possession |

with intent to distribute under § 841 (a) (1) to be separate

and distinct crimes, it would necessarily have to condemn

as duplictious an indictment naming both offenses in one

count and would necessarily permit separate prosecutions,

convictions or sentences for violations of § 841 (a) (1)

arising from one transaction. The Opinion thus overrules

previous decisions of the Tenth Circuit without comment

and without recognizing the result of such action. See

United States v. Herbert, 502 F.2d 890 (10th Cir., 1974),

and Troutman v. United States, 100 F.2d 628 (10th Cir.,

1938). This position is also inconsistent with that taken

by other Cireuits. United States v. Orzechowski, 547 F. 2d

978 (7th Cir., 1977); United States v. Stevens, 521 F.2d

334 (6th Cir., 1975): United States v. Atkinson, 512 F. 2d

1235 (4th Cir., 1975).

The Opinion purports to partially reverse the trial

court’s denial of the Motion to Dismiss. Presumably

that refers to the portion of the one count indictment

alleging possession with intent to distribute. “The Opin-

ion fails to indicate how a jury is to be impaneled to try

the petitioner on the one count indictment when the peti-

tioner has already been acquitted of at least a portion

of that indictment without running afoul of the Double

Jeopardy Clause. The trial court cannot eradicate the

offensive language as that would be an impermissible

amendment of the indictment. It is therefore possible

6

that this petitioner could be tried for and convicted of the

very same offense for which he was previously svquitted.

In avoiding the responsibility of providing guidance to

the District Court or counsel on this particular point the

Opinion fails to accomplish that which is to be expected

of an Opinion of an Appellate Court. That failure can

only be corrected by this Court granting the Writ and

ruling on this issue.

By granting the Writ, this Court will havesan oppor-

tunity to adopt the ‘‘same transaction” test recommended

by Justice Brennan. Ashe v. Swenson, 397 U.S. 436, 448-

460 (1970) (Brennan, J., concurring). The adoption of

the “same transaction’’ test and the abandonment of the

“same evidence’’ test would eliminate the threat to Double

Jeopardy principles that has arisen as the permissible

unit of prosecution in a criminal transaction has become

more and more narrowly defined. This trend invites the

problems presented here and more ominously provides

the opportunity for Federal prosecutors to totally cir-

eumvent the principles of the Double Jeopardy clause.

ra’

MV

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that this Petition for a Writ of Certiorari be granted.

Respectfully submitted,

Rosert S. Bercer

Davies AND Saint-VELTRI

1034 Logan Street

Denver, Colorado 80203

Attorney for Petitioner

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 78-CR-211

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

MARCO AURELIO PACIFICI DIAS, JEANETTE M.

HORAN, a/k/a Jeanette Fowler, RICHARD EMIL

MATTA, LAWRENCE JEFFREY SACKS, JAMES

RICHARD CECIL, and AARON LLOYD AINBINDER,

Defendants.

INDICTMENT

21USC 841 (a) (1)

18 USC 2

(Filed May 25, 1978)

The Grand Jury charges that:

On or about May 11, 1978, in the State and District

of Colorado, MARCO AURELIO PACIFICI DIAS,

JEANETTE M. HORAN, a/k/a Jeanette Fowler, RICH-

ARD EMIL MATTA, LAWRENCE JEFFREY SACKS,

JAMES RICHARD CECIL, and AARON LLOYD AIN-

BINDER did knowingly and intentionally possess with

the intent to distribute a controlled substance, to wit: ap-

proximately 453 grams of cocaine, a Schedule II narcotic,

all in violation of Title 21, United States Code, Section

841 (a) (1) and Title 18, United States Code, Seetion 2.

A TRUE BILL:

/s/ Gayle Scott Patterson, Foreman

JOSEPH F. DOLAN

United States Attorney

By: /s/ Nancy E. Rice

Assistant U. S. Attorney

App. 2

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 78-CR-211

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

JAMES RICHARD CECIL,

Defendant.

FINDINGS OF FACT PURSUANT TO RULE 23 (ce)

(Filed September 1, 1978)

At the request of defendant and with the approval

of the United States Attorney, this case was tried to the

court, and, at the conclusion of the trial, T took the case

under advisement and requested briefs. Those briefs

have been filed, and the case is ready for me to decide

whether the facts prove defendant guilty of the charge

made against him.

Defendant is charged with a violation of 21 U.S.C.

§ 841 (a) (1) and 18 U.S.C. §2. The charge is that he

possessed or aided and abetted the possession of cocaine

with intent to distribute it. He is not charged with dis-

tribution of cocaine or aiding and abetting its distribu-

tion, something I think the evidence showed him to be

guilty of beyond a reasonable doubt.

This case is not like United States v. Herbert, (1974)

10 Cir., 502 F. 2d 890. Herbert was charged in a one

count indictment with both possession with intent to dis-

tribute and distribution. Judge McWilliams said that the

indictment was not duplicitous and that as trial judge I

luckily bailed out because T instructed only on possession

with intent to distribute. Judge MeWilliams said:

“In thereafter defining the essential elements of the

crime the trial court clearly indicated that the de-

fendants no longer were charged with the actual dis-

tribution of the marijuana, but only with the posses-

sion of marijuana with an intent to distribute.”

I think this is clear recognition by the Tenth Cireuit

that distribution and possession with intent to distribute

are separate offenses although both can be charged in a

single count. Only one of those two offenses were charged

against Cecil in this case, and T think that United States

v. Jackson, (1976) 5 Cir. 526 F. 2d 1236, is not to be dis-

tinguished and that it correctly states the law. Jackson

was charged under this very statute with possession with

intent to distribute cocaine. The Fifth Cireuit held:

“(Jackson) was imvroperly indicted under the pos-

session clause of 21 U.S.C. § 841 (a) (1), beeause al-

though the evidence was sufficient to sustain an aid-

ing and abettine charge of distribution under § 841

(a) (1), it fails to establish Jackson’s aiding and

abetting possession of the coeaine with intent to dis-

tribute.”

The evidence in this case demonstrated to my satis-

faction beyond a reasonable doubt that Cecil aided and

abetted the distribution of cocaine, but that isn’t what he

was charged with. The evidence did not show guilt of

possession—either actual or constructive—or guilt of aid-

ing and abetting possession with intent to distribute.

On the factual record made I must find the defend-

ant “not guilty” of the only charge made against him. T

express no opinion as to whether Cecil has or has not

been in jeopardy should he be indicted under the other

App. 4

prong of 21 U.S. C. § 841 (a) (1), and all T do is to make

the factual determination that the evidence did not es-

tablish Cecil’s guilt of the exact charge made against him.

IT am sure that some would say that this ‘‘not guilty’’ ver-

dict rests on a technicality and perhaps in a sense it does.

But it would be a sorry state of affairs if a man could

be charged in a one count indictment with murder and be

convicted of the uncharged crime of burglary, and that

is what the government is asking me to do here and that

is why the Fifth Cireuit ruled the way it did on quite

similar facts in United States v. Jackson, supra.

Dated this lst day of September, 1978.

/s/ Fred M. Winner

United States District Judge

App. 5

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 78-CR-306

UNITED STATES OF AMERICA

Plaintiff,

Vs.

JAMES RICHARD CECIL,

Defendant.

INDICTMENT

21 U.S. C. §$841(a)(1); 18 U.S.C. $2

(Filed September 13, 1978)

The Grand Jury charges that:

On or about May 11, 1978, in the State and District

of Colorado, JAMES RICHARD CECIL did knowingly

and intentionally possess with the intent to distribute

and distribute a controlled substance, to wit: cocaine, a

Scheduled IT narcotic, all in violation of Title 21, United

States Code, Section 841(a)(1); and Title 18, United

States Code, Section 2.

A TRUE BILL:

/s/ Margaret P. Sorey

Foreman

JOSEPH F. DOLAN

United States Attorney

By: /s/ Charles L. Casteel

Assistant United States Attorney

13 September 1978

/s/ Marilyn EF. Gingerich

App. 6

APPENDIX D

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NO. 78-1919

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JAMES RICHARD CECIL,

Defendant-A ppellant.

Appeal from the United States Distriet Court

for the District of Colorado

(D.C. No. 78-CR-306)

(Filed March 8, 1979)

Nancy E. Rice, Assistant United States Attorney (Joseph

I’. Dolan, United States Attorney, and Charles L. Casteel,

Assistant United States Attorney, on the brief) for Plain-

tiff-Appellee.

Robert S. Berger of Davies and Saint-Veltri, Denver,

Colorado, for Defendant-Appellant.

Before McWILLILAMS, DOYLE and McKAY, Circuit

Judges.

DOYLE, Cireuit Judge.

This is a criminal prosecution in which the defend-

ant-appellant is charged with a violation of 21 U.S.C.

§841(a)(1) and 18 U.S.C. §2. The indictment charges

that on or about May 11, 1978, in the District of Colorado,

the defendant did knowingly and intentionally possess

App. 7

with intent to distribute and distribute a controlled sub-

stance, to-wit: cocaine, a Schedule IT narcotic, all in

violation of 21 U.S.C. $841(a)(1) and 18 U.S.C. §2.

The present appeal is from an order denying a mo-

tion to dismiss on the ground that the prosecution was

barred because of prior jeopardy.

In a prior indictment, which dealt with the same

operative facts, the accused was charged with a viola-

tion of the same statutes. The charge was that he had

aided and abetted the possession of cocaine with intent

to distribute.

We gather from the limited information in the rec-

ord that the evidence did not support this charge in

that the defendant could not be shown to have had actual

or constructive possession of the narcotic in question.

Accordingly, the court entered an order dismissing the

indictment. Thereupon, the district attorney filed the

present charge, and the instant motion to dismiss was

filed following which there was an extensive argument

before the trial court, Judge Winner, after which the

court rather reluctantly denied the motion.

The question presented is whether this acquittal on

the prior charge constitutes a violation of the double

jeopardy clause of the Fifth Amendment, which clause

prohibits any person being subject to the same offense

to be twice put in jeopardy of life or limb. So the issue

here is whether or not the offenses, that charged in the

first indictment and that which was charged in the in-

dictment now before us, are the same or are separate

crimes. Our conclusion is that the offense of distribu-

App. 8

tion is distinet and therefore the double jeopardy clause

of the Fifth Amendment does not apply to it.

The case which is most frequently cited on the in-

stant subject is that of the Supreme Court in Block-

burger v. United States, 284 U.S. 299 (1932). There

the defendant was charged with violating provisions of

the Harrison Nareoties Act. There were five counts.

The jury returned a verdict against the defendant on

the second, third and fifth counts only. Each of these

counts charged the sale of morphine hydrochloride to the

same purchaser. The second count charged a sale on a

specified day of ten grains of the drug not in or from

the original stamped package. The third count charged

a sale on the following day of eight grains not in or

from the original stamped package. The fifth count

charged the latter sale also as having been made not in

pursuance of a written order of the purchaser as _ re-

quired by the statute. The court sentenced the defend-

ant to five years imprisonment and a fine of $2,000 upon

each count, the terms of imprisonment to run consecu-

tively. This judgment was affirmed by the Court of

Appeals.

The contentions before the Supreme Court were,

first, that the two sales charged in the second and third

counts which were made to the same person constituted

a single offense. Second, that the sale charged in the

third count having been made not from the original

stamped package and the identical sale charged in the

fifth count as having been made not in pursuance of a

written order constituted but one offense for which only

a single penalty could be imposed. The Court held that

the sales made in the second and third counts, although

App. 9

made to the same person, were distinct and separate,

having been made at different times. These were dis-

tince acts and separate crimes even though part of the

same general transaction. The fact that each charge

required proof of an element not required in the other

offenses supported the conclusion that the offenses were

distinct. The same is true of the third and fifth counts.

The question is then, whether the offenses in the

second indictment are distinet or are the same.

In the case of United States v. Herbert, 502 F. 2d

890, 893 (10th Cir. 1974), the problem was one of plead-

ing. The indietment charged the defendant in one count

with distributing marijuana and, alternatively, with pos-

sessing marijuana with intent to distribute, in violation

of §841(a)(1), the very section with which we are in-

volved in the present case. That section, the count pointed

out, sets forth several ways in which the statute may be

violated including both distribution and possession with

intent to distribute. The court said “Such being the case,

it is proper to allege in the conjunctive, without the in-

dictment being duplicitous, Cordova v. United States, 303

F. 2d 454 (10th Cir. 1962), and Troutman v. United

States, 100 F. 2d 628 (10th Cir. 1938).”

As a result of the way the cause was handled, it

rather resembles the case at bar, because the trial court

ruled that there was insufficient evidence to support the

second count and submitted only the possession count

to the jury. The court said that there was no evidence

of distribution in the record and that the jury was en-

titled to consider the possession charge with intent to

distribute and simple possession as well. So there is a

recognition that the two offenses are separate and dlis-

—_

App. 10

tinct, even though they arise from the same statute and

even though each offense is part of one factual trans-

action.

The decision of the Fifth Cireuit in United States v.

Jackson, 526 F. 2d 1236 (5th Cir. 1976), is almost directly

in point and supports the government’s contention.

The relatively recent decision of the Supreme Court

in Brown v. Ohio, 482 U.S. 161 (1977) is also supportive.

There the defendant was charged with theft of an auto-

mobile and also joyriding. It was held that there could

not be a prosecution for the crime of stealing an auto-

mobile following prosecution for the lesser included of-

fense of operating the same vehicle without the owner’s

consent. It was said that where the same act or trans-

action constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether

there are two offenses or only one is whether each pro-

vision requires proof of a facet which the other does not,

citing Blockburger, supra. The Court went on to say

that in line with this test the double jeopardy clause

generally forbids successive prosecutions and cumulative

punishments for a greater and lesser included offense.

The recent decision of the Supreme Court in Jeffers

v. United States, 482 U.S. 137, decided in June 1977,

also supports the government’s theory. There the de-

fendant was charged with a very broad conspiracy to

distribute heroin and cocaine during a specifie period of

time, contrary to § 841 (a) (1). Another count charged

petitioner, pursuant to §841(a)(1), with violating 2!

U.S.C. §848, which prohibits conducting a continuous

criminal enterprise to violate the drug laws. The in-

App. 11

dictment alleged that he had undertaken the distribution

in concert with five or more others with respect to whom

he oceupied the position of organizer and supervisor.

To be sure, in Jeffers, the two offenses arose under

different statutes. However, we do not see this as a

ground for distintion where, as here, the statutory pro-

vision defines several different offenses and clearly

shows distinct classes. Section 841 declares it to be un-

lawful to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute or dispense, a

controlled substance. Thus, these are described separate

and distinct acts, each of which ealls for proof of an

additional element and hence constitutes a separate crime

or offense.

In the basie indictment which was dismissed it was

charged that the defendant did knowingly and intention-

ally possess with intent to distribute a controlled sub-

stance, to-wit: Approximately 453 grams of cocaine. The

indictment at bar charges that the defendant did know-

ingly and intentionally possess with intent to distribute

and distribute a controlled substance, to-wit: cocaine, a

‘Schedule IT drug, all in violation of 21 U.S.C. § 841(a)(1),

and 18 U.S.C. § 2.

The first part of the charge in the present indict-

ment is obviously barred by the acquittal on the charge

of knowingly and intentionally possessing with intent to

distribute a controlled substance. Thus, the only viable

offense which is charged in the present indictment is

distributing a controlled substance, to-wit: cocaine. That

is, of course, a distinct offense that is provable only

by evidence other than that which would have been needed

App. 12

to prove the possession. What the government had in

mind in recharging the offense of possession we will

never know.

The judgment of the district court is affirmed in part

and reversed in part and remanded for further pro-

ceedings.

App. 13

APPENDIX E

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 78-1919

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. ;

JAMES RICHARD CECIL,

Defendant-A ppellant.

PETITION FOR REHEARING

COMES NOW the Defendant-Appellant, by and

through his attorney, Robert S. Berger of the law firm

of Davies and Saint-Veltri, and respectfully petitions

this Honorable Court to grant him a rehearing in this

matter.

In support of his Petition, the Defendant-Appellant

states:

1. The Opinion misapprehends the applicability of

the Blockburger “same evidence” test to statutory schemes

such as 21 U.S.C. §841(a)(1). The Bell-Prince line of

cases and, most recently, Sanabria v. United States,

clearly demonstrates that Blockburger is not an appro-

priate test for double-jeopardy in this matter. These

Supreme Court cases are not addressed in the Opinion.

2. The Opinion miseconstrues the 5th Circuit’s posi-

tion expressed in United States v. Jackson. That Opin-

ion merely requires an acquittal when the government

fails to prove the allegations of the indictment. It ad-

dresses only the issues raised in the trial of the first

indictment and does not speak to the issues raised herein

by the second indictment.

App. 14

3. Although the Opinion purports to rely on Herbert

and Troutman, it, in effeet, overrules the logic of those

decisions. They hold that the reason such indictments

are not duplicitious is that such statutes define one erime

which can be committed by doing any one of several pro-

hibited acts. The following language from T'routman is

instructive:

“An indictment charging a statutory offense must

follow the statute creating it; but where the statute

denounces several acts as a crime, they may be

charged in one indictment on a single count if they

are connected in the conjunctive.

“An indictment drawn in that manner is not dupli-

citous and it suffices to prove any one or more of

the charges.” 100 F. 2d 628, 631.

The Opinion, by finding that the various aets prohibited

in § 841 (a) (1) are separate and distinct offenses, neces-

sarily must then condemn as duplicitous an indietment

charging violations of more than one of the aets in a

single count.

4. The Opinion fails to instruct the trial court as

to the appropriate manner in which to remove the first

part of the indictment which is “ .. . obviously barred

by the acquittal ... ” Since the Court cannot amend

the indictment by striking the offending language, how

ean the indictment be tried without the Defendant being

placed in jeopardy again?

5. Defendant-Appellant prays leave of the Court to

supplement the record herein to include a transcript of

the proceedings at the first trial.

6. The issues raised herein provide this Honorable

Court with an unique opportunity to resolve many diffi-

App. 15

cult pleading and evidentiary problems relating to prose-

eutions under 21 U.S.C. § 841(a)(1) and to address more

general double-jeopardy principles. The Appellant there-

fore would respectfully request that the rehearing be held

en bane and that the Opinion be published in order to

provide guidance to the trial bench and bar in future

matters.

WHEREFORE, Defendant-Appellant prays for the

relief requested and for such other and further relief

as Court may deem just and proper.

Respectfully submitted,

DAVIES AND SAINT-VELTRI

By /s/ Robert S. Berger by

Joseph Saint-Veltri

Attorney for Defendant-Appellant

1034 Logan Street

Denver, Colorado 80203

Telephone: 832-2312

CERTIFICATE OF SERVICE

l hereby certify that L delivered a true and correct

copy of the above and foregoing Petitioner for Rehear-

ing to the Office of the United States Attorney, 323

United States Courthouse, Denver, Colorado, on the 19th

day of March, 1979.

/s/ Joseph Saint-Veltri

App. 16

APPENDIX F

MARCH TERM—APRIL 8, 1979

Before The Honorable Oliver Seth, Cireuit Judge

Honorable William J. Holloway, Jr., Cireuit Judge

Honorable Robert H. McWilliams, Cireuit Judge

Honorable James EK. Barrett, Cireuit Judge

Honorable William E. Doyle, Cireuit Judge

Honorable Monroe G. MeKay, Cireuit Judge

Honorable James K. Logan, Circuit Judge

No. 78-1919

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vs.

JAMES RICHARD CECIL,

Defendant-Appellant.

This matter comes on for consideration of appellant’s

petition for rehearing and suggestion for rehearing en

bane in the captioned cause.

Upon consideration whereof, the petition for rehear-

ing is denied by Cireuit Judges MeWilliams, Doyle, Me-

Kay, to whom the case was argued and submitted.

The petition for rehearing having been denied by the

panel to whom the case was argued and submitted, 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 bane, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing en bane is denied.

/s/ Howard K. Phillips, Clerk