# Petition — Cecil v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0155%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 881 ## Text 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 ao tp YK & Se OO © WH WW W Appendix Appendix geo aAa we Pp > rs 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0155%3A1. Public record. Not legal advice.