# Petition — Hoffman v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 830

## Text

Supreme Court, U. &

FILED
78-1686 MAY 7% 1979
1
| _MICHABL RODAK, JR., CLERK
IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1339

Paut W. Horrman,
Petitioner,

against

Unitep States or AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

GeraLp B, Lercourr
Attorney for Petitioner
148 East 78th Street ;
New York, New York 10021

TABLE OF CONTENTS

ce Gh Cie o a u's vb ae ead ob dees ode aes
I 6 CEU Suk Suk NAA a BA 6 wie 0 Vp OK in 2 6s 6

Questions Presented ............... paew C eee sees

1
1
2
Statutes, Federal Rules and Regulations Involved ... 2
Rr re he 2

5

Point I—The Petitioner was denied due process of
law where the trial court, in determining sen-
tence, relied on unsubstantiated and unconfronted
hearsay, the truth of which was disputed by the
Petitioner, alleging that said Petitioner was
involved in previous uncharged criminal transac-
tions and was more culpable than the co-defend-
ts te ion at pee eg ne nn anne 4)

Point I]—The informant reliability standards enun-
ciated in this Court’s holdings in Aguilar v.
Texas, 378 U.S. 108 (1964) and Spinelli v. United
States, 393 U.S. 410 (1969), apply where the in-
formant is a participant in the crime about which
i TUG TTOUUIIIO oo ikea ccc cenwecses 10

ES SEI seers pen a PSR Po SR ee 13

Appendix A, Order and Judgment of Affirmance,
United States Court of Appeals for the Second
EE Oe raga k bo0 ia 60 de 6 b¥eed bee sees 14

Appendix B, Order Denying Petition for Rehearing,
United States Court of Appeals for the Second
EE aetind cnecde bss kines © Seay a towah bees 16

Appendix C, Order Extending Time to File a Petition
for Writ of Certiorari, Supreme Court of the
LE da RS ea ar 17

ii TABLE OF AUTHORITIES

PAGE
Aguilar v. Texas, 378 U.S. 108 (1964) ...... 2, 3, 10, 11, 12
Bruton v. United States, 391 U.S. 128 (1968) ........ 9,11
Gagnon v. Scarpelli, 411 U.S. 778 (1973) .......... 7
Gardner vy. Florida, 430 U.S. 349 (1978) ..........- 8
Goldberg v. Kelly, 397 U.S. 254 (1970) ........e000. 7
Morrissey v. Brewer, 408 U.S. 471 (1972) .......00. 7
Spinelli v. United States, 393 U.S. 410 (1969) ....2, 3, 10,
11, 12
Townsend v. Burke, 334 U.S. 736 (1948) ........... 8

United States v. Battaglia, 478 F.2d 854 (5th Cir.
REET ET NEE PE TERE Crt mD 6

United States v. Dace, 502 F.2d 897 (8th Cir. 1974) .. 6
United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978) ...11, 12
United States v. Espinoza, 481 F.2d 553 (5th Cir.

PIS oe va'c SACRO DIRS ER Ee RO Ee EEL Cb aae eee 6
United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.,
BE is Sead ehed SOREL EWeTeCPaAberes akan’ 6
United States v. Malcolm, 432 F.2d 809 (2d Cir.
|. SEEN ee rte ee ay eee eee ae 6
United States v. Miley, 513 F.2d 1191 (2d Cir.), cert.
denied 423 U.S. 842 (1975) ..... bed lay ates 10, 11

United States v. Needles, 472 F.2d 652 (2d Cir. 1973) 6
United States v. Rollins, 522 F.2d 160 (2d Cir. 1975),

cert. denied, 424'U.S. 918 (1976) .............. 10
United States v. Rueda, 549 F.2d 865 (2d Cir. 1977) .. 10
United States v. Tucker, 404 U.S. 443 (1972) ....... 8

United States v. Weston, 448 F.2d 626 (9th Cir.,
1970), cert. denied, 404 U.S. 1061 (1972) ........ 6

TABLE OF AUTHORITIES lil

PAGE
United States v. Wunderlich, 342 U.S. 98 (1951) .... 7
Williams v. New York, 337 U.S. 241 (1949) ........ 7,8
Statutes, Rules Cited
Se Mae SE 005 shes rh ee Raawaked oes cerakn
Oe aes RES soc ghee coda ndaicke' SSS b BN eS ese
Federal Rules of Criminal Procedure, Rule 32(c¢) (3)
Miscellaneous

Comment, Reliability and the First Time Informant,

1 Am. Jur. Crim. L. 283, 295 (1972) ............ 12

IN THE

Suprene Court of the United States

OCTOBER TERM, 1978

No. 78-1339

+
bf

Pavut W. Horrman,
Petitioner,
against

Unirep States oF AMERICA,
Respondent.

+
-_

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

Gerald B. Lefeourt, on behalf of Petitioner Paul W.
Hoffman, prays that a Writ of Certiorari issue to review
the judgment of the United States Court of Appeals for
the Second Cireuit entered in the above case on the 18th
day of January, 1979.

Opinion Below

The Petitioner’s conviction was affirmed by the Circuit
Court from the bench and without written opinion.

Jurisdiction

The judgment of the Court of Appeals for the Second
Circuit was made and entered on January 18, 1979, and a

2

copy thereof is appended to this Petition as Appendix A.
An order denying Petitioner’s Petition for Rehearing was
entered on March 8, 1979, and a copy thereof is appended
to the Petition as Appendix B.

In an order dated March 27, 1979, this Court ohauiel
Petitioner’s application for extension of time to file this
Petition, and a copy thereof is appended to this Petition as
Appendix C.

The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).

Questions Presented

I. Was the Petitioner Denied Due Process of Law
Where the Trial Court, in Determining Sentence,
Relied on Unsubstantiated and Unconfronted
Hearsay, the Truth of Which was Disputed By
the Petitioner, Alleging that Said Petitioner Was
Involved in Previous ‘Uncharged Criminal Trans-
actions and Was More Culpable Than the Co-
Defendant?

II. Do the Informant Reliability Standards Enun-
ciated in this Court’s Holdings in Aguilar v. Texas,
378 U.S. 108 (1964) and Spinelli v. United States,
393 U.S. 410 (1969) Apply Where the Informant
is a Participant in the Crime About Which He
Provides Information?

a

Statutes, Federal Rules and Regulations Involved

No Statutes, Federal Rules or Regulations are involved.

Statement of the Case

The Petitioner, Paul Hoffman, and his co-defendant,
Brook Hart, arrived in Kennedy Airport in New York on

3

February 20, 1978, following an international flight. The
Petitioner cleared customs but Mr. Hart was found to be
in possession of cocaine. Hart immediately “cooperated”
and identified Petitioner as his accomplice. Two Special
Agents went looking for the Petitioner, who was about to
board a flight bound for San Francisco. They located
Petitioner shortly thereafter and detained him for ques-
tioning. He gave inconsistent answers to their questions
aud, upon denying he knew Brook Hart, was placed under
arrest. A warrant was subsequently issued to search
Petitioner’s baggage and cocaine was found therein.

The foregoing facts formed the basis of a motion to sup-
press on the grounds that the arrest of Petitioner was
without probable cause. The motion was denied following
a hearing at which the two agents and the defendant testi-
fied. Second Circuit law assumes the reliability of informa-
tion received from a participant-informant and therefore
does not apply the standards enunciated in Aguilar v.
Texas, 378 U.S. 108 (1964) and Spinel v. United States,
393 U.S. 410 (1969).

The Petitioner thereafter entered a plea of guilty to im-
portation of a controlled substance, 21 U.S.C. § 952.

Prior to sentencing, Mr. Hoffman’s attorney read the
pre-sentence report prepared for the court and took issue
with several allegations contained therein. Specifically,
counsel objected to, and proffered information to rebut,
allegations that the defendant had been involved in previ-
ous drug dealings and that he was the more culpable of the
two defendants. The source of the information was the
co-defendant who had previously plead guilty.

Despite counsel’s objections, made in a letter sent to the
Court prior to sentencing and repeated at the time of
sentencing, the Court refused to permit further inquiry by
defense counsel and made no effort to substantiate the
critical allegations contained in the pre-sentence report

4

and elsewhere. Instead, the Court ruled that it had made
all the credibility determinations it need make at the previ-
ous suppression hearing. Thus, the Court ruled:

“Same credibility question on a limited issue. It is
somewhat the same credibility. The issue is somewhat
the same as that which was presented at the suppres-
sion hearing. And it seems to me that in those—if
that is your position on sentencing, that I don’t know
any reason why I should believe Mr. Hoffman’s ac-
count of the relative responsibilities at the time of
sentencing than I did at the time of the suppression
hearing. In fact, I have determined that Mr. Hoffman
is somewhat more—was somewhat more culpable at
the time of the offense than Mr. Hart. But I base
that not only on Mr.—what I have here from Mr. Hoff-
man on the stand and what I have here from the agents
and what I have seen in the probation report and
other circumstances? concerning Mr. Hoffman’s back-
ground which lead me to believe that Mr. Hoffman
is somewhat more involved in this trade than he makes
out.

That’s a determination that any judge is going to have
to make, and I’m not making it because I have reached
any conclusion concerning Mr. Hoffman’s general
character. It’s because I have had the advantage of
hearing his testimony on the issue. So I’m quite will-

? At one point, in open court, the Assistant United States At-
torney declared:

“Mr. Selafani: During the course of preparing this case
for both indictments I had occasion to debrief extensively
the co-defendant in this case, for one, Mr. Hart, and Mr. Hart
had indicated that he, of course, had a rather long-standing
prior relationship with this defendant and this defendant had
advised him that on a number of occasions he had brought into
the country from various different cities, Miami, for one, on
prior occasions, cocaine.”

5

ing to—in fact, I’m going to proceed with the
sentencing.”

The Court thereupon sentenced Petitioner to a five year
term of imprisonment to be followed by a special parole
term of five years. Brook Hart, at a separate hearing,
received a sentence of one and a half years imprisonment
which was subsequently reduced to one year imprisonment.

Reasons for Granting the Writ

POINT |

The Petitioner was denied due process of law where
the trial court, in determining sentence, relied on
unsubstantiated and unconfronted hearsay, the truth
of which was disputed by the Petitioner, alleging
that said Petitioner was involved in previous un-
charged criminal transactions and was more culpable
than the co-defendant.

The Petitioner invokes the jurisdiction of this Court to
review the trial court’s de facto ruling that it may predi-
eate sentencing upon uncorroborated and inherently un-
reliable hearsay contained in a pre-sentence report, without
affording counsel an opportunity to inquire into the ver-
acity of challenged allegations contained therein. Peti-
tioner in effect asks the Court to finally provide guidance
to trial courts regarding what is undoubtedly the most
significant yet hopelessly confused issue in criminal law
today: the extent to which Due Process standards apply
in the sentencing of non-capital cases. Currently, more
than 80 percent of all criminal defendants plead guilty.
Thus, to the overwhelming majority of defendants, the
only significant decision made by the criminal justice sys-
tem involves sentencing. Yet, despite the constant guid-
ance this Court has given regarding the procedures which
must be utilized to insure fairness for the minority of

6

defendants who go to trial, no such direction has been
given to the trial courts regarding the procedures to be
followed at sentencing. The rules of evidence are not
applicable at sentencing and the courts have been left to
chart their own course.

The vacuum created by the failure to develop minimum
Due Process standards at sentencing has resulted in utter
confusion between and within the Circuits. For example,
the Ninth Cireuit appears to have required that hearsay
allegations be corroborated;? cases within the Fifth Cir-
cuit put the burden upon the defendant to disprove alle-
g-tions with which he takes issue,’ as, apparently, does
the Eighth Circuit. The Second Circuit has taken varied
positions on the subject.© And Judge Weinstein of the
Eastern District of New York recently concluded in a
lengthy and scholarly opinion that the government must
prove the truth of critical allegations contained in a pre-
sentence report by ‘‘clear, unequivocal and convincing’’
evidence.®

The failure of this Court to previously hold that mini-
mal Due Process standards apply to all sentencing pro-
ceedings stands in stark contrast to its rulings in related
areas. Welfare recipients cannot be deprived of their
support payments without being accorded minimal Due
Process, including the right to present witnesses and cross-

2 United States v. Weston, 448 F.2d 626 (9th Cir. 1970), cert.
denied, 404 U.S. 1061 (1972).

8 United States v. Battaglia, 478 F.2d 854 (5th Cir. 1972);
United States v. Espinoza, 481 F.2d 553 (5th Cir. 1973).

*United States v. Dace, 502 F.2d 897 (8th Cir. 1974).

*Compare United States v. Needles, 472 F.2d 652 (2d Cir.
1973) and United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970).

“United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y. 1978)
(Weinstein, J.).

7

examine the witnesses against them.’ Parolees and pro-
bationers cannot be deprived of their conditional freedom
without ‘‘minimum’’ procedural safeguards, which include
the right to present evidence, to cross examine adverse
witnesses and to receive a statement of reasons if parole
or probation is revoked.* Yet a defendant whose Liberty
has never been taken from him often faces his only sig-
nificant day in court with no more ‘‘Due Process’’ than
the trial court agrees to provide him. As Justice Douglas
said twenty eight years ago:

When discretion is absolute, man has always
suffered. At times it has been his property that has
been invaded; at times, his privacy; at times, his
liberty of movement; at times his freedom of thought;
at times, his life. Absolute discretion is a ruthless
master. It is more destructive of freedom than any of
man’s other inventions.°

That a man may be sentenced to a term of imprisonment
based upon allegations of bad deeds for which he was never
charged and which remain unsubstantiated offends our
most basic notions of fairness. Yet the practice continues
unabated in the absence of a ruling by this Court that it
will not be tolerated.

The decisions rendered thus far by the Court bearing
upon the issue at hand have been equivocal. Williams v.
New York, held that, at least in the absence of an objec-
tion to allegations contained in a pre-sentence report, Due

* Goldberg v. Kelly, 397 U.S. 254 (1970).

8 Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli,
411 U.S. 778 (1973).

®* United States v. Wunderlich, 342 U.S. 98, 101 (1951) (Doug-
las, J., dissenting).

1° 337 US. 241 (1949).

Process does not apply at sentencing. Yet other cases"
have held that a defendant has a right not to be sentenced
upon misinformation, and in the recent case of Gardner
v. Florida,” at least five Justices in some way utilized the
Due Proeess Clause in reversing a death sentence
predicated in part upon undisclosed information. Mr.
Justice Stevens, joined by Mr. Justice Stewart and Mr.
Justice Powell in fact concluded that “it is now clear that
the sentencing process, as well as the jtrial itself, must
satisfy the requirements of the Due Process Clause.”

The significance which Petitioner sees in the way in
which Gardner was decided is in this Court’s deviation
from its previous practice of relying upon the Eighth
rather than the Fifth Amendment in analyzing the
propriety of imposing the death sentence. Mr. Justice
White, concurring in Gardner, recognized the importance
of this shift in approach, although he disagreed with it:

I... see no reason to address in this case the possi-
ble application to sentencing proceedings—in death or
other cases—of the Due Process Clause, other than as
the vehicle by which the strictures of the Eighth
Amendment are triggered in this case.**

The Gardner court, in distinguishing Williams v. New
York, supra, noted that Williams itself had recognized a
need to reexamine capital sentencing procedures with the
passage of time and against evolving standards of fair-
ness."* Petitioner submits that several trends enunciated
by this Court suggest that the Gardner plurality’s applica-

™ See, e.g., Townsend v. Burke, 334 U.S. 736 (1948); United
States v. Tucker, 404 U.S. 443 (1972).

** 430 U.S. 349 (1977).
** 430 U.S. at 357-358.
#430 U.S. at 364.
*° 430 U.S. at 357.

9

tion of Due Process Standards to capital sentencing pro-
ceedings apply to non-capital proceedings as_ well.
Sentencing has for a long time now been keyed towards re-
habilitation and judges are no longer straight-jacketed in
the imposition of sentence. But at the same time, this new
freedom on the part of the judiciary has turned what was
once a “legal” determination into a “fact-finding” process.
If this procedure is to work it must attempt to find facts
accurately and fairly. There is no better way of doing
this than by including the defendant in the fact finding
process in a meaningful way. Congress in 1975 mandated
the disclosure of pre-sentence reports.”* This admirable
development becomes meaningless if the defendant is not
permitted to challenge its contents and demand verification
of essential disputed facts.

In the case at bar, Petitioner was sentenced in part upon
information received from the co-defendant who told the
Probation Department and the Assistant United States At-
torney that the Petitioner had been involved in previous:
drug transactions and that Petitioner was more culpable
than he. The inherent unreliability of such statements by
one who seeks to ingratiate himself with the government
and the court and to shift blame from himself to another
is too obvious to dwell on.”

Yet the trial court refused to permit Petitioner to con-
front the co-defendant and refused to verify the informa-
tion in any way before relying on it. It is submitted that
such a practice is inherently unfair and represents a
palpable denial of Due Process.

Wherefore, Petitioner invokes the jurisdiction of this
Court to vacate the sentence unlawfully imposed upon him.

26 Rule 32(c) (3), Federal Rules of Criminal Procedure.
17 See Bruton v. United States, 391 U.S. 123, 136 (1968).

10

POINT II

The informant reliability standards enunciated in
this Court’s holdings in Aguilar v. Texas, 378 U.S. 108
(1964) and Spinelli v. United States, 393 U.S. 410
(1969), apply where the informant is a participant
in the crime about which he provides information.

In Aguilar_,¥: Texas,"* this Court held that an applica-
tion for g-Warrant which relies upon information received
fro informant must meet two requirements. Firstly,
the affidavit must set forth ‘‘underlying cireumstances’’
from which an independent magistrate can judge the valid-
ity of the conclusions contained therein, and, secondly,
the affiant must set forth sufficient facts to demonstrate
that the informant was ‘‘credible’’ and his information
‘freliable.’’ In Spinelli v. United States,” it was held that
if the informant’s ‘‘tip’’ fails to satisfy the Aguilar re-
quirements, the magistrate should look at any independent
corroboration provided in the report to ascertain whether
the corroborative material, when added to the informant’s
information, renders the affidavit as trustworthy as if the
informant’s information was sufficient by itself.

Despite the clarity of these requirements and the failure
of this Court to limit them in any manner, several Cir-
cuits, including the Second Cireuit,”? have held that the
rules enunciated in Aguilar-Spinelli have no application
where the information upon which a warrantless arrest
is based was received from a ‘‘participant informant.’’
Thus, in the case at bar neither the trial court nor, ap-
parently, the Court of Appeals through its bench af-

** 378 U.S. 108 (1964).
*° 393 U.S. 410 (1969).

2° See United States v. Rueda, 549 F.2d 865 (2d Cir. 1977);
United States v. Miley, 513 F.2d 1191 (2d Cir.), cert. denied, 423
U.S. 842 (1975); United States v. Rollins, 522 F.2d 160 (2d Cir.
1975), cert. denied, 424 U.S. 918 (1976).

11

firmance tested the validity of the Petitioner’s arrest by
application of Aguilar and Spinelli.

The reasons for the Circuits having created the partici-
pant informant exception are unclear, but two rationali-
zations have been advanced. Firstly, it has been stated
that a participant in a crime is somehow ‘‘inherently”’
reliable, thereby rendering the application of Aguilar and
Spinelli unnecessary.” Secondly, it has been said that if
Aguilar and Spinelli were applied in the context of the
participant informant, no valid warrantless arrests based
upon such information would be possible, because the in-
formant had not been used in the past.”

As to the first reason cited above, it is unclear why
a recently arrested participant informant should be con-
sidered more reliable than the informants used in Aguilar
and Spinelli. If anything, they are less reliable and the
strict application of this Court’s rules become even more
necessary to insure compliance with the fundamental prob-
able cause requirement. As this Court has stated in the
context of one defendant making a statement inculpating
another, such information is ‘‘inevitably suspect .
given the recognized motivation to shift blame to others.
Yet for some reason, the Second Cireuit and other Cir-
cuits have given extra credence to the self serving finger-
pointing of one who has recently been arrested.

9923

There may be some justification in finding a participant
inherently reliable when he has voluntarily ‘‘turned him-
self in’’ prior to ineulpating another. But such is surely
not the case where the participant was involuntarily ar-
rested and seeks only to ingratiate himself with the police.
As one commentator has written:

21 United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978).

22 See United States v. Miley, 513 F.2d 1191 (2d Cir.), cert.
denied, 423 U.S. 843 (1975).

23 Bruton v. United States, 191 U.S. 123, 136 (1968).

12

. . courts should recognize a distinetion between the
participant who walks into the police station to make
an incriminating admission and the participant whom
the police have sufficient evidence to convict before
he supplies the information relied upon. No common
sense rationale for believing the second type of par-
ticipant informant is present since he has nothing
to lose by providing the self serving admission.”

As to the second rational often forwarded in support of
ignoring the Aguilar-Spinelli requirements when a partic-
ipant informant is involved, it is simply not true that but
for the “participant informant exception” the police would
be unable to,make a warrantless arrest upon information
received from a previously unknown arrestee. Spinelli ex-
plicitly holds that information received from a “fledgling”
informant may support a finding of probable cause so long
as it is sufficiently corroborated by independent sources.”
Thus, there is no reason whatever for ignoring the clear
rules set forth by this Court merely because the informant
is a participant, and in fact, careful application of this
Court’s precedent becomes even more important.”

In the case at bar, the validity of the arrest of the Peti-
tioner was not tested against the standards so carefully
laid down by this Court due to the erroneous rule of this
Cireuit that such standards did not apply.

Wherefore, Petitioner invokes the jurisdiction of this
Court to review the denial of his motion to suppress.

**Comment, Reliability and the First Time Informant, 1 Am.
Jur. Crim, L, 283, 295 (1972).

25393 U.S. at 415.
_ ** Most of the applicable cases in fact require some corrobora-
tion of at least “innocent” aspects of the participant-informant’s

tip, but do so outside the constraints of Spinelli. See, e.g., United
States v. Dunloy, supra, fn. 21, 584 F.2d at 10.

13

Conclusion

For the reasons set forth above, it is respectfully sub-
mitted that this Petition for a Writ of Certiorari should

be granted.

Geratp B, Lercourr
Attorney for Petitioner
148 East 78th Street

New York, New York 10021

14

APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE

Seconp Circuir

At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house in the City of New York, on the eighteenth day of
January one thousand nine hundred and seventy-nine.
Present: Hon. J. Eowarp LumBarp

Hon. Leonarp P. Moore
How. Wititiam H. Mutuican
Cireuit Judges.

78-1339

a ¢--- C+

Unitep States or AMERICA,
Plaintiff-Appellee,
v.

Pavi W. Horrman, and Broox L. Hart,
Defendants,
Paut W. Horrman,
Defendant-Appellant.

»
vr

Appeal from the United States District Court for the
Kastern District of New York.

This cause came on to be heard on the transcript of
record from the United States District Court for the Kast-
ern District of New York, and was argued by counsel.

15

On Consiperation Wuereor, it is now hereby ordered,
adjudged, and decreed that the judgment of said District
Court be and it hereby is affirmed in accordance with the
Court’s oral opinion in open court.

A. Danie Fusaro,
Clerk

By: ArtrHur HeELier,
Deputy Clerk

16
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE

Seconp Crrcuir

At a stated term of the United States Court of Appeals,
in and-for the Second Circuit, held at the United States
Court House, in the City of New York, on the eighth
day of March, one thousand nine hundred and seventy-nine.

78-1339

+
»

Unirep States or America,
Plaintiff-Appellee,
Vv.

Pau. W. Horrman,
Defendant-Appellant.

+
bf

A petition for rehearing containing a suggestion that
the action be reheard en bane having been filed herein by
counsel for the appellant Paul W. Hoffman, and no active
judge or judge who was a member of the panel having
requested that a vote be taken on said suggestion,

Upon consideration thereof, it is
Ordered that said petition be and it hereby is Dentxp.

Irnvinc R. KaurMan
Irving R. Kaufman,
Chief Judge

17

APPENDIX C
SUPREME COURT OF THE UNITED STATES

No. A-838

a

é
Pau. Horrman,
Petitioner,

V.

Unitep STATES

7’
7

Orpver Extrenpine Time To Fite Petirion FOR
Writ or CERTIORARI

Upon Consiperation of the application of counsel for
petitioner(s),

Ir 1s Orperep that the time for filing a petition for writ
of certiorari in the above-entitled cause be, and the same
is hereby, extended to and including May 7, 1979.

/s/ Txuurcoop MarsHaLL
Associate Justice of the Supreme
Court of the United States

Dated this 27th
day of March, 1979.

RECEIVED
Mar 29 1979
GrraLtp B. Lercourr
Attorney-at-Law

---

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