Appendix — Bifulco v. United States

et

Supreme Court, U. we

FILED

APPENDIX DEC 13 j979

L_MICHAM. RopaK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-5010

ALPHONSE BIFULCO,

Petitioner,

—

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR CERTIORARI FILED JULY 2, 1979

CERTIORARI GRANTED OCTOBER 9, 1979

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-5010

ALPHONSE BIFULCO,

Petitioner,

—

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

INDEX

Page

Extract of Relevant Docket Entries -20000........0.000oee eee. 1

Petitioner’s Motion to Vacate Sentence 2..........e eee 8

District Court Memorandum of Decision and Order dated

SS BD: ROM ipiichcteinnncncerviviisinnbiicntnnnniiaipnnniishaiindaiinilnaistibeins 7

District Court Judgment dated January 23, 1979 .......0.. 8

Addendum to the District Court Decision dated January 29,

TPO ovncaskisicnsusnscsnoesinsacinaimeubamenicamainasissia aaa meiee eae oan 9

Judgment of the Court of Appeals dated May 30, 1979 _....... 10

Opinion of the Court of Appeals dated May 30, 1979 ........... 11

Order of the Court Granting Petitioner’s Motion for Leave to

Proceed In Forma Pauperis and Granting Certiorari 18

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

76 Cr. 822 and 79 C 148

UNITED STATES OF AMERICA

sci

ALPHONSE BIFULCO

EXTRACT OF RELEVANT DOCKET ENTRIES

DATE PROCEEDINGS

12/30/76 Before U.S. Magistrate Cattogio—Indictment filed,

bench warrant ordered and issued.

1/7/77 Before Costantino, J.—Case called. Defendant pres-

ent without attorney. Defendant arraigned and court

enters plea of not guilty on his behalf. Bail set at

$50,000 cash. Court appoints attorney for defendant and

orders all motions filed by February 10, 1977. Trial set

for February 28, 1977.

3/14/77 Before Costantino, J.—Case called. Defendant and

attorney present. Trial ordered and begun, jurors selected

and sworn. Trial continued to March 15, 1977.

3/30/77 Before Costantino, J.—Case called. Trial resumed.

Jury returns with verdict of guilty as charged. Govern-

ment motion to remand defendant denied as indicated.

Jury discharged. All motions to be made on sentencing

date. Sentence adjourned without date. Trial concluded.

6/3/77 Before Costantino, J.—Case called. Defendant and

counsel present. Defendant sentenced for a period of

four years and a special parole term of five years, and

a fine of $1,000. Court grants defendant leave to appeal

without prepayment of fee.

Judgment and commitment filed, with certified copies

to U.S. Marshal and Probation Department.

DATE PROCEEDINGS

6/10/77 Notice of appeal filed.

12/27/77 Court of Appeais mandate dated December 15,

1977, affirming judgment of the district court, received

and filed.

1/17/79 Defendant Bifulco’s motion to vacate sentence pur-

suant to 28 U.S.C. § 2255 filed. Copy of docket entries

forwarded to chambers.

Defendant Bifulco’s motion for leave to proceed in forma

pauperis filed.

1/22/79 By Costantino, J—Memo and order dated January

19, 1979, dismissing the complaint, filed.

1/23/79 Judgment dismissing the complaint and denying

petitioner’s motion pursuant to 28 U.S.C. § 2255 filed.

1/29/79 Motion to proceed without funds re: 28 U.S.C.

§ 2255 petition and notice of appeal filed.

1/30/79 Motion to appeal in forma pauperis from denial of

28 U.S.C. § 2255 petition granted and notice of appeal

filed. Copies of Docket sheets and notice of appeal for-_

warded to Court of Appeals.

By Costantino, J—Addendum to January 19, 1979, de-

cision, dated January 29, 1979, filed.

3/7/79 Record on appeal certified and mailed to Court of

Appeals (28 U.S.C. § 2255 portion only).

6/28/79 Mandate of Court of Appeals affirming judgment,

with copy of opinion re: 28 U.S.C. § 2255, received and

filed. (Court of Appeals opinion dated May 30, 1979.)

3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

79 C 148

Criminal + 76-CR-822

COSTANTINO, J.

UNITED STATES OF AMERICA

v8.

ALPHONSE BIFULCO

MOTION TO VACATE SENTENCE

PETITIONER, ALPHONSE BIFULCO, envokes [sic]

jurisdiction of the Honorable Court under Title 28

U.S.C. 2255.

That the petitioner was sentenced in the District Court

on June 3, 1977 before the Honorable Judge Constantine

[sic]. Petitioner was found Guilty at his trial of one

count of Violation of Title 21 U.S.C. 846. Petitioner

further states that he filed a Rule 35 motion to the court,

which was denied by the Honorable Court on September

29, 1977. The petitioner now proceedes [sic] as foilows:

Petitioner was charged in a multi count indictment

with four (4) Co-defendants, including himself, who were

finally taken to trial. [P]etitioner was originally charged

with three (3) counts on that indictment, two (2) of

the counts charged the petitioner with violation of Title

21 USC 841, and the third (3rd) count charging a vio-

lation of Title 21 USC 846. The petitioner went to trial,

and the Jury returned a verdict of guilty on one (1)

count of conspiracy under Title 21 USC 846.

The petitioner would like to state at this time that he

was sentenced to four (4) years and a five (5) year

Special Parole by the Court. Under the holdings of

Fassette v. U.S., 444 F. Supp. 1245, (1978), THAT he

was indeede [sic] sentenced illegally.

4

The petitioner was sentenced to a four (4) year sen-

tence with a three [sic] (5) year Special Parole to fol-

low, as is allowed in Title 21 U.S.C. 841(a). However,

the petitioner was sentenced illegally as he was found

guilty of violation of Title 21 USC 846. Petitioner con-

tends that, as in Fassette supra, the crime of which the

petitioner was convicted was not a substantive of manu-

facturing or distributing, of which the petitioner was

freed, as is punishable under section 841(a) but only a

conspiracy to do these things. Such a conspiracy is not

punished under Section 841(a) but under section 846.

Such conspiracy is made a seperate [sic] offense under

Section 846 and the punishment for such a conspiracy

is seperately [sic] prescribed by 21 U.S.C. 846.

The punishment for substantive offenses punishable

under 21 use 841(a) (1) is the subsection set forth in

the petitioners case. For the substantive offense involv-

ing P.C.P. the punishment is subscribed as a term of

imprisonment not to exceede [sic] 15 years or $15,000.00

fine or both. The same punishment goes on to describe

and provide that any Court imposing a term of imprison-

ment, shal! also impose a special parole term of at least

two (2) years. The operative language is as follows:

“Any sentence imposing a term of imprisonment

under this paragraph, shall . . . impose a special

parole term of at least two (2) years in addition to

such term of imprisonment. . ” (ITALICS SUP-

PLIED)

So, if any imprisonment is imposed for the substantive

offense, the Special Parole term is mandated in addition

to the imprisonment. However, 21 USC 846 is quite

different in its language. [T]his section in relevant part

reads

“Any person who conspires to commit any offense

defined in this subchapter (which subchapter in-

cludes 841) is punishable by imprisonment, or fine

or both, which may not exceede [sic] the maxium

[sic] punishment perscribed [sic] for the offense,

THE COMMISSION OF WHICH WAS THE OB-

5

JECT OF THE . . . CONSPIRACY”. (ITALICS

SUPPLIED)

The clear meaning as the court interperted [sic] it, of

846, is that the punishment for 846, for violation of that

section shall consist only of “imprisonment, fine, or both”.

A special parole term of the type perscribed [sic] in 841

is punishment in addition to imprisonment and or

fine[.] Section 841 Speciffically [sic] refers to such spe-

cial parole terms as something “In Addition” to imprison-

ment.

The court further went on to state that “a statute

providing punishment for a criminal offense should be

strictly construed.[’”] It cannot be doubted that a spe-

cial parole term which follows a term of imprisonment is

a significant additional detriment of and to the defend-

ant. The court found no language tha[t] is in 846, which

would permit any kind or type of punishment or detri-

ment which is additional to fine or imprisonment or both.

The court found no language in that section which wuld

[sic] authorize imposing a special parole thereunder.

The words of 846 “Which may not exceede [sic] the

maxium [sic] punishment perscribed [sic] for the (sub-

stantive) offense’ modify the words “punishable by im-

prisonment fine or both”. The court read the reference

to the “Maxium [sic] punishment perscribed [sic] for

the (substantive) offense” as referring to the maximum

[sic] fine and imprisonment perscribed [sic] for the

substantive offense. The court interpreted 846 as not

permitting all of the types and kinds of substantive of-

fenses and punishment for such offenses, but as permit-

ting only fine and imprisonment which shall not exceede

[sic] the maxium [sic] fine and imprisonment perscribed

[sic] for the substantive offense.

If Congress had intended or so desired to have the

permissable [sic] punishment for the conspiracy offense

of 846 identical with that permitted for the substantive

offense of 841, it could have easily and clearly declared

it so. Instead, Congress had used language in 846 which

seperately [sic] defines the permissable [sic] punishment

for violations of that section and uses different language

in defining it.

6

Further, the petitioner requests that this motion be

granted in every respect.

CONCLUSION

Wherefore, since any doubt or conflict in the construc-

tion of the Statutes and rules must be resolved in favor

of the petitioner, or since the District Court Lacked Ju-

risdiction to convict and sentence the petitioner, The

petitioner prays that the information and indictment be

dismissed; that the conviction be reversed; that the pleas

be dismissed; that the Honorable Court issue Habeas

Corpus forthwith, thus releasing the petitioner from his

illegal restraint.

Respectfully submitted,

/8/ Alphonse Bifuleo Pro-Se

ALPHONSE BIFULCO PRO-SE

Pembroke Station

Danbury Conn. 06810

Pursuant to Title 28 U.S.C. SECTION 1746, I declare

under the penalty of perjury that the foregoing is true -

and correct. Executed on the 14th day of January, 1979.

/s/ Alphonse Bifuico

ALPHONSE BIFULCO

7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

79 C 148

(76 CR 822)

ALPHONSE BIFULCO, PLAINTIFF

—against—

UNITED STATES OF AMERICA, DEFENDANT

MEMORANDUM OF DECISION AND ORDER

Dated January 19, 1979

Filed January 22, 1979

COSTANTINO, D.J.

Petitioner was convicted pursuant to 21 U.S.C. § 846

of conspiring to violate 21 U.S.C. § 841(a) (1). He was

sentenced to 4 years in prison with a 5 year special

parole term. He now moves pursuant to 28 U.S.C. § 2255

to vacate or correct his sentence. The motion is denied.

The court finds that defendant was properly sentenced.

See United States v. Armedo-Sarmiento, 545 F.2d 785

(2d Cir. 1976), cert. denied, 480 U.S. 917 (1977) (5

years and 3 year special parole term) ; United States v.

Wiley, 519 F.2d 1348 (2d Cir. 1975), cert. denied, 423

U.S. 1038 (1976) (7 years and 3 year special parole

term). See also United States v. Jacobson, 578 F.2d 863

(10th Cir. 1978). Accordingly, the Clerk of the Court

is directed to dismiss the complaint.

So ordered.

/s/ Mark A. Costantino

US.D.J.

8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

79 C 148

(76 CR 822)

ALPHONSE BIFULCO, PLAINTIFF

—against—

UNITED STATES OF AMERICA, DEFENDANT

JUDGMENT

Filed January 23, 1979

A memorandum and order of Honorable Mark A.

Costantino, United States District Judge, having been

filed on January 22, 1979, denying the petitioner’s mo-

tion pursuant to 28 U.S.C. Sec. 2255, and dismissing the

complaint, it is

ORDERED and ADJUDGED that the plaintiff take

nothing of the defendant; that the petitioner’s motion

pursuant to 28 U.S.C. Sec. 2255 is denied; and that the

complaint is dismissed.

Dated: Brooklyn, New York

January 23, 1979

/s/ Richard H. Weare

Clerk

9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

79 C 148

(76 CR 822)

ALPHONSE BIFULCO, PLAINTIFF

—against—

UNITED STATES OF AMERICA, DEFENDANT

ADDENDUM

Dated January 29, 1979

Filed January 30, 1979

COSTANTINO, D.J.

The eleventh line to the January 19, 1979 decision of

this court should include a citation to United States v.

Burman, 584 F.2d 1354 (4th Cir. 1978) following the

citation to United States v. Wiley, 519 F.2d 1348 (2d

Cir. 1975), cert. denied, 423 U.S. 1038 (1976).

So ordered.

/s/ Mark A. Costantino

US.D.J.

10

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the thirtieth

day of May one thousand nine hundred and seventy-nine.

Present: HON. Murray I. GURFEIN

Circuit Judge

Hon. THOMAS J. MESKILL

Circuit Judge

HON. CHARLES EDWARD WYZANSKI

District Judge

79-2024

Filed May 30, 1979

ALPHONSE BIFULCO, PETITIONER-APPELLANT

ee

UNITED STATES OF AMERICA, RESPONDENT-APPELLEE

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the order of said

District Court be and it hereby is affirmed in accordance

with the opinion of this court with costs to be taxed

against the appellant.

A. DANIEL FUSARO

/s/ Arthur Heller

By: ARTHUR HELLER

Deputy Clerk

11

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 954-——-August Term, 1978

(Submitted April 30, 1979 Decided May 30, 1979)

Docket No. 79-2024

ALPHONSE BIFULCO, PETITIONER-APPELLANT

|

UNITED STATES OF AMERICA, RESPONDENT-APPELLEE

Before:

GURFEIN and MESKILL, Circuit Judges, and

WYZANSKI, District Judge *

Appeal pro se from an order of the United States Dis-

trict Court for the Eastern District of New York, Mark

A. Costantino, Judge, denying motion for relief under 28

U.S.C. § 2255. The Court of Appeals held that the trial

court neither lacked subject matter jurisdiction over ap-

pellant’s conviction under 21 U.S.C. § 846 nor imposed

an illegal sentence under that section.

Affirmed.

* Hon. Charles E. Wyzanski, Jr., United States District Judge for

the District of Massachusetts, sitting by designation.

12

ALPHONSE BIFULCO, Danbury, Connecticut (Robert

E. Winkle, Danbury, Connecticut, on the brief),

for Appellant Pro Se.

EDWARD R. KORMAN, United States Attorney, East-

ern District of New York, Harvey M. Stone,

Rodney G. Smith, Assistant United States At-

torneys, Eastern District of New York, for

Appellee.

PER CURIAM:

This is an appeal pro se from an order of the United

States District Court for the Eastern District of New

York, Mark A. Costantino, Judge, denying appellant

Alphonse Bifulco’s motion for relief pursuant to 28

U.S.C. § 2255. We regard appellant’s two claims on ap-

peal as meritless and we affirm the order entered below.

Appellant was indicted on three drug-related counts,

one count charging him under 21 U.S.C. § 846 with con-

spiracy to manufacture, distribute, and possess with in-

tent to distribute substantial quantities of phencyclidine,

a Schedule III controlled substance, in violation of 21

U.S.C. § 841(a) (1), and the other two counts charging

him with substantive violations of § 841(a) (1). After a

jury trial, appellant was convicted on the conspiracy

charge and acquitted on the substantive charges. On

June 3, 1977, he was sentenced to four years’ imprison-

ment, a special parole term of five years and a $1,000

fine. This Court affirmed his conviction without opinion

on December 15, 1977. Subsequently appellant, pro se,

moved to vacate his sentence under 28 U.S.C. § 2255.

The motion was denied by the district court and this

appeal followed.

Appellant presents two claims for our consideration.

The gist of the first argument is that the trial court

lacked subject matter jurisdiction over his trial and con-

viction on the conspiracy count, in the absence of evi-

dence proving a substantive offense as the object of the

conspiracy, on the theory that no offense.against the

13

United States had been proven. As this argument at-

tacks the jurisdiction of the trial court, we will overlook

appellant’s failure to raise this objection in the § 2255

motion presented to the district court. Reaching the

merits, we must reject appellant’s argument as utterly

without foundation. Congress explicitly defined conspir-

acy under § 846, standing alone, as a federal crime. A

defendant need not be charged with any other violation

in order to be tried and convicted under § 846. See, e.g.,

United States v. Lyles, 593 F.2d 182 (2d Cir.), cert.

denied, 47 U.S.L.W. 3636 (U.S. Mar. 26, 1979). More-

over, a defendant charged with both a § 846 conspiracy

and a substantive violation of § 841 may be lawfully con-

victed on the former and acquitted on the latter. See,

e.g., United States v. Lubrano, 529 F.2d 633 (2d Cir.

1975), cert. denied, 429 U.S. 818 (1976). See generally

Callanan v. United States, 364 U.S. 587 (1961) (noting

distinctiveness of conspiracy to commit a particular of-

fense and actual commission of that offense).

Appellant’s second contention, which was raised below,

is that the imposition on him of a special parole term, in

addition to incarceration, is an impermissible expansion

of the sentencing provisions of 21 U.S.C. § 846. We dis-

agree.

Section 846 provides:

Any person who attempts or conspires to commit any

offense defined in this subchapter is punishable by

imprisonment or fine or both which may not exceed

the maximum punishment prescribed for the offense,

the commission of which was the object of the at-

tempt or conspiracy.

(emphasis added). Appellant argues in his brief that the

“maximum punishment” spelled out in § 846 refers to the

maximum imprisonment or fine prescribed for violations

of the substantive offenses covered by 21 U.S.C. § 841(b).

He claims that the legislative history demonstrates a con-

gressional intent to exclude the special parole mandated

by 21 U.S.C. § 841(b). Therefore, he reasons, the addi-

tion of a period of special parole to his sentence of im-

prisonment and fine was an illegal sentence under 21

U.S.C. § 846. The only authority we have found that sup-

14

ports appellant’s interpretation of the sentencing pro-

visions of § 846 is Fassette v. United States, 444 F.Supp.

1245 (C.D. Cal. 1978). The Fassette court interpreted

§ 846 as “not permitting all of the types and kinds of

punishment prescribed for the substantive offense but

permitting only fine and imprisonment which shall not

exceed the maximum fine and imprisonment prescribed

for the substantive offense.” Jd. at 1247 (footnote

omitted). The court’s expressed hope that the Ninth

Circuit would rule on the issue, id. at 1248, has gone

unfulfilled.

The weight of authority is to the contrary. In United

States v. Armedo-Sarmiento, 545 F.2d 785, 794-95 (2d

Cir. 1976, cert. denied, 480 U.S. 917 (1977), and United

States V. Wiley, 519 F.2d 1348, 1851 (2d Cir. 1975), cert.

denied, 423 U.S. 1058 (1976), we gave our implicit ap-

proval to the type of sentencing challenged here without

discussing or ruling on the claim raised by the appellant

here. The Fifth Circuit in United States v. De La

Fuente, 550 F.2d 309 (5th Cir. 1977), similarly gave its

tacit approval to a sentence containing a special parole

term for a violation of § 846 without considering the

argument proffered here.

In addition, the two circuit courts that have directly

addressed this issue have both rejected the reasoning

adopted in Fassette and urged upon us here by appellant.

In United States v. Burman, 584 F.2d 1854, 1858 (4th

Cir. 1978), the court stated:

We think that a special parole term for violation

of § 846 was properly included in Burman’s sentence.

The conspiracy statute, § 846, is punishable by a sen-

tence which must be set by reference to the penalties

of the substantive offense statute. A special parole

term is automatically made part of the sentence pre-

scribed by the substantive offense statute, § 841(b),

anytime imprisonment is included in the sentence.

We think that under this statutory scheme such a

special parole term is required as a penalty under

§ 846 when a sentence of imprisonment is imposed

because the substantive [offense] statute, § 841(b),

15

would so require it and the terms “imprisonment or

fine or both” only have meaning by reference to the

sentences imposed under substantive offense statutes.

Because we do not find Burman’s special parole term

of fifteen years to be excessive, we hold that the

position of a special parole term of fifteen years by

the district court for violation of § 846 was proper.

The Tenth Circuit relied on a similar analysis in re-

jecting the interpretation pressed here by the appellant:

From the wording in § 841(b)-(c), it would ap-

pear that Congress viewed the special parole term as

being a part of the term of imprisonment to which

it was appended. Paragraphs (1) to (3) of § 841(b)

all make a special parole term mandatory whenever

imprisonment is also imposed. Thus, a parole term

may never be imposed without imprisonment; it must

always accompany imprisonment. Section 841(c)

“ provides, in addition, that violation of the special

parole may result in an increase in the original term

of imprisonment to the extent of the length of the

special parole term. It is impossible, therefore, to

accept the argument that the parole term is to be

imposed only where the charge is violation of the

substantive provision. It is logical to view the refer-

ence to imprisonment in § 846 as intending to incor-

porate all of the imprisonment provision in § 841(b).

United States v. Jackson, 578 F.2d 868, 868 (10th Cir.

1978).

We note too that in a closely analogous case, United

States v. Dankert, 507 F.2d 190 (5th Cir. 1975), the

Fifth Circuit upheld the imposition of a special parole

term in addition to imprisonment under 21 U.S.C. § 963.

Section 963 prohibits conspiracy to import, rather than

manufacture, controlled substances; the corresponding

substantive sections, §§ 952(a) (1) and 960(b) (1), punish

the actual importation of these substances, and as such,

they are companion sections to the substantive offense

section involved in the instant appeal. In Dankert the

appellant made the argument, similar to that advanced

16

by appellant Bifulco, that § 963 does not include the

special parole term provision of § 960(b) (2). Section

963 provides:

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not ex-

ceed the maximum punishment prescribed for the of-

fense, the commission of which was the object of the

attempt or conspiracy.

(emphasis added). The Dankert Court rejected the inter-

pretation proffered by appellant:

The punishment provision of § 963 must be consid-

ered in light of §§ 952(a) and 960, since it is these

statutes which define the offense which was the

object of the conspiracy, and provide for punishment

therefor. They provide:

$952(a) It shall be unlawful to import .. .

[certain] controlled substance[s] ....

§ 965 (a) (1)

Any person who—

contrary to section 952, 953, or 957 of this

title, knowingly or intentionally imports or ex-

ports a controlled substance,

s * * *

shall be punished as provided in subsection (b)

of this section.

§ 960(b) (1)

in the case of a violation under subsection (a)

of this section with respect to a narcotic drug in

schedule I or II, the person committing such vio-

lation shall be imprisoned not more than fifteen

years, or fined not more than $25,000, or both.

If a sentence under this paragraph provides for

imprisonment, the sentence shall include a spe-

cial parole term of not less than three years in

addition to such term of imprisonment.

» a * *

17

We have no trouble whatever in undeending the

language of § 963 to permit pnishment not exceeding

that provided for an offense in violation of § 952(a).

Id. at 191.

We agree with the position taken by the Fourth, Fifth

and Tenth Circuits on this issue. Therefore, we affirm the

order of the district court denying appellant’s § 2255

motion.

18

SUPREME COURT OF THE UNITED STATES

No. 79-5010

ALPHONSE BIFULCO, PETITIONER

v.

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

On Consideration of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted.

October 9, 1979

t U. &. GOVERNMEKT PRINTING OFFrice; 1979 306800 159