Opposition — Stipe v. United States

P huprind Coun

| wan FibLeEG

R3 1980

No. 79-1874 -

MICHAEL RODAI. IR. CLERK

—?

athe Supreme Court of the Winited States

OcTOBER TERM, 1980

GENE STIPE, ET AL.,

Petitioners,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

MOTION OF PETITIONERS TO DEFER

CONSIDERATION AND DISPOSITION OF

PETITION FOR WRIT OF CERTIORARI

BERNARD J. ROTHBAUM, Jr.

LINN, HELMS, KIRK & BURKETT

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

(405) 239-6781

Counsel of Record for Petitioners

of Counsel:

JAMES P. LINN, Esq.

W. H. LAYDEN, Esq.

WARREN GOTCHER, Esq.

September, 1980

err —_

TABLE OF AUTHORITIES

Cases PAGE

Allegrucci v. United States, 372 U.S. 954 (1963) _— 2

Department of Banking v. Pink, 317 U.S. 264 (1942). 2

United States v. Gargotto, 510 F.2d 409 (6th Cir. 1974)

certiorari denied, 421 U.S. 987 (1975), on appeal

after remand from, United States v. Gargotto, 476

F.2d 1009 (6th Cir. 1973) 3

United States v. Healey, 376 U.S. 75 (1964) ~ 2

Rules of the Supreme Court of the United States

Rule 22(2) [abrogated, June 30, 1980] 2

Rule 20.1 2

Federal Rules of Appellate Procedure

Rule 40(a) 2

Rule 41 (a) 1,2,4

Rules of the United States Court of Appeals

For the Tenth Circuit

Rule 16 1-2, 4

Treatise

R. Stern and E. Gressman, Supreme Court Practice

(BNA, 5th Ed., 1978) 3

APPENDIX

PAGE

APPENDIX A:

- Geneval Docket, United States Court of Appeals for

the Tenth Circuit,

United States of America v. Gene Stipe,

No, 79-1987

United States of America v. John Warren Martin,

No. 79-1985

United States of America v. John Glenn Peters,

No. 79-1986

APPENDIX B:

Order of the United States District Court for the

Western District of Oklahoma, filed May 7, 1980.

79-1874

In the

Supreme Court of the United States

OcTOBER TERM, 1980

GENE STIPE, Et AL.,

Petitioners,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

MOTION OF PETITIONERS TO DEFER

CONSIDERATION AND DISPOSITION OF

PETITION FOR WRIT OF CERTIORARI

COME NOW the Petitioners, Gene Stipe, John Warren

Martin, and John Glenn Peters, and respectfully pray that

the Court defer consideration and disposition of the pend-

ing petition for a writ of certiorari to the United States

Court of Appeals for the Tenth Circuit, filed with the Court

on May 27, 1980, until final adjudication by the Court of

Appeals of a motion to recall the mandate, petition for re-

hearing and suggestion of rehearing en banc all currently

sub judice before the Court of Appeals.

In support of this Motion, petitioners would respect-

fully show the Court that this Motion is the product of an

unusual interplay between the provisions of Rule 41(a)

of the Federal Rules of Appellate Procedure, Rule 16 of

a

the United States Court of Appeals for the Tenth Circuit

and former Rule 22(2) [now Rule 20.1] of the Rules of

this Court.

(1) Pursuant to Rule 41(a) of the Federal Rules of

Appellate Procedure and Rule 16 of the Court of Appeals

for the Tenth Circuit, the Court of Appeals directed that

a certified copy of its judgment, which constituted its man-

date, be issued to the District Court for the Western Dis-

trict of Oklahoma concurrently with the filing of the opinion

of the Court of Appeals on April 28, 1980. Petition for writ

of certiorari, Appendix A, pp. A-1, A-5.

Under Rule 16 of the Rules of the Court of Appeals for

the Tenth Circuit, this procedure eliminated the right of

petitioners to file any petition for rehearing in the Court

of Appeals which would be considered “timely” under Rule

40(a) of the Federal Rules of Appellate Procedure. Rule

16 of the Rules of the Court of Appeals for the Tenth Cir-

cuit provides that a petition for rehearing presented after

issuance of a mandate issued concurrently with an opinion,

will be treated by the Court of Appeals as a motion to re-

call the mandate and; if granted, will be treated as an “out

of time” petition for rehearing by the panel or by the full

Cumt~ ~~

(2) Under the settled rules of practice of this Court,

only a “timely petition for rehearing tolls the running of

the... . period” in which to file a timely petition for cer-

tiorari in this Court. Department of Banking v. Pink, 317

U.S. 264, 266 (1942) (emphasis added); United Siates v.

Healey, 376 U.S. 75, 77-79 (1964); see, Allegrucci v. United

States, 372 U.S. 954 (1963), where the petition for certio-

a

rari seeking review of an important decision of the Court

of Appeals was denied “for the reason that the petition was

not timely filed.” Id. The rule is discussed at length in a

standard guide on questions of practice and procedure in

this Court. See, R. Stern and E. Gressman, Supreme Court

Practice, §6.3 (BNA, 5th Ed., 1978). Under the circum-

stances of these cases, filing of a “timely” petition for re-

hearing in the Court of Appeals was impossible, and it was,

therefore, incumbent upon counsel to file a petition seek-

ing a writ of certiorari by May 29, 1980, regardless of

possible forthcoming action by the Court of Appeals. The

petition was filed with the Clerk of this Court on May 27,

1980.

(3) However, because of the importance of the issues

presented, and the desirability of allowing the Court of

Appeals to correct its own error, petitioners had, previ-

ously, filed, on May 7, 1980, a motion to recall the mandate,

a petition for rehearing and a suggestion of rehearing en

banc in the Court of Appeals for the Tenth Circuit. Ap-

pendix A, pp. 2-3. Petitioners did so for the reasons stated

in the preceding sentence and pursuant to the holding of

United States v. Gargotto, 510 F.2d 409, 412 (6th Cir. 1974)

certiorari denied, 421 U.S. 987 (1975), on appeal after re-

mand from, United States v. Gargotto, 476 F.2d 1009 (6th

Cir. 1973). In Gargotto, the Court of Appeals for the Sixth

Circuit squarely held that if the effect of the mandate of

the Court of Appeals is to return a criminal cause to the

district court for further proceedings, failure by the ap-

pellant to present a petition for rehearing constitutes a

waiver of the right to urge any point of law which the

appellant believes was wrongly decided on an appeal after

—4—..

remand, if the point could have been presented by a peti-

tion for rehearing. Id.

(4) The net effect of the interplay between Rule 41 (a)

of the Federal Rules of Appellate Procedure, Rule 16 of

the Rules of the Court of Appeals for the Tenth Circuit

and the rules of practice of this Court is, thus, to create a

situation in which both the Court of Appeals and this Court

are potentially vested with jurisdiction by virtue of filings

currently sub judice in both Courts.

(5) As shown by the certified copies of the docket

sheets of the Court of Appeals for the Tenth Circuit in

these cases, Appendix A hereto, the motion to recall the

mandate, petition for rehearing, and suggestion of rehear-

ing en banc were received by the Court of Appeals on

May 7, 1980, and were submitted to the panel of the Court

of Appeals which entered the decision presented for review

here, on the same date.

- As veflected by the docket sheets in these cases, Ap-

pendix A, pp. 2-3, the panel to whom these cases were

submitted; and by whom they were decided, has not yet

acted upon the motion to recall the mandate or petition

for rehearing, nor has: the Court of Appeals, or any cir-

cuit judge, taken any action upon the suggestion of rehear-

ing en banc.

(6) On May 7, 1980, nine days after issuance of the

mandate of the Court of Appeals, the District Court for the

Western District of Oklahoma entered an order staying

further proceedings looking toward a possible trial, if any,

until after disposition of both the suggestion of rehearing

en banc in the Court of Appeals and the petition for a writ

ar ws

of certiorari currently sub judice in this Court. Appendix

B, p. 1.

Petitioners respectfully submit that, under such circum-

stances, it would be clearly preferable to allow the Court

of Appeals to consider the issues presented by petitioners’

motion to recall the mandate, petition for rehearing and

suggestoin of rehearing en banc, prior to consideration and

disposition of the petition for a writ of certiorari.

In this regard, we would emphasize that the petition

for rehearing and suggestion of rehearing en banc present

to the Court of Appeals several important points of federal

appellate jurisdiction which we believe the Court of Ap-

peals overlooked or misapprehended in its opinion of April

28, 1980, and that these are the same points as are pre-

sented by the petition for certiorari currently sub judice in

this Court.

(7) .In the event the Court of Appeals grants the

motion to recall the mandate and orders that these cases

be reheard, either by the original panel, or by all active

judges of the Court of Appeals sitting en banc, the pending

petition for certiorari would appear to be rendered pre-

mature.

In the event such reconsideration results in a decision

in favor of petitioners, the petition for certiorari would be

moot, and this Court would be called upon to review the

decision of the Court of Appeals, if at all, only upon con-

sideration of a petition for a writ of certiorari which might

be filed by the United States.

In the event the Court of Appeals should agree to re-

hear the issues here presented, and should again rule ad-

idl cin

versely to petitioners, a fresh petition for a writ of cer-

tiorari to the Court of Appeals can then be presented by

petitioners, seeking review of that decision.

In the event the Court of Appeals denies any rehear-

ing or reconsideration of the issues here presented, this

Court will be able to consider the pending petition for cer-

tiorari with the knowledge that it is being requested to

review an important question of federal appellate proced-

ure upon which the views of the Court of Appeals for the

Tenth Circuit are firmly fixed.

Since the District Court below has itself already or-

dered that any possible trial in these cases will occur, if

at. all, only ‘after final adjudication of the petitions sub

judice in both the Court of Appeals and this Court, grant-

ing the instant.motion could not in any way materially

delay any such trial.

It is, therefore, respectfully submitted that until such

time as the Court of. Appeals has made known its ultimate

disposition of the important questions here presented, con-

sideration and disposition of the pending petition for a writ

ef certiorari to the Court of Appeals for the Tenth Circuit

should be deferred.

. .Respectfully submitted,

‘BERNARD J. ROTHBAUM, Jr.

LINN, HELMS, KIRK & BURKETT

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

(405) 239-6781

Counsel of Record for Petitioners

of Counsel:

JAMES P. LINN, Esq.

LINN, HELMS, KIRK & BURKETT

Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 73102

(405) 239-6781

W. H. LAYDEN, Esq.

323 E. Carl Albert Parkway

McAlester, Oklahoma 74501

(918) 423-6202 |

WARREN GOTCHER, Esq.

325 E. Carl Albert Parkway

McAlester, Oklahoma 74501

(918) 423-3603

September, 1980

CERTIFICATE OF SERVICE

This is to certify that three (3) true and correct copies

of the instrument to which this certification is attached,

were mailed, by certified mail, with postage fully prepaid

thereon, to all parties required to be served, to-wit,

The Honorable Wade H. McCree, Jr.

Solicitor-General of the United States

Office of the Solicitor-General

United States Department of Justice

Washington, D.C. 20530

by the undersigned, a member of the Bar of this Court,

, gE day of September, 1980.

BERNARD J. ROTHBAUM, Jr.

APPENDICES

APPENDIX A

r i. ad ~~ -

SPdnaittee tite) Venter os se ass ° Besson. T e % é

alae A-! sare 3

Ferm A. 0, 147 (July 1953) ’ GENERAL DC SKET 79- j ape,

ahs

UNITED STATES COURT OF APPEALS pee

FOR THE Gy

CR. 426 ad 237 TENTH CIRCUIT vied” “4

AFPEAL FROM THE UNITED STATES DISTRICT COURT CASE NO. 7

FOR THE WESTERN DISTRICT OF OKLAHOMA 79-1987

FTNGT NOLTUOWINT RECUSED

Cmp. Cases: 79-1985; 79-1986 f

TITLE OF CASE | | ATTORNEYS FOR APPELLANT

UNITED STATES OF AMERICA, a) James P. Linn

(

( ) Drew-Nevilie

(

Plaintiff-Appellee, a) B. J. Rothbaum, Jr.

Linn, Helms, Kirk & Burkett

vs. Suite 410, Fidelity Plaza

Oklahoma City, Oklahoma 7310:

GENE STIPE, 405/ 239-6781

Defendant-Appellant.

:

ATTORNEYS FOR APPELLEE

(a) Larry D. Patton

Teresa M. Black

U.S. Attorney's Office

Western District of Oklahoma

4434 Federal Courthouse

Oklahoma, OK 73102

405 231-5281

No, BELOW: 79-00123-03

Jupoz srriow: Thompson

BSEOr RSE diaries

* 8-22-79

NOTICE OF APPEAL FILED: §-3]-79

Action Commenced: 7-6-79

t i DATE : ACCOUNT OF APPELLANT | Receive | Diebursed | REN * ONS

9/12/79 |Docket Fee Paid in District Court

ss ; A-2

"ad <a 2 4

GENERAL DOCKET (yr-hoo

4 ww

UNITED STATES COURT OF APPEALS

‘ FOR THE

TENTH CIRCUIT

| case wo 79-1987 United States of America v. Gene Stipe

| DATE FILINGS—PROCEEDINGS ;

Filed

9/12/79 ||\CS.DKT. Case docketed

DKT.ST.DUE Appellant's docketing statement due 9/21/79

9218-79) NAPR.F. Notice of appearance filed by Linn and Rothbaum, Jr., as attor;

: for appellant.

19/19/79 DKT.ST.F. Appellant's docketing statement filed - 10 cc c/s

' 9-25-79 || M.DS.CS.F. Appellee's motion to dismiss case filed - 4cc. c/s.

‘ MvPS+€8sRES+Es-Appettant*+s-respense=te=motion=to=atsmiss=case=ftieg -

4eer=e7s. I

‘ M+BS+ES8>sRESTREEYSE. kppettee*+s=-repty=to-appettant*s=response=-te=-metion

! te=-dismiss-filed=<=4cese=6/s= \

| 2226-29 MVDS=CS* RESsRPLY+P+=-Appetzant*+s-repty-to=appetiee+s-respense-te-motidn

; to=Gismiss=fiited===6ee. c/s. ‘

# 9-25-79 | M.RMK.F. Appellant's motion to consolidate briefing of the motion to "di

i filed - 4cc. c/s.

I M.RMK.RES.F. Appellee's response to appellant's te=appettant+s motion ;

| consolidate briefing filed - 4cc. c/s. |

" M.RMK.RES.RPLY.F. Appellant's reply to appellee's response to appellant

4 motion to consolidate on briefing filed - 4cc. c/s. |

j;LO-1-79 || M.RMK.SUBM.PAN. Appellant's motion to consolidate briefing of the motic

; dismiss is submitted to panel. ae

j M.RMK.RES.SUBM.PAN. Appellee's response to appellant's motion to congo.

briefing is submitted to panel. {

M.RMK.RES.RPLY.SUBM.PAN. Appellant's reply to appellee's response to ja};

motion to consolidate on briefing is submitted to panel.

¢ 10/3/79 || ROA.F Record on appeal filed, Volume I (pleadings) (108 pp); l copy

10/18/79, M.DS.CS.RNK. Order: The United States shall respond to motion to dismi

" in its brief due 11/21/79. McWilliams, Breitenstein,Doyie i

O.BR.DUE. Order: Appellant's brief due 11/5/79- McWilliams, Breitenst¢

H O.BR.DUE. Order: Appellee's brief due 11/21/79 - McWilliams, Breitenst

ij Doyle.

O.HRG.SET. Order: Set for hearing to the Court on Wednesday, vovenb

| 28, 1979 at 2:00 P.M. in Denver - McWilliams, Breitenstein, Doy1lé

H 10/18/79 HRG.SET Hearing set for November, 1979, Term - Denver, Colorado i

10/23/79 || NAPR.F Notice of appearance filed by Patton and Black as attorneys

i for Appellee |

W11-5-79 BFGF: Appellants' motion to file brief in excess of pages filed |

) Scc. c/s.

| BR.F. Appellant's brief filed - 25cc. c/s. "|

APX.F. Appellant's joint appendix filed - 25cc. c/s. i

H11/7/79 |M.F.BR.SUBM Appellants' motion to file brief in excess of pages |

submitted to panel |

j11/16/79/M.F.BR.DISP Granted appellant's motion to file brief in excess of

pages disposed of by Barrett

H11/23/79\/BR.F. Appellee'’s brief filed - 10 cc c/s

APX.F. Appellee's appendix filed - 10 ce c/s

f11/27/79/BR.F. Apvellant's reply brief filed - 14 cc c/s

A= s

, — — 19-19¢

" Form A.O. 1478 (July 1963) NOTE IN ANY EN BANC ORDER THAT JUDGE

HOLLOWAY DID. NOT PARTICIPATE.

— ae.

DATE |

11/28/79) CS.ARG.SUBM -~scase. argued and submitted to Barrett, Doyle, McKay

4/28/80 || OPN.F. Published signed opinion filed - Barrett, Doyle, McKay

Writing Judge is McKay

JM.DISP. Judgment disposed, appeal dismissed

MDT.ISS. Mandate issued to district court

.5/2/80|| ROA.RTN.DC. Record on appeal returned to Dist. Ct. Vol. I

5/7/80], ROA.RCPT.F. Record receipt filed

ha <phase Appellants' petition for rehearing en banc filed, llc

c/s

P.REHRG.ENB.SUBM. Appellants' petition for rehearing en banc submitte

to panel

5/5/80 MDT.RCPT.F - mandate receipt filed

5/31/80 ||P.WRIT.CERT.F. Appellant's petition for writ of certiorari filed on

5/27/80 - Supreme Court No. 79-1874.

© er etree es «cue

A- t

Perm A. 0. 147 (July 1953) a GENERAL DOCKET ~F9-1986 |

UNITED STATES COURT OF APPEALS

FOR THE

CR. TENTH CIRCUIT F

APPEAL FROM THE UNITED STATES DISTRICT COURT CASE NO. VMeNn

FOR THE WESTERN DISTRICT OF OKLAHOMA 79-1986

Y tT " ED

Cmp. CE HOLA HAL ; -1987

TITLE OF CASE | ATTORNEYS FOR APPELLANT

UNITED STATES OF AMERICA, ( ) Warren Gotcher

325 E. Carl Albert Parkway

Plaintiff-Appellee, McAlester, Oklahoma 74501

918/ 423-3603

vs.

JOHN GLENN PETERS,

Defendant-Appellant.

ATTORNEYS FOR APPELLEE

(a) Larry D. Patton

Teresa M, Black

U.S. Attorney's OFfice

4434 Federal Courthouse

Oklahoma City, Oklahoma 731°

405-231-5281 ‘

No. BELow: 79-00123-02

z sc

UDGE BELOW: homp a

eporter Marks

Dats or JupoMent: 8-22-79

Notice or appEaL FiLeD: 8-31-79

Action Commenced: 7-6-79

bj e@DATE ACCOUNT OF APPELLANT Received Disbursed REMARKS

9/12/79 Docket Fee Paid in District

Court

A-F

“ —— ar ee oi

NOTE IN ANY EN BANC ORDER THAT JUDGE ) j QoL

Dw

HOLLOWAY DID NOT PARTICIPATE. 40

i

i «79-2986 :

DATE FILINGS—PROCEEDINGS i

Filed

9/12/79 |ICS.DKT. Case docketed

DKT.ST.F. Appellant's docketing Statement filed, 7 cc. c/s

/9-19-79 || NAPR.F. Notice of appearance filed by Patton and Black as attorney

' for appellee.

' 9/20/79]| NAPR.F Notice of appearance filed by Gotcher as attorney for the appell:

‘10/3/79 || ROA.F Record on appeal filed, Volume I (pleadings) (108 PP); 1 copy t

10/18/79] O.BR.DUE. Order: Appellant's brief due 11/5/79 - McWilliams, ——

Doyle

O.BR.DUE. Order: Appellee's brief due 11/21/79 ~McWilliams,Breitenstei:

O.HRG.SET. Order: Set for hearing to the Court on Wednesday, November ‘

1979 at 2:00 P.M. in Denver. - McWilliams,Breitenstein, Doyle ;

age HRG.SET Hearing set for November, 1979, Term - Denver, Colorado (

1-5-79 |M.ADPT.BR.F. Appellant's motion to adopt appellant's brief in 79-1987)

filed - lec. c/s.

eee eee capetdante:-motion-to-file-brief-in-excess-of-pages- filed =i

25ee--e7s-

BR: F:-~- Appeliant+s-brief-£iled---25ec,-e/6-

MADE? popeettant*s- joint -appendix-fited---25ec--ers- |

1/7/79 |M.ADPT.BR.SuUBM Appelalnt's motion to adopt appellant's brief in }

79-1987 submitted to panel

1/16/79|IM.ADPT.BR.DISP Granted appellant's motion to adopt appellant's

brief in 79-1987 disposed of by Barrett

BR.F Appellant's brief filed, 25 copies, c/s

11/23/79) BR.F. Appellee's brief filed - 10 cc c/s

APX.F. Appellee's appendix filed - 10 cc c/s

1/27/79|/BR.F. Appellant's reply brief filed (Stipe) 14 ce c/s

11/28/79] CS. ARG. SUBM - case argued and submitted: to Barrett, Doyle, McKay

4/28/80 || OPN.F. Published signed opinion filed - Barrett, Doyle, McKay |

Writing Judge is McKay

JM.DISP. Judgment disposed, appeal dismissed

MDT.ISS. Mandate issued to district court

5/2/80 || ROA.RTN.DC. Record on appeal returned to Dist. Ct. vol. r

5/7/80]| ROA.RCPT.F. Record receip Tled

P.REHRG.ENB.F. Appellants' petition for rehearing en banc filed, 1l F

c/s

P.REHRG.ENB.SUBM. Appellants' petition for rehearing en banc submitted

t l

/5/80 |iMDT. RCP E'< mandate receipt filed

5/31/80 P.WRIT.CERT.F. Appellant's petition for writ of certiorari filed on |

5/27/80 - Supreme Court No. 79-1874

: A-b

—- #3-1985

Ferm A. O. 147 (July 1953) GENERAL DOCKET

UNITED STATES COURT OF APPEALS | is:

FOR THE CNS

CR. (a2 2d —3) TENTH CIRCUIT

— THE UNITED STATES DISTRICT COURT —"

FOR THE WESTERN DISTRICT OF OKLAHOMA 79-1985 |

DGE OKAY RECUSFD

Cmp. Cases: 79-1986; 79-1987

TITLE OF CASE . | ' ATTORNEYS FOR APPLLLANT

( ) W. H. Layden -

323 E. Carl Albert Parkway

UNITED STATES OF AMERICA, McAlester, Oklahoma 74501

918/ 423-3663 6202

Plaintiff-Appellee,

vs.

JOHN WARREN MARTIN,

Defendant-Appellant.

ATTORNEYS FOR APPELLEE

(a) Larry D. Patton

(a) Teresa M. Black

U.S. Attorney's Office

Western District of Oklahoma

4434 Federal Courthouse

Oklahoma city, OK 73192

405 231-5281

No. BELow: 79-00123-01

Juvce sriow: Thompscn

BERG WEweblarks

" 8-22-79

NOTICE OF APPEAL FILED: 8-31-79

Action Commence: 7-6-79

' ea

DATE ACCOUNT OF APPELLANT Received Diabursed |! REMARKS

—— |'—. = | | —— ——

9/12/79 |Docket Fee Paid in District

Court

Aer

GENERALIDOCKET 79 4 9 Q:

UNITED STATES COURT OF APPEALS

FOR THE

TENTH CIRCUIT

naceiailla 79-1985 ei States of America v. John Warren Martin

DATE | FILINGS—PROCEEDINGS a

: iled

9/12/79||CS.DKT. Case docketed

‘DKT.ST.DUE Docketing statement due 9/21/79

9-19-79 | NAPR.F. Notice of appearance filed by Layden as attorney for appellant,

10/3/79 || ROA.F Record on appeal filed, Volume I (pleadings) (108 pp); 1 copy

10/18/79},0.BR.DUE. Order: Appellant's brief due 11/5/79 ~ McWilliams ,Breitenstei

O.BR.DUE. Order: Appellee's brief due 11/21/79 -McWilliams, Breitenstei

Doyle i

0.400 ber. Order: Set for hearing to the Court on Wednesday, November 2

1979 at 2:00 P.M. in Denver, McWilliams, Breitenstein, Doyle l

10/18/79, HRG.SET Hearing set for November, 1979, Term - Denver, Colorado i

10/23/7# NAPR.F Notice of appearance filed by Patton and Black as attorneys |

for Appellee

11-5-79 || M.ADPT.BR.F. Appellant's motion to adopt appellant's brief in 79-1987

filed - 4cc. c/s. |

N-F-BR.F.---Appellants - motion -to -file brief -in excess of -pages. -filed -+)

25ee--cf/e. |

BR-F~--Appeliant-s-brief-filed---25cc,.-cis-~

APX+F~--Appeliant+s-jeint-appendix-filed---25cec,-c/s- |

L1/7/79 || M.ADPT.BR.SUBM Appellant's motion to adopt appellant's brief in

79-1987 submitted to panel |

1/16/79) M.ADPT.BR.DISP Granted appellant's motion to adopt appellant's

_ brief in 79-1987 disposed of by Barrett

BR.F Appellant's brief filed - 25 ec, c/s

11/26/79] BR.F. Appellee's brief filed - 10 cc c/s |

|, APX.F. Appellee's appendix filed - 10 cc c/s s

11/27/79] BR.F. Appellant's reply brief filed (Stipe) - 1 ce c/s

11/28/79] CS. ARG. SUBM - *#@ase.argued and submitted to Barrett, Doyle, icKay

4/28/80 }OPN.F. Published signed opinion filed - Barrett, Doyle, McKay |

Writing Judge is McKay

JM.DISP. Judgment disposed, appeal dismissed

MDT.ISS. Mandate issued to district court

5/2/80], ROA.RTN.DC. Record on appeal retured to Dist. Ct. Vol. I

5/7/80] ROA.RCPT.F. Record receipt filed.

P.REHRG.ENB.F. Appellants’ petition for rehearing en banc filed, 1l ce,

c/s ]

» eunee tue. buen. Appellants' petition for rehearing en banc submitted

to panel

53/5/80 || MDT.RCPT.F - mandate receipt filed

5/31/80 | P.WRIT.CERT.F. Appellant's petition for writ of certiorari filed on |

5/27/80 - Supreme Court No. 79-1874

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

[Filed May 7, 1980]

UNITED STATES OF AMERICA, )

Plaintiff )

vs. ) No. CR-79-123-T

)

JOHN WARREN MARTIN, )

JOHN GLENN PETERS, )

and GENE STIPE, )

Defendants. _)

ORDER CONTINUING STAY

Defendants Martin, Peters and Stipe have moved to

continue the stay of proceedings herein until disposition of

defendants’ application for rehearing en banc before the

United States Court of Appeals for the Tenth Circuit, and

petitions for writs of certiorari in the United States Su-

preme Court. The government has responded stating its

readiness for trial but raising no objection to the motion.

Upon consideration and for good cause shown. _

IT IS ORDERED that defendants’ motion is granted

and this Court’s order of September 4, 1979, staying trial,

is hereby continued pending disposition of defendants’ ap-

plication for rehearing en banc before the United States

Court of Appeals for the Tenth Circuit and their petitions

for writs of certiorari in the United States Supreme Court

or to such other time as this Court may direct.

DATED this 7th day of May, 1980.

(s) Ralph G. Thompson

UNITED STATES DISTRICT JUDGE