Petition — MICHAEL CLEMENTE v. UNITED STATES (Nos. 80-1972, 80-1800, 80-2098)

In the

Supreme Court of the United States.

Ocroser TerM, 1980.

MICHAEL CLEMENTE,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Peiition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit.

ALAN M. DersHowi!Tz,

20 Elmwood Avenue,

Cambridge, Massachusetts 02138.

(617) 661-1965

Attorney for Petitioner

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Questions Presented. *

I. Whether the so-called “RICO” Act (18 U.S.C. §§ 1961 et

seq.) is applicable to an enterprise which, according to the

government, consists of a group of individuals “associated in

fact to corruptly control and influence” an industry?

II. Whether the defendant’s conviction of RICO conspiracy

must still be reversed even if the government’s theory of enter-

prise is sustained?

III. Whether all the remaining counts must also be reversed

for a new trial if the RICO and RICO conspiracy counts are

reversed, because they were inevitably tainted by the spillage

from the RICO counts?

* The parties to this case, aside from petitioner and the government, are

petitioner's co-defendants at trial and on appeal: Thomas Buzzanca, Vin-

cent Colucci, Carol Gardner, Michael Copolla and Gerald Swanton.

Table of Contents.

Opinion below

Jurisdiction

Constitutional and statutory provisions involved

Statement of the case

Reasons for granting the writ

I. The government's theory of enterprise was im-

proper under the RICO Act

II. Even if the government's theory of enterprise is

sustained, the defendant’s conviction of RICO

conspiracy must still be reversed

A. If the government’s theory of enterprise is ac-

cepted, the crime of RICO conspiracy becomes

unconstitutionally vague and unintelligible

B. The trial judge failed to instruct the jury ade-

quately on the conclusion it had to find between

the defendant under consideration and the pat-

tern of racketeering alleged in the indictment

III. If the RICO and RICO conspiracy counts are

reversed, all the remaining counts must also be re-

versed for a new trial because they were inevitably

tainted by the spillage from the RICO counts

IV. Petitioner Clemente adopts and incorporates by

reference the reasons and arguments presented in

the petitions for certiorari submitted by his co-

defendants Fiumara, Buzzanca, Coppola, Coluc-

ci, Gardner and Swanton

Conclusion

Appendix

> OND NY =

1]

14

14

16

ii

Table of Authorities Cited.

CASES.

Connally v. General Construction Co., 269 U.S. 385

(1926) 8

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) 8

Lanzetta v. New Jersey, 306 U.S. 451 (1939) 8

Papachristou v. City of Jacksonville, 405 U.S. 156

(1972) 8

United States v. Anderson, 626 F.2d 1358 (8th Cir.

1980) 5,6

United States v. Turkette, 632 F.2d 896 (1st Cir. 1980),

cert. granted, 101 S.Ct. 938 (1981) 5, 6

CONSTITUTIONAL PROVISIONS.

United States Constitution

Fifth Amendment, Due Process Clause 2

STATUTES.

18 U.S.C.

§§ 1961 et seq. (RICO Act) 2,3, 4, 5, Get seq.

§ 1961(4) 2

§ 1962(a) 2

§ 1962(b) 2

§ 1962(c) 2,6,7,8,9

§ 1962(d) 2,6,7,8

28 U.S.C. § 1254 2

RICO Act (codified at 18 U.S.C. §§ 1961 et seq.)

2, 3, 4, 5, 6 et seq.

Taft-Hartley Act 4,11, 12,13

No. - .

In the

Supreme Court of the United States.

Ocroser Term, 1980.

MICHAEL CLEMENTE,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit.

Opinion Below.

A copy of the opinion of the United States Court of Appeals

for the Second Circuit, decided February 26, 1981, is annexed

as an appendix to the petition for certiorari in the companion

case of Tino Fiumara, Thomas Buzzanca and Michael Cop-

pola. Petitioner herein relies on and incorporates that appen-

dix.

2

Jurisdiction.

a) The judgment of conviction was rendered the 20th day

of June, 1980.

b) The order and judgment of affirmance of the United

States Court of Appeals is dated the 26th day of February,

1981. On April 22, 1981, Mr. Justice Thurgood Marshall

issued an order extending the time for filing this petition to

May 27, 1981. That order is attached to this petition as an ap-

pendix.

c) Jurisdiction to review the judgment in question by cer-

tiorari is conferred under 28 U.S.C. § 1254.

Constitutional and Statutory Provisions Involved.

The constitutional provision involved is the Due Process

Clause, Fifth Amendment, United States Constitution.

The statutes involved are 18 U.S.C. §§ 1961(4), 1962(a),

1962(b), 1962(c) and 1962(d). These have been reproduced in

the appendix of the companion petitions and are relied on by

petitioner.

Statement of the Case.

Petitioner Clemente, a private businessman, was charged

with being part of a small group of men who sought to control

the unions and businesses on the waterfront. The group with

which he was allegedly associated had no formal structure or

legitimate purpose. It was, according to the government,

essentially a conspiracy. Yet petitioner was charged with a

violation of the RICO statute and also with conspiracy to

3

violate the RICO statute. The RICO “theory” constituted the

basis, as well, for the other charges brought against petitioner.

Appellant Clemente stands convicted of 103 counts of vio-

lating federal law and sentenced to 20 years of imprisonment

(a sentence, in effect, of almost certain life imprisonment, con-

sidering his age — 73 — and the parole guidelines applicable

to his case). Broken down to their constituent acts, Clemente’s

103 convictions actually reflect only three alleged sets of trans-

actions.

The first set of transactions consisted of the receipt of

$42,000 in payments from William Montella, an employee of

the Quin Companies “as a condition of and in exchange for

Quin’s obtaining and retaining carpentry and lashing

business” from the Netumar Shipping Lines (“Netumar’”).

The receipt of this money — paid in monthly installments over

a four and a half year period — was broken down by the gov-

ernment into 56 separate counts of extortion. Clemente was

convicted of each count of extortion, despite the undisputed

fact that there was no “physical fear or fear of violence” in this

case. Nor was Clemente an official or employee of any union,

corporation or government. He is a self-employed private

businessman who received payment for helping a company ob-

tain and retain lucrative business from another company.

The second set of transactions involved an isolated conversa-

tion with William Montella about monthly payments of

$2,000 that Montella had already been making to defendants

Gardner and Colucci from June, 1975 until December, 1975.

When Gardner and Colucci apparently attempted to increase

the monthly payment rate, Montella went to see Clemente for

advice. According to Montella, at this meeting Clemente told

him not to pay Gardner and Colucci and to go see Mr. Buzzan-

ca. The crux of the government’s case against Clemente is

what Montella claimed Clemente said in addition to these

4

statements: namely that he told Montella that since he had

made a commitment he now had to live up to it. Although

there is absolutely no evidence that appellant Clemente was

aware that any payments were actually made by Montella to

Buzzanca following his conversation, and although the effect

of Clemente’s involvement was to prevent the payment of ad-

ditional money allegedly being demanded of Montella, Cle-

mente was charged with, and convicted of, 34 separate counts

of aiding and abetting 34 separate violations of the Taft-

Hartley Act (each count representing an installment paid by

Montella to Buzzanca without Clemente’s knowledge).

The third, and most peripheral, set of transactions related to

Clemente’s alleged failure to report and pay income tax on the

money he received from Montella as alleged in the extortion

counts, and for a far greater amount of money he received from

Netumar. Clemente was charged with, and convicted of, 10

separate counts relating to his income taxes: 5 counts of tax

evasion for the years 1973 to 1977; and 5 counts of filing false

returns relating to the same income during the same years.

These three sets of transactions accounted for 101 of the 103

counts on which Clemente was charged and convicted. The

remaining two counts — RICO and conspiracy to commit

RICO — were built on the foundation of the extortion and

Taft-Hartley convictions and charged Clemente with being as-

sociated with and conspiring with an “enterprise, to wit, a

group of individuals associated in fact to corruptly control and

influence the waterfront... .”

Reasons for Granting the Writ.

I. THE GOVERNMENT'S THEORY OF ENTERPRISE WAS

IMPROPER UNDER THE RICO Act.

This case squarely raises an issue currently pending before

this Court over which the Circuits are irreconcilably divided:

5

whether the RICO Act (18 U.S.C. §§ 1961 et seq.) is applica-

ble to an enterprise which, according to the government, con-

sists of a group of individuals “associated in fact to corruptly

control and influence” an industry.

The government tried this case on the theory that the RICO

enterprise at issue was an “association in fact” formed for the

very purpose of committing the criminal activity charged in

the indictment. Counts 1 and 2 of the indictment described

the enterprise as:

a group of individuals associated in fact to corruptly con-

trol and influence the waterfront industry in the Port of

New York and other ports in the Eastern United States

and to enrich themselves and their associates.'*!

The convictions were affirmed squarely on the holding of

the Second Circuit that “the term ‘enterprise’ embraces both

legitimate and illegitimate enterprises.” The Court of Appeals

acknowledged that there was a “split of authority on this

issue” among the circuits. There is such a split, and the cir-

cuits which have held that the RICO Act was not intended to

apply to allegedly unlawful associations in fact — such as the

one alleged here — are plainly correct.

The recent opinions in United States v. Turkette, 632 F.2d

896 (Ist Cir. 1980), cert. granted, 101 S.Ct. 938 (1981), and

United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980),

demonstrate that a case which proceeds on such a theory of

enterprise is fundamentally at odds with the structure, logic

and legislative history of the RICO statute. Indeed, the opin-

ions in Turkette and Anderson speak so convincingly for

themselves that there is no need for defendant to paraphrase

them here. Suffice it to say that defendant fully relies on each

*See also T. 11424, where the prosecutor quoted this language in his sum-

mation.

6

of the points made by these opinicns, and submits that this

Court must conclude that the theory of enterprise on which

the present case was tried is untenable.

The legislative history of the RICO Act has also been elabo-

rated in the Anderson and Turkette opinions, as well as in the

briefs submitted before this Court in the latter case. They will

not be repeated here.

If this Court affirms the Turkette decision, petitioner re-

spectfully requests it to reverse these present convictions, or —

at the very least — remand them to the Court of Appeals for

reconsideration in light of the Turkette decision.

II. Even iF THE GOVERNMENT'S THEORY OF ENTERPRISE IS SUS-

TAINED, THE DEFENDANT'S CONVICTION OF RICO Cownspir-

ACY MUST STILL BE REVERSED.

A. If the Government’s Theory of Enterprise is Accepted,

the Crime of RICO Conspiracy Becomes Unconstitution-

ally Vague and Unintelligible.

One of the problems created by defining enterprise to in-

clude an association in fact formed for the very purpose of

committing a pattern of racketeering activity, is that it renders

the enterprise element indistinguishable from a simple con-

spiracy to commit the predicate crimes. This in turn makes it

impossible to fathom the meaning of a conspiracy under 18

U.S.C. § 1962(d) to violate 18 U.S.C. § 1962(c).

If this Court rejects Anderson and Turkette, and accepts the

government’s theory of enterprise, it will have no choice but to

attempt to negotiate the definitional Serbonian bog which the

Anderson court avoided. No intelligible definition of a

§ 1962(d) conspiracy to violate § 1962(c) would be possible. *

* Indeed, the Eighth Circuit in Anderson found that defining enterprise in

the way indicated made it so difficult to understand the nature of a § 1962(d)

conspiracy to violate § 1962(c), that this difficulty itself demonstrated the

need to reject such a definition of enterprise.

7

The substantive offense described in § 1962(c) has two distinct

parts. First, a person must be “employed by or associated

with any enterprise engaged in, or the activities of which af-

fect, interstate or foreign commerce.” Second, that person

must “conduct or participate, directly or indirectly, in the

conduct of [that] enterprise’s affairs through a pattern of

racketeering activity or collection of unlawful debt.” While

§ 1962(d) states that it shall be unlawful to conspire to violate

§ 1962(c), it does not specify how the factor of conspiracy

should be applied to the two parts of the substantive offense.

There are at least two possibilities: First, § 1962(d) may be

saying that it is unlawful to conspire to both (a) join an enter-

prise, and (b) participate in the affairs of that enterprise

through a pattern of racketeering. Second, § 1962(d) may be

saying that it is unlawful for a person who is already a member

of an enterprise, to conspire to participate in the affairs of that

enterprise through a pattern of racketeering. If enterprise is

defined as including a group of persons associated in fact to

commit a pattern of racketeering activity, neither alternative

is intelligible. The first alternative becomes incomprehensible

because it makes no sense to speak of someone conspiring to

join a group of persons associated in fact, or, more simply, of

someone conspiring to conspire. The second alternative also

becomes incomprehensible because, given the government's

definition of enterprise, this alternative, when spelled out,

turns into the following:

It shall be unlawful for any person engaged in a conspir-

acy to commit a pattern of racketeering activity which af-

fects interstate commerce to conspire to participate in the

conduct of the conspiracy’s affairs through a pattern of

racketeering activity.

8

Needless to say, if, as demonstrated above, RICO conspir-

acy is incomprehensible, it is necessarily unconstitutional

under the void-for-vagueness doctrine established in such cases

as Connally v. General Construction Co., 269 U.S. 385, 391

(1926); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Giaccio

v. Pennsylvania, 382 U.S. 399, 402-403 (1966); and Papa-

christou v. City of Jacksonville, 405 U.S. 156, 162 (1972).

Thus, for this reason, defendant’s conviction of RICO con

spiracy must be reversed.

B. The Trial Judge Failed to Instruct the Jury Adequately

on the Connection It Had to Find Between the Defendant

Under Consideration and the Pattern of Racketeering Al-

leged in the Indictment.

The trial judge’s instructions on Count 2 of the indictment

are characterized by an overemphasis on principles of general

conspiracy law, at the expense of any meaningful discussion of

the unique attributes of RICO conspiracy.

No charge on RICO conspiracy can be sufficient unless it ex-

plains in a “clear, accurate, complete and comprehensible”

fashion that a person cannot be convicted of a § 1962(d) con-

spiracy to violate § 1962(c), absent proof that he had the spe-

cific intent to violate § 1962(c).

Since the predicate crimes alleged to constitute a pattern of

racketeering activity lie at the core of the offense defined by

§ 1962(c), a specific intent to violate § 1962(c) must be defined

in terms of a specific intent to commit those crimes. Similarly,

since the element of enterprise is also central to a § 1962(d) of-

fense, a definition of specific intent to violate § 1962(c) must

also incorporate the conce, t of enterprise. Putting these two

elements together, it is clear that, at minimum, the trial judge

should have instructed the jury that it could not convict a per-

son of RICO conspiracy unless it found that, being a member

9

of a RICO enterprise, he entered into an agreement with

others with the specific intent to participate in the affairs of

the enterprise through the commission of two or more predi-

cate crimes forming part of the overall pattern of racketeering

activity charged in the indictment.

Instead of instructing the jury in this way, however, the

trial judge referred to the element of intent only in the most

general way, as follows:

In a conspiracy case, the government must prove beyond

a reasonable doubt that the defendant entered into the

conspiracy with a criminal intent, with a purpose to vio-

late the law. [T. 12619.]

The judge never applied this concept of intent to the concept

of the elements of § 1962(c). Such a combination was essen-

tial to a proper definition of the specific intent which the jury

was required to find. Without this combination, the judge’s

comments about intent remained hopelessly isolated, vague

and misleading.

Indeed, not only did the judge fail to define intent in terms

of the elements of § 1962(c), he referred to those elements only

once during his entire charge on Count 2, and referred to them

incorrectly at that. Thus, the judge stated:

In this case, the defendants Clemente, Fiumara, Buz-

zanca, Colucci, Gardner and Copolla are charged with a

conspiracy to violate the RICO statute by conducting the

affairs of an enterprise through a pattern of racketeering

acts. In order to find the defendant you are considering

guilty of the conspiracy charged in the indictment, you

must find beyond a reasonable doubt that at least two

connected violations of one or both of the two statutes

10

that I have just described to you in connection with

Counts 3 through 142, were objectives of the conspiracy.

[T. 12614-12615. ]

This statement is plainly incorrect. A particular defendant

cannot be convicted of RICO conspiracy simply on the basis

that a conspiracy of which he was a member had as its objec-

tive the commission of any two connected predicate crimes

charged in the indictment. Rather, a particular defendant

can be convicted of RICO conspiracy only on the basis that he

entered into an agreement with the personal objective (i.e.,

specific intent) of participating in the enterprise’s affairs

through the commission of two or more predicate crimes con-

stituting a pattern of racketeering activity. In short, the trial

judge’s formulation totally leaves out (a) the requirement of

personal specific intent, and (b) the requirement that a de-

fendant intend not only the commission of predicate crimes

but participation in the enterprise’s affairs through the com-

mission of predicate crimes. *

Consequently, defendant's conviction of RICO conspiracy

must be reversed because of these critical defects in the judge’s

instructions.

* The prejudice which the defendant suffered here as a result of these de-

fects in the judge's instructions is especially apparent because of the factual

issue in the case of whether, even if the government's evidence was credited,

there was one RICO enterprise and one RICO conspiracy or several. Under

the instructions given by the trial judge, the jury cowl have convicted de-

fendant Clemente of RICO conspiracy not on the basis that he intended to

participate in a joint Manhattan-Newark Ri_O enterprise through two or

more predicate crimes, but rather simply on the basis that he was associated

with other defendants, one of which other defendants had the intention to

participate in the affairs of a strictly Newark enterprise through two or more

predicate crimes.

1]

III. Ir tHe RICO ano RICO Conspiracy Counts are Re-

VERSED, ALL THE REMAINING CouNTs MuST ALSO BE REVERSED

ror A New TariAt Because THEY WERE INEVITABLY TAINTED

BY THE SPILLAGE FROM THE RICO Counts.

The structure, tone and texture of this case were all set by

the RICO and RICO conspiracy counts which headed the in-

dictment. From the outset, the prosecutor emphasized that

the government's goal in this case was to prove not merely that

the defendants engaged in a series of discrete criminal acts, but

that they were involved in an ongoing and all-pervasive enter-

prise to “corruptly control and influence the waterfront in-

dustry in the Port of New York.” Indictment, Count 1, { 1.

Thus, in his opening, the prosecutor stated:

At its core it is a story of a small group of men acting

secretly, dishonestly and powerfully to control the unions

and the businesses in this port so that businessmen in this

port will believe and will act in a way that means they

have to make payoffs to labor officials and the man be-

hind labor officials in order to stay in business and in

order to get business and in order to keep business.

[T. 1361.]

And, the prosecutor returned to this theme in his summation

[T. 11216}.*

Because the RICO counts so dominated the trial of this case,

established principles of law require that if the RICO convic-

tions are found tainted, defendant Clemente must be granted

a new trial on the extortion, Taft-Hartley and tax counts be-

cause they were inevitably infected by the taint.

*See, ¢.g., government summation, T. 11222, 11226, 11239, 11254-56,

11258, 11265, 11267, 11277, 11283, 11254, 11290, 11291, 11371, 11501.

12

The magnitude of the spillage from the RICO counts on the

other counts of the indictment may be guarded by imagining

just how different the trial of these other counts would have

been absent the RICO counts:

1. Without the RICO counts, the prosecution would have

been deprived of the theme of criminal enterprise which it in-

jected into every aspect of the case. It was the RICO counts,

and the RICO counts alone, which afforded the prosecution

such broad license in referring repeatedly to defendant Cle-

mente’s alleged “power,” “influence” and “control”. And it

was these counts alone which enabled the prosecution to stig-

matize Clemente as “the single most important person in [the]

enterprise.” [T. 11217.] Ordinarily, such broad accusations

of criminality, untied to specific instances of alleged miscon-

duct, are considered to be anathema to elemental principles of

due process, And if the prosecution had sought to level them

in a trial limited to the extortion, Taft-Hartley or tax counts,

they would certainly have been excluded under the familiar

rules designed to protect a person from conviction on the

ground of a supposed “criminal disposition” or “criminal char-

acter”, But here the accusations were permitted, solely be-

cause of the RICO counts.

2. Without the RICO counts, the prosecution would have

had no basis for joining the New Jersey defendants (Fiumara,

Buzzanca, Colucci, Gardner, Copolla) and the New Jersey

charges with the New York defendants (Clemente, Swanton)

and the New York charges. Indeed, defendant contends that

the prosecution had inadequate basis for such joinder even

with RICO, Absent RICO, the arguments against such join-

der — and the reciprocal prejudice which violated the rights

of all defendants — would apply a fortiori.

3. Without the RICO counts, the prosecution would have

had no basis for injecting into the trial the evidence of the

more than one million dollars in payments which Netumar

13

made to Clemente. See Indictment, Count 1, { 10. The pros-

ecution did not contend that these payments were compelled

by extortion or were otherwise illegal. Evidence concerning

them was received for essentially two reasons: (1) to show

that “Clemente in fact exercises power and influence in mat-

ters with respect to the waterfront” [T. 12686]; and (2) to

show the origin of the bulk of the income which was the sub-

ject of the tax counts against Clemente [T. 12684-86]. Absent

RICO, the first justification disappears, and the argument for

excluding the evidence (except in a severed trial on the tax

counts) becomes irresistible, especially in light of the fact that

the prosecution conceded that it was not contending that the

payments were themselves illegal. The significance of this

cannot be underestimated, because the amount of money in-

volved in the Netumar payments dwarfed the aggregate

amount of money involved in the Taft-Hartley and extortion

counts. Indeed, even with the RICO counts, defendant con-

tends that evidence of the Netumar payments should have

been excluded because of the inevitable and patently unfair

implication that the size of the Netumar payments indicated

the true scope of the alleged criminal enterprise at issue. At

any rate, without RICO, it is clear a fortiori that the prejudi-

cial effect would have overwhelmed any possible claim of pro-

bative value. *

4. Without the RICO counts, the underlying substantive

charges against Clemente would have been seen as three isolat-

ed and ambiguous transactions. As previously demonstrated,

these transactions, if presented to the jury as they should have

* In addition to arguing its relevance on the RICO counts, the prosecution

lamely argued that the Netumar payments were relevant to the extortion

counts to show the reasonableness of Montella’s fear that Clemente was in a

position to harm him. This is precisely the kind of tenuous claim of relevance

that would clearly have been outweighed by potential prejudice, in the

absence of the prosecution's claim concerning relevance to the RICO county.

14

been — untainted by charges of massive corruption and con-

trol — would have seemed like the actions of a legitimate

business person such as an influential movie agent, and would

have been viewed as entirely innocent. But when seen in the

context of the RICO claims made here, they took on a sinister

aspect and resulted in the conviction at issue. *

In sum, if the RICO counts are reversed, the prejudicial

spillage requires that the other counts in the indictment must

be reversed as well.

IV. PeririoNner CLEMENTE ApopTs AND INCORPORATES BY REF-

ERENCE THE REASONS AND ARGUMENTS PRESENTED IN THE

PETITIONS FOR CERTIORARI SUBMITTED BY HIS Co-DEFEND-

ANTS FiuMARA, BuzzANca, CoppoLta, Cotucci, GARDNER

AND SWANTON.

Conclusion.

The RICO statute is out of control. It is being applied by

overzealous prosecutors to all manner of enterprises that were

never intended to come within its ambit. It has become the

new darling in the federal prosecutor’s nursery. Coupled with

* One concrete example of how the prosecution manipulated this prejudi-

cial spillage effect from RICO is provided by its summation concerning the

Taft-Hartley charges. The prosecution's case against Clemente concerning

these charges was marred by an obvious lack of evidence that Clemente did

anything to follow-up his conversations with Montella and Buzzanca. To

bridge this gap in its case, the prosecution resorted to the ever-malleable

claims of RICO enterprise, stating in effect that Clemente’s role in that enter-

prise transformed the isolated conversations into multiple violations of law.

(See T. 12323-24.) Similar “RICO-type control” arguments were made in

the extortion part of the summation. See, ¢.g. (T. 11247): “Montella starts

to see Clemente, paying him $500 a month, just the way he told you, and

that’s the beginning of the whole effort by this enterprise to get money out of

Montella and others at least as far as we know about it from the evidence in

this case.”

15

conspiracy charges — which is what was done in the instant

case — it knows no constraints nor limits. This Court should

grant the petition in this case to consider the relationship be-

tween the RICO and conspiracy statutes in the context of an

alleged “in fact” enterprise which has no legitimate function.

This petition raises these important issues — about which

there is conflict among the circuits — squarely and directly.

Respectfully submitted,

ALAN M. DERSHOWITZ,

20 Elmwood Avenue,

Cambridge, Massachusetts 02138.

(617) 661-1965

Attorney for Petitioner

17

Appendix.

Supreme Court of the United States

No. A-880

MICHAEL CLEMENTE,

Petitioner

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIpERATION of the application of counsel for peti-

tioner,

Ir Is Onverep 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 27, 1981.

/s/ Thurgood Marshall

Associate Justice of the Supreme

Court of the United States

Dated this 22nd

day of April, 1981.