Petition — Mothon v. United States

- Supreme

PILED

AUG 6 1992

82 -231

Supreme Court of the United States

. Ocroser Term, 1982

ALEXANDER Lt. STEVAS,

TTERK

CHARLES MOTHON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Perrrion ror a Warr or CenTiorari TO THE Unrrep STATES

Court or APPEALS ror THE THmp Circurr

PETITION FOR A WRIT OF CERTIORARI

MATTHEW P. BOYLAN,

Counsel of Record for Petitioner,

THEODORE V. WELLS, JR.

LOWENSTEIN, SANDLER, BROCHIN,

KOHL, FISHER & BOYLAN,

A Professional Corporation,

Attorneys for Petitioner,

Charles Mothon,

65 Livingston Avenue,

Roseland, New Jersey 07068

(201) 992-8700

N.J. Appellate Printing Co., inc., South Plainfield, New Jersey (201) 753-0200

i

QUESTION PRESENTED

Is it permissible for a federal court to allow the

government to engage in pre-trial discovery depositions

in a criminal matter pursuant to Fed. R. Crim. P. 15(a)

despite the express statement in the advisory note to Rule

15(a) that its provisions not be used for the purpose of

pre-trial discovery?

PARTIES TO THE PETITION

The only party to this petition is petitioner Charles

Mothon. In the Court below, Mothon’s co-defendants-

appellants were as follows: General Electric Company;

Schenectady Turbine Services, Ltd.; Twombly, Inc.;

Robert Naples and Hoyt P. Steele. Except for defendant

Twombly, Inc., it is petitioner Mothon’s belief that no

other parties to this action in the Court below desire to

join in this petition.

The respondent is the United States of America.

sat a

TABLE OF CONTENTS

BES Dynes i

PN III oy vce so ctu dacccadccasene i

SIN SU cuiwica desde cndecs be csscedbe l

TEE ¢ 5 uvccech snedic cocked saceecdaes 2

Federal Rule Involved ...................20000: 2

DO OD ain dAREbs ceccnbeSces 2

REASONS FOR GRANTING THE Writ:

The decision of the Third Circuit to permit deposi-

tions in a criminal matter pursuant to Fed. R.

Crim. P. 15 where the effect was to permit the

government to engage in impermissible pre-trial

discovery is in direct conflict with the advisory

note to Rule 15 and presents an important ques-

tion of federal law that should be resolved by

SMD sg bcs wi (HUE eo cd saes Co 0s COVE CCA 8

A. The Applicable Law: Elements of the

Movant's Burden of Proof Under Rule 15(a) 8

B. Deficiencies in the Government's Showing . 11

NN 06k o's 0s iv cesceewGaee edn dcdine 15

APPENDIX A

June 16, 1982 Opinion of the Third Circuit Court of

bn 0. ceedke Sek 6 PER EE Cease > in dune eek re la

APPENDIX B

iii

TABLE OF CONTENTS

APPENDIX C

October 1, 1980 Opinion of the United States District

Court for the District of New Jersey............ 36a

APPENDIX D

Affidavit of Prosecutor Joseph Covington ......... 43a

TABLE OF AUTHORITIES

Cases Crrep:

United States v. Adcock,

558 F.2d 397 (8th Cir.), cert. denied,

Soe Way ee GOOOTD. oda eu ks ceccecesigccvacs i)

United States v. Ausmeier,

5 F.R.D. 395 (E.D.N.Y. 1946) .............. ll

United States v. Bello,

532 F.2d 422 (Sth Cir. 1976) ............... ll

United States v. Mann,

590 F.2d 361 (Ist Cir. 1978) .............. 9, 10

United States v. Mitchell,

385 F. Supp. 1190 (D.D.C. 1973), aff'd sub

nom. United States v. Haldeman, 559 F.2d 31

(D.C. Cir. 1976), cert. denied 431 U.S. 933,

SURED. Sa vc S0s Cake eee steae beh sconeue 10, 11

United States v. Rich,

580 F.2d 929 (9th Cir.), cert. denied

ee Oe eee 9, 10

United States v. Singleton,

460 F.2d 1148 (2d Cir. 1972), cert. denied 410

ee CI ei nek ck 5 CREA oaks opbb os cbne 10

United States v. Steffes,

35 F.R.D. 24 (D. Mont. 1964) .............. i)

iv

TABLE OF CONTENTS

Cases Crrep:

United States v. Wilson,

601 F.2d 95 (3d Cir. 1979) ........

Cones Crrep:

Se Berea ye. eee

eT Se ee oe eee

Ruxes Crrep:

Fed. R. Civ. P. 28(b) ...........0..05.

Fed. R. Crim. P. 15(a) ................

Fed. R. Crim. P. 16 ...........0.0000.

Orner Autuority CIrep:

8 Moore’s Federal Practice §15.01[3] (1980)

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1982

No.

CHARLES MOTHON

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FoR A Writ oF CERTIORARI TO THE UNITED

Srates Court or APPEALS FOR THE THIRD Circuit

Petitioner, Charles Mothon, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Third Circuit

entered in this proceeding on June 16, 1982.

OPINIONS BELOW

The June 16, 1982 opinion of the Third Circuit

Court of Appeals has not yet been reported officially. A

copy of the Third Circuit's slip opinion is annexed to this

Petition as Appendix A.

That aspect of the October 1, 1980 unreported oral

upinion of the United States District Court for the Dis-

trict of New Jersey pertaining to the Rule 15 issue is

annexed to this Petition as Appendix C.

1

2

JURISDICTION

The judgment of the Third Circuit Court of Appeals

reversing petitioner's convictions and ordering a new

trial was entered on June 16, 1982, and a copy thereof is

annexed to this Petition as Appendix B.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

FEDERAL RULE INVOLVED

Federal Rule of Criminal Procedure 15(a) provides:

(a) When Taken. Whenever due to exceptional cir-

cumstances of the case it is in the interest of justice

that the testimony of a prospective witness of a party

be taken and preserved for use at trial, the court

may upon motion of such party and notice to the

parties order that testimony of such witness be taken

by deposition and that any designated book, paper,

document, record, recording, or other material not

privileged, be produced at the same time and place.

If a witness is committed for failure to give bail to

appear to testify at a trial or hearing, the court on

written motion of the witness and upon notice to the

parties may direct that his deposition be taken. After

the deposition has been subscribed the court may

discharge the witness.

STATEMENT OF THE CASE

On September 4, 1980, a federal grand jury sitting

in Newark, New Jersey returned a seven-count indict-

ment against petitioner Mothon, and his co-defendants:

3

General Electric Company (“GE”); Schenectady Tur-

bine Services, Ltd.; Twombly, Inc.; Robert Naples and

Hoyt P. Steele. The indictment charged, in essence, that

the three individuals and three corporate defendants

and carried out a scheme lasting from May,

1973 to June 30, 1976 to pay a bribe to one Carlos

Velasquez Toro, an official of a publicly-owned utility of

the Puerto Rico Water Resources Authority (“PRWRA”),

in return for Toro’s use of his influence to obtain for GE

a contract to construct a power generating plant for the

PRWAA in Puerto Rico. On February 11, 1981, a jury

sitting in the United States District Court for the District

of New Jersey found all of the defendants guilty on all

but Count six of the seven-count indictment.

On June 16, 1982, the Third Circuit Court of Ap-

peals issued a judgment (Appendix B) and opinion (Ap-

pendix A): (1) reversing the conviction of Robert Naples

on all counts; (2) reversing the convictions under Counts

2, 3 and 5 for all of the other defendants on the grounds

that the District Court should have entered directed ver-

dicts of acquittals on these counts; and (3) setting aside

the convictions of the defendants on Counts 1, 4 and 7

and remanding for a new trial on these counts.'

This petition for certiorari is limited solely to the

that it was proper for the government to take depositions

«4

these depositions was to engage in pre-trial discovery.

Although the Third Circuit reversed the convictions of

the petitioner, the Rule 15 issue raised by this petition is

not moot because of the remand on Counts 1, 4 and 7 for

a new trial. The following facts relate to the Rule 15

issue.*

Following the return of the September 4, 1980 in-

dictment, the government filed a motion on September

22, 1980 to take the depositions of certain foreign nation-

als residing in Bermuda, Canada and England pursuant

to Fed. R. Crim. P. 15(a) and a request for International

Judicial Assitance pursuant to Fed. R. Crim. P. 57(b)

and Fed. R. Civ. P. 28(b). The sole factual basis for the

government's Rule 15(a) request was an affidavit by

prosecutor Joseph Covington. A copy of Covington’s affi-

davit is annexed hereto as Appendix D. In this affidavit

the government was forced to indicate that it had never

spoken directly to any of the persons it wished to depose

and, as a consequence, the government was not able to

set forth any facts the deponents would testify about, nor

how or why their testimony was so material to the case as

to justify the taking of a Rule 15 deposition. Based on

that single affidavit, the government sought to take dep-

ositions: (1) in Canada of Michael Candy; Bruce Forcey

and Warren Kuk; (2) in Bermuda of William Cox; Mi-

chael B. Collins; the custodian of records for the Ber-

muda National Bank; an officer of the Bermuda Mone-

tary Authority, and the Registrar of Companies; and (3)

in England of Douglas Field.

All the defendants vigorously objected to the taking

of the depositions on the ground, inter alia, that the

government had failed to meet the rigid factual and legal

prerequisites for the Court's exercise of discretion to per-

mit depositions under Fed. R. Crim. P. 15(a). The thrust

2. The facts of the entire case are set forth in detail in the

opinion of the Third Circuit annexed hereto as Appendix A.

of these objections was that the government had no

knowledge of the content of the testimony of any of the

deponents and that the depositions were actually for the

purpose of pre-trial discovery, an impermissible use of a

Rule 15(a) deposition.

Defendants argued that the government's candid

concession that it was unaware of what the deponents

might say was dispositive of the fact that the government

was actually asking for pre-trial discovery. The District

Court granted the motion nonetheless. In so ruling from

the bench, the District Court essentially reasoned that

because the deponents were foreign nationals who

refused to talk to the government, circumstances justified

a relaxing of Rule 15’s prerequisites:

b. The second required showing under Rule

15(a) is that the witness’ testimony be material to

the issues in the case. This is a most difficult judg-

ment for a court to make prospectively, without the

opportunity to review a sworn statement of the pro-

posed witness. In the typical Rule 15 application, a

witness who may be unavailable for trial will logi-

cally be available at some time before trial. Thus,

the party requesting leave to conduct a Rule 15

deposition will have taken a statement of the wit-

ness’ testimony. Rule 15 proceedings would be ap-

plied for simply as 2 way of preserving that witness

testimony, because that witness would be unavail-

able at trial because of death, severe illness or other

such circumstances.

Here, on the other hand, we have prospective

witnesses who have been either totally unavailable

before trial or available only at a previous letters

rogatory preceeding. The fact that they are foreign

nationals adds an element to the facts before this

Court that is simply not addressed by the cases the

ow

Court has reviewed. The relevancy of the proposed

testimony is described in Mr. Covington’s affidavit.

I am satisfied that this is not a fishing

expedition. It appears to me that I should apply the

of the Court in United States v. Bronston,

321 F. Supp. 1269, 1271 (S.D.N.Y. 1971), where it

was stated that “the mere fact that a necessary wit-

ness is a foreign national domiciled abroad and be-

yond the subpoena power of the Court does not

mandate an order pursuant to Rule 15, (but) it is an

impelling consideration.” We are persuaded that

the almost complete unavailability of these pro-

posed witnesses absent letters rogatory issued pursu-

ant to a Rule 15 order is an “impelling consider-

ation” in assessing the government's showing of

materiality.

Appendix C at 40a-4la.

Thus, the District Court in effect ignored Rule 15

and its express prohibition against permitting pre-trial

discovery in criminal cases. In affirming the District

Court’s decision on this ruling, the Third Circuit

the District Court’s approach and held that in

light of the unusual circumstances, the government did

not have to satisfy Rule 15’s normal standards:

We recognize that Fed. R. Crim. P. 15, which

provides for the taking of depositions in criminal

cases, does not authorize their use as means of dis-

covery; but we cannot agree with appellants that

the depositions at issue were used as discovery tools.

Appellants emphasize that the government could

not demonstrate to the district court the materiality

of the proposed testimony. In view of the govern-

ment'’s inability to gain access to the proposed depo-

nents, however, we agree with the district court

that under the extremely unusual circumstances of

and the jury. ~

Appendix A at 30a (footnote omitted).

As demonstrated below, despite the unusual circum-

stances of this case, both the District Court and the

Third Circuit improperly ignored the provisions of Rule

15(a) that this rule not be used to permit pre-trial discov-

ery.

REASONS FOR GRANTING THE WRIT

The decision of the Third Circuit to permit depositions in

a criminal matter pursuant to Fed. R. Crim. P. 15 where

the effect was to permit the government to engage in

impermissible pre-trial discovery is in direct conflict with

the advisory note to Rule 15 and presents an important

question of federal law that should be resolved by this

court.

This case presents an important question of federal

law relating to the question of whether it is permissible

for a federal court to allow the government to engage in

thrid 5g in a criminal matter pursuant to Fed.

Crim. P. 15(a) despite the express statement in the

advisory note to Rule 15 that it not be used for the

purpose of pre-trial discovery. As set forth below, the

decisions of the District Court and the Third Circuit to

ignore this prohibition against pre-trial discovery on the

reasoning that this case presented “extremely unusual

circumstances” was unwarranted and amounted to an ad

hoc judicial amendment of the standards governing the

issuance of Rule 15 depositions.

A. The Applicable Law: Elements of The Movant's Bur-

den of Proof Under Rule 1 5(a).

Fed. R. Crim. P. 15(a) provides in relevant part:

Whenever due to excepticnal circumstances of the

case it is in the interest of justice that the testimony

Two important features of this language warrant

initial discussion. First, Rule 15(a) does not authorize

discovery depositions, but only authorizes depositions of

the moving party’s own witnesses to preserve their testi-

mony for use at trial. Numerous courts have held that

depositions in a criminal case properly have no discovery

function. See, e.g., United States v. Mann, 590 F.2d 361,

265 (ist Cir. 1978); United States v. Rich, 580 F.2d 929,

933-934 (9th Cir.), cert. denied, 439 U.S. 935 (1978);

United States v. Adcock, 558 F.2d 397, 406 (8th Cir.),

cert. denied, 434 U.S. 921 (1977); United States v.

Steffes, 35 F.R.D. 24 (D. Mont. 1964). As the Notes of

the Advisory Committee on the 1975 Amendment to

Rule 15 explain, the Rule’s “principal objective is the

preservation of evidence for use at trial. It is not to

provide a method of pretrial discovery nor primarily for

the purpose of obtaining a basis for later cross-examina-

tion of an adverse witness.” (emphasis added).

Second, the rule authorizes the Court to order that

the deposition of the moving party’s own witness be

taken so that the witness’s testimony may be preserved

for use at trial only when “due to exceptional circum-

stances” the “interest of justice” so requires. This exact-

ing standard, which indicates that depositions should be

sparingly allowed, must be rigorously applied because

“allowing depositions too freely would create the risks

that parties .. . would try to use depositions in lieu of

live testimony at trial in contravention of the spirit of the

Sixth Amendinent.” United States v. Mann, supra, 590

F.2d at 365.

Mindful of the rule’s limited purpose and function,

the courts have established a series of prerequisites for a

party seeking to take a deposition pursuant to Rule

10

15(a).* In the first place, the movant must show that the

witness will not be available to appear at trial, despite all

reasonable efforts to secure his appearance. United States

v. Mann, supra, at 366; United States v. Rich, supra, at

933-34. In addition, the movant must show that the

proposed deponent’s expected testimony is material and

necessary to prevent a failure of justice. These require-

ments serve the dual function of helping to establish

“exceptional circurnstances” and ensuring that the depo-

sition is being sought to preserve the testimony of the

movant’s own witness, not for discovery.

There are numerous examples of these prerequisites.

In United States v. Wilson, 601 F.2d 95 (3d Cir. 1979),

the Court ruled that the defendants should have been

allowed to take the deposition of a fugitive from justice

not subject to extradition because the defendants submit-

ted an affidavit from the proposed deponent, which “es-

tablished that his testimony was relevant and, if be-

lieved, would have been exculpatory to some extent.”

601 F.2d at 98. In contrast, the defendants in United

States v. Mitchell, 385 F. Supp. 1190 (D.D.C. 1973),

3. Three of these prerequisites, that the prospective witness will

be unable to attend the trial, that the witness’ testimony is material,

and that it is necessary to take the witness’ deposition in order to

a failure of eo, were y contained in Rule 15(a)

it was in 1975. Al Congress substituted the

phrase “exceptional circumstances” in 1975, that language, as Con-

gress knew and intended, had been judicially defined in terms of the

three requirements spelled out in the pre-1975 version of Rule 15(a).

United States v. Singleton, 460 F.2d 1148, 1153-1154 (2d Cir. 1972),

cert. denied, 410 U.S. 984 (1973). See 8 Moore's Federal Practice,

§15.03[1] (1980). Cases subsequent to the 1975 amendment have

confirmed that the pre-1975 Rule 15(a) requirements are implicit in

the “ circumstances” standard. E.g.. United States v.

Rich, F.2d 929, 933 (9th Cir.), cert. denied, 439 U.S. 935

(1978). In the District Court the government concurred in this inter-

pretation. Memorandum of the United States in Support of its Mo-

tion for Leave to Take Depositions, 1-2.

ll

aff'd sub nom. United States vo. Haldeman, 559 F.2d 31

(D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977),

were refused authorization to take President Nixon's dep-

osition because Nixon’s expected testimony was “cumula-

tive,” not “indispensable,” and because “[{t}here has been

no showing by way of statement, affidavit, or otherwise

from Mr. Nixon that he would, in fact, testify along the

lines the defendants have predicted.” 385 F. Supp. at

1193. Accord, United States v. Bello, 532 F.2d 422, 423

(5th Cir. 1976). Similarly, in United States v. Ausmeier,

5 F.R.D. 395, 396 (E.D.N.Y. 1946), the Court denied

defendants’ motion under Rule 15 for an order authoriz-

ing the taking of certain depositions in Germany because

the movants had not discussed with the witnesses or their

representatives what testimony they would give in the

event their depositions were taken.

In summary, if the prosecution moves for an order

authorizing a deposition under Rule 15(a), it must sub-

mit an 2ffidavit or other evidence from the proposed

depozient sufficient to permit the Court to make a judg-

ment as to the “exceptional circumstances” and “interest

of justice” requirements of Rule 15. The judgment as to

the extent of the government’s need for the deposition

evidence obviously cannot be made in a vacuum. The

government must indicate what the prospective depo-

nent would say and why that evidence is crucial to the

case. The fact that the government submits an affidavit

to the effect that a deponent might have relevant infor-

mation is not enough.

B. Deficiencies in the Government's Showing

The affidavit of prosecutor Covington (Appendix D)

was the government's sole factual basis for its Rule 15

request. As the following analysis shows, Covington’s

affidavit failed to satisfy the requirements of Rule 15(a)

12

as to each of the following witnesses.‘ In essence, Cov-

ington’s affidavit only suggests that because the depo-

nents occupied positions that brought them into contact

with the defendants’ business transactions there is a pos-

sibility that the deponents might be able to supply some

information that would be relevant to the case. How-

ever, this type of showing, it is submitted, only reaffirms

the petitioner’s basic position: that the government was

engaged in pre-trial discovery in the hope it would un-

cover inculpatory evidence.

1. Michael Candy

Covingtor’s affidavit states that he was advised by

counsel for the Bank of Nova Scotia that Michael Candy

“is an employee of the Bank of Nova Scotia, residiag in

Toronto, who during 1974 and 1975 had been working

as a bank manager at the Bermuda National Bink.”

Appendix D at 43a-44a. The bank counsel further «d-

vised Covington that Candy “was prepared to testify that

he recalled knowing Charles Mothon and Carlos Velaz-

quez Toro while working at the Bermuda National

Bank.” (Id.) This was the full extent of the shuwing of

materiality.

The government clearly did not justify its request to

depose Michael Candy under the standards of Rule

15(a). There was no statement by Michael Candy, his

representative, or even by Covington, of what Candy

would testify to if his deposition were taken, other than

that he knew Mothon and Toro. This falls far short of a

showing that Candy’s expected testimony was material

and necessary to prevent a failure of justice. That Candy

4. The testimony of each of the following witnesses was critical

to the government's case and will be similarly critical at the retrial of

Counts 1, 4 and 7.

13

knew Toro and Mothon while he worked at the Bermuda

National Bank certainly does not incriminate any of the

defendants. The government failed to specify in any way

what relevant information is alleged that Mr. Candy

had, and how such information was essential to the pros-

ecution’s case. The government was in fact seeking to

take a discovery deposition, a procedure unauthorized by

Rule 15(a) and improper in a criminal case.

2. Bruce Forcey

The government’s request to depose Bruce Forcey

was similarly infirm. Covington’s affidavit stated that he

had been advised that Bruce Forcey succeeded Michael

Candy as manager at the Bermuda National Bank in

August 1975 and that “[bjank records reveal that on

August 19, 1975, Mr. Forcey caused a certificate of de-

posit belonging to Turbo Electric Equipment Ltd. in the

amount of $165,800.23 to be cashed before its maturity

date.” Appendix D at 44a.

Once again, the government was seeking an imper-

missible discovery deposition. Although Covington’s affi-

davit stated that Forcey was manager of the Bermuda

National Bank and that bank records indicated that he

caused the specified certificate of deposit to be cashed, it

did not state what Forcey’s testimony would be regard-

ing the alleged cashing of the certificate of deposit or any

other matters. Indeed, when Forcey ultimately was de-

posed in Canada, he testified that he had no recollection

of the August 19, 1975 transaction referred to in Covin-

gton’s affidavit. Consequently, the District Court was in

no position to determine whether Forcey’s testimony

would be essential to the prosecution’s case and necessary

to prevent a failure of justice, or, on the other hand,

irrelevant, cumulative, or helpful to the defense. Accord-

ingly, the government failed to discharge its burden un-

der Rule 15(a) of showing that “exceptional circum-

14

stances” made it “in the interest of justice” for Forcey’s

testimony to be taken and preserved for use at trial.

3. William Cox

As to William Cox, a British citizen and a member

of the Hamilton, Bermuda law firm of Cox and Wilken-

son, Covington’s affidavit stated that Cox “appears as a

director of both Turbo Electric Equipment, Ltd. and

Power Equipment Ltd.,” that Cox “previously testified

in the matter of United States v. Twombly, Inc., CR 80-

73, that he knew Charles Mothon as the individual who

directed the affairs of Turbo Electirc Equipment, Ltd. ,”

and that Cox had recently advised the government “that

he still had some minute books and other records of

Power Equipment, Ltd.” Appendix D at 46a.

The government’s showing in support of its request

to depose Cox was deficient on familiar grounds. There

was no representation of what Cox would testify to and

why that testimony was so material to the prosecution's

case that its preservation was necessary to prevent a

failure of justice. All that was shown was that Cox knew

defendant Mothon, that Cox may have held directorships

in Turbo Electric Equipment, Ltd. and Power Equip-

ment, Ltd., and that he may have been in possession of

some records of Power Equipment, Ltd.

4. The Bermuda Bank Records

Covington’s affidavit failed to show what transac-

tions the bank’s records depicted, when they occurred,

and how they bore on the government’s case. In short,

the government’s motion for leave to take the deposition

of the custodian of records of the Bermuda National

Bank failed to show how the bank’s records were mate-

rial and essential to the prosecution’s case. Accordingly,

the motion should have been denied.

15

CONCLUSION

The government’s motion for leave to take depos-

tions in three foreign countries was without foundation

in law. The government is charged with the determina-

tion of facts before it secures an indictment. After an

indictment has been returned, the government may con-

duct limited discovery pursuant to Fed. R. Crim. P. 16.

Rule 15, however, expressly forbids the government to

take pre-trial discovery. Nevertheless, the District Court

and the Third Circuit erroneously relieved the govern-

ment of its burden under Rule 15 and impermissibly

sanctioned pre-trial discovery. This ruling was incorrect

as a matter of law and presents a significant issue of

federal law that merits the granting of this petition to

review the judgment of the Third Circuit.

Respectfully submitted,

MATTHEW P. BOYLAN,

Counsel of Record for Petitioner,

THEODORE V. WELLS, JR.

LOWENSTEIN, SANDLER,

BROCHIN, KOHL, FISHER

& BOYLAN

A Professional Corporation

Attorneys for Petitioner,

Charles Mothon

Dated: August 5, 1982