Petition — Snowden v. United States

-Supreme Court, U.S.

van 1L ED

82 Ee 24 98

IN THE ALEXANDER L. STEVAS,

Supreme Court of the United States

October Term, 1982

No.

ROBERT A. SNOWDEN, IR.,

SAMUEL SYLVESTER SNOWDEN,

STEPHEN JAMES ISRAEL,

DOUGLAS F. TEMPLES,

HAROLD DEAN JACKSON,

LYNN H. JOHNSON,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF PETITIONERS

Mark J. Kapisu

Nod A. BROFMAN

KADISH, DAVIS X BROFMAN, P.C.

Suite 700, The Grant Building

44 Broad Street, N.W.

Atlanta, Georgia 30303

(404) 688-2000

Attorneys for Petitioners

QUESTION PRESENTED

WHETHER THE GOVERNMENT SHOULD BE

BARRED FROM REPROSECUTING PETITION-

ERS, WHERE THE FACTS AT TRIAL SHOW

THAT THE PETITIONERS’ MOTION FOR MIS-

TRIAL WAS GRANTED AS A DIRECT RESULT OF

THE PROSECUTION’S GROSS NEGLIGENCE AND

LACK OF PREPARATION.

TABLE OF CONTENTS

Page

D ͥ ͥ Q decades eh i

SN ¢ Sinnvcncdocnscotgumdtdss ceseeueste 1

, ̃ !Kn chudeedes 2

ee eee eee 2

Reasons for Granting the Wr it. 9

r déqeed cabanas euerdeetiuls 17

e cog cs cess Cabin 00 0keesen ees 18

r ˙²˙r eee ene. la

TABLE OF CASES

Bonner v. City of Pritchard, 661 F. 2d 1206

IG WED ug Gaack oath nese T 13

Crist v. Bretz, 437 U.S. 28 (1978 )ů ⸗ ee. 11

Downum v. United States, 372 U.S. 734. 10, 11

Green v. United States, 355 U.S. 184 (1958)......... 11

United States v. Davis, 589 F. 2d 904 (1978) 13

United States v. Dinitz, 424 U.S. 600

%%% 8, 11, 12, 13

United States v. Gaultney, 606 F. 2d 540

,, ‚l—:!&—ꝛT—Ä— oh 9606 ess 13

United States v. Kessler, 530 F.2d 1246

D ip nn ddeaghe¥s océabhWev'ed 13, 16

Constitutional Provisions

Fifth Amendment, United States Constitution 9, 10

Other Authority

. cele chee 1

No.

IN THE

Supreme Court of the United States

October Term, 1982

ROBERT A. SNOWDEN, IR.,

SAMUEL SYLVESTER SNOWDEN,

STEPHEN JAMES ISRAEL,

DOUGLAS F. TEMPLES,

HAROLD DEAN JACKSON,

LYNN H. JOHNSON,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioners, ROBERT A. SNOWDEN, JR., SAMUEL

SYLVESTER SNOWDEN, STEPHEN JAMES

ISRAEL, DOUGLAS F. TEMPLES, HAROLD DEAN

JACKSON and LYNN H. JOHNSON, petition for a

Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in this

case.

JURISDICTION

The decision of the Court of Appeals was entered on

September 21, 1982. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

1

2

OPINION BELOW

The opinion of the Court of Appeals (App. A, infra,

la-3a) was unpublished.

STATEMENT OF THE CASE

On June 25, 1980, Petitioner ROBERT SNOWDEN

was indicted on charges of (1) conspiracy to possess mari-

juana, (2) attempted bribery, and (3) importation of

marijuana. All of the Petitioners were indicted on charges

of (1) conspiracy to possess with intent to distribute

marijuana, and (2) possession with intent to distribute

marijuana.

On October 7, 1980, the government brought a super-

seding indictment charging Petitioners with conspiracy

to possess with intent to distribute marijuana, possession

with intent to distribute marijuana, and charging Robert

Snowden, Jr. with attempted bribery.

On November 3, 1980, the case was called to trial and

during the second day of trial, the Court granted the

Petitioners’ verbal motions for mistrial.

On December 29, 1980, the Petitioners filed a motion to

dismiss the indictment based on statutory and constitu-

tional deficiencies in the grand jury selection and impanel-

ment process and on December 31, 1980, Petitioners filed

a motion to dismiss the indictment on double jeopardy

grounds and to bar retrial.

On January 5, 1981, United States District Court

Judge William C. Keady consolidated Defendants’ grand

jury motion with others in the Nerthern District of

Georgia and on March 17, 1981, Judge Keady granted

devendants’ motion to dismiss the indictment due to

grand jury infirmities.

3

On August 3, 1981, the Petitioners were reindicted on

charges of conspiracy to possess with intent to distribute

marijuana and possession with intent to distribute mari-

juana. Robert Snowden, Jr. was also charged with at-

tempted bribery.

On November 6, 1981, the trial court reviewed and

denied Petitioners’ motion to dismiss the indictment on

double jeopardy grounds and to bar retrial, which

stemmed from the mistrial granted November 4, 1980.

The trial court entered a written order denying Peti-

tioners’ motion and they took an interlocutory appeal to

the Eleventh Circuit Court of Appeals which was denied.

This case first came to trial on September 8, 1980. As-

sistant United States Attorney (AUSA) Dorothy Kirkley

was government counsel at that time. (V. 5:2-36) After

the case was called, but before the jury was impaneled,

defense counsel were given copies of the grand jury pro-

ceedings in the case. Upon review of these proceedings,

defense counsel raised certain problems concerning pos-

sible grand jury abuse and government misconduct

surrounding the return of the indictment. Defendant

Johnson was not mentioned at all during the presentation

of the case to the grand jury other than in the actual

reading of the indictment, although a Mr. Harrison

(Johnson’s middle name) was mentioned. (V. 3:13). The

trial was continued until the November term, in order to

give defense counsel an opportunity to brief the grand

jury abuse issues raised. (V. 5:2-3)

On October 6, 1980, AUSA Kirkley announced at an

in-chamber’s meeting with the district court judge and

defense counsel present, that the government would re-

4

indict the case by bringing a superseding indictment and

that AUSA Sutton would be handling the case. (V. 3:5)

AUSA Kirkley also argued that the superseding indict-

ment would render the grand jury abuse issues moot.

(V. 3:3-5)

On October 7, 1980, the defendants were reindicted

and on November 3, 1980, the case was again called to

trial. The Petitioners argued for a severance of Count

Three of the indictment which charged defendant Robert

Snowden, Jr. with bribery (V. 7:3) and for a James

hearing. (V. 7:17-18) The court ordered a severance of

Count Three and ordered the government to reorder its

proof so that before statements by alleged co-conspirator,

Robert Snowden, Jr. were introduced, the court would be

able to determine whether or not the statements would

be admissible against other defendants by substantial

independent evidence and whether or not there was evi-

dence to indicate that they were members of a con-

spiracy. (V. 751)

After ruling on these matters the jury was sworn

(V. 7:650) and the government began its opening state-

ment. (V. 7:73) During opening, AUSA Sutton stated:

.. with regard to Court Two of the indictment, it

e

seled by one another, did possess a q on ta

cocaine with the intent to distribute. 75)

(Emphasis added)

An objection and motion for mistrial was made by de-

fense counsel on the ground that the case had nothing

whatsoever to do with cocaine. (V. 7:76) The court

It should also be noted that ing trial, there was often confu-

sion by AUSA Sutton as to what A Kirkley’s position had been

on discovery matters. (V. 7:58; V. 7:110; V. 7:131; V. 7:142; V.

818, V 8399; V. 8:525).

5

denied the motion for mistrial and gave a cautionary

instruction:

All right, ladies and gentlemen of the jury, the

Assistant United States Attorney in his i

statement made an incorrect statement and i

to caution you and admonish you to diregard the

statement he had made just before you were sent out

of the room. He made reference to Count Three of

the indictment and what it alleged and he stated an

incorrect substance . . (V. 7:79)

Also during opening statements the court warned AUSA

Sutton “to be cautious of anything [statements] that is

covered by Miranda. (V. 7:88) Two defense counsel

gave opening statements, while others reserved the right

to open. (V. 793-7)

The government began its case in chief. (V. 7:97)

Several objections were made by defense counsel to co-

conspirator hearsay on the basis that there had been no

showing of a conspiracy by independent evidence and

that each defendant was a member of the conspiracy.

(V. 7:00; 7:162; 7:181) The court finally ruled:

At this point, we will go ahead with the jury on the

representation you AUA Sutton] are going back to

the airport and not to any conversation between the

sheriff and Mr. Robert Snowden. (V. 7:182) (Em-

phasis added)

Nevertheless, with the very next question, AUSA Sutton

brought out objectionable co-conspirator hearsay (V.

7:186; 7:187) and the district judge made the decision

that a James hearing would be necessary. (V. 7:192) A

James hearing was conducted outside the jury’s presence

(V. 7:183-298); V. 8:299-624) At the close of the James

hearing, the court found that under all the circumstances,

there was a conspiracy and there was some substantial

evidence that each of the defendants was a participant in

the conspiracy. (V. 8:624) The jury trial then continued.

(V. 8:624)

One government witness, Sheriff Hartsel Moove, testi-

fied on direct examination as follows:

Q:

> © > © >

Now, Sheriff, in that conversation, you mentioned

a DC-6 at the early part of the conversation. What

in that regard sir, were you making reference to?

Previous we talked about a DC-6 that was at Ashe

County, North Carolina.

: And what, sir, had Mr. Snowden asked you to do

with regard to the DC-6?

: Check on when it would be auctioned off, if there

was any way I could help get it back.

: All right, sir, did you do anything like that for

Robert Snowden?

: No, I did not. (V. 8:645-6) (Emphasis added)

Then, during the direct testimony of Case Agent John

Landrum, the following occurred:

Q:

Agent Landrum, before Government Exhibit No.

21, I believe was damaged — if you would, describe

Government’s Exhibit 20. Describe the nature of

the damage to the exhibit, please.

: The nature is that the tape jumped off of the

track and got all fouled up, irreparably so.

It was being played at the time Hy AUSA Dorothy

Kirkley to iff Hartsel in my presence.

7

Q: When was Government Exhibit 27 made, before

or after Government’s Exhibit 20 was damaged?

A: It was made before, just prior to grand jury indict-

ment on the first indi . 8:69) (Emphasis

added)

At this time, Petitioner Temple’s counsel made a

motion for mistrial on the ground that the reference to a

“prior indictment” and other trial date” inferred other

misconduct by Petitioners. (V. 8:657)

Petitioner Snowden’s counsel also made a motion for

mistrial based on Sheriff Moore’s testimony concerning

the confiscated DC-6, which Mr. Snowden wanted to get

back. He argued that this, too, directed itself to the

existence of a prior crime. (V. 8:652)

Counsel also argued that the statement about the

repurchase of the DC-6 and the statement about the

prior indictment, coupled together, were the basis for

mistrial. (V. 8:653) All Petitioner's joined in this motion.

(V. 8:653)

The court ruled:

The DC-6 would not cause me any [concern]. I

listened to it and it did not cause me any great con-

cern. To me, I got the reaction they were trying to

buy an airplane and these people were not connected

with it but then with the first indictment reference,

it could easily be connected 4} suggesting that Mr.

Snowden was the one invol in a previous indict-

ment involving a DC-6.

There was no excuse for the reference to a first

indictment or a prior trial, either one. I am to

t the motion. I think it was error. I think it was

innocent error and innocent mistake but it should

not have been done. I am going to grant the motion.

All right, maybe the government can get their act

t pasta ne meg pointer 5 ing to

15 re —

2

e

1981. However, on December 29, 1980, the defendants

filed a motion to dismiss the indietment based on statu-

tory and constitutional deficiencies in the grand jury

selection and impanelment process. (V. 12:1017) Also filed

was the defendants’ motion to dismiss the indictment on

double jeopardy grounds and to bar retrial. (V. 12:1025)

On August 4, 1981, defendants were again reindicted

by a superseding indictment. (V. 12:1284) The defendants

adopted all prior motions and the magistrate adopted all

prior orders and denied the defendants’ motion to bar

retrial on the grounds of double jeopardy which had been

filed on December 28, 1980.

In his report, recommendation and order, the magis-

trate found that the facts before him would not bar

reprosecution of the defendants. As his ground for finding

that reprosecution might occur without constitutional

error, the magistrate cited the general rule that a mistrial

on a defendant’s own motion would not violate the double

jeopardy clause, citing United States v. Dinitz, 424 US.

600, 607-608. The magistrate noted the bad faith” ex-

ception to that general rule, but found that defendants

allegations of actions constituting prosecutorial mis-

conduct were insufficient to reach the level of bad faith,

harassment or prejudice required to fall into the excep-

tion.

The Petitioners filed their objections to the magistrate’s

report, recommendation and order. Included was an

objection to the magistrate’s ruling on his Motion to

Dismiss the Indictment on Double Jeopardy Grounds and

to Bar Retrial“. (V. 12:1326)

On Monday, November 2, 1981, the trial court held a

hearing on the defendants’ objection to the magistrate’s

report, recommendation and order. (V. 6) During oral

argument, the defendants reviewed the incidents which

led to their motion for a mistrial. (V. 6:14-24) Included in

their argument was that AUSA Sutton was ill-prepared

to try the case (V. 6: 14-24); that he had to call the prose-

cutor who began the case to determine what her position

had been on several matters (V. 6:14-24); that he men-

tioned “cocaine” in his opening statement when only

crimes associated with marijuana were charged (V.

6:14-24); that an airplane in another case was mentioned

by a witness (V. 6:14-24); and that Case Agent Landrum,

improperly answered a question by disclosing the prior

indictment and trial date in the case. (V. 6:14-24)

The trial judge denied defendants’ motion to dismiss

on the basis of double jeopardy (V. 6:38), but permitted

the defendants to appeal his ruling to the Eleventh Cir-

cuit Court of Appeals. (V. 6:39) All defendants, except

for defendant Mock, joined in the appeal, which was

denied on September 21, 1982.

REASONS FOR GRANTING THE WRIT

This case presents a due process question of exceptional

importance warranting review by this Court. The issue

arises from the Court of Appeals’ holding that the trial

court did not err when it denied Petitioners’ motion to

dismiss the indictment on double jeopardy grounds and

to bar retrial. The conclusion of the Eleventh Circuit is

contrary to the established principles of the Fifth Amend-

ment and due process clause. Where the facts at trial

show that mistrial was granted as a direct result of the

10

prosecution’s gross negligence, and lack of preparation,

the government should not be permitted to retry Peti-

tioners. The ban against double jeopardy must be scruti-

nized in light of government misconduct which, may not

be intentional, but which is grossly negligent. No case in

this Court has specifically addressed the question of what

conduct would constitute gross negligence and thus, the

issue raised here is one of first impression. This Court

needs to set forth guidelines which will define that con-

duct which does rise to the level of gross negligence.

WHETHER THE GOVERNMENT SHOULD BE

BARRED FROM REPROSECUTING PETITION-

ERS, WHERE THE FACTS AT TRIAL SHOW THAT

THE PETITIONERS’ MOTION FOR MISTRIAL

WAS GRANTED AS A DIRECT RESULT OF THE

PROSECUTION’S GROSS NEGLIGENCE AND

LACK OF PREPARATION.

United States Constitution, Amendment V, provides

in part:

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb.

This Court has explained that the double jeopardy

clause protects two important interests of the criminal

defendant: (1) the right to have guilt or innocence deter-

mined by the particular jury then impaneled, and (2) the

right to be free from harassing multipie prosecutions for

the same offense:

The underlying idea, one that is deeply ingrained in

at least the Anglo-American system of 4

is that the State with all its resources and power

should not be allowed to make repeated attempts to

convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and

ordeal and compelling him to live in a continuing

11

state of anxiety and insecurity, as well as enhancing

the possibility that even though innocent he may

be found guilty.

Green v. United States, 355 U.S. 184, 187-188 (1958).

In Crist v. Bretz, 437 U.S. 28 (1978), the Court set out

the stage in a jury trial that jeopardy attaches:

... The precise point at which jeopardy does attach

in a jury trial might have been open to argument

before this Court’s decision in Downum v. United

States, 372 U.S. 734 . . The Court held that the

Double Jeopardy Clause prevented a second prose-

cution of a defendant whose first trial had ended first

after the jury had been sworn and before any testi-

mony had been taken. The court necessarily pin-

pointed the stage in a jury trial that jeopardy at-

teaches, and the Downum case has since been under-

stood as explicit authority for the proposition that

jeopardy attaches when the jury is empaneled and

sworn .. . (at 689).

The applicable law which governs this petition is set out

in United States v. Dinitz, 424 U.S. 600 (1976).

In Dinitz, the defendant was charged with conspiracy

to distribute L. S. D. During the defense’s opening state-

ment, lead defense counsel was reprimanded by the judge

for making what the judge considered impermissible

remarks. After a number of reprimands, the judge barred

lead defense counsel from continuing with the trial and

directed him to leave the courthouse. When the assisting

defense counsel informed the court that the defendant

wanted lead counsel to try the case, the judge set forth

three (3) alternatives: (1) a stay or recess pending appli-

cation to the Court of Appeals to review the propriety

of expelling counsel; (2) a continuation of the trial with

assisting defense counsel; or (3) a declaration of mistrial

12

that would permit the defendant to obtain other counsel.

The assisting defense counsel moved for mistrial. Follow-

ing mistrial, defendant was retried on the same charge.

His motion objecting to the retrial on double jeopardy

grounds was denied, and he was convicted by asecond

jury. A divided Court of Appeals (8-7 en banc) subse-

quently held that the reprosecution was barred by double

jeopardy. The court concluded that the request for a

mistrial had not constituted a waiver and that the mani-

fest necessity standard applied. Thus, the discharge of

counsel, which gave rise to the mistrial, was not justified

by manifest necessity in light of the other alternatives

available to the trial judge.

This Court reversed the Court of Appeals and reasoned

that the defendant, when moving for mistrial, generally

faces a Hobson's choice“ between giving up his first jury

and continuing a trial tainted by prejudicial, judicial or

prosecutorial error. The Court stated that the important

consideration for purposes of the Double Jeopardy Clause

is that the defendant retains primary control over the

course to be followed in the event of such error. Since the

defendant in Dinitz retained primary control, the court

held that the Court of Appeals erred in finding that the

retrial violated the defendant’s constitutional right not

to be twice put in jeopardy.

The Court did set out when double jeopardy does

attach:

The Double Jeopardy e does protect a defen-

dant against governmental actions intended to pro-

voke mistrial requests and thereby to subject defen-

dants to the substantial burdens imposed by multiple

rosecutions. Jt bars retrials where ‘bad-faith conduct

judge or prosecutor’ [cite omitted] threatens the

‘harassment of an accused by successive prosecutions

13

or declaration of a mistrial so as to afford the prosecu-

tion a more favorable opportunity to convict’ the defen-

dant. 47 L.Ed.2d at 276. (Emphasis added)

The Fifth Circuit Court of Appeals has consistently

interpreted the bad faith“ standard as requiring a find-

ing of gross negligence or intentional misconduct on the

part of the Government which has seriously prejudiced

the defendant. United States v. Gaultney, 606 F.2d 540,

547 (5th Cir. 1979), modified on other grounds, 615 F. 2d

642 (1980); United States v. Davis, 589 F.2d 904, 906

(1978); United States v. Kessler, 530 F.2d 1246 (Sth Cir.

1976). The totality of the circumstances prior to the

mistrial must be analyzed in order to determine the

existence of bad faith (i.e. gross negligence or intentional

misconduct) on the part of the government. United States

v. Gaultney, supra; United States v. Kessler, 530 F.2d 1246

(5th Cir. 1976).

The instant case first came to trial on September 8,

1980. AUSA Dorothy Kirkley was government counsel at

that time. The trial, however, was postponed due to

alleged grand jury abuse and the government reindicted

the case by superseding indictment rather than face the

issue.

The case again came to trial on Monday, November 3,

1980. AUSA William Sutton was government counsel at

this time. The change of government counsel was due to

caseload and administrative problems besetting AUSA

Kirkley. (V. 3:5)

As a result of the substitution of government counsel

in the case, AUSA Sutton was rushed to prepare for trial.

In Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981),

the Eleventh Circuit Court of Appeals adopted Fifth Circuit case

law as precedent.

14

The manner in which the entire case was presented illus-

trates that AUSA Sutton did not have adequate time to

get ready for trial.

The trial record bears out the problems of AUSA

Sutton’s unfamiliarity with AUSA Kirkley’s representa-

tions relating to discovery and other matters. Defense

counsel made a significant number of objections to AUSA

Sutton’s unfamiliarity with matters which defense counsel

understood to have already been decided. (V. 7:58;

V. 7:110, V. 7:131; V. 7:142; V. 8:342; V. 8:399; V. 8:525)

It was even necessary for AU SA Sutton to call AUSA

Kirkley to determine what her position was on certain

matters because of his unfamiliarity with her decisions.

(V. 8.461)

Additionally, during opening statement, AUSA Sutton

incorrectly told the jurors that Count Two of the indict-

ment charged the Defendants with possession of a quan-

tity of cocaine with intent to distribute. (V. 7:75) Al-

though the court gave a cautionary instruction and told

the jury that the government attorney had made an in-

correct statement, the misstatement is a further example

of the prosecution’s inadequate case preparation.

Furthermore, the court ordered the government to re-

order its proof so that co-conspirator hearsay would not

be heard by jurors prior to the court’s determination of

whether or not the statements would be admissible.

Nevertheless, with the very next question, AUSA Sutton

brought out objectionable co-conspirator hearsay and

the Court determined that a James hearing would be

necessary. (V. 7:186-7; 192)

Finally, the inadequate time for preparation was fur-

ther exemplified by the manner in which the mistrial

15

occurred. Sheriff Moore, testified at trial that a DC-6

airplane had been seized and that Petitioner Robert

Snowden, Jr. wanted the Sheriff to buy it back for him.

This suggested to the jury that another airplane at

another time had been seized in a drug operation and

that Snowden was trying to get it back. AUSA Sutton

pursued his questions concerning the DC-6 airplane.

(V. 8:645-6)

Then, during the testimony of Case Agent John Land-

rum, he made a statement concerning a prior indictment

and previous trial date. This reference to the first indict-

ment indicated that there had been prior misconduct and

that the prior indictment concerning the airplane that

Snowden was allegedly attempting to purchase (and

possibly the cocaine referred to in the prosecutor’s

opening statement).

In this case, a retrial of Petitioners should be barred

because the U.S. Attorney’s unfamiliarity of the case,

and the case agent’s prejudicial comments which were a

result of lack of preparation and unfamiliarity of the

case, rose to the level of gross negligence. The govern-

ment should not have additional time and a second bite

at the apple to get its case together and to prepare for

trial. The government should not receive the benefit of

additional time to prepare and strengthen its case since

the Petitioners had no choice but to move for mistrial

when the blatantly prejudicial statements came into

evidence.

As the trial judge stated: There was no excuse for the

reference to a first indictment or a prior trial, either one.“

(V.8:658) Case Agent Landrum should have known better

than to give testimony concerning a prior indictment and

prior trial date, especially in light of his many years of

16

training and courtroom experience. Nevertheless, even in

this posture, it is apparent that the main case agent was

inadequately prepared by AUSA Sutton when he took

the stand. The case agent is an agent of the U.S. Attor-

ney’s Office and his actions and conduct are attributable

to the government.

These incidents show that the U.S. Attorney who

handled the case was virtually unfamiliar with it. The

direct result was the government’s gross negligence

which compelled Petitioners to move for a mistrial in

this case.

After granting the mistrial, the district court judge

stated: All right, maybe the government can get their

act together a little better.“ (V. 8:658) It was apparent to

the trial judge tiiat the government did not have its act

together. Certainly, the government should not be af-

forded another opportunity to convict the Petitioners

since the mistrial arose out of the government’s gross

negligence and unpreparedness in the first instance. This

is the very kind of situation which the Due Process and

the Double Jeopardy Ciause should seek to eliminate.

The Petitioners contend that the gross negligence

alleged here, is no less than the gross negligence set out

in United States v. Kessler, supra. Thus, retrial here

should also be barred.

17

CONCLUSION

For all of the above reasons, Petitioners would request

this Honorable Court to grant certiorari and reverse the

Eleventh Circuit Court of Appeals opinion.

Respectfully submitted,

KADISH, DAVIS & BROFMAN, P.C.

By: js Mark J. Kapisu

Mark J. KapisH

Attorneys for Petitioners

Suite 700, The Grant Building

44 Broad Street, N.W.

Atlanta, Georgia 30303

688-2000

18

CERTIFICATE OF SERVICE

This is to certify that a copy of the Petition For Writ

of Certiorari to the Eleventh Circuit Court of Appeals

filed by Petitioner has been served upon:

Solicitor General of the United States

Room 5614

Department of Justice

Washington, D.C. 20530

via first class mail, postage prepaid.

This the — day of November, 1982.

Mark J. Kabisn