Petition for Writ of Certiorari — Dimyan v. United States

r Sapreme Court, U.S.

. FILED

90-1 39 MAR 1

No. 1 1991

HE CLERK

In The

Supreme Court of the United States

October Term, 1991

MOHAB DIMYAN,

Petitioner,

-y-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GOLDBERGER & DUBIN, P.C.

Lawrence A. Dubin

Counsel of Record

401 Broadway

New York, New York 10013

(212) 431-9380

J. JEFFREY WEISENFELD, ESQ.

Attorney for Petitioner

401 Broadway

New York, New York 10013

(212) 925-8640

PRINTINGHOUSE PRESS 25 WEST 43RD STREET NEW YORK, NY 10036 (212) 719-3120

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QUESTIONS PRESENTED

Whether the Writ should be granted to correct an erroneous ruling

on instructing the jury that a government wiiness was, or could be

found to be an accomplice whose testimony had to be carefully

scrutinized?

Whether the Writ should be granted to harmonize divergent

decisions in the Circuit Courts of Appeal?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ... www ccs i

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CET A sb ek b 0-6 a OA eee 2

CONSTITUTIONAL PROVISIONINVOLVED ....... 2

STATEMENT OF THE CASE ... 0... ccc cee 2

REASONS FOR GRANTING THE WRIT. .......... 8

I. 6 5. bg wae he oe ok eee 12

APPENDIX A—OPINION BELOW .............. la

APPENDIX B—CONSTITUTIONAL

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TABLE OF AUTHORITIES

Page

United States v. Bernal, 814 F.2d 175

a ee . eee 10

United States v. Beverly, 562 F.2d 201, 204

(2nd Cir. 1977) cert. denied 434

eR Oe a as g 6 es 6 ka 8 eee 8 8 11

United States v. David, 439 F.2d 1105 (9th Cir. 1971). .... 10

United States v. Guzman, 754 F.2d 482, 489, (2d. Cir. 1985)

cert. denied, 474 U.S. 1054 (1986) ............. 9

United States v. Hill, 627 F.2d 1252 (10th Cir. 1980) ..... 10

United States v. Levi, 177 F.2d 827, 831

STS eee 10

United States v. Mang Sun Wong, 884 F.2d 1537,

1541, (2d Cir. 1989) cert. denied,

Ee ee 9

United States v. McCabe, 720 F.2d 951

ES ee ee 10

United States v. Slocum, 695 F.2d 650, 659 (2d Cir. 1982)

EE 10

United States v. Swiderski, 539 F.2d 1246, appeal after

remand, 548 F.2d 445 (2d Cir. 1977) ............ 11

United States v. Wasco, 473 F.2d 1281, 1284-85

er 10

United States v. Windom, 510 F.2d 989 (Sth Cir. 1975)

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Supreme Court of the United States

October Term, 1991

No.

MOHAB DIMYAN,

Petitioner,

-y-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINION BELOW

The opinion of the United States Court of Appeals for the Second

Circuit affirming the conviction of Mohab Dimyan is set forth at

Appendix A.

2

JURISDICTION

The judgment of the United States Court of Appeals for the

Second Circuit, affirmed Petitioner Mohab Dimyan’s conviction on

January 11, 1991. The jurisdiction of this court is invoked under 28

U.S.C. Sec. 1254 (1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fifth Amendment of the United States

Constitution. (See Appendix B).

STATEMENT OF THE CASE

On March 10, 1989, two packages entered the United States from

Pakistan bearing Australian stamps. The packages were addressed

to Vic Forster at 167-08 Highland Avenue. Gerald Adderly, an

employee of the United States Customs Service assigned to inspect

foreign mail suspected of carrying contraband, noticed the packages

and decided they were unusual enough to warrant inspection. He

opened the packages and discovered they contained heroin which

was later determined to weigh 845 grams.

On March 13, 1989, Special Agent Timothy O’Brien and

Investigator Gerald Heller of the United States Customs Service met

for the purpose of removing the heroin from the packages and

creating a “sham” package for a controlled delivery. On March 15,

1989, Joseph Adiano, a United States Postal Inspector, attempted to

make a controlled delivery. Prior to leaving the Jamaica, Queens,

post office to deliver the packages a *mecial telephone line was set

up. The telephone number corresponding to this telephone line was

left on two receipts that Adiano was to leave in the mailbox at 167-08

Highland Avenue if nobody was home to accept delivery. Adiano

went to 167-08 Highland Avenue and rang the door bell. Nobody

answered the door and there was no evidence that a Vic Forster lived

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at that address. Nevertheless Adiano left the receipts, with the phone

number, in the mail box at that address.

On March 28, 1989, an individual with a “foreign” accent called

the designated telephone number and asked about the two packages.

The person was told to call back later when the packages were

located. Later that afternoon a second telephone call was received

from a man with a foreign accent. He was told the packages were

located and could only be picked up by Vic Forster. The person

indicated his name was Vic Forster and he would come by the next

day to pick up the packages.

On April 1, 1989, Petitioner Mohab Dimyan, Qamar Yousufzai,

and Marie Janik traveled to New Jersey together. Janik was surprised

to see someone in the car besides Dimyan and claimed she did not

know Yousufzai and had never been introduced to him. Janik had

known Dimyan for a little over four years. She was a customer at

his grocery store and owed him a considerable sum of money as a

result of his extending her credit. She also had various other financial

problems. As a result she approached Dimyan in March, 1989, and

inquired whether he knew of anywhere where she might get a loan.

Dimyan recommended an attomey in New Jersey and at Janik’s

request had agreed to drive her to the attomey’s office on April 1,

1989.

The three individuals, along with Janik’s husband drove to New

Jersey where they met someone at a diner and had breakfast. They

then went to the attorney’s office where Janik had some discussions

about obtaining a loan but she was tumed down. On their way back

to New Jersey, Janik said she was asked by Dimyan to call the post

Office and see if it was still open. (Dimyan had previously asked her

about transferring packages from one post office to another since he

knew Janik was employed by the postal service for a long time.)

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They drove directly to the Jamaica Post Office without actually

calling to find out if it was open.

When they discovered the post office was open, Dimyan asked

Janik if she would pick up something for him. She agreed and asked

for the receipts which were handed to her by the driver. Janik went

into the post office and presented her post office identification to the

person at the window. She was told the person whose name was on

the receipt must sign for them for her to pick them up. She retuned

to the car and Yousufzai, who was talking on a pay phone, signed

the slips. Janik then went back into the post office to again attempt

to pick up the parcel.

While Janik was outside getting the receipts endorsed, Incorvaia,

a Postal employee working on investigations, was told that someone

had approached the window trying to pick up the sham packages.

He immediately tried to contact the Customs agents but was

unsuccessful. Instead he stalled Janik and told his people to tell her

to return on Monday. As Janik was leaving the building Incorvaia

stepped outside and observed Janik and two “gentlemen of foreign

descent” get into a car and drive off.

Meanwhile, Janik returned to the car and handed the slips back

to Yousufzai, at the same time telling him he would need to try again

on Monday. Janik expressed some concemi as to whether the

packages might have been retumed to the sender but Yousufzai

insisted that the packages were at the post office. Janik was then

asked if she would check on the packages on Monday and when she

agreed Yousufzai wrote out the information on a slip of paper and

handed it to Janik. The driver (Yousufzai) then warmed Janik that if

the post office asked too many questions she should forget about the

whole thing. Janik got upset at this point and decided, although she

did not tell anyone, that she would not pick up the packages because

she was not sure they were only books.

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On Tuesday, April 4, 1989, Joseph Adiano, the postal inspector,

called Marie Janik to find out if she was going to come by the post

office to pickup the packages she tried to get on Saturday. Janik

requested that the packages be transferred from the Jamaica branch

to the Main Street branch of the post office and the person on the

phone agreed. That evening Janik entered the Main Street branch of

the post office, picked up the two packages and began to leave.

Before she got to the door she was stopped by Customis agents and

place under arrest.

Once under arrest Janik was immediately interrogated. She

denied knowing the packages contained heroin and expressed

concern for her job. She stated that she was merely doing a favor for

Dimyan and his friend the driver (Yousufzai). Janik agreed to call

Dimyan and arrange for him to pick up the packages. After setting

up a tape recorder at Janik’s house to record the conversation Janik

telephone Dimyan, who agreed to pick up the packages. About

fifteen minutes later, Dimyan called Janik and told Per he would be

late because he had to stop to pick up Yousuizai.

Dimyan arrived at Janik’s house and picked up the packages.

After exchanging a few pleasantries he left Janik’s house and

proceeded.to his truck. Once Dimyan put the packages in his truck

he was placed under arrest. Dimyan told the Customs agents there

were only books in the packages and agreed to deliver the packages

to the “real guy” to whom the packages belonged. Dimyan and the

Customs agents proceeded to Dimyan’s house and waited outside

until Yousufzai arrived. When Yousufzai arrived, he too was placed

under arrest and $4,000 was confiscated from his car.

Defendant’s Case

Dimyan testified on his own behalf and presented a variety of

witnesses. They testified that Dimyan knew Yousufzai from

6

previous business transactions. Dimyan had delivered clothing for

him and had once started a business with him. One witness testified

that he had known Dimyan for over fifteen years and never knew

him to do anything unlawful.

Dimyan testified that his business involved trucking and that as

a part ofhis business he frequently picked up and delivered packages

for a number of his customers. On March 26 or 27, 1989, Qamar

Yousufzai called Dimyan and asked him some questions about

medical books that were mailed to Yousufzai and never delivered.

He asked Dimyan to call about the packages and he agreed. When

he called, the post office eventually told him the packages were

there, so Dimyan called Yousufzai back and told him he could pick

up the packages. On March 31, 1989, Maurice Youssel, Dimyan’s

brother-in-law, received a telephone call from Yousufzai. Yousufzai

asked him if he could pick up two packages for him tomorrow.

Youssel testified he told Yousufzai he was too busy and could not

pick them up.

On March 31, 1989, Dimyan was busy delivering 196 cartons of

merchandise for Paul Anand. The merchandise was to be loaded on

a truck at the Flying Tigers terminal at Kennedy Airport and

delivered to somewhere in Pennsylvania. Dimyan made

arrangements for his son, Maged Dimyan, a college student to meet

him at the airport, help load the truck, and make the delivery to

Pennsylvania. At the airport Dimyan was met by his son, Anand,

and io his surprise Qamar Yousufzai. Yousufzai tried to get one of

Anand’s workers, Rameesh, to pick up the packages but Rameesh

apparently refused. Yousufzai then began to pester Dimyan to do

him a favor and pick up the packages but he refused because he was

busy. Finally Yousufzai called Dimyan at home that night and asked

him to come along for the ride to New Jersey to allegedly inspect

his car.

7

Dimyan had arranged to drive Marie Janik to New Jersey on April 1,

1989, so she could apply for a loan. Dimyan had called an

acquaintance in New Jersey, Charles “Chick” Ferraro and made an

appointment for Janik with an attomey involved in the mortgage

business. Apparently Janik was continuously having financial

problems and owed both Dimyan and a friend of his money.

On April 1, 1989, Dimyan met with Janik and her husband and

introduced them to Yousufzai. They then all left to meet Ferraro at

a diner in New Jersey. From the diner they proceeded to the

attomey’s office where Janik was turned down fora loan. Yousufzai

was present when Janik met with the attomey. Everyone retumed to

the car and proceeded back to Queens. In the car Janik announced

she wanted to stop at the post office on the way home. Yousufzai

went there after Janik assured them it would be open. When they

arrived Janik took the receipts from Yousufzai and attempted to

retrieve the two parcels. Janik quickly retumed to get Yousufzai’s

signature on the receipts and tried once again to pick up the

packages. Janik retumed without the packages and said they were

unable to find them. She volunteered to call about the packages on

Monday and took down the information.

On April 1, 1989, Janik called Dimyan and told him she had the

packages. Dimyan called Yousufzai and told him Janik had the

packages and Yousufzai asked him to pick up the packages. Dimyan

went to Janik’s house, picked up the packages, and placed them in

his car. Customs agents placed Dimyan under arrest and asked him

if he knew what was in the packages. He said he did not know what

they contained and he was upset because he felt his life was ruined.

Dimyan agreed to deliver the packages to Yousufzai. The delivery

was completed outside of Dimyan’s house and Yousufzai was

arrested. Dim yan denied he knew, or was ever told, there was heroin

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in the packages and testified he never expected to be paid for picking

up the packages for Yousufzai.

REASONS FOR GRANTING THE WRIT

The writ should be granted to rectify the denial of a fair trial and

to resolve a conflict in the Circuits as to the requirement that upon

request the court should instruct the jury that accomplice or

Co-Conspirator testimony should be subjected to close scrutiny.

At trial, Marie Janik testified that she had participated in the

efforts to pick up the packages at the Post Office. On April 1, 1989,

Janik, her husband, Dimyan and Yousufzai traveled to New Jersey

to see a lawyer about a possible loan for Janik. On the way back

from New Jersey, Janik was asked by Dimyan to call the Post Office

to see if it was still open. Without making this call, they drove

directly to the Jamaica Post Office. The Post Office was open and

Dimyan asked Janik to pick up something for him and the receipts

for the packages were given to her by Yousufzai. Janik went into

the Post Office. She was told that the person in whose name the

receipts were made out had to sign for the packages. She went back

to the car, where Yousufzai signed the slips. Janik again went in to

get the packages. Unable to get the packages, she returned to the car

and told Yousufzai that he would have to try again on Monday. Janik

was asked to check on the packages on Monday and she agreed.

Yousufzai then warmed her that if the post office people asked

questions, she should forget the whole thing. Janik testified that she

was very upset because she suspected that the packages contained

something other than books. Despite these concerns, Janik, upon

being called on April 4, 1989, arranged to and did pick up the

packages from the Main Street branch of the Post Office where she

was arrested.

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Based upon this testimony, defense counsel requested that the

Court instruct the jury on accomplice or unindicted co-conspirators’

testimony. (Defendant Dimyan’s Request to charge #10-11). The

Court refused to give such instruction to the jury because Janik was

“not an unindicted co-conspirator,”.

In the circumstances of this case, the failure to give such an

instruction was reversible error.

The first matter is whether Janik was a co-conspirator or an

accomplice and second whether, if error, the failure to give this

instruction requires reversal of the conviction.

The acts of Janik clearly make her an accomplice or

co-conspirator. She had as much information as Dimyan, was told

to forget the whole thing if questions were asked, and had her own

personal suspicions. Despite all of the above, she went ahead with

arranging the pick-up and did actually pick up the packages. In

testifying, Janik could not deny possession or furtherance of the

conspiracy, but could as Dimyan, rely solely on lack of knowledge.

Given the almost identical factual basis, if, as has been held in the

Second Circuit below, a conscious avoidance instruction on

Dimyan’s knowledge was proper, the same theory applied to Janik.

United States v. Mang Sun Wong, 884 F.2d 1537, 1541, (2d Cir.

1989) cert. denied, 110S. Ct. 1140 (1990), United States v.Guzman,

754 F.2 482, 489, (2d. Cir. 1985) cert. denied, 474 U.S. 1054 (1986).

Thus, the jury should have been instructed either that Janik was an

accomplice as a matter of law or as a matter for the jury to find, and

that, in the second circumstance, depending on the jury’s finding,

that it could apply the instruction on accomplice testimony to Janik.

In the opinion below, after finding that a conscious avoidance

instruction as to Dimyan was properly given to the jury, the Second

Circuit appears to accept that the accomplice instructions as to

10

Janik’s testimony should have been given, but that the “failure to

give a special charge to this effect is not reversible error because no

substantial prejudice resulted from the omission. See United States

v. Slocum, 695 F.2d 650, 659 (2d Cir. 1982) cert. denied, 460 U.S.

1015.”

It is correct, that the Second Circuit adheres to a substantial

prejudice rule, even where a proper and timely request for the

instruction is made. However, other Circuits are far more expansive

in affording an accused the right to accomplice instructions.

Where accomplice testimony is totally uncorroborated, the

failure to give the the proper instruction is plain error. United States

v. Windom, 510 F.2d 989 (Sth Cir. 1975) cert. denied 423 U.S. 863,

United States v. David, 439 F.2d 1105 (9th Cir. 1971), United States

v. Hill, 627 F.2d 1252 (10th Cir. 1980).

There are a number of cases which, as this one, fall somewhere

in between a total lack of corroboration and full corroboration of the

important elements of the accomplices’ testimony.

Thus, where much, as here, of the testimony of an accomplice

was uncorroborated, the failure to give the proper instruction was

reversible error United States v. Wasco, 473 F.2d 1281, 1284-85 (7th

Cir. 1973), United States v. Levi, 177 F.2d 827, 831 (7th Cir. 1949),

United States v. McCabe, 720 F.2d 951 (7th Cir. 1983). Indeed, the

Seventh Circuit relies upon a “substantial influence” test for

reversible error and will reverse even if there is only a grave doubt

as to a “substantial influence” of the error.

Janik’s testitnony was the only direct evidence of guilty

knowledge by Dimyan. United States v. Bernal, 814 F.2d 175 (Sth

Cir. 1987). Here, testimony about the events in the car on April 1,

1989 (including the “forget about it if questions are asked”’),

realistically constitute the sole evidence of either actual knowfedge

eee cn ne a a

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or conscious avoidance. The prosecutor stressed Janik’s testimony

in his arguments for giving the conscious avoidance charge and it

was heavily relied upon by the Court in granting the request and was

stressed in the prosecution summation-in-chief.”

In the context of the defense of lack of knowledge, Janik’s

testimony was crucial and should have been properly evaluated by

the jury as having been given by an accomplice with reason to fear

prosecution and to want to curry favor with the government.

If there were any doubt as to the prejudice caused by the failure

to give this instruction, and there should not be, it is totally obviated

by the fact that the Court did instruct the jury on the defendant as an

interested witness (Gov't request #16). “It is fair to say that the

interest of this defendant in the outcome of this case is of a character

which is possessed by no other witness. And that kind of an interest

creates a motive to testify falsely.” On top of this, the prosecutor in

his summation pointed out the disparity between Dimyan’s and

Janik’s motives to lie and told the jury to weigh Janik’s testimony

“just the way you weigh every other witness’ testimony in this case,”

(emphasis added), even though as an accomplice, her testimony

should not be weighed the same as every other witness.

Where a “defendant as an interested witness” charge is given,

even with proper balancing language, it is especially imporiant to

give an “accomplice as a witness” instruction as well. United States

v. Beverly, 562 F.2d 201, 204 (2d Cir. 1977) cert. denied 434 US.

1039 (1978), United States v. Swiderski, 539 F.2d 1246, appeal after

remand, 548 F.2d 445 (2d Cir. 1977).

* ‘The prosecutor put the testimony of Dimyan and Janik into direct opposition:

“Who do you believe (Janik or Dimyan)...Janik’s reaction was reasonable...”

12

It is clear that much of Janik’s testimony was uncorroborated and

that under the Seventh Circuit’s “substantial influence” of the error

formulation, reversal of this conviction would be required.

Thus, both to set aside an improperly obtained conviction and to

harmonize the diversity in the various Circuit’s handling of this

matter, the writ should be granted.

CONCLUSION

The writ should be granted.

Respectfully submitted,

GOLDBERGER & DUBIN, P.C.

Lawrence A. Dubin

Counsel of Record

401 Broadway

New York, New York 10013

(212) 431-9380

J. JEFFREY WEISENFELD, ESQ.

Attorney for Petitioner

401 Broadway

New York, New York 10013

(212) 925-8640

APPENDICES

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APPENDIX A - OPINION BELOW

89-cr-275

E.D.N.Y.

Judge Glasser

United States Court Of Appeals

FOR THE SECOND CIRCUIT

At a stated term of the United Siates Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City of

New York, on the 11th day of January, one thousand nine hundred

and ninety-one.

Present:

Honorable Ralph K. Winter,

Honorable Frank X. Altimari,

Circuit Judges,

Honorable Leonard D. Wexler

District Judge.”

/seal/

FILED January 11, 1991

Elaine B. Goldsmith, Clerk

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

* ‘The Hon. Leonard D. Wexler of the United States District Court for the Eastern

District of New York, sitting by designation.

S|

2a

Appendix A

UNITED STATES OF AMERICA

Appellee,

v. ORDER #90-1143

MOHAB F. DIMYAN,

Defendant-Appellant.

Appeal from the United States District Court for the Eastem

District of New York.

This cause came on to be heard on the transcript of record from

the United States District Court for the Easter District of New York,

and was argued.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District Court be

and it hereby is affirmed.

Mohab Dimyan appeals from a judgment, entered after a jury trial

in the Eastern District, convicting him of narcotics violations under

21 U.S.C. §§ 841, 846 and 963. Dimyan was arrested in a

government “sting” operation upon receiving a package containing

heroin from Marie Janik, who claimed the package from a post office

in Queens. After his arrest Dimyan agreed to cooperate with

authorities by passing the package along to Shamin Yousufzai, who

originally asked Dimyan to retrieve it for him at the post office.

Yousufzai was arrested and indicted along with Dimyan, but pleaded

guilty before trial. At trial, Dimyan’s defense was that he was an

unwitting dupe of Yousufzai’s and Janik’s, ignorant of the contents

of the package.

3a

Appendix A

On appeal, Dimyan argues that two aspects of the jury

instructions deprived him of a fair trial. First, he claims that the

evidence did not warrant the conscious avoidance charge given by

the district court. Second, he contends that the district court erred in

not giving an accomplice witness charge with respect to Janik, who

testified for the government. We reject both allegations of error.

A conscious avoidance charge is appropriate where “the

surrounding circumstances were such that reasonable persons could

have concluded that the circumstances alone should have apprised

defendant[]} of the unlawful nature of [his] conduct.” United States

v. Mang Sun Wong, 884 F.2d 1537, 1541 (2d Cir. 1989) (quoting

United States v. Guzman, 754 F.2d 482, 489 (2d Cir. 1985), cert.

denied, 474 U.S. 1054 (1986)), cert. denied, 110 S. Ct. 1140 (1990).

Yousufzai’s strange behavior with respect to the package was

sufficient to create such circumstances. Yousufzai was continuously

unwilling to retrieve the package from the post office himself, went

to extreme lengths to find someone else to do the job for him, and

waited nearly an hour during Janik’s first unsuccessful attempt to

claim the package. This behavior certainly would have alerted a

reasonable person that the contents were not medical books, as he

contended, but instead some type of contraband. See Wong, 884 F.2d

at 1542-43: United States v. Joly, 493 F.2d 672, 676-77 (2d Cir.

1974).

In any event, the ample proof of actual knowledge renders any

error harmless. See United States v. Alvarado, 838 F.2d 311, 314-17

(9th Cir.), cert. denied, 487 U.S. 1222 (1988). Dimyan was

noticeably excited when Janik telephoned him with the news that

she had secured the package and immediately went to pick it up from

her. Upon doing so, he placed the package in the trunk of his car,

not what one would ordinarily do with a light load of books. Finally,

cca

4a

Appendix A

Yousufzai had $4,000 ready in the front seat of his car upon delivery.

All this could suggest to a reasonable juror that Dimyan was a

knowing participant in a drug transaction.

We also reject Dimyan’s second argument that the district court

should have instructed the jury that Janik was an unindicted

co-conspirator whose testimony may be prejudiced. While Janik

may have had an incentive to cooperate with the government to

avoid prosecution herself, the failure to give a special charge to this

effect is not reversible error because no substantial prejudice

resulted from the omission. See United States v. Slocum, 695 F.2d

650, 656 (2d Cir. 1982), cert. denied, 460 U.S. 1015 (1983). The

district court gave a general instruction with respect to witness

credibility, defense counsel argued Janik’s credibility in

summations, and, as discussed above, other eviderice at trial

supported a finding that Dimyan consciously participated in an

illegal drug transaction.

The judgment of conviction is affirmed.

/signature

Hon. Ralph K. Winter, U.S.C.J.

signature

Hon. Frank X. Altimari, U.S.C.J.

signature

Hon. Leonard D. Wexler, U.S.D.J.

N.B. This summary order will not be published in the Federal

Reporter and should not be cited or otherwise relied upon in

unrelated cases before this or any other court.

a}

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APPENDIX B - CONSTITUTIONAL PROVISION

INVOLVED

U.S. Constitution, Fifth Amendment

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor deprived of life, liberty, or

property, without due process of law; nor shall private property be

taken for public use, without just compensation.