# Petition for Writ of Certiorari — Dimyan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 962

## Text

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
ST 8. 6 a-s. 0:4: 5 &eae oe es eee ii
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I 6 Db a hs hd ve ek Eee 1
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
i Sa

iii
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.

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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

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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}

Sa

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.

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