Petition — Pecora v. United States

Office -Supreme Court, U.S.

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MAR 19 1983

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

FRANCES PECORA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Application for a Writ of Certiorari

to the United States Court of Appeais

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES A. McPHERSON

Attorney for Petitioner

McPHERSON & ZAINEY

5641 Canal Blvd.

New Orleans, La. 70124

Telephone: [504] 488-6651

QUESTION PRESENTED

1. Should a _ purely local crime,

bribery of a sheriff by an arrestee's

mother, be tried in federal court

because the mother, while out of state

visiting a sick friend, called the

sheriff, at his request, and discussed

some aspects of the bribery scheme?

INDEX

OPINIONS BELOW

GROUNDS ON WHICH SUPERVISORY

JURISDICTION OF THIS

COURT IS INVOKED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Course of Proceedings

B. Statement of Facts

REASONS FOR ALLOWING WRIT

CONCLUSION

CERTIFICATE

AUTHORITIES

CASES:

Microcomputer Software Systems,

Inc. vs. Ontel Corp.,

686 F. od 531 (7th Cir. 1982)

Rewis v. U.S., 401 U.S. 808,

98 S.Ct. 1056, 28 L.Ed.2d 493

(1971)

U.S. v. Bass, 404 U.S. 336 (1971)

3, 11

11

= Seed

NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

FRANCES PECORA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Application for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE OF

THE UNITED STATES AND ASSOCIATE

JUSTICES

OF THE UNITED STATES SUPREME COURT:

Petitioner, Frances Pecora, respect-

fully prays that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals for

the Fifth Circuit, entered on January 21,

1983, which affirmed the judgment and sen-

tence imposed in these proceedings by the

United States District Court for the

Eastern District of Louisiana, Honorable

Fred J. Cassibry, Judge presiding.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fifth Circuit is

reported at 693 F.2d. 421 (1982). That

Opinion is reproduced herein at Appendix

A, p- A-1 et seq., infra.

There was no written opinion of the

Panel or of the Fifth Circuit en banc

accompanying the denial of petitioner's

Petition for Rehearing and Suggestion for

Rehearing En Banc. A Table entry re-

porting the denial of rehearing is pub-

lished at 697 F.2d 1092, and is

reproduced herein at Appendix B, p. B-1,

infra.

There was no written opinion of the

District Court herein.

GROUNDS ON WHICH SUPERVISORY

JURISDICTION OF

THIS COURT IS INVOKED

The opinion of the Fifth Circuit

Court of Appeals was rendered on December

1, 1982 (Appendix A, p. A-1 et seq.,

infra) and entered in these proceedings

on January 21, 1983 (Appendix B, p. Bel,

infra) when the Court denied a timely

petition for rehearing and suggestion for

rehearing en banc.

The jurisdiction of this Court is in-

voked under the provisions of 28 U.S.C.

$1254(1). See also, Rewis v. U.S., 401

U.S. 808, 98 S.Ct. 1056, 28 L.Ed.2d 493

(1971).

STATUTORY PROVISIONS INVOLVED

This case originated in the United

States District Court for the Eastern

District of Louisiana upon an indictment

charging petitioner with conspiracy, wire

fraud, and use of an interstate faciiity

to carry out a bribery scheme in

violation of 18 U.S.C. §§ 2, 371, 1343,

and 1952.

18 U.S.C.§1343, the wire fraud

statute, reads:

Whoever, having devised or intending

to devise any scheme or artifice to de-

fraud, or for obtaining money or property

by means of false or fraudulent

pretenses, representations, or promises,

transmits or causes to be transmitted by

means of wire, radio, or television

communication in interstate or foreign

commerce, any writings, signs, signals,

pictures, or sounds for the purpose of

executing such scheme or artifice, shall

be fined not more than $1,000.00 or

imprisoned not more than five years, or

both.

The Travel Act, 18 U.S.C. § 1952,

reads, insofar as is pertinent here:

(a) Whoever travels in interstate

or foreign commerce or uses any facility

in interstate or foreign commerce,

including the mail, with intent to --

(1) distribute the proceeds of any

unlawful activity; or

(3) otherwise promote, manage,

establish, carry oon, or facilitate the

promotion, management, establishment, or

carrying on of any unlawful activity.

and thereafter performs or attempts

to perform any of the acts specified in

subparagraphs (1), (2) and (3), shall be

fined not more than $10,000.00 or impris-

oned for not more than five years, or

both.

(bo) As used in this section "unlaw-

ful activity" means .. . or (2) extor-

tion, bribery, or arson in violation of

the laws of the State in which committed

or of the United States.

STATEMENT OF THE CASE

A. Course of Proceedings and

Disposition

Appellant, Frances Pecora, together

with her son, Nofio Pecora, Jr. and Jimmy

N. Burrescia, were indicted on December

19, 1980, and charged in a three-count

indictment with:

(1) conspiracy to commit wire fraud

and conspiracy to use facilities of inter-

state commerce to conduct racketeering,

(2) wire fraud, and

(3) use of interstate facilities,

vis, a telephone, to conduct bribery in

violation of La. R.S. 14:118.

Frances Pecora timely objected to

the jurisdiction of the District Court in

this purely local bribery offense on the

basis that the single interstate

telephone call was incidental and not for

the purpose of executing the scheme.

Trial by jury was had between March

30, and April 6, 1981, returning a guilty

verdict on all counts. The Trial Court

sentenced Frances Pecora to serve two con-

current two-year sentences on Counts I

and II and , she was given a_ suspended

sentence with three years probation and a

fine of $10,000.00 on Count ITI.

The Court of Appeals affirmed the

judgment, with a strong dissent by former

Chief Judge, John R. Brown, and subse-

quently denied an application for re-

hearing and suggestion for rehearing en

banc.

B. Statement of Facts Relevant

to this Petition

On October 13, 1980, appellant's

son, co-defendant Nofio Pecora, Jr. was

arrested by State authorities for posses-

sion of approximately 1,000 pounds of

marijuana. The mother, appellant Frances

Pecora, made arrangements through an

honorary deputy sheriff, Jimmy Burrescia,

to pay the sheriff %60,000.00 to take

care of the case against her. son. While

Frances Pecora was out of state visiting

a sick friend, the sheriff telephoned her

son, requesting that Frances call him.

The son telephoned Frances and she _ re-

turned the sheriff's call, stating:

"I wouldn't have called you but I

was told that you said call you." (Tr.

387)

Federal jurisdiction of this purely

local matter was based entirely upon this

incidental telephone call.

REASONS FOR ALLOWING THIS WRIT

The glut of writ applications to

this court is caused partially by the

expansion of federal prosecutions into

matters that are local in nature.

However, through the ingenuity of federal

prosecutors, 4 tenuous federal

involvement is discovered and a matter

that should be tried in state court is

tried in federal court, thereby

unnecessarily increasing the strain upon

the federal judiciary. This case is a

prime example.

Rather than call for the creation of

intermediate federal appellate courts,

perhaps this court, in the exercise of

its supervisory jurisdiction, should

tighten up the requirements of federal

criminal jurisdiction by disallowing the

prosecutoral expansion of federal

criminal jurisdiction into purely local

crimes. This is a less dramatic method

than the Seventh Circuit uses to limit

civil matters. See Microcomputer

Software Systems, Inc. v. Ontel Corp.,

686 F.2d 531 (7th Cir. 1982).

The wire fraud statute, 18 U.S.C.

§1343, requires that the interstate commu-

nication be "for the purpose of executing

such scheme", while the Travel Act, 18

U.S.C. §1952 requires that the interstate

activity be "with intent to... facili-

tate the promotion, management, establish-

ment, or carrying on of any unlawful

activity .. .".

Frances Pecora called the Sheriff,

not for the purpose of executing the

bribery scheme, and not even intending to

facilitate the scheme but merely because

the Sheriff had asked her son to have his

mother call him. The Sheriff testified

that the reason he asked Frances to call

him was because the "investigation" was

getting out of control and he was trying

to get it back in control by setting up

another meeting with her. (Tr. 679) The

10

interstate telephone conversation, which

was ecorded and introduced into

evidence, was unnoteworthy except that

Frances agreed that she would meet with

the Sheriff when she returned from

visiting her sick friend. As stated in

the dissent by Judge John R. Brown,

"Because federal jurisdiction should

not be based on fortuity, such as the

incidental phone call made by Pecora when

she heard that the Sheriff wanted to talk

to her, I cannot find jurisdiction proper

under 1343."

It is a matter of judicial responsi-

bility to limit the prosecutoral reach

when only minimal and incidental inter-

state activity occurred by "happenstance"

rather than design. U.S. vs. Bass, 404

U.S. 336 (1971); and Rewis vs. U.S.,

404 U.S. 808 (1971).

It was never intended that the

federal government should take over or

11

supersede local law enforcement when our

federal republic was formed. The

Federalist Papers and other writings

preceding ratification of our

Constitution are replete with the promise

that local matters would be _ handled

locally.

This case offers an opportunity to

limit the expansion of federal criminal

jurisdiction into purely local matters.

A local bribery should not be converted

into federal wire fraud and Travel Act

violations merely because the perpetrator

of the bribery of ng local Sheriff

happened to go out of state to visit a

sick friend and returned a call to the

Sheriff.

CONCLUSION

For the foregoing reasons, this

Court should grant a writ of certiorari

12

and, after plenary consideration hevein,

this Court should reverse the judgment

below on all counts.

Respectfully submitted,

JAMES A. McPHERSON

McPHERSON & ZAINEY

5641 Canal Blvd.

New Orleans, La. 70124

[504] 488-6651

CERTIFICATE OF SERVICE

I, James A. McPherson, Attorney of

Record for the petitioner in the above styled

cause and a Member of the Bar of the Supreme

Court of the United States, certify that I

have served three copies of the foregoing

Petition for a Writ of Certiorari upon the

Solicitor General of the United States, first

Class postage prepaid, this day of

March, 1983.

13

JAMES A. McPHERSON

McPHERSON & ZAINEY

5641 Canal Blvd.

New Orleans, La. 70124

[504] 488-6651

14

APPENDIX "A"

UNITED STATES of America,

Plaintiff-Appellee,

Ve

Frances PECORA and Nofio Pecoraro,

a/k/a Norfio Pecora, Jr.,

Defendants-Appellants.

No. 81 —331 2-

United States Court of Appeals,

Fifth Circuit.

Dec. 1, 1982.

Appeals from the United

District Court for Eastern District

Louisiana.

Before BROWN, GEE and GARWOOD,

Circuit Judges.

Affirmed.

Brown, Circuit Judge, concurred in

part and dissented in part and filed

Opinion.

GEE, Circuit Judge:

A-1

Defendants Frances Pecora and her

son, Nofio Pecoraro, were charged by

indictment with conspiracy, wire fraud,

and use of an interstate facility to carry

out a bribery scheme in violation of 18

U.S.C. §§ 2,371, 1343, and 1952.1 After

pleas of not guilty were entered, both

defendants moved to dismiss the indictment

for lack of jurisdiction.

1. 18 U.S.C. § 1343, the wire fraud

statute, reads: Whoever, having

devised or intending to devise any

scheme or artifice to defraud, or for

obtaining money or property by means

of false or fraudulent pretenses,

representations, or promises,

transmits or causes to be transmitted

by means of wire, radio, or

television communication in

interstate or foreign comerce, any

writings, signs, signals, pictures,

or sounds for the purpose of

executing such scheme or artifice,

shall be fined not more than $1,000

or imprisoned not more than five

years, or both.

The Travel Act, 18 U.S.C. § 1952,

reads, insofar as is pertinent here:

(a) Whoever travels in interstate or

foreign commerce or uses any facility

A-2

The district court deferred ruling on this

motion pending presentation of evidence at

trial. Following a jury trial, each

defendant was found guilty. The

defendants again asserted their

jurisdictional argument in a motion for

judgment of acquittal, which the district

court denied. Sentences were assessed,

and this appeal followed.

in interstate or foreign commerce,

including the mail, with intent to--

(1) distribute the proceeds of any

unlawful activity; or

(2) commit any crime of violence to

further any unlawful activity; or

(3) otherwise promote, manage,

establish, carry on, or facilitate

the promotion, management,

establishment, or carrying on of any

unlawful activity,and thereafter

performs or attempts to perform any

of the acts specified in

subparagraphs (1), (2), and (3),

shall be fined not more than $10,000

or imprisoned for not more than five

years, or both.

(b) As used in this section "unlawful

activity” means (1) any business

enterprise involving gambling, liquor

on which the Federal excise tax has

A-3

Background

Nofio Pecoraro was arrested on

October 13, 1980, on state charges of

possession with intent to distribute

marihuana. The next day, Frances Pecora

met Sheriff Layrisson, who held her son in

custody. Two weeks later, Jimmie

Burrescia > met with Layrisson and

discussed campaign contributions

(regarding a millage campaign) as well as

the individuals arrested in the drug

"bust," including Pecoraro. On October

29, Burrescia returned to the sheriff's

office and gave $9,000 in cash to

not been paid, narcotics or controlled

substances (as defined in section

102(6) of the Controlled Substances

Act), or prostitution offenses in

violation of the laws of the State in

which they are committed or of the

United States, or (2) extortion,

bribery, or arson in violation of the

laws of the State in which committed

or of the United States.

A-4

Layrisson and the District Attorney of

Tangipahoa Parish. Prior to the

conversation, a Special Agent of the

Federal Bureau of Investigation had been

contacted, and the affair was recorded.

The money was given to Burrescia by

Frances Pecora for the purpose of insuring

that her son would not be convicted. On

November 5, 1980, the sheriff, District

Attorney, and Burrescia met again to

discuss the bribe, and this conversation

was likewise recorded. A meeting in which

Frances Pecora was included was set up for

the next day at Burrescia's home. This

meeting, likewise recorded, revealed that

Pecora wanted the help of the sheriff and

the District Attorney in protecting her

son. Several more meetings, all recorded,

2. Defendant Frances Pecora also

separately filed a motion to dismiss

on jurisdictional grounds and on _ the

ground that the indictment was

multiplicitous.

A-5

between Layrisson and Burrescia took place

in the following weeks, and the sheriff

indicated that he wanted to talk to

Pecora. Thus Burrescia attempted to call

Frances Pecora from the sheriff's office,

and learned that she was in Georgia. He

then told the sheriff that he would have

Pecora call the sheriff from Georgia.

Later that day, Burrescia called

Sheriff Layrisson and then handed _ the

telephone to Nofio Pecoraro to talk to the

sheriff. Layrisson asked Pecoraro to have

his mother call him. The following

morning, Frances Pecora returned the

sheriff's call and explained that she was

in Georgia to visit a sick friend and that

she had been told that he wanted to talk

to her. In the conversation that ensued,

3. A third defendant, who was convicted

and did not appeal.

A-6

many of the details and terms of the

bribery scheme were discussed.

Threshold Issue: Jurisdiction

under Sections 1952 and 1343

The initial issue raised by the

defendants is whether the federal courts

may assume jurisdiction over this local

bribery case, involving only Louisiana

residents, under 18 U.S.C. §$§ 1343 or 1952

on the basis of a single interstate

telephone call made at the request of

Sheriff lLayrisson. The government argues

that this call was sufficient to establish

jurisdiction under the Travel Act (% 1952)

and also under the wire fraud statute (§

1343) because the phone call facilitated

the bribery and because the call was made

for the purpose of executing the bribery

scheme. Passing upon this slender

jurisdictional basis requires us to

A-7

examine closely the recent cases

construing these federal laws.

In United States v. Perrin, 580

F.2d 730 (5th Cir.1978), aff'd, 444 U.S.

37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979),

this court, faced with a similar claim

that interstate contacts were insufficient

to found jurisdiction under the Travel

Act, held that one interstate phone call

by a defendant to obtain gravity maps

necessary to exploit stolen seismic

exploration charts was sufficient to

invoke § 1952 jurisdiction. We found "no

requirement that the use of interstate

facilities be essential to the scheme: it

is enough that the interstate travel or

the use of interstate facilities makes

easier or facilitates the unlawful

activity." 580 F.2d at 736, citing Rewis

v. United States, 418 F.2d 1218, 1221

(Sth Cir.1969), rev'd. on other grounds,

A-8

401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d.

493 (1971). We see no principled

distinction between this case and the

present one. There, as here, the

defendant argued "that the interstate

nexus supplied by their use of interstate

facilities was isolated, minimal,

inconsequential, and nonessential to the

«++-scheme and insufficient to establish

jurisdiction under the Travel Act." Id.

at 735. The court responded by holding

that one telephone call sufficed.

And in United States v. Archer, 486

F.2d 670 (2d Cir.1973), the court found

that a phone call from Paris to New York,

made by an undercover agent, "served no

purpose that would not have been equally

served by a call from New York," and could

thus be characterized as "a casual and

incidental occurrence," United States v.

Corallo, 413 F.2d. 1306, 1325 (2d Cir.),

A-9

cert. denied, 396 U.S. 958, 90 S.Ct. 431,

24 L.Ed.2d 422 (1969), or "a matter of

happenstance," Rewis v. United States,

401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28

L.Ed.?d. 493, 496 (1971). 486 F.2d at

682-83.

The defendants make several arguments

on the basis of the above cases. As we

have already said, we reject any

contention that the phone call from

Georgia did not facilitate or benefit the

bribery scheme. We likewise reject the

defendants' suggestion that the request by

the sheriff for Frances Pecora to call him

was an attempt artificially to create or

manufacture federal jurisdiction under the

Travel Act; the district court found as a

fact and on ample evidence that the

sheriff requested Burrescia to have

Frances Pecora call him before the sheriff

knew that she was in Georgia. Unlike

A-10

Archer, the interstate element in this

case was not furnished solely by

undercover agents and there is no question

of any attempt to contrive jurisdiction.

Finally, we discern in the Travel Act

no exception for casual and incidental

occurrences or for "happenstance" ones.

Its language is straightforward and

comprehensive. Therefore, even were we

not constrained by our prior holdings in

Perrin and Jones, we would conclude

that jurisdiction existed here.

As to the convictions under the wire

fraud statute, 18 U.S.C. $1343, the

defendants repeat their arguments

challenging jurisdiction. Here as well,

however, the use of interstate wires need

not actually further the illegal scheme,

but need only be intended to execute the

scheme. United States v. Hammond, 598

F.2d 1008, 1010 (5th Cir.), remanded on

A-11

rehearing, 605 F.2d 862 (5th Cir.1979).

In United States v. Davila, 592 F.2d

1261 (5th Cir.), cert. denied, 444 U.S.

843, 100 S.Ct. 85, 62 L.Ed.2d 56 (1979),

we held that an interstate transmission

"at the heart" of a scheme cannot be too

incidental to invoke § 1343 jurisdiction.

And we have likewise held that one phone

call is sufficient to constitute an

offense, Huff v. United States, 301 F.2d

760, 765 (5th Cir.), cert. denied, 371

U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230

(1962). As with the travel act,

jurisdiction was present here on the plain

language of the wire fraud act.

Refusal to Excuse Juror

During an evening recess, when A

juror answered the telephone about 11:00

p-m., a female voice inquired whether she

was on the jury. Upon being told that she

was, the caller asked in what case. At

A-12

this point, the juror replied that she

could not talk, hung up and disconnected

the telephone. She advised the judge of

the incident the next morning, stating in

reponse to his questions that she would

not be affected by it and that the other

jurors regarded the incident, of which she

had told them, as a prank. Out of her

presence, defense counsel requested that

she be excused and replaced by one of the

several alternate jurors. Before us,

appellant Pecoraro contends that the judge

erred in declining to do 80. The

Situation was a delicate one, fraught with

potential for error. See, e.g-, United

States v. Forrest, 620 F.2d 446 (5th

Cir.1980). We conclude, however, that

Pecoraro has waived any right to complain

of the court's refusal to excuse the

juror.

A-13

At the conclusion of the colloquy

with the juror in question, the trial

judge voiced his concern that to excuse

her at such a_ time and on such a ground

might encourage further attempts by the

nighttime caller to disqualify jurors, so

that "we may end up with no jury at all."

After further discussion between court and

counsel, the court adopted--with the

apparent acquiescence of all counsel--a

compromise course: the juror would be

retained on the panel, but counsel's right

to re-urge the motion to strike her or’ the

entire panel at any later time was

expressly reserved and maintained by the

court. No effort to do so was ever made

by any counsel thereafter.4 We conclude

that this failure to raise the matter

again at trial and, in effect, to gamble

on a favorable verdict while reserving the

objection for appeal constitutes an

A-14

impermissible attempt to sandbag the

judicial process.

This we cannot countenance; the point

has been waived. Nor, assuming that

considerations of plain error are

appropriate to this situation of apparent

deliberate waiver, are any of these

apparent. The trial judge, impliedly at

least, accepted the juror's assertions

that this simple inquiry as to her status

as a juror would not affect her and that

the other jurors regarded it as a prank or

joke. In this, no such error appears as,

by its obviousness or otherwise, was of

such magnitude as to call in question the

fairness, integrity or public reputation

of the proceedings. United States

4. That defense counsel retained the

incident in mind is evidenced by the

inquiry of one, near the close of the

trial, whether any other juror had

reported such an attempted contact,

as the court had instructed all to

do. None had.

A-15

v. Atkinson, 297 U.S. 157, 56 S.Ct. 391,

80 L.Ed. 555 (1936).

Other Claims for Reversal

Appellants advance several other

points for reversal: that the wire fraud

and travel act counts are multiplicitous,

that the court erred in refusing to admit

transcripts of certain taped

conversations, that certain comments in

argument by counsel for the United States

were erroneous, and that certain

instructions and refusals to instruct by

the trial judge--as in declining to

instruct on a duress defense--were

reversible. We have considered all of

these carefully, in the context of the

trial, and conclude that none merits

discussion.

Conclusion

For the above reasons, the judgments

below are

A-16

AFFIRMED.

JOHN R. BROWN, Circuit Judge,

concurring in part and dissenting in part:

I concur fully in the Court's opinion

on “Refusal to Excuse Juror" and "Other

Claims for Reversal". This includes as

well the Court's determination as to both

§§ 1343 and 1952 that the telephone call

from Georgia was not contrived as an

attempt artificially to create or

manufacture federal jurisdiction.

Furthermore and not without substantial

misgivings, I concur in the affirmance of

the conviction for violation of the Travel

Act, 18 U.S.C. § 1952.

But as to the conviction for wire

fraud violation, 18U.8S.C. § 1343, I must

dissent.

To begin with, I agree with the Court

that "the use of interstate wires need not

actually further the illegal scheme, but

A-17

need only be intended to execute the

scheme". Op. 1241 and the Court's

citation and quotation from United States

Ve Davila, that the interstate

transmission "at the heart of the scheme"

must be more than just incidental. But

the phone call from Pecora in Georgia was

clearly not at the "heart" of this bribery

scheme. Even though the details of the

phone conversation clearly furthered the

bribery scheme, the use of interstate

facilities was incidental. The wire fraud

statute is analogous to the mail fraud

statute, 18 U.S.C. § 1341, Napper v.

Anderson, Henley, Shields, Bradford &

Pritchard, 500 F.2d 634, 636 (5th

Cir.1974), cert. denied, 423 U.S. 837, 96

S.Ct. 65, 46 L.Ed.2d 56 (1975), and there

is no § 1341 violation if the use of mails

is incidental and unpremeditated, Glenn

v. U.S., 303 F.2d 536 (5th Cir.1962).

A-18

Because federal jurisdiction should not be

based on fortuity, such as the incidental

phone call made by Pecora when she _ heard

that the sheriff wanted to talk to her, I

cannot find jurisdiction proper under §

1343.

I would therefore reverse with

directions to dismiss the wire fraud

count.

A-19

APPENDIX "B"

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 81-3312

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

FRANCES PECORA and

NOFIO PECORARO, a/k/a

NORFIO PECORA, JR.,

Defendants-Appellants.

Appeal from the United States District

Court for the Eastern District of

Louisiana

ON PETITION FOR REHEARING AND SUGGESTION

~ FOR REHEARING EN BANC

ARIN

(Opinion December 1, 1982, 5 4 1983,

F. 2a

anuary 2

Before BROWN, GEE and GARWOOD, Circuit

Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED

and no member of this panel nor Judge in

regular active service on the Court having

requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules

of Appellate Procedure; Local Fifth

Circuit Rule 16) the Suggestion for

Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED

and the Court having been polled at the

request of one of the members of the Court

and a majority of the Circuit Judges who

are in regular active service not having

voted in favor of it, (Rule 35 Federal

Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the Suggestion for

Rehearing En Banc is also DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc, and

a majority of the judges in active service

not having voted in favor of it, rehearing

en banc is DENIED.

B-2

ENTERED FOR THE COURT:

S/Thomas Gibbs Gee

nite ates reuit Judge

CLERK'S NOTE:

SEE RULE 41 FRAP AND LOCAL RULE 17 FOR

STAY OF THE MANDATE.

B-3