Petition for Writ of Certiorari — Moore v. United States

Supreme Court brief1970

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Text

PLASCO G. MOORE,

> ¢ . ,

_ Judgment of the Court of Appeals

Order on Rehearitig of the Court of Appeals

TABLE OF AUTHORITIES

CASES:

Berra v. United States,

221 F. 24 $90, aff'é, 351 US. 131, .

96S. Ct. 685, 100 L. Bd. 104.3 (1956)... ...........5- 8

H. Hackfeld & Co. v. United States,

197 US. 442, 25 S. Ct. 456, 49 L. Bd. 826 (1905) ee 6,7

Hancey v. United States,

10Cic. (1940), MOB F. 20 BSS .... 2.2... cece eee eee 7

Morrisette v. United States,

342 U.S. 246, 72 S. Ct. 240, 96 L. Bd. 288 (1952) ...... 8

Raimond v. The Parish of Terrebonne, pate r

132 U.S. 192, 10S. Ct. $7, 33 L. Ed. 309 (1889) ........ me

7Cir. (1969), 399 F. 20916 .... 2.0... ce eee ee eeee . |

v. Moore, :

$C. al 3

Wilson v. Merchants Loan & Trust Co.,

183 US. 121, 22'S. Ct. 55,46 L. Bd. 1131901) ....... 6

STATUTES: Page

18 U.S.C, Seltion 664 ............ cece cece cc DBSPB -

18U.S.C. Section 3231 ......... Breton oe

2B U.S.C. Section 12S4 CR) occ cnnccpeccee tee need

PETITION FOR WRIT OF CERTIORARI TO THE

“UNITED STATES COURT OF APPEALS

‘POR THE FIFTH CIRCUIT

TO THE WOMORABLE JUSTICES OF THE SUPREME .

Se he er

issue to seview the:judgment of the United States Court of .

Appeals for the Fifth Circuit entered in the shove case on

May 28,1970. . ate

PP]

Vaal

L OPINION BELOW —

‘The District Court for. the Northen District of Texas,

Dailas Division, did not render an opinion in connection with its

judgment. The opinion of the Court of Appeals tor the Fifth

Circuit is reported at 427 F. 2d 38, and a copy thereof is

appended hereto. s

- li. STATEMENT OF JURISDICTION

The following is a statement of the grounds on which

jurisdiction is invoked: —

A. Review is sought of a judgment of the Court of

, Appeals for the Fifth Circuit in Cause No. 28, 765 in such

" court, entitled United States of America v. Plasco G. Moore, |

which case was an appeal from the District Court for the <

District of Texas. The judgment of the Court of

was dated and entered on May 28, 1970.

Petition for rehearing in the Court of Appeals was

denied by order entered on August 6, 1970. By order of this

court dated August 31,. 1970, extension of time was granted

within which to petition for certiorari, such order extending the

time for filing to and including September 25, 1970.

C. The statute conferring jurisdiction for review by writ of

certiorari is 28 U.S.C. Section 1254 (1). The basis for federal

jurisdiction in the court of first instance was 18 U.S.C. Section

3231 and 18 U.S.C. Section 664.

il. QUESTIONS PRESENTED

Petitioner was indicted and convicted on ten counts

‘ charging willful embezzlement and conversion to his own use

sn to Gio exe af enter of money Sctonging to an employer

welfare benefit plan in violation of 18 U.S.C. Section 664. Trial

was before the court, and the evidence consisted solely of a

stipulation filed in the cave and entered into on September 29,

1969 by and between petitioner and his counsel and the United

States Attorney and approved by the court. The district court

entered judgment of conviction thefeon, and the Court of

Appeals affirmed. The Court of Appeals held that the stipula-

tion amply contained every essential element of the crime,

including the element of intent, but left a doubt as to whether

intent is an element of this crime. The questions presented are:

A. Whether the elements of the offense charged include

the classic and usual elements of the crime of embezzlement

and conversion.

B. Whether stipulations must, and whether these stipula-

tions did, establish beyond a reasonable doubt each and every

ultimate fact or essential element of the crime of embezzling

and converting money belonging to an employee welfare benefit

plan in violation of 18 U.S.C. Section 664.

_ IV. STATUTE INVOLVED

The federal statute involved is 18 U.S.C. Section 664,

which reads as follows:

“Any person who embezzies, steals, or unlawfully

and willfully abstracts or converts to his own use or to the

use of another, any of the moneys, funds, securities,

premiums, credits, property, or other assets of any

employee welfare benefit plan or employee. pension

benefit plan, or of any fund connected therewith, shall be

fined not more than $10,000, or imprisoned not more

than five years, or both.

Petitioner, Plasco G. Moore, 2 man of humble origins

whose life history is a story of self-improvement, became the

principal executive of a trade association in the State of Texas.

While he was so employed, the events of this case occurred.

Thereafter, he was indicted and convitted of ten counts of

embezziement in violation of 18 U.S.C. Section 664. Trial was

before the court on siipulated facts. Conviction was affirmed by

the Court of Appeals, United States v. Moore, 5 Cir. (1970), _

427 F. 24 38. Petitioner's plea to this court rests on’

fundamentals: reasonable doubt; the function and effect of

stipulations in a criminal case; intent, substantial evidence; the

elements of the crime of embezzlement.

Petitioner was the executive vice president of the Retail

Furniture Association of Texas, inc. (herein RFAT). Under

Texas law, such a trade association can provide group insurance

for its members and their employees only through the vehicle of

a trust. Ast. 3.50, Texas Insurance Code, Vernon's Annotated

Civil Statutes. RFAT created the Retail Furniture Association

of Texas,inc. insurance Fund (herein RFAT Insurance Ac-

, Count), an express trust under Texas law. The RFAT Insurance

Account’s primary purpose was to provide group insurance for

RFAT members and their employees. RFAT retained complete

control of the RFAT Insurance Account through the absolute

power to remove and replace trustees.

The RFAT Insurance Account “loaded” an additional

charge to the participants in the insurance program above and

beyond the amount required by the insurance company as

premjums. This was a customary practice in the industry.

Amounts so “loaded” did not belong to any individual insured

or participant in this program. The RFAT Jasurance Account

transferred $1,000 per month to the RFAT general accoust

from such overload to pay administrative expenses. Overload

sums remaining thereafter were transferred from time to time

by the RFAT Insurance Account to the RFAT general account.

The total overload during the period in question .was.

$64,347.72, some of which was spent by RFAT for such items

as club and liquor bills and building improvements and

administrative expense, and the balance of which — $7,800 —

was alleged to have been embezzied by petitioner. 6

The record reflects, and indeed the indictment charges,

that petitioner took an aggregate of $7,800 for his own use and

Sor the use of his employer, RFAT. He spent the money on club

and liquor bills which were the result of RFAT legislative

activities. Yet this man stands convicted of stealing. Further

analysis of the facts renders the conviction of embezzlement

even more incredulous.

Through absolute control and through actual practice, the

RFAT Insurance Account was the creature of and tite alter ego

of RFAT. Although petitioner’s actions were not specifically

authorized by the trustees of the RFAT Insurance Account, the

fact remains that he was operating in a context of repeated and

continuous authorized overlapping and co-mingling of accounts

and funds.

The facts shown by the stipulations are substantially the

same regarding each count on which petitioner was convicted.

Without authority from the RFAT Insurance Account trustees,

petitioner caused the RFAT Insurance Account to make

periodic overpayments of group insurance premiums to the

insurance carriers. After receipt of the premiums and audit of

the amounts due, the insurance carriers independently ordered a

refund of the amount of such overzpayments. These refunds

were made by checks payable not t) the RFAT Insurance

Account, but to RFAT. Petitioner took such checks and applied

them to various club and hotel bills incurred by him on his

RFAT duties. This accounted for $4,917.82 of said $7,800,

with $2,882.18 overage in cash delivered to petitioner and not

being accounted for by the stipulations.

Finally, petitioner would show that the esis for federal

jurisdiction in the court of first instance was 18 U.S.C. Sections

664 and 3231. :

VL ARGUMENT: Reasons Relied on for Allowance of the Writ

This case is hornbook law. It is fi on one petition-

er’s simple belief that this court — which sits to determine legal

questions of national import — will insist that basic and

elemental legal precepts be observed by the federal courts, even

in a case which is, of course, significant to this one petitioner.

The broader significance is, however, that the first reported

construction of 18 U. S. C. Section 664 (herein Section 664) is

erroneous, and such error will be compounded if the decision of

the Court of Appeals is aliowed to stand as precedent. The

court should also clarify the proper role and scope of

stipulations in criminal cases. |

On the question of the elements of the crime of

embezzlement, the Court of Appeals has rendered a decision in

conflict with the ‘decisions of other Courts of Appeals on the

same matter, and as applied to Section 664, the rationale of the

Court of Appeals conflicts with prior decisions of this court.

Also, petitioner would ‘show that this important federal statute

and the law questions arising thereunder have not been, but

should be, settled by this court.

A. Function and Scope of Stipulations.

Although the use of stipulations or agreed facts is a fairly

common practice in civil actions, it can also occur in a criminal

case. cee en, nema ek United States, 197 US.

442, 25 S. Ct. 456, 49 L. Ed. 826 (1905).

An early case held that “a statement of*facts by the

parties . . . is strigtly analogous to a special verdict, and must

state the ultimate facts of the case, presenting questions of law

only, and not be a recital of evidence or of circumstances which

may tend to prove the ultimate facts, or from which they may

be inferred.” Raimond v. The Parish of Terrebonne, 132 U.S.

192, 10 S. Ct. 57, 33 L. Ed. 309 (1889). Where there is an

element of a cause of action, such as consent, it is not enough

that consent can be inferred from the stipulations; there must

be a specific finding of this ultimate fact. Wilson v. Merchants

Loan & Trust Co., 183 U.S. 121, 22S. Ct. 55, 46 L. Ed. 113

(1901). Hackfeld, supra, also embraced the ultimate fact

doctrine (and found that the ultimate facts were present in the

stipulations there considered).

Thus the stipulations should take on the character of a

special verdict or of findings pursuant to Rule 23(c), Federal

Rules of Criminal Procedure. Presumably such stipulations are_

admissible as documentary evidence or common law exception

to the oral testimony requirement of Rule 26, Federal Rules of

Criminal Procedure. In any event, as mentioned in Hackfeld,

supra, it must be assumed that each party makes the stipulation

in good faith.

Obviously, if the stipulations constitute all of the evidence,

then such stipulations must — at the trial court level — establish

beyond a reasonable doubt the guilt of the accused. The Court

of Appeals seems to confuse this standard with the standard

applied on appellate review of analyzing the evidence in the

light most favorable to the government. 427 F. 2d at 41, 42.

This court should reaffirm the Hackfeld doctrine and blend it

with the trial court standard of proof beyond a reasonable

of the Northern District of Texas, PLASCO G. MOORE,

PLASCO G. MOORE bv virtue of his position as Executive

Vice President of the Retail Furniture Association of

Texas, Inc., with the duty of supervising such plan.

“4 violation of Title 18, United States Code, Section

664.”

This brings to mind the usual definition of the elements of

embezzlement, which are stated in Hancey v. United States, 10

Cir. (1940), 108 F. 24 835, as being: (1) property of another in

rightful possession of the accused; (2) fraudulent intent to

deprive the owner thereof; (3) unlawful appropriation of such

property by the accused.

The Court of Appeals indicates that Section 664 and this

indictment do not necessarily call for proof of intent or specific

intent. 427 F. 2d at 42. In a case involving a statute quite

sisnilar to Section (64, this court traced the history of intent in

our criminal jurisprudence and reached a result contrary to the

pronouncements of the Court of Appeals. Morissette v. United

States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

There should be no doubt that Section 664 requires specific

intent as one of its elements, and this court should so decide.

Several Court of Appeals cases analyze the elements of

embezzlement in fact situations somewhat similar to that

presented here. In v. United States, 221 F. 2d 590, aff'd,

351 US. 131, 76 8. Ct, 685, 100 L. Ed. 1013 (1956), the

accused attempted to plead embezzlement as a then valid

defense to income tax evasion. He had paid padded bills from

his employer's funds and would personally receive an over-

payment refund. The court held that the accused may have

been guilty of obtaining the money of a welfare organization by

a fraudulent scheme or device but not by embezziement. 221 Pr.

2d at 594.

United States v. Jannsen, 7 Cir. (1969), 339 F. 2d 916,

. also involved an “ defense” to income tax

evasion. Jannsen a kickback from his em

contractor which was held be embezzlement because

funds came into his possession through the

arrangement. 339 F. 2d at 918, 919> a)

Cc. Failure of Evidence to Convict Petitioner.

facts beyond a reasonable doubt, the evidence in the instant

case falls short in that there is no specific finding of intent.

_ & further failure of the stipulations is that they do not

establish that petitioner wrongfully took money which was the

property of the RFAT Insurance Account. Title to such money

lawfully passed to the insurance carriers. There was no evidence

of collusion or connivance on the part of the insurance carriers.

- ‘Paeir refund checks passed moneys or funds to RFAT, not to

the RFAT Insurance Account. Thus, if there was 3 misappli-

cation of funds, it occurred with to RFAT’s funds, and

petitioner was not charged or of embezzling RFAT's

ila ii alti ila ,

that this petition for a writ of certiorari should be granted.

; A, ‘

* E. EUGENE PALMER

1100 International Life Building

0" Austin, Texas 78701

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. Becore THORNBERRY, CLARK and INGRAHAM, Cir

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CLARK, Circuit Judge. |

{1} On stipulated facts in a trie! before the-court without

a jury, Plasco G. Moore was convicted on each of 10 counts

charging wilful embezzlement and conversion of funds of an

employee pension benefit pian to his own use and to the use of |

the Retail Furnituse Association of Texas, inc. (RFAT). His

contentions that the stipulation failed to prove the elements of |

the crime, particularly a wilful or knowing criminal act, and—

that the district court erred in considering the defendant's

conscioumess of guilt in connection with his sentencing, are-agt

sear temeretwoteenacunt $

Defendant wes the Executive Secistary of RPAT,s:Tenss

corporation, which had established an employee-welfare benefit

1. Pusmant to Rule 18 of the Rules of we heve conciuded on the

merits Ghat (is case is of euch chesacter 28 not to oral argument sad Neve

directed the clerk to place the case on the Summary Calender and to notify the

pasties in writing. See Musghy v. Houms Well Service, 409 F.26 806 (Sth Cx.

1969), Past 1; and Huth v. Southern Pacific Company, 417 8.26 $35 Gh Ce.

1969), Past 1.

A-2

plan which was subject to the provisions of the Welfare and

Pension Plans Disclosure Act.? The benefit plan was in the form

of an insurance trust which was charged with the duty of

providing group, life, accident and hospital insurance for the

owners, partners and employees of member firms of RFAT. On

the ten separate occasions which formed the basis for the

separate counts against him, defendant, without authorization

of the trustees of the insurance trust fund, instructed an

employee under his control who had charge of paying monthly

premiums from the insurance fund account, to pay more than

was then due to the insurance company carrying the coverage

for the trust. As a consequence of this deliberate overpayment

the insurance company carrying the coverage issued its check

refunding the excess amount. These checks were payable

directly to RFAT rather than the insurance trust. The drafts

covering these repayments showed on their face either “Refund

of: unearned premium” or “Refund of premium overpaid.”

Defendant negotiated each of these checks and applied these

refunded excess funds to reduce account balances carried in his

personal name at the 21 Turtle Club, Kings Club, Adolphus

Hotel and Sigel Liquor Store in Dallas, Texas, and the

Continental Houston Hotel in Houston, Texas. In addition to

credits on these accounts, a total»cash sum in excess of

$3,282.18 ‘was obtained by defegdant through this same

procedure. No part of the refunds was returned to the insurance

fund.

Even larger amounts than were. represented by these

repayments of deliberate overpayments were paid over to

RFAT by the trustees of the insurance fund for the purpose of

defraying the expenses of operating and servicing the insurance

a function which ‘was handled by RFAT for the

_ insurance trust. Only part of these payments was needed: to

2. 29 U.S.C. Section/301 et. seq. (1965)

| Ad

meet the expense of operating and servicing the insurance

service. The other part of these funds was used By RFAT to pay

similar club and whiskey store accounts and to provide

defendant with cash funds.

In connection with his sentencing, defendant advised the

court that all “refund” funds he was charged to have embezzled

or converted were used in carrying on the legislative lobbying

activities of RFAT. He. further stated that all payments of

insurance fund monies made to RFAT, whether received from

the insurance companies in the form of refunds or received

directly from the trustees for the purpose of defraying

expenses, were payments which were not needed to meet

insurance premium costs and were funds which after payment

of actual operating and servicing expenses, would have even-

tually become the property of RFAT anyway and would have

been used to defray these same lobbying expenses.

All counts of the entitlement against defendant charged

violations of 18 U.S.C.A. Section 664 (1966), which provides in

pertinent part:

“Any person who embezzies, steals, or unlawfully and

wilfully abstracts or converts to his own use or to the use

of another, any of the monies, funds, securities, premiums,

credits, property, or other assets of any employee welfare

‘benefit plan or employee pension benefit plan, or of any

fund’ connected therewith, shall be fined not more than

$10,000, or imprisoned not more than five years, or

both.”

The defendant’s conviction on all ten counts resulted in

concurrent sentences of 13 months on each count.

At the sentencing proceedings, held one week after the

‘ court’s determination of guilt, defendant made a lengthy

A-4

statement concerning his past life which he described as

industrious, productive and free of any significant criminal

activity. At this point the following exchange occurred between

the defendant and the district judge:

“THE DEFENDANT MOORE:

*** In relation to the case here today, I did not do a

_ single dishonest act. The use of the funds for the

Association, as they were used, I did not think was illegal.

Certainly none of it accrued to me personally. (30). It was

the responsibility of somebody to transfer funds, Your

Honor, from that in the temporary custody of a Trustees’

insurance bank account to the Association.

THE COURT:

You must have known that the funds were not to be

used for the purpose for which you spent them? Most of

the funds were used to pe: club bills?

THE DEFENDANT MOORE:

Yes.

THE COURT:

Those bills had been incurred by reason of your

lobbying, and certainly you did not do anything for the

fund in connection with the money that was expended.

THE DEFENDANT MOORE:

Yes, Your Honor. Some $64,000 during this period

was transferred, and much of that was used to pay off

things as club bills.

THE COURT:

I would like it much better if you would take some

blame in this matter instead of saying that you did nothing

wrong. f b ;

THE DEFENDANT MOORE:

Well, sinaivt atau ainshabiinn demiaitihiia

think I did anything illegal, Your Honor.

THE COURT:

Did you think yon did something wrong?

(31) THE DEFENDANT MOORE:

I think it’s wrong wk you do not follow correct

bookkeeping procedures. ‘

THE COURT:

And when you spend money heer

it wasn’t intended?

THE DEFENDANT MOORE:

Well, the money which would eventually have been

transferred to the Association, I mean, could have been for

_any purpose, once it got into the general account.”

A-6

After additional remarks from the defendant and his counsel,

the court stated:

é “Mr. Moore, will you stand up, please.

_ You have had many admirable things in connection

(34) with your life and beginning with the time when you

were a child. You made a lot of yourself against many

difficulties — in the face of many difficulties, so 1 admire

you for those.

The thing, though, that concerns me is that you see

nothing wrong with what you have done. Disregarding the

fact that it was a violation of a Federal law, you pass that

by. I still think that you should realize that to spend

money for the purpose for which you spent it, quite

contrary to the purposes of the fund, that you were doing

something wrong, whether you considered it illegal or not,

and the fact that you do not think you did anything wrong

really concerns me more than anythingelse. _—--

Now, an offense such as this in my opinion, the

purpose of sentencing is not only to rehabilitate, and to

punish. I think you’ve been punished. I.doubt that you

need rehabilitation, though I think you should have some

time to consider whether what you did was morally wrong,

but the purpose of sentencing in a case like this is to deter

others who have in their hands money that belongs to

somebody else and use it for their own purposes. So, I do

_ feel that you should have an institutional sentence.”

[2,3] This is a court of review. Its function is not to try

the defendant de novo. Campbell v. United States, 291 F.2d

401 (Sth Cir. 1961). We apply here the same test to determine

ee ee

A-7

were reviewing the relevant and admissible evidence upon the

action of the trial court in refusing to direct a judgment of

acquittal. Cf. De Luna Vv. United States, 228 F.2d 114 (Sth Cir.

1956). That test expressed in the terms of this case, is. whether

the judge could accept the stipulated facts, considered in the

light most favorable to the government, as adequate and.

sufficient to support the conclusion that the defendant was

guilty beyond a reasonable doubt. Henderson v. United States,

425 F.2d 134 (Sth Cir. 1970); United States v. Bearden, 423

F.2d 805 (Sth Cir. 1970); United States v. Preston, 420 F.2d 60

(Sth Cir. 1970).

[4] In applying this test to the case at bar we are bound

to say that the facts which were stipulated were amply

sufficient to enable the court as a, trier of fact to find the

defendant guilty of every essential element of the crime defined

by statute. The insurance fund was a separate entity from

RFAT and was expressly stipulated to be a plan covered by the

Welfare and Pension Plans Disclosure Act. The stipulation

established that funds belonging to the plan were knowingly

and intentionally, not inadvertently or mistakenly, diverted

through a transparent ruse from the account of the plan to the

account of the defendant. __

There is no need for this court to wrestle with the difficult

question of whether this statute, as a part of an over-all scheme

of remedial legislation, requires proof of an evil or criminal

intent or whether it merely requires a showing of facts which

violate the provisions of the statute.> The law assumes every

man to intend the natural consequences of his rational acts.

Moorman v. United States, 389 F.2d 27 (Sth Cir. 1968). It was

‘ f

_ 3. See Morissette v. States, 342 US. 246, 72 S.Ct. 240, 96 L.Ed. 288

(1952), interpreting a very statute, 18 U.S.C.A. Section 641; McBride v.

United States, 225 F.2d 249 (Sth Cir. 1955S); and Roe v, United States, 287 F.2d 435

(Sth Cir. 1961).

A-8

for the trier of fact to conclude‘whether the mental element of

a wrongful purpose was disclosed by the stipulated facts.

Whether we apply the strict or more relaxed legal standard to

the requirements of the statute below is immaterial to the

outcome of this appeal. If the statute required no criminal

intent the facts set out in the stipulation in and of themselves

proved defendant guilty. If mens rea was legally required the

evidence was more than sufficient to warrant the court in

concluding that such an intent was present, and thus under the

legal test we are to apply in this court, the trial court's

determination of guilt may not be disturbed.

{5—7] The defendant’s objection to the colloquy between

himself and the court at the time of sentencing raises the issue

of this court’s function in reviewing or supervising district court

sentencing procedures: Normally, sentences to be assessed, so

- long as they are. within the statutory limits, are committed to

the sound discretion of the trial judge and will not be disturbed

on appeal in the absence of a clear abuse of that discretion. See,

e. g., Castle v. United States, 399 F.2d 642 (Sth Cir. 1968).

Here the ten counts on which defendant was convicted

could have resulted in consecutive sentences totaling 50 years

plus fines totaling 100,000 dollars. Against this possible penalty

the court’s imposition of 13-month concurrent sentences are, to

say the least, mild. Certainly the length of the sentence does not

demonstrate any pique or personal animosity on the part of the

trial judge. Rather, the sentencing proceedings read as a whole

indicate that the court was motivated only by a proper concern

for the due administration of justice. Since the sentence

imposed was a mere fraction of that authorized, we view this

case differently from the case before this court in Thomas v.

United States, 368 F.2d 941 (Sth Cir. 1966); which called into

play this court’s supervisory power over sentencing procedures.

See also Scott v. United States, 419 F.2d 264 (D.C.Cir. 1969);

AS 3

contra, Williams v. United States, 273 F.24469 (10th Cir. 1959).

Regardless of the trial court’s motivation, such exchanges

between the court and a defendant are fraught with the latent

dangers which were pointed out in Thomas. For all of the

reasons pointed out in that opinion, such remarks or requests to

a defendant during sentencing should be avoided. However, if

the trial court did in fact penalize defendant in any way for his

refusal to confess guilt at sentencing, we know that court will

act to correct the.sentence imposed under the provisions of

Rule 35, Fed.R. Crim.P. We deem it neither necessary nor

appropriate to exercise this court’s supervisory power in this

Affirmed.

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in The ,

United States Court of Appeals

FOR THE FIFTH CIRCUIT

NO. 28765

DC Docket CR-3-1562

UNITED STATES OF AMERICA,

Plaintiff-A ppellee, =

vs.

PLASCO G. MOORE,

2 ae Defendant-Appellant.

Appeal from the United States District Court for the

Northern District a Texas

| Before THORNBERRY, CLARK and: INGRAHAM,

Circuit Judges. .

| ~~" JUDGMENT

6, caine , aes

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

from the United States District Court for the Northern District

of Texas, and was taken under submission by the court upon

/ the record and briefs on file, pursuant to Rule 18;

* ON CONSIDERATION WHEREOF, it is now here ordered and

adjudged by this court that the judgment of the said district

court in this cause be, and the same peeinaasaniid

May 2 28, 1970

Issued as Mandate:

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

PLASCO G. MOORE,

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING

Before THORNBERRY, CLARK and INGRAHAM, .

+e _ Circuit Judges :

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be, and the same is hereby,

(Original filed - August 6, 1970)

Defendant-Appelilant.

a ee ee ———

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