Motion — Halperin v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NO. ~3- 8 73

JACK HALPERIN,

Petitioner

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION FOR STAY

CHARLES W. TESSMER

706 Main Street, Suite 400

Dallas, Texas 75202

ATTORNEY FOR PETITION HALPERIN

INDEX

Jurisdiction of the Court —

Statement of the Case

2

2

Reasons for Granting the Application - 3

Certificate of Service 5

6

Appendix A -

Appendix B 23

Appendix C 24

Appendix D - -- 25

CITATIONS

Massiah v. United States,

377 U.S. 201 (1964) 4

United States v. Halperin,

441 F.2d 612 (5 Cir. 1971) -- 3

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1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO.

JACK HALPERIN,

Petitioner

.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION FOR STAY

TO THE HONORABLE LEWIS F. POWELL, JR.,

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE

UNITED STATES AND CIRCUIT JUSTICE FOR THE

FIFTH CIRCUIT:

Petitioner, JACK HALPERIN, having this

day filed a petition for writ of certiorari,

a copy of which is appended hereto (Exhibit

A), moves the Court for an order staying en-

forcement of the judgment herein pending

final disposition of this case by the Court.

Beau ba at ANS ibe CH, VN ns hen

— = 5 — . - 2 Sen NAR eet EN TIE Te to

2

In support of this application, peti-

tioner respectfully shows the Court as fol-

lows:

JURISDICTION OF THE COURT

The jurisdiction of this Court to re-

view the case on petition for a writ of cer-

tiorari rests upon 28 U.S.C. Section 2254(1),

as more fully shown by the copy of the peti-

tion for writ of certiorari attached hereto

(Exhibit A). Jurisdiction to issue the stay

requested by this application is conferred

by 28 U.S.C. Section 2101(f). Application

for stay was first made to the United States

Court of Appeals for the Fifth Circuit, but

was denied on October 26, 1973. (See Exhibit

B attached hereto). Thus, petitioner has

complied with Rule 27, Supreme Court Rules.

STATEMENT OF THE CASE

Petitioner was convicted for violating

Title 18, Section 2113(c), U.S.C., i.e. re-

ceiving and concealing of money stolen from

a national bank. During the trial of the

case, the government introduced portions of

a tape recording of a conversation between a

government witness and the petitioner. The

taped conversation occurred between the second

and third trials of the case and indicated in-

ferences that the petitioner was involved in

the bank burglary and had obstructed justice.

The conversation was recorded by the govern-

ment witness after government agents had at-

tached a recording device internally to her

telephone and she had led the defendant to

believe she was a witness for the defense.

Petitioner's pre-trial motion to suppress

alleged that the taped conversation violated

his Fifth Amendment and Sixth Amendments rights.

3

The trial court denied the motion and the

Circuit Court affirmed the conviction in a

per curiam Opinion pursuant to Fifth Circuit

Local Rule 21. (See Exhibit C attached here-

to). Petition for Rehearing was denied on

the 27th day of November , Ads,

and a motion to stay mandate pending the fil-

ing of a writ of certiorari was denied on

October 26, 1973, (Exhibit B).

REASONS FOR GRANTING THE APPLICATION

1. The conviction, which is the subject

matter of the petition for writ of certiorari,

was the result of the third trial of the case.

Petitioner's first conviction was reversed by

the Court of Appeals (United States v. Hal-

perin, 441 F.2d 612 (5 Cir. 1971). His second

trial resulted in an undecided jury. Peti-

tioner has currently posted a $15,000.00

surety bond and has prepaid the fine of

$5,000.00 assessed by the trial court (See

Exhibit D). The petitioner has always ap-

peared before the trial court when ordered.

2. The petitioner is a self-employed

man who operates several small businesses

(a motel and two night clubs). Petitioner, in

addition to the fine, was sentenced to serve

five years in prison. Thus, if this applica-

tion is not granted, he will be irreparably

injured when the mandate is issued and he is

confined in prison during the pendency of the

petition for writ of certiorari.

Je The public interest will not be ad-

versely affected since the petitioner has

prepaid his fine, has posted an adequate bond,

and is under the trial court's order not to

contact any government witnesses in this case.

4. The Court of Appeals erred in holding

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= ‘ ERT ATE SAE “ -

CF 62RD Fn CO

ot

that the taped conversations between a

government agent and the petitioner after

indictment was proper, Massiah v. United

States, 377 U.S. 201 (1964), as is more

fully explained in the petition for writ of

certiorari attached hereto.

Wherefore, petitioner respectfully re-

quests that an order be entered staying the

issuance of the mandate of the Court of Ap-

peals until the final determination of the

matter by this Court.

Respectfully submitted,

CHARLES W. TESSMER

706 Main Street, Suite 400

Dallas, Texas 75202

ATTORNEY FOR PETITIONER HALPERIN

rei. amameear COREL TN A

CERTIFICATE OF SERVICE

I hereby certify that two copies of the

above Motion for Stay have been served upon

the Honorable Charles D. Cabaniss, Assistant

United States Attorney, United States Court-

house, Sixteenth Floor, 1100 Commerce Street,

Dallas, Texas, and that two copies have been

served upon the Solicitor General, Depart-

ment of Justice, Washington, D.C. 20530.

by mailing same with the United States Postal

Service, postage prepaid this day of

» a973-

CHARLES W. TESSMER

706 Main Street, Suite 400

Dallas, Texas 7520

ATTORNEY FOR PETITIONER HALPERIN

eet IO AE SE aa ag RTI nS BNR aT Oe I ee

6

APPENDIX A

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NO.

JACK HALPERIN,

Petitioner

Ve

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES W. TESSMER

706 Main Street, Suite 400

Dallas, Texas 75202

COUNSEL FOR PETITIONER, HALPERIN

RONALD O. GORANSON

706 Main Street, Suite 400

Dallas, Texas 75202

(OF COUNSEL)

CO ck teal » we —

Citations ----------------~-..---.-~~

Opinion Below -------------------.--

Jurisdiction --------------------.--

Question Presented ---------------.-

Constitutional Provisions Involved -

Statutory Provisions Involved ------

Statement of the Case ----------.-.-

Reasons for Granting the Writ ------

Conclusion ------------.---.-.---~.--

Certificate of Service --------.--.-

Appendix A --------------------~--~-

Appendix B ----------------.--~-.---

i

CITATIONS

Beatty v. United States, 389 U.S.

45 (1967) ---------------------------

McLeod v. Ohio, 381 U.S. 356 (1965) -

Massiah v. United States, 377 U.S.

201 (1964) --------------------------

Milton v. Wainwright, 407 U.S. 371

(1972) -----------------------------

Mize v. Crouse, 399 F.2d 593

(10 Cir. 1968) ---<<<<<<<<<<<--------

United States v. Brown, 466 F.2d 493

(10 Cir. 1972) -qneaanaenennnnn------

United States v. Halperin, 441 F.2d

612 (5 Cir. 1971) -------------------

United States v. Hayles, 471 F.2d

788 (5 Cir. 1973) 222222 ee ee =~

United States v. Osser F.2d

13 Cr. L. 2476 (3 Cir. 1973) ---- oman?

United States ex rel. Baldwin v.

Yeager, 428 F.2d 182 (3 Cir. 1970) --

United States ex rel, Milani v.

Pate, 425 F.2d 6 (7 Cir. 1970) -----=-

United States ex rel. O'Conner v.

New Jersey, 405 F.2d 632 (3 Cir.1969)

6,10

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SER ee BAR A ROR DN he ke SO ICTR a SR RS ES

9

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO,

JACK HALPERIN,

Petitioner

V.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 4

The petitioner, JACK HALPERIN, respect-

fully prays that a writ of certiorari issue

to review the judgment of the United States

Court of Appeals for the Fifth Circuit in

this case.

OPINION BELOW

The Opinion of the Court of Appeals

(attached hereto as Appendix A) is not yet

reported.

JURISDICTION

The judgment of the Court of Appeals

a ee A SE - eee

10

2

was entered October 10, 1973,

A petition for rehearing was denied on 27th

of November ,1973 (Appendix B). The jurisdic-

tion of this Court is invoked under 28 U.S.C.,

Section 1254(1).

QUESTION PRESENTED

Whether the introduction into evidence

of the contents of a telephone conversation

between the petitioner and a government agent

which occurred after indictment violated the

self-incrimination provision of the Fifth

Amendment and the right of counsel provision

of the Sixth Amendment.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Fifth Amend-

ment:

“NO person...shall be compelled in

any criminal case to be a witness

against himself.";

United States Constitution, Sixth Amend-

ment:

“In all criminal prosecutions, the

accused shall enjoy the right...

to have the Assistance of Counsel

for his defense.".

STATUTORY PROVISIONS INVOLVED

Title 18, Section 2113(c), United

States Code:

"Whoever receives, possesses,

conceals, stores, barters,

sells, or disposes of, any

property or money or other

thing of value knowing the

a2

3

same to have been taken from a

bank, credit union, or a savings

and loan association, in viola-

tion of subsection (B) of this

section, shall be subject to the

punishment provided by said sub-

section (B) for the taker.".

STATEMENT OF THE CASE

Prior to the first trial in this cause,

Bea Weatherford (Beaty) had given a state-

ment to the Government which was exculpatory

with reference to the petitioner's involve-

ment in a bank burglary. Mr. Halperin was

convicted for receiving funds from the bank

burglary in his first trial, but the convic-

tion was reversed on an evidentiary point.

United States v. Halperin, 441 F.2d 612 (5

Cir. 1971). Mr. Halperin was re-indicted

and a second trial began on September 11,

1972. That trial resulted in a mistrial

because the jury was unable to reach a un-

animous verdict. Ms. Weatherford (Beaty)

did not testify in either trial. Evidence

for the Government consisted of testimony by

two of the bank burglars and by two women

(One, the companion of the petitioner and

the other, a companion of one of the bank

burglars). Evidence for the petitioner con-

sisted of testimony by the third bank burglar

and the petitioner.

After the second trial, a Special Agent

of the Federal Bureau of Investigation con-

tacted Ms. Weatherford (Beaty). After secur-

ing a statement incriminating Mr. Halperin,

the agent learned that Mr. Halperin had been

in contact with Ms. Weatherford. A record-

ing device described as an ordinary cassette

recorder was internally attached to her

telephone, but she was not encouraged or

12

+

discouraged to make contact with the peti-

tioner. Ms, Weatherford testified that she

did not advise Mr. Halperin that she had given

a different statement to the Government, but

had led him to believe that she was still a

defense witness.

During Mr. Halperin's cross-examination,

the Government read several portions of a ‘

telephone conversation recorded by Ms. Weather-

ford, and a portion of the tape was played in

the presence of the jury. The subject matter

of the taped conversations included inferences

that the petitioner was involved in the bank

burglary, that he was paying people to keep

him out of the case, that he was providing

attorneys to keep witnesses in line, and that

he was intimidating witnesses.

Although no objection was made to the

taped conversations at the trial, a pre-trial

motion to suppress the evidence was denied.

The motion alleged that the taped conversa-

tions:

"“(A) violates his rights pursuant

to the Fifth Amendment...in that

the Government actively sought to

use the defendant's own statements

without notifying him;

(B) violates his rights pursuant

to the Fifth and Sixth Amendments

-eein that the tapping of the de-

fendant's attempts to locate a

witness who had given a favorable

statement to his defense...has a

chilling effect on the defendant's

right to a fair trial...;

(C) violates his rights pursuant

to the Fifth Amendment...and the

—— - . ne A Ene me me

13

5

concept of fundamental fair-

ness in that the Government

actively sought to have the wit-

ness Beaty contact the defend-

ant and try to elicit incrimi-

nating statements and inferences

from him similar to the form of

entrapment in Sorrells v. United

States, 287 U.S. 435 ... in that

it appears that the Government

was trying to maAufactui_ the

criminal offense of perjury,

subornation of perjury, or to

manufacture a method by which

the defendant would incriminate

himself through a Government

agents.".

REASONS FOR GRANTING THE WRIT

In Massiah v. United States, 377 U.S.

201 (1964), this Court held that inculpatory

statements deceptively elicited from an in-

dicted defendant in the absence of counsel

by a co-defendant-Government agent were in-

admissible. The decision in Massiah was

based upon the Fifth Amendment's self-incrimi-

nation provision and the Sixth Amendment's

right to counsel provision.+~ Mr. Justice

Stewart's opinion for the Court stated:

1 Massiah had alleged that his "Fifth and

Sixth Amendment rights were violated by the

use in evidence against him of incriminatina

statements which government agents had de ‘i-

berately elicited from him after he had been

indicted and in the absence of retained coun-

sél.". 377 U.S. at 204.

14

6

""Any secret interrogation of the

defendant, from and after the find-

ing of the indictment, without the

protection afforded by the presence

of counsel, contravenes the basic

dictates of fairness in the conduct

of criminal causes and the fundamen-

tal rights of persons charged with

crimes'..." 377 U.S. at 204.

In effect of McLeod v. Ohio, 381 U.S.

356 (1965), was that Massiah commands an

absolute right to counsel after indictment,

thereby vitiating all statements, whether

voluntary or not, made without counsel or

valid waiver of counsel. See United States

ex rel. O'Conner v. New Jerse 405 F. 20

632 (3 Cir. 1000).

Massiah has been held not to apply in

situations Of misplaced confidence, i.e.,

where the incriminating statements were made

to a person who was not an agent for the

Government, United States, ex rel. Baldwin

v. Yeager, 428 F.2d 162 3 Cir. 1970),

United States, ex rel. Milani v. Pate, 425

F.2d 6 (7 Cir. 1970); where the statements

were made as part of defense strategy, Mize

v. Crouse 399 F.2d 593 (10 Cir. 1968);

where the statements were used as evidence in

a case filed after the conversation, United

States v. Osser F.2d 13 Cr: L. 2476

(3 Cir. 1973); Or where the record clearly

reveals the error was harmless, Milton v.

Wainwright, 407 U.S. 371 (1972), United States

None Of the above situations apply to

Mr. Halperin's case. Where the Government

initiates the interview with the witness and

attaches a recording device internally to

her telephone, and then that witness leads

the petitioner to believe that she has not

i

ssa tna aati te a |

15 .

7

changed her previous statement given to the

Government and could be a defense witness, it

cannot be stated that the witness is just an

interested citizen.

A similar fact situation is found in

United States v. Brown, 466 F.2d 493 (10 Cir.

1972), where, after the defendant had refused

to talk with the police, the police persuaded

a "friend" of the defendant to secure a con-

fession. The Court of Appeals held that the

situation was not a case of misplaced confi-

dence since the friend was functioning as an

instrument of the police.

Further, there is absolutely no evidence

that the statements were made as part of de-

fense strategy. The statements were used in

the case pending against the petitioner when

the statements were made and were obviously

harmful.

The complained of evidence, when considered

in context with the Government's case, infers

that the petitioner was involved in the bank

burglary, that he was suborning perjury and

that he was obstructing justice by intimidat-

ing witnesses. Further, the Government's

final argument to the jury made effective use

of the evidence:

",..We might classify this--obstruction

of justice. You've seen it and I am here

to tell you--I'm here to tell you that

that's more serious than most any other

crime, most any other thing that can

happen, and there's been an abundance

of it in this case. That's the effort

of this Defendant to threaten witnesses,

lRrAnteiwnnaA An wt 4

a

q

16

8

The isSje of guilt in this case has been

strongly contested in three trials. One of

the trigis resulted in a "hung jury". Al-

though the Government enjoyed a slight edge

2 (Cont.)

to induce them to lie in his behalf,

and to make them unavailable to ap-

pear before you. There's only one

reaSon to obstruct justice and that's

to Prevent yourself from being found

guilty, 1 don't think it's any clear-

er, and we heard a lot about this from

a number of witnesses--I don't think

it's any clearer than in the tape that

yOu heard reference made to--the tape

recGrding of the conversation between

the pefendant and Bea Weatherford last

Fall where she mentions getting her jaw

broken, that too many things are hap-

pening to her and she got out of town

and went to San Antonio, and the De-

fengant says, “Yes, you remember when

yOu came to me for your problems, your

brake linings". She associated her

brake lining problems with her broken

jaw. and he said, “you remember you came

to te and it stopped?" She told us about

it. the words she used, she said, "Hal-

PeFin told me to stick with him and bad

things would quit happening to me".

She's done a lot of bad things that she

tolqg you about, which I'll say it took

a lot of courage to tell you--a lot of

cOUrage.". (Argument pp. 12-13).

irr Sel

17

9

in the quantity of witnesses, the issue of

guilt was not such a closed issue that the

error complained of could be held harmless.

An affirmative defense was presented which,

absent the complained of evidence, may have

resulted in a finding of innocerc2. The

record does not clearly reveal harmless er-

ror.

Although the exact words used in Massiah

were not used in the motion to suppress evi-

dence, the motion sufficiently preserved the

error. Further, this Court has apparently

considered this issue as plain error. See

Beatty v. United States, 389 U.S. 45 (1967),

where a conviction was reversed even though

the defendant did not raise the objection

until the appeal brief was filed.

The Court of Appeals has rendered a deci-

sion which is in conflict with the decisions

of this Court (Massiah v. United States, supra;

McLeod v. Ohio, supra; Beatty v. United States,

Supra. Further the Court of Appeals' decision

> The failure to object to the actual intro-

duction of the taped conversation at the trial

does not waive the error preserved hy the mo-

tion to suppress evidence. See Gurleski v.

United States, 4°5 F.2d 253, 261 (5 Cir, 1968) ;

Washington v. Unated States, 401 F.2d 915, 918

(D.C. Cir. 1968).

4 See Beatty v. United States, 377 F.2d 181,

193, (5 Cir. 1967), dissenting Opinion of

Judge Ainsworth.

Berens Myf

18

10

is in conflict with the decisions of other

courts of appeals on the same issue (United

States v. Brown, supra; United States ex rel,

O'Conner v. State of New Jersey, supra).

CONCLUSION

For the reasons set forth above, petitioner

respectfully submits that a writ of certiorari

should issue to review the judgment and opinion

of the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

CHARLES W. TESSMER

706 Main Street, Suite 400

Dallas, Texas 75202

COUNSEL FOR PETITIONER

RONALD L. GORANSON

706 Main Street, Suite 400

Dallas, Texas 75202

(Of Counsel)

PT hn

19

1l

CERTIFICATE OF SERVICE

I hereby certify that three copies of

this Petition for Writ of Certiorari were

mailed, postage prepaid, to the Solicitor

General, Department of Justice, Washington,

D.C. 20530, on the same date as shown in the

letter of transmittal accompanying this

Petition.

CHARLES W. TESSMER

706 Main Street, Suite 400

Dallas, Texas 75202

COUNSEL FOR PETITIONER

20

United States Court of Appeals

No. 73-1996

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK HALPERIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

(October 10, 1973)

Before GEWIN, COLEMAN and MORGAN,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.'

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al., 5 Cir., 1970, 431 F.2d 409,

Part I.

1See NLRB v. Amalgamated Clothing Workers of America, 5 Cir.,

1970, 430 F.2d 966.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.

A RN ERE EU EERE

21

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-1996

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK HALPERIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Oct. 10, 1973, 5 Cir., 1973, ___. F.2d —__).

(November 27, 1973)

Before GEWIN, COLEMAN and MORGAN,

Circuit Judges.

PER CURIAM: The Petition for Rehearing is DE-

NIED and no member of this panel nor Judge in reg-

ular active service on the Court having requested that

J i Oo Ls alia a ali

Be ererenrcrent ess st aes a

22

2 U. S. A. v. JACK HALPERIN

the Court be polled on rehearing en banc, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 12) the Petition for Rehearing En Banc is

DENIED.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc. N. O., La.

en weer ven 3 a LP ELLER FIFE NSE 0 nak Coe

23 tl SF

; A obp

IN TIE UNITED STATES COURT OF APPEALS Filep “FAs

FOR THE FIFTH CIRCUIT — gp, Gr & +7;

No, 73-1996 -

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK HALPERIN,

Defendant-Appellant.

Appeal fren the United States Pistrict Court tor the

Northern District of Texas

QRDER:

IT IS ORDERED that the motion of appellant filed in the

above styled and numbered cause for a stay of the issuance of

the mandate pending his petition for writ of certiorari in this

cause be, and the same is hereby DENIED, See Fifth Circuit

Local Rule 15, as amended January 11, 1972.

a fo. Chr are

mii STATES CIRCUIT JUDGE

EE Et I AOE NE ae om a ee 2

at

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-1996

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK HALPERIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

(October 10, 1973)

Before GEWIN, COLEMAN and MORGAN,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.'

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al, 5 Cir., 1970, 431 F.2d 409,

Part L

‘See NLZB v. SNE Res Wane E Sane, © Ge,

1970, 430 F.2d 966.

Adm. Oftica, US. Courte—Scofields’ Quality Printers, Inc, N. O., La.

EXHIBIT C

25

EXHIBIT D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA ) NO. CR=-3-2556

)

)

) Filed Apr 30, 1973

JACK HALPERIN )

vs.

On April 20, 1973, the defendant in the

above styled and numbered cause was sentenced

to a term of five years in a federal prison

and a fine of five thousand dollars ($5,000.00).

It was the further order of this Court that

before the defendant would be released upon

bond pending the appeal of the judgment of con-

viction, the defendant would have to pay into

the Registry of the Court the sum of five

thousand dollars ($5,000.00) to guarantee pay-

ment of the fine assessed pending the result

of the appeal, said sum to be used to pay the

fine if the Circuit Court of Appeals affirms

the conviction, and said sum to be returned

to the defendant if the Circuit Court of Ap-

peals reverses the conviction.

Therefore, it is Ordered and Adjudged

that the defendant, Jack Halperin, will be

allowed to remain free from custody upon the

$15,000 surety bond previously filed with

the United States Magistrate for the Northern

District of Texas, provided that the sum of

five thousand dollars ($5,000.00) be paid in-

to the Registry of the Court on or before

April 30, 1973, said sum to be used to pay

the fine previously assessed by this Court

if the conviction is affirmed by the Circuit

Court of Appeals, and said sum to be

ee TS

26

refunded to the defendant if the conviction

is reversed by the Circuit Court of Appeals.

Entered this 30 day of April, 1973.

s/Sarah T. Hughes

United States District Judge