Opposition Brief — Myers v. United States

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Jn the Supreme Court of the United States

OCTOBER TERM. 1992

CARL HAROLD MYERS, PETITIONER

ON PETITION FOR A WRIT OF CERTIOR AR)

10 /

THE UNITED STATES COURT OF APPE

FOR THE ELEVENTH CIRCUIT

1S

BRIEF FOR THE UNITED STATES IN OPPOSITION

Le partment of J

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QUESTIONS PRESENTED

1. Whether the district court committed plain error

by instructing the jury that petitioner’s use of a stun

gun on persons held in custody at a police station should

be evaluated under the reasonableness standard of the

Fourth Amendment.

2. Whether 18 U.S.C. 242 is void for vagueness be-

cause it does not define the term “bodily injury.”

3. Whether the district court, which explained that

“[bJodily injury * * * includes physical pain as well as

any burn or abrasion,” Pet. App. 17a, properly instructed

the jury as to the meaning of that term.

4. Whether the district court abused its discretion by

allowing petitioner’s stun gun to be activated before the

jury and by refusing to permit a 35-minute tape record-

ing to be played in its entirety during the trial.

ta

TABLE OF CONTENTS

Cle EE CIE

I sera ga as bonis ocisccaagsuxis

TABLE OF AUTHORITIES

Cases:

Austin v. Hamilton, 945 F.2d 1155 (10th Cir. 1991) ......

Bennett vy. Parker, 898 F.2d 1530 (11th Cir. Ln

Boyce Motor Lines, Inc. vy. United States, 342 U.S. 337

I ea ba teeth gc obac eas fee vaexsciuissadavwanaesnceness.......

California v. Brown, 479 U.S. 538 (1987)

California v. Ramos, 463 U.S. 992 (1983)

Colautti v. Franklin, 439 U.S. 379 (1979) ..............

Culver v. Town of Torrington, 930 F.2d 1456 (10th

gt SONAR EIS Aa Ea rrr

Dunaway v. New York, 442 U.S. 200 (1979) .................

Ford v. Wainwright, 477 U.S. 399 (1986)

Foster vy. Metropolitan Airports Comm'n, 914 F.2d

WE MEPEOE GBS ROOD cccsvcvecevcecevecunvececacecoccee painlcltekahencrvedes

Graham v. Connor, 490 U.S. 386 (1989) ..................

Hammer yv. Gross, 884 F.2d 1200 (9th Cir. 1989),

vacated en banc, 932 F.2d 842 (9th Cir.). cert. denied,

i ie I ON ic cavevensckevesgavesndvevusececeesssne...

Hudson v. McMillian, 112 S. Ct. 995 | ESN

Ilinois v. Lafayette, 462 U.S. 640 (1983) .....000.ccccccc

(ITT)

6

IV

Cases— Continued: Page

Proffitt v. Florida, 428 U.S. 242 (1976) oo...cccccceececeees i)

Raley v. Fraser, 747 F.2d 287 (5th Cir. 1984) ............... 10

Rose v. Locke, 423 U.S. 48 (1975) ............cccccccsscccsescooeee K

Screws v. United States, 325 U.S. 9! (1945) ................. 8-9

Steward v. Dameron, 460 F.2d 278 (5th Cir. 1972) ....... 12

Tennessee v. Garner, 471 U.S. 1 (1985) oooccccccccccccccccccece. 6

Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990) ........... 7

United States v. Batchelder, 442 U.S. 114 (1979) ......... ~

United States v. Cobb, 905 F.2d 784 (4th Cir. 1990),

cert. denied, 111 S. Ct. 758 (1991) ...............c0c.00.c00c00e 6

United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986) .. 12

United States v. Harriss, 347 U.S. 612 (1954) .............. _ 8

United States v. Powell, 423 U.S. 87 (1975) voccccccccccccece. x

United States v. Williams, 112 S. Ct. 1735 (1992) ......... 7

Village of Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982) ..........c.cc0ccc0e satapsaueis 8

Walton v. Arizona, 497 U.S. 639 (1990) ..........cccccccccc cee i)

Whitley v. Albers, 475 U.S. 312 (1986) .......................... 10

Wilkins .v. May, 872 F.2d 190 (7th Cir. 1989), cert.

Genied, 408 U.S. 1006 (1990) ...........ccccccccccccccsseocccecccocece ~ 7

Williams v. Boles, 841 F.2d 181 (7th Cir. 1988) ............ 10-11

Constitution and statutes:

U.S. Const. :

AGRO De RT els vee ee Lene ae ae 3, 5, 6, 7

(Te | t Ran ES Sa ee at ie ot RN RS ee 3, 6,9

Amend. XIV (Due Process Clause) ......................... 3, 5, 6, 8

8 A TER Oo Da aE TD ART 2, 7, 9, 10

eT cole | eRe, AP Aldine Se AI eet 4, 7-8

Ay a ARE ene OE SOP Ae Tee? 4,8

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§In the Supreme Court of the Cinited States

OCTOBER TERM, 1992

No. 92-1177

CARL HAROLD MYERS, PETITIONER

e.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 9a-36a) is

reported at 972 F.2d 1566.

JURISDICTION

The judgment of the court of appeals was entered on

September 25, 1992. A petition for rehearing was denied

on November 30, 1992. The petition for a writ of certio-

rari was filed on January 11, 1993. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Georgia, petitioner

was convicted on two counts of depriving persons of their

civil rights by shocking them with a stun gun, in viola-

tion of 18 U.S.C. 242. Pet. App. 9a-10a.' One of the

counts of conviction was charged as a felony, because pe-

titioner’s actions resulted in bodily injury.” Petitioner

was sentenced to concurrent terms of 12 and 18 months’

imprisonment on the two counts. Jd. at 14a.

1. Petitioner was a Captain with the Doraville, Geor-

gia, Police Department. A stun gun is not an authorized

weapon of the Doraville Police Department, and peti-

tioner had been so advised by both the Chief and the As-

sistant Chief of Police. Pet. App. 10a, lla, 22a n.6.

On August 25, 1988, at about 1:30 a.m., Frederick

Cowan was arrested for driving under the influence of

alcohol and resisting arrest. Cowan was transported to

the Doraville police station and placed in a holding cell.

Throughout the night, Cowan yelled, kicked the bars of

his cell, and asked to see a doctor. At approximately 5:15

a.m., petitioner entered Cowan’s cell along with two po-

lice dispatchers. Petitioner told Cowan to lie down and

stretch his hands above his head so that they could be

handcuffed to the bunk. Cowan, who was sitting on the

bunk, was slow to respond. Petitioner then activated a

stun gun on Cowan’s chest. Cowan screamed loudly,

flinched, and appeared to be in pain. After Cowan’s hands

were cuffed to the bunk, petitioner shocked Cowan in the

' The jury did not reach a verdict on a third count charging a

similar violation of 18 U.S.C. 242.

* Prior to November 1988, all violations of 18 U.S.C. 242, except

those resulting in death, were misdemeanors. In November 1988,

Congress amended the statute to provide that “if bodily injury re-

sults,” the defendant is subject to ten years’ imprisonment.

a

3

groin area. Cowan again screamed loudly and flinched.

At the time Cowan was shocked, he had not yet been

booked, fingerprinted, or formally charged with a crime

by the police or any judicial officer. Pet. App. 10a-12a.

On September 21, 1989, Cesar Yanez was arrested in a

parking lot for having an open can of beer in public.

Yanez yelled obscenities as he was being transported to

the police station. At the station, he continued to yell

obscenities and challenged various officers to a fight.

Yanez was then placed in a holding cell. A few minutes

later, petitioner and a radio dispatcher escorted Yanez to

the back of the station to be booked and processed. As

Yanez walked down the hall petitioner shocked him in

the back several times with a stun gun. Yanez was then

told to place both hands against a wall and spread his legs

so that he could be searched. While Yanez had his hands

on the wall, petitioner shocked him several more times in

the lower neck and back area. A few days later, a police

officer observed six pairs of scabbed reddish burn marks,

consistent with those left by a stun gun, on Yanez’s back.

Pet. App. 12a-14a.

2. The court of appeals affirmed petitioner’s convic-

tions. It first held that the district court did not commit

plain error when it instructed the jury to evaluate peti-

tioner’s use of force under the reasonableness standard

of the Fourth Amendment. The court explained that be-

cause petitioner had argued at trial that his conduct

should have been evaluated under the Eighth Amend-

ment, it would not resolve his belated claim on appeal

that his use of force should have been analyzed under the

Fourteenth Amendment’s due process standard. The

cour. added that “[a]lthough we uphold the instruction

given, we wish to make it explicit that we are not decid-

ing that the Fourteenth Amendment’s * * * standard

does not apply in evaluating the use of excessive force by

the police in post-arrest, pre-charge cases. That issue is

4

not before us. We hold only that it was not plain error

for the district court to give the instruction it did.” Pet.

App. 16a.

The court of appeals also rejected petitioner’s claim

that the district court improperly instructed the jury as

to the definition of “bodily injury,” which the court de-

fined to “include[] physical pain as well as any burn or

abrasion.” Pet. App. 17a. The court held that the dis-

trict court correctly defined “bodily injury” since its

definition was consistent with the definition Congress

had previously used in other criminal statutes. See 18

U.S.C. 831(f)(4) (prohibited transactions involving nu-

clear materials); 18 U.S.C. 1365(g)(4) (tampering with

consumer products); 18 U.S.C. 1515(a)(5) (obstruction of

justice); 18 U.S.C. 1864(d)(2) (hazardous or injurious de-

vices on federal lands). Pet. App. 17a-19a.

The court of appeals further held that the district

court did not abuse its discretion by allowing the stun

gun to be activated before the jury with a fully charged

battery. The court first noted that petitioner had waived

any claim of error regarding the stun gun demonstra-

tion, since he had failed to object when the gun was acti-

vated. The court further held that, in any event, the

demonstration was proper in light of the district court’s

cautionary instruction informing the jury that the bat-

tery had been recently recharged and that it “is your

duty to determine whether the demonstration accurately

reflects the condition of the stun gun on the occasion in

question.” Pet. App. 35a-36a. In addition, the court held

that even if the district court had erred in allowing the

demonstration petitioner was not prejudiced, as evi-

denced by the fact that during the trial he and his coun-

sel chose to activate the gun before the jury « on. numer-

ous occasions. /d. at 36a n.13. oy

The court of appeals also held that the district’ court

did not err by refusing to permit petitioner to play in its

5

entirety a 35-minute tape recording of Cowan yelling in

his ceil. The court noted that petitioner was allowed to

play “specific portions of the tape or a representative

portion,” which allowed him “the opportunity * * * to

rebut Cowan’s testimony that he was docile at the time

of the stun gun incident.” Pet. App. 36a.

ARGUMENT

1. Petitioner first contends (Pet. 13-14) that the claim

that he used excessive force should have been evaluated

under the Due Process Clause of the Fourteenth

Amendment rather than the reasonableness standard of

the Fourth Amendment.

In Graham v. Connor, 490 U.S. 386, 395 (1989), this

Court held that “all claims that law enforcement officers

have used excessive force * * * in the course of an ar-

rest, investigatory stop, or other ‘seizure’ * * * should

be analyzed under the-+ourth Amendment[’s] * * *

‘reasonableness’ standard.” The Court explained that

claims of excessive force should not be evaluated under

the “more generalized notion of ‘substantive due pro-

cess’” when a more specific constitutional provision gov-

erns. Id. at 393-394, 395. Nonetheless, the Court ex-

pressly left open “the question whether the Fourth

Amendment continues to provide individuals with protec-

tion against the deliberate use of excessive physical

force beyond the point at which arrest ends and pretrial

detention begins.” Jd. at 395 n.10.

“(T]he Fourth Amendment provides an-explicit textual

source of constitutional protection,” Graham, 490 U.S.

at 395, for individuals who have been seized pursuant to

police authority, are in police custody, and have yet to be

arraigned. It protects persons from unreasonable

searches and seizures, and this Court has held that “if an

arrestee is taken to the police station, that is * * * a

continuation of the custody inherent in the arrest

6

status.” Jllinois v. Lafayette, 462 U.S. 640, 645 (1983).

See also Dunaway v. New York, 442 U.S. 200, 208 (1979).

This Court has also held that “the manner in which a

search or seizure is conducted” is subject to Fourth

Amendment analysis. Tennessee v. Garner, 471 U.S. 1,8

(1985).

Since this Court’s decision in Graham v. Connor, the

courts of appeals that have squarely addressed the issue

have recognized that the Fourth Amendment applies to a

claim that an officer used excessive force against a per-

son in police custody. See, e.g., Powell v. Gardner, 891

F.2d 1039, 1044 (2d Cir. 1989); Foster v. Metropolitan

Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir. 1990);

Hammer v. Gross, 884 F.2d 1200, 1204 (9th Cir. 1989), va-

cated en banc on other grounds, 932 F.2d 842, 845 n.1, 850-

851 (9th Cir.), cert. denied, 112 S. Ct. 582 (1991); Austin v.

Hamilton, 945 F.2d 1155, 1158-1160 (10th Cir. 1991). Cf.

United States v. Cobb, 905 F.2d 784 (4th Cir. 1980)

(pretrial detainee’s claim that police officer used exces-

sive force while he was detained at the station evaluated

under the due process standard), cert. denied, 111 S. Ct.

758 (1991). .

Regardless of whether those courts are correct, fur-

ther review is not warranted in this case, because the

court of appeals did not hold that the Fourth Amendment

standard applied to petitioner’s conduct. At trial, peti-

tioner argued only that an Eighth Amendment standard

should be used, an argument petitioner subsequently

abandoned. Because petitioner had relied on the FKighth

Amendment and not the Fourteenth, the court of appeals

refused to decide whether the Fourteenth Amendment’s

due process standard, rather than the Fourth Amend-

ment’s reasonableness standard, applies to a claim that a

police officer used excessive force in a post-arrest, pre-

charge case. Pet. App. 16a. Instead, the court merely

held that the district court’s instruction that the jury

7

should evaluate petitioner’s use of force under the

Fourth Amendment’s reasonableness standard was not

plain error in this case. /bid. Therefore, contrary to pe-

titioner’s claim (Pet. 14), the court of appeals’ decision

does not conflict with Wilkins v. May, 872 F.2d 190 (7th

Cir. 1989), cert. denied, 493 U.S. 1026 (1990), where the

Seventh Circuit held that a claim that a police officer

acted unlawfully when he interrogated a person at gun-

point should be evaluated under the due process

standard.*

2. Petitioner also contends (Pet. 15-17) that 18 U.S.C.

242 is unconstitutionally vague because the term “bodily

injury” is not defined in the statute. While petitioner

contended at trial that the statute was uncenstitution-

ally vague as applied, he did not challenge the constitu-

tionality of the statute on appeal. Pet. App. 17a. Thus,

the court of appeals did not rule on that issue. Ordinar-

ily, this Court does not grant certiorari to review an is-

sue that was neither pressed nor passed on in the court

below. United States v. Williams, 112 S. Ct. 1735 (1992).

In any event, “bodily injury” has a settled meaning.

As the court of appeals recognized, the district court’s

instruction defining the phrase is consistent with the

definition of “bodily injury” contained in four other pro-

visions of Title 18 of the United States Code. See 18

* Any conflict between the Seventh Circuit’s decision in May

and the decisions of other circuits is of questionable importance in

light of the Seventh Circuit’s subsequent decision in Titran v.

Ackman, 893 F.2d 145 (1990). In Titran, the Seventh Circuit said

that “[mJost of the time the propriety of using force on a person in

custody pending trial will track the Fourth Amendment.” Jd. at

147. The court went on to conclude that “lilf the officers inten-

tionally restrained, jolted, and roughed up Titran without physical

provocation from her, their behavior was unreasonable.” Jd. at

148. Thus, it appears that the Seventh Circuit would have reached

the same result as the Eleventh Circuit in this case.

8

U.S.C. 831(f)(4) (prohibited transactions involving nu-

clear materials); 18 U.S.C. 13865(g)(4) (tampering with

consumer products); 18 U.S.C. 1515(a)(5) (obstruction of

justice); 18 U.S.C. 1864(d)(2) (hazardous or injurious de-

vices on federal lands). Pet. App. 18a-19a. In each of

those provisions, “bodily injury” is defined as: “(A) a cut,

abrasion, bruise, burn, or disfigurement; (B) physical

pain; (C) illness; (D) impairment of * * * function of

bodily member, organ, or mental faculty; or (E) any other

injury to the body, no matter how temporary.” In accor-

dance with that definition, the district court in this case

instructed that “bodily injury means any injury to the

body, no matter how temporary,” and “includes physical

pain as well as any burn or abrasion.” Pet. App. 17a.

It is well settled that the test for determining whether

a criminal statute is sufficiently definite so as not to vio-

late the Due Process Clause is whether it “give[s] a per-

son of ordinary intelligence fair notice that his contem-

plated conduct is forbidden.” United States v.

Batchelder, 442 U.S. 114, 123 (1979), quoting United

States v. Harriss, 347 U.S. 612, 617 (1954). See United

States v. Powell, 423 U.S. 87, 94 (1975); Rose v. Locke, 423

U.S. 48, 49 (1975) (per curiam). The type of injury in-

flicted by a stun gun—pain and often an associated

burn—is the type of injury that a person of ordinary in-

telligence, familiar with the operation and effect of the

weapon, would understand to constitute “bodily injury.”

Moreover, “the constitutionality of a vague statutory

standard is closely related to whether that standard in-

corporates a requirement of mens rea.” Colautti v.

Franklin, 439 "J.S. 379, 395 (1979). See Village of Hoff-

man Estates v. The Flipside, Hoffman Estates, Inc., 455

U.S. 489, 499 (1982); Boyce Motor Lines, Inc. v. United

States, 342 U.S. 337, 342 (1952). The statute at issue in

this case requires the government to prove that the de-

fendant used excessive force willfully. Indeed, in Screws

9

v. United States, 325 U.S. 91, 101-102 (1945), this Court

rejected a claim that the predecessor statute to 18

U.S.C. 242 was void for vagueness, because the statute

required a defendant to act with specific intent. The

Court explained, “(t]he requirement that the act must be

willful or purposeful * * * relieves] the statute of the

objection that it punishes without warning an offense of

which the accused was unaware.” /d. at 102.

There is no merit to petitioner’s claim (Pet. 16) that

this Court’s decision in Maynard v. Cartwright, 486

U.S. 356 (1988), suggests that 18 U.S.C. 242 is void for

vagueness. In Maynard, this Court held that an Okla-

homa statute allowing a jury to consider whether a mur-

der was “especially heinous, atrocious, or cruel” in de-

ciding whether to impose the death penalty was uncon-

stitutionally vague under the Kighth Amendment. Jd. at

399, 363-364. Maynard is inapplicable because petitioner

was not convicted of a capital offense. Indeed, because of

the qualitative difference between death and other sen-

tences, this Court has repeatedly recognized that it has

applied heightened scrutiny to statutes providing for

capital sentences. See, e.g., California v. Brown, 479

U.S. 538, 541 (1987); Ford v. Wainwright, 477 U.S. 399,

411 (1986) (opinion of Marshall, J.); California v. Ramos,

463 U.S. 992, 998-999 (1983). Moreover, even in capital

cases, this Court has held that a defect arising from a

vague statutory sentencing term can be rectified by a

limiting instruction that defines the term for the jury.

Walton v. Arizona, 497 U.S. 639, 653-655 (1990); May-

nard v. Cartwright, 486 U.S. at 364-365. See also Prof-

fitt v. Florida, 428 U.S, 242, 255-256 (1976) (plurality

opinion). The district court in this case gave a detailed

limiting instruction defining the term “bodily injury.”

See Pet. App. 17a.

3. Nor is there merit to petitioner’s argument (Pet.

15-17) that the district court improperly applied a “civil

10

definition” when it instructed the jury as to the meaning

of “bodily injury.” As we have noted, the district court

in its instructions used the definition provided in other

federal criminal statutes. The definition of injury used

by the court was therefore not a “civil” definition.

The decision of the court of appeals is not inconsistent

with Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990),

Mark v. Caldwell, 754 F.2d 1260 (5th Cir. 1985), or Raley

v. Fraser, 747 F.2d 287 (5th Cir. 1984), as petitioner con-

tends. In those cases (all of which arose under 42 U.S.C.

1983, not 18 U.S.C. 242), the courts considered the extent

of injury required to establish a violation of constitu-

tional rights, and held that a claim alleging excessive

force was properly denied because the plaintiff suffered

only minor injuries.‘ In this case, however, the evidence

showed that Yanez was stunned badly enough that he had

“six pairs of scabbed reddish burn marks” on his back.

Pet. App. 13a-14a. Furthermore, subsequent to the deci-

sions cited by petitioner, this Court explained that the

extent of lasting physical injury alone is not determina-

tive of whether the use of force by a law enforcement of-

ficial constitutes a constitutional violation. Hudson v.

McMillian, 112 S. Ct. 995 (1992). See also Whitley v. Al-

bers, 475 U.S. 312, 321 (1986). The duration of the signs

of injury should not be the benchmark for determining

whether there has been a violation, because “(many

things—beating with a rubber truncheon, water torture,

[and] electric shock * * * may cause agony as they oc-

cur yet leave no enduring injury.” Williams v. Boles,

* Contrary to petitioner’s claim (Pet. 16), in Culver v. Town of

Torrington, 930 F.2d 1456 (10th Cir. 1991), the plaintiffs Section

1983 claim was not disallowed because of the insignificance of the

injury. Rather, as the court of appeals explained, “[t]here was no

evidence as to where or how the bruises occurred or more specifi-

cally, that the bruises were a result” of the police officer’s con-

duct. Jd. at 1461.

ey

1]

841 F.2d 181, 183 (7th Cir. 1988). Just because the State

“is careful to leave no marks” does not mean that the

conduct is not serious. bid.

4. Petitioner also contends (Pet. 17-19) that the court

of appeals erred by concluding that the district court did

not abuse its discretion with regard to two evidentiary

rulings. Petitioner’s claims of error are meritless and,

in any event, the court of appeals’ fact-bound determina-

tions are not worthy of further review.

Petitioner first argues (Pet. 17-18) that the district

court abused its discretion by allowing the stun gun to

be activated before the jury, and that the court of appeals

“did not address why the [district] court decided to favor

the government’s contention that the stun gun was fully

charged at the time of the events as opposed to the De-

fendant’s opposite contentions.” The district court,

however, made no judgment as to the condition of the

stun gun at the time of the various incidents, as evi-

denced by its instruction that the jury should determine

whether the stun gun “presently operates in the same

manner as it did on the date in question.” Pet. App. 35a.

In any event, petitioner has no basis to complain about

the demonstration, since he and his counsel chose to ac-

tivate the stun gun before the jury on several occasions.

Id. at 36a n.13.

Petitioner also asserts (Pet. 18-19) that the district

court abused its discretion by refusing to permit the 35-

minute tape recording of Cowan yelling in his cell to be

played in its entirety. As the court of appeals explained,

the district court did not err because petitioner was al-

lowed to play a representative sample of the tape. Pet.

App. 36a. In any event, the tape recording was merely

cumulative of other evidence establishing that Cowan

spent the night yelling and rattling the bars of his cell

and calling for a doctor before petitioner arrived at the

station. Tr. 236-237, 307, 385, 828-829. In addition, all the

12

exhibits were sent back to the jury room at the begin-

ning of the deliberations, Tr. 991-992, so the jury had the

opportunity to listen to the tape in its entirety if it so

desired.

Accordingly, there is no merit to petitioner’s claim

(Pet. 19) that the court of appeals’ decision is inconsis-

tent with United States v. Ebens, 800 F.2d 1422 (6th Cir.

1986), and Steward v. Dameron, 460 F.2d 278 (5th Cir.

1972) (per curiam). In those two cases, the courts held

that the district courts committed reversible error by

failing to play tape recordings that provided key evidence

on the critical disputed issue at trial. Unlike those

cases, the unplayed portion of the tape at issue in this

case was cumulative, and it provided evidence pertaining

to facts that were not in dispute—i.e., what occurred

prior to the time that petitioner entered Cowan’s cell.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

JAMES P. TURNER

Acting Assistant Attorney General

DENNIS J. DIMSEY

LISA J. STARK

Attorneys

MARCH 1993