Petition — Inendino v. United States

‘Bupreme Court, U. & ”~

FILED

79-2081

No.

JUL 1 1980

|_ MICHAEL RODAK, JR., CLERA

Iu the

Supreme Court of the Ruited Staten

OcToserR TreRM, 1979

UNITED STATES OF AMERICA,

Respondent,

VS.

EUGENE PHEBUS,

Defendant.

PETITION OF: JAMES INENDINO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

EDWARD M. GENSON

JEFFREY B. STEINBACK

134 North LaSalle Street +300

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioner

JAMES INENDIVO

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

PAGE

aa a sy cs sucsisinimboriconsas 1

IEEE SSRN a ee Sone AR SR oR RRC 2

a caeeseoeansieebleacravabéiiens 2

Constitutional Provisions Involved ~.....................-see0-e 2

I Oa asisateannemlacennicureieinin 2

a EGRESS Se de A Oe 5

Beasons for Granting the Writ ..............-........-0....00 7

The Decision Below, In Affirming An Unexplained

Refusal To Provide Appellant Or His Attorney

With Any Access To Certain Sealed Testimony

Taken During A Closed Hearing, Sets A Danger-

ous Precedent Never Before Reviewed By This

aes cnet eae alinsiaipaleciiacainiintlieinietalettershones 7

SRD Te AS, akc Sk Raa Re 11

Appendix A—Unpublished per curiam Order of the

Court of Appeals for the Seventh Circuit

I I Wee I ac icicincctinestiscincsrenemn -App. 1

Gannett Co. v. DePasquale, ........ Re aces , 99 S.Ct.

Eee , 61 L.Ed. 2d 608, 625 (1979) 0... neecreceeceeee, =F

United States v. Agurs, 427 U.S. 97, 112, 96 S.G. 2392,

I, GN UND, vtcecticcintecvntsesensemsinenteninnoqnecn 9

In the

Supreme Court of the United States

Octoser Term, 1979

No.

UNITED STATES OF AMERICA,

Respondent,

vs.

EUGENE PHEBUS,

Defendant.

PETITION OF: JAMES INENDINO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Petitioner, James Inendino, prays that a Writ of Cer-

tiorari be issued to review the judgment of the United

States Court of Appeals for the Seventh Circuit.

OPINION BELOW

The unpublished per curiam order of the Court of Ap-

peals is appended to this Petition as Appendix A.

2

JURISDICTION

The order of the Court of Appeals was entered on May

2, 1980. Petitioner’s petition for rehearing timely filed,

was denied on June 2, 1980. The jurisdiction of this court

is invoked pursuant to 28 U.S.C. 1254(1) and Rule 22.2 of

the Rules of this Court.

QUESTION PRESENTED

Whether the Court of Appeals for the Seventh Circuit

erred in affirming the District Court’s refusal to disclose

sealed testimony without articulating reasons therefor.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

‘*No person shall be . . . deprived of life, liberty,

or property, without due process of law;.. .’’

The Sixth Amendment to the United States Constitution

provides, in pertinent part:

‘*In all criminal prosecutions, the accused shall en-

joy the right... to have the Assistance of counsel for

his defence.’’

STATEMENT OF THE CASE

In February of 1978, petitioner was charged, together

with one Thomas McKillip, under Indictment 78 CR 70

with conspiring to violate Title 18, U.S.C. Sec. 2313, inter-

state transportation of stolen vehicles, Additionally, peti-

tioner was charged under a substantive count within the

same indictment. Pre-trial motions were denied and Peti-

tioner alone elected to proceed to trial before the Honorable

3

Judge Decker and a jury in the Northern District of Llli-

nois, Kastern Division, commencing June 6, 1978.1

A guilty verdict was returned as to both Counts I and

V against Petitioner on June 12, 1978, after which bail was

revoked on that date pending further proceedings which

involved a Petition filed by the Government to declare

Petitioner a dangerous special offender under Title 18,

U.S.C., See. 3575.

Thereafter, Petitioner attacked the Government’s dan-

gerous special offender Petition, which attack was reviewed

and denied in each particular by way of a Memorandum

Decision of September 21, 1978, filed by Judge Decker.

On September 21, 1978, Judge Decker imposed sentence

upon Petitioner. Petitioner was committed to the custody

of the Attorney General for a period of twenty (20) years

on each of the two counts on which he was convicted. Con-

current with each other but consecutive to a five (5) year

sentence previously imposed under Indictment 76 CR 876.’

Pursuant to the Judgment and Finding of Judge Decker,

and the invocation of the dangerous and special offender

Act, Petitioner appealed to the Seventh Circuit, challeng-

ing the propriety of his conviction where the Government

propounded prejudicial questions and introduced inadmis-

sible evidence of other crimes, and attacking the constitu-

tionality of the dangerous and special offender Act as

1 Co-defendant McKillip was charged in each of the five (5) counts

of this indictment. On June 6, 1978, McKillip, represented by sepa-

rate retained counsel, entered his plea of guilty. Thereafter, McKillip’s

plea was vacated and he re-pled after an appeal and a confession

of error by the Government.

* Petitioner was convicted after a jury trial of conspiracy to

transport stolen, forged checks in interstate commerce in violation

of Title 18, U.S.C., Sec. 371, et seq., before the Honorable Judge

(srady on May 5, 1978.

4

applied. The Seventh Circuit, in a published opinion, af-

firmed both Petitioner’s conviction and the sentence im-

posed under the Act, finding no error in the Government’s

conduct and ruling the application of the Dangerous and

Special Offender Act constitutional. Petition for Rehear-

ing, timely filed, was similarly rejected. Ultimately, Peti-

tion to the Supreme Court of the United States for Writ

of Certiorari was denied.

On February 1, 1979, a closed hearing was held before

Judge Phil M. McNagny, Jr., in the United States District

Court for the Northern District of Indiana, Hammond

Division, with regard to a Motion for Reduction of

Sentence pursuant to Rule 35 of the Federal Rules of

Criminal Procedure by one Eugene Phebus, who had been

the Government’s main witness against Petitioner Inendino

at the latter’s trials. The following day, Judge McNagny

entered his order. Both the Transcript of Proceedings

attendant to the February 1, 1979, hearing and the order

entered by Judge McNagny were sealed.

On July 23, 1979, Petitioner Inendino moved Judge

McNagny for release to him, or to his attorney under a

protective order, certain transcripts and court orders

sealed by the District Court in connection with the Phebus

reduction of sentence request. Judge MeNagny denied the

motion by order of the same date. No basis for the denial

was articulated in the order, nor was there any indication

that an in camera inspection was conducted prior to its

entry. Petitioner’s timely appeal from that order was

rejected by the Court of Appeals for the Seventh Circuit.

The Court’s unpublished per curiam order is appended

hereto as Appendix A. Petitioner’s timely Petition for

Rehearing En Bane was denied, the order of the court

is appended hereto as Appendix B.

Petitioner remains in custody while pursuing this

Petition.

STATEMENT OF FACTS

Petitioner James Inendino was convicted in May, 1978,

in the Northern District of Illinois, of conspiracy to trans-

port stolen, forged checks in interstate commerce in vio-

lation of 18 U.S.C. § 371. Petitioner was also convicted

in June, 1978, in the Northern District of Illinois, on a

conspiracy count and on a substantive count under 18

U.S.C. § 2313, involving interstate transportation of stolen

vehicles.

Subsequently the government filed a petition against

Inendino seeking to have him declared a dangerous special

offender under 18 U.S.C. § 3575. This petition was granted

on September 21, 1978, and Inendino was committed to the

custody of the Attorney General for a period of twenty

years on each of the two counts under 18 U.S.C. § 2313,

with the sentences to run concurrently with each other but

consecutively with a five-year sentence previously imposed

with respect to the forged checks charge.

Both convictions—and the sentence under the Dangerous

Special Offender Act—were appealed to the Court of Ap-

peals for the Seventh Circuit and affirmed. Petitions

for writs of certiorari to the United States Supreme Court

were denied.

Eugene Phebus was one of the principal witnesses in

lnendino’s two trials as described above. Phebus was a

co-defendant in the stolen, forged checks trial in the

Northern District of Illinois. At the end of that trial he

was placed on supervised probation. Phebus was also a

defendant and was convicted in 1976 in the instant pro-

ceeding involving a charge of theft and conspiracy in the

Northern District of Indiana. He received a five-year sen-

tence in the instant proceeding, and his conviction and sen-

6

tence were affirmed on appeal. Phebus remained in a status

of release on bond at the time of, and after, his conviction.

Within a month of his conviction in the Northern District

of Indiana, Phebus agreed to plead guilty in the check

fraud case in the Northern District of Illinois, and co-

operated and furnished considerable information to the

government in that case. As a result of Phebus’ cooper-

ation, Petitioner Inendino was added as a defendant in

that case; and, in addition, Phebus was placed in the Fed-

eral Witness Protection Program, under the auspices of

which he continues to be.

On January 22, 1979, Phebus moved for a reduction of

his five-year sentence in the instant proceeding, alleging

his considerable services by way of cooperation and the

provision of information to the government with respect

to the two trials and sentencing of Petitioner Inendino.

By order dated January 24, 1979, Judge McNagny stayed

the execution of Phebus’ five-year sentence pending a

hearing to be held on February 1, 1979, on the Motion

for Reduction of Sentence. <A closed hearing with respect

to the motion was held on February 1 and an order entered

tnereon on February 2. The record of the closed hearing

and of the order were sealed by Judge MeNagny.

On July 23, 1979, Petitioner Inendino filed a motion with

Judge McNagny seeking release to him, or to his attor-

ney under a protective order, of transcripts and orders

sealed by the district court in connection with the request

by Phebus for a reduction of sentence. Judge McNagny

denied the motion without articulating any reasons. The

Court of Appeals for the Seventh Circuit affirmed.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW, IN AFFIRMING AN UNEX-

PLAINED REFUSAL TO PROVIDE APPELLANT OR

HIS ATTORNEY WITH ANY ACCESS TO CERTAIN

SEALED TESTIMONY TAKEN DURING A CLOSED

HEARING, SETS A DANGEROUS PRECEDENT NEVER

BEFORE REVIEWED BY THIS COURT.

The opinion of the Court of Appeals for the Seventh

circuit affirming the District Court’s refusal to disclose

sealed testimony and the Seventh Circuit’s subsequent

denial of rehearing evidence a misapprehension of the

law and facts and warrant a grant of certiorari and con-

sideration by this Court.

The Seventh Cireuit neglected to consider the impor-

tance of open and public civil and criminal proceedings in

the American system of justice. As this Court has re-

cently stated:

‘¢There is no question that the Sixth Amendment per-

mits and even presumes open trials as a norm.

‘*It is the practice of western societies, and has been

part of the common law tradition for centuries, that

trials generally be public.

‘‘Lower courts cannot assume... that they are ‘‘free

to determine for themselves the question whether to

open or close the proceeding’ free from all Con-

stitutional constraint.’’ Gannett Co. v. DePasquale,

ees US. o2.., 99 S.Ct. o.., 61 L.Ed.2d 608, 625

(1979).

8

Given the recognized importance of open proceedings,

the District Court’s action in permanently sealing the

transcript of the Phebus hearing, witheut any comment

or explanation whatever, is an alarming precedent. The

District Court’s action is additionally suspect in that it

does not simply bar the public at large, but more im-

portantly bars concerned parties and their attorneys as

well. While we contend that the District Court’s action

is improper per se, certainly the complete denial of access

to the requested materials to this petitioner plainly also

presents the appearance of impropriety. Quite simply,

there have been no cases which have upheld the validity

of such action on the part of a district court. This cause

should therefore be reviewed both in light of the fact that

open proceedings are the norm and not an exception to

the norm and most particularly in light of the fact that

petitioner has suffered by the non-production of the sup-

pressed material.

The Seventh Circuit appears to have concocted a balanc-

ing test in reaching it conclusion that the District Court

did not abuse its discretion in refusing to disclose the

record of the Phebus production hearing, notwithstanding

the fact that absolutely no reasons were advanced for such

an extreme action. The Court of Appeals considered,

on the one hand, that the material in question would be

of ‘‘marginal significance’’ to Petitioner Inendino in seek-

ing to impeach Phebus’ testimony, and, on the other hand,

that there was a real and probably well-founded concern

for Phebus’ safety. The Court improperly took it upon

itself to do for the first time what should have been done

by the District Court below so that, at least, Petitioner

would know the reasons for the refusal to disclose the

requested material. The Court of Appeals’ action was

speculative and essentially deprived Petitioner of any

meaningful consideration of his motion.

9

However, assuming for the sake of this petition that it

was proper for the Court of Appeals for the first time

io speculate on the reasons why the District Court denied

disclosure, the Court of Appeals nonetheless improperly

weighed these two considerations.

The Court conceded that the requested material has

some significance for purposes of impeachment, albeit, in

the Court’s consideration, marginal. What appears to be

minimally significant to the Court of Appeals may be quite

significant in fact to Petitioner and his counsel, who are

in a better position to assess what is relevant, material and

necessary to Petitioner’s defense than is the Court. It is

important to emphasize in this regard that the Court itself

at least found the requested materials to be of some sig-

nificance to Petitioner.

Moreover, even if, arguendo, the requested material is

minimally significant for impeachment purposes, it has a

further significance in light of Petitioner’s right to the

substance and form of due process. The requested infor-

mation undoubtedly relates to the testimony provided by

IXugene Phebus in several criminal prosecutions of Peti-

tioner Inendino where Phebus was the chief government

witness. The importance of a major witness’ credibility

in a successful criminal trial cannot be underestimated.

in the present case, Phebus’ own counsel stated on the

face of his motion for reduction of sentence that Phebus’

credibility was central to Inendino’s convictions. Under

such circumstances, ‘‘additional evidence of relatively

minor importance might be sufficient to create a reasonable

doubt.’? United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct.

2392, 49 L.Ed.2d 342 (1976). Further, the requested ma-

terial no doubt relates to the information provided by

Phebus in conjunction with the Government’s Petition to

have Petitioner Inendino adjudged a dangerous and spe-

10

cial offender, pursuant to which Petitioner Inendino was

adjudged a dangerous and special offender and sentenced

to twenty years’ imprisonment.

The second factor considered by the Court of Appeals

in its so-called balancing test, the possibility that dis-

closure of the requested material may jeopardize Phebus’

safety, is not supported by the evidence. The Court over-

looked or misapprehended the actual circumstances present

here: Petitioner Inendino, his counsel, and all involved

know and have known the Government’s key witness

against Petitioner was Eugene Phebus. Phebus’ identity

has not been secret for nearly five years. In all that

time, Phebus has not been so much as threatened or harmed

in any manner by Petitioner. Further, it is extremely un-

likely that Phebus will be threatened or harmed by Peti-

tioner in the future given that Phebus is apparently under

the auspices of the Federal witness protection program.

Moreover, Petitioner Inendino is presently incarcerated,

and threats directed to Phebus will inevitably cast suspicion

on Petitioner and subject him to the strong likelihood of

future prosecution and the extension of his already

Draconian period of incarceration. Finally, in this con-

text, it should be noted that at the time of Oral Argument,

Petitioner’s counsel made it plain that Petitioner has no

interest in any information concerning the whereabouts of

Phebus if such information be contained in the suppressed

materials.

In light of the above facts, apparently overlooked by the

Court of Appeals, the Court improperly slighted the com-

peting interest involved in denying the Petitioner or at

least his counsel at least limited access to the requested

materials. In urder to rectify a decision which places its

imprimatur on the suppression of an otherwise public

hearing for no articulated reason to the prejudice of an

admittedly interested individual, review must be granted.

11

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

Epwarp M. Genson

Jerrrey B. STEINBACK

134 North LaSalle Street #300

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioner

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued: April 1, 1980)

May 2, 1980.

Before

Hon. Watrer J. Cummrines, Cireuit Judge

Hon. Rosert A. Sprecuer, Circuit Judge

Hon. Ricuarp D. Cupany, Cireuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 79-1883 vs.

EUGENE PHEBUS,

Defendant,

Appeal Of: JAMES INENDINO.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

Nos. H Cr 76-87, H Cr 76-90

Phil M. MeNagny, Jr., Judge.

ORDER

Appellant James Inendino was convicted in May, 1978,

in the Northern District of Illinois, of conspiracy to trans-

port stolen, forged checks in interstate commerce in viola-

tion of 18 U.S.C. § 371. Inendino was also convicted in

App. 2

June, 1978, in the Northern District of Illinois, on a con-

Spiracy count and on a substantive count under 18 U.S.C.

§ 2313, involving interstate transportation of stolen

vehicles.

Subsequently the government filed a petition against

Inendino seeking to have him declared a dangerous special

offender under 18 U.S.C. § 3575. This petition was granted

on September 21, 1978, and Inendino was committed to the

custody of the Attorney General for a period of twenty

years on each of the two counts under 18 U.S.C. § 2313,

with the sentences to run concurrently with each other but

consecutively with a five-year sentence previously imposed

with respect to the forged checks charge.

Both convictions—and the sentence under the Dangerous

Special Offender Act—were appealed to this court and were

affirmed. Petitions for writs of certiorari to the United

States Supreme Court have been denied.

Eugene Phebus was one of the principal witnesses in

Inendino’s two trials as described above. Phebus was a

co-defendant in the stolen, forged checks trial in the North-

ern District of Illinois. At the end of that trial he was

placed on supervised probation. He was also a defendant

and was convicted in 1976 in the instant proceeding in-

volving a charge of theft and conspiracy in the Northern

District of Indiana. He received a five-year sentence in the

instant proceeding, and his conviction and sentence were

affirmed on appeal. Phebus remained in a status of release

on bond at the time of, and after, his conviction.

Within a month of his conviction in the Northern Dis-

t1ict of Indiana, Phebus agreed to plead guilty in the check

fraud case in the Northern District of Dllinois and co-

operated and apparently furnished considerable informa-

tion to the government in that case. Apparently as a re-

App. 3

sult of Phebus’s cooperation, Inendino was added as a de-

fendant in that proceeding. Inendino is allegedly a signif-

icant organized crime figure. Phebus, as a result of his

testimony and cooperation, was placed in the Federal

Witness Protection Program, and it appears from the

record that he is currently under its auspices.

On January 22, 1979, Phebus moved in the instant pro-

ceeding for a reduction of his five-year sentence, alleging

his considerable services by way of cooperation and the

provision of information to the government. He also al-

leged that ‘‘because of the imminent fear of both Eugene

Phebus and Mr. Robert Rose [an assistant United States

Attorney ]’* Phebus had been placed in the Federal Witness

Protection Program, and it had been necessary for him to

leave his home and family. The motion also allege” that

Phebus had been fully rehabilitated, was gainfully em-

ployed ‘‘and [had] attempted to assist the Federal Govern-

ment at not only great inconvenience to him but also [in

the face of] a very serious and real threat of danger.’’

By order dated January 24, 1979, Judge McNagny stayed

the execution of Phebus’s five-year sentence pending a hear-

ing to be held on February 1, 1979, on the Motion for

Reduction of Sentence. A closed hearing with respect to

the motion was held on February 1 and an order entered

thereon on February 2.

The record of the closed hearing and of the order were

sealed by Judge McNagny. On July 23, 1979, Inendino

filed a motion with Judge McNagny seeking release to him,

or to his attorney under a protective order, of transcripts

and orders sealed by the district court in connection with

the request by Phebus for a reduction of sentence. Judge

MeNagny denied the motion without articulating any rea-

sons, and this appeal followed. We affirm.

App. 4

Inendino contends that it was error for the district court

to refuse to tender to him the sealed testimony or to at

least permit his attorney to make an inspection of it under

a protective order. Inendino argues that the material

sought contains information directly related to Phebus’s

testimony at the Inendino trials and would be of substantial

value for purposes of impeachment. He further contends

that disclosure of the sealed material will not endanger

Phebus’s safety since Phebus’s key role in Inendino’s

prosecution is already well-known and was articulated in

the Motion for Reduction of Sentence. Inendino further

argues that Phebus’s testimony in the Inendino trials was

largely uncorroborated and that Phebus had a powerful

motivation to testify against him since this testimony

would likely result in Phebus’s own release, or at least in

the substantial mitigation of his sentence. Inendino con-

tends that his due process rights to obtain impeachment

material have been infringed, citing United States v.

Inebert, 519 F.2d 542 (3rd Cir. 1975), cert. denied, 423 U.S.

985 (1975). He argues that ‘‘the courts have traditionally

and uniformly opted against secrecy,’’ citing United States

v. Harris, 542 F.2d 1283 (7th Cir. 1976), cert. denied, 430

U.S. 934 (1976); and United States v. Schneiderman, 104

F. Supp. 405 (C.D. Cal. 1952). Here, he contends, the

alternative of secrecy was invoked without justification.

‘The government argues, inter alia, that, since the hear-

ing conducted with respect to the Motion for Reduction of

Sentence was discretionary, disclosure of the record is not

a matter of right. The government points out that Phebus’s

motion on its face highlights the elements of danger by

noting that Phebus has been placed in the Federal Wit-

ness Protection Program, that incarceration could endanger

him and that his testimony was instrumental in obtaining

two convictions of a ‘‘significant organized crime figure.’’

App. 5

The government also argues that the record of the sentence

reduction proceedings is most analogous to presentence re-

ports containing information provided by government in-

formants, where nondisclosure has been upheld. See United

States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977), cert.

denied, 434 U.S. 843 (1977); United States v. Figurski,

545 F.2d 389 (4th Cir. 1976).

We have inspected the sealed materials here in camera

and have concluded that Judge McNagny did not abuse his

discretion in refusing to disclose them. We think it would

have been better practice for the district court to have

stated its reasons for maintaining the secrecy of this ma-

terial. Upon inspection, however, we conclude that the

material in question would be of very marginal significance

to Inendino in seeking to impeach Phebus’s testimony.

Further, we believe the continuing concern for Phebus’s

safety, which, as the government suggests, is spread on

the face of the Motion for Reduction of Sentence, is real

and probably well-founded. We think that under all the

circumstances, the paramount concern must be the safety

of witness Phebus and that a remand to Judge McNagny

to restate this central consideration is unnecessary— par-

ticularly when, from our own inspection, the materials in

question would be of little value to Inendino. Judge Mce-

Nagny did not abuse his broad discretion in this sensitive

matter.

Accordingly, the judgment of the district court is af-

firmed.

App. 6

Unpublished Per Curiam Order

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

May 2, 1980

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit “Judge

No. 79-1883

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vs.

EKUGENE PHEBUS,

Defendant,

APPEAL OF: JAMES INENDINO.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

Nos. M Cr-76-87 & H Cr-76-80

Judge Philip M. McNagny, Jr.

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

record from the United States District Court for the

App. 7

Northern District of Indiana, Hammond Division, and was

argued by counsel.

On consideration whereof, it is ordered and adjudged by

this court that the judgment of the said District Court in

this cause appealed from be, and the same is hereby,

AFFIRMED, in accordance with the order of this court

entered this date.

App. 8

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

June 2, 1980

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

No. 79-1883

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

KUGENE PHEBUS,

Defendant,

Appeal of: JAMES INENDINO.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

Nos. H Cr 76-87 & H Cr 76-90

Phil M. McNagny, Jr., Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestions for rehearing en banc filed in the above-entitled

cause by James Inendino, no judge in active service has

requested a vote thereon, and all of the judges on the

original panel have voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.