UNITED STATES v. LOVASCO

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Argument of Louis Gilden

Chief Justice Warren E. Burger: We will resume arguments in United States against Lovasco.

Mr. Gilden.

Mr. Louis Gilden: Mr. Chief Justice and may it please the Court.

Continuing my argument in this matter, I might say that the government at no time before in the District Court or in the Eighth Circuit ever contended that the defendant had to prove the governmental misconduct, the tactical advantage secured by the government by delaying prosecution.

This is the first time that it has been raised and that is in this Court.

The government conceded before the District Court that all you had to do is prove the prejudicial delay and the subsequent result in material prejudice and both elements were proved in the District Court and affirmed by the Eighth Circuit Court of Appeals.

It is a little bit unusual to come at this late date and say the Eighth Circuit was an error, when the same Eighth Circuit did not have these fundamentals before them at the time that the government argued its case and presented its brief to the Eighth Circuit when they said all Marion required was the delay was unreasonable and is subsequent result in material prejudice.

Justice Harry A. Blackmun: That you see is the defendant’s burden.

Mr. Louis Gilden: That was our burden and we proved that burden by showing the 17-month delay, by proving that the defendant had called the government from time to time on five or six occasions said, what is going on?

The government conceded that he had anxiety about 1situation and then the result in prejudice in the death of, well might say that there were two witness that died.

However, the District Court laid its fundamentals of material prejudice on the death of Stewart and the Eight Circuit affirmed that finding that there was material prejudice in the death of Stewart.

So, there was the result in material prejudice.

Justice Harry A. Blackmun: That Mr. Stewart had to do only was sum of the guns not all of them.

Mr. Louis Gilden: That is correct, but that was never isolated as to where -- the government never isolated or of course the government did not know which ones came from Stewart and which ones came from finding the guns in the car at the terminal of railroad mail facility.

However, the Court concluded that the very essential element which is the question, did Lovasco know that the guns were stolen would be something that would be deprived of him by a trial without having this material evidence present at the any trial by the death of the witness?

And the Court concluded that – what is really essential Mr. Justice Blackmun is the question that, the government did not do anything for 17 months.

Justice Harry A. Blackmun: Well, this is my next question, does your position depend on what the governments investigation uncovers in the interim.

Suppose they had done something and it either did or did not produce something additional, your position different.

Mr. Louis Gilden: No, well our position will be different.

I think that, if the government had just showed that they were trying to do something for 17 months, my position would be totally different before this Court and would have been different, I think, the proceedings refer the District Court because…

Justice Byron R. White: But that was totally different in what respect would that had met your case?

Mr. Louis Gilden: It would meet the standards that they were continuing there investigation and they showed nothing about the continuous nature of the investigation.

Justice Byron R. White: What you are saying is if they had proved that much?

Mr. Louis Gilden: That is correct.

Justice Byron R. White: Well I say it proved that much, not withstanding the prejudice that you had proved nevertheless you would lose.

Mr. Louis Gilden: I think that was in the framework with the statute limitations and the question of foreseeability, I do not think that the defendant can hold the government to that kind of strict proof and hold that sort of confined within a box that way.

I think that is not what I asking this Court to...

Justice Byron R. White: What if it is no question of the government, what if there is no suggestion of any deliberate delay to hurt you and no negligence, but simply a desire of the government to keep it under coverage and under covered.

Mr. Louis Gilden: Well, that was never developed.

Justice Byron R. White: Well, I know but let us assume that we are true.

Mr. Louis Gilden: Well, that was case like a continuous narcotics investigation.

I think that that would satisfy.

Justice Byron R. White: Well, that would not be a continuous investigation of you or your client, it would simply be that this agent was in place and he might be making other cases.

Mr. Louis Gilden: Well but they, had they presented that evidence that will satisfying the criteria.

Justice Byron R. White: So, you think that also.

Mr. Louis Gilden: That would satisfy the criteria as well.

I do not think that I -- I do not want to hamstring the government in terms of…

Justice Byron R. White: But you would think that as long as your prejudice even in negligence, even in attention just in attention and negligence would -- that you do not even need to show that I think you just show the delay in the prejudice and then the government must explain it.

Mr. Louis Gilden: We will say something.

Justice Thurgood Marshall: In other words, any reasonable explanation by the government, let see if I get this.

The defendant concedes that it will have the burden of showing both delay and the prejudice and then the government can successfully meet that merely by showing some reasonable explanation of why the delay.

Mr. Louis Gilden: That is correct, that is all I am asking for before this Court, I do not think that I am asking for any principles which nail the government into a justification which might meet the merits of the case or getting into substance of the issues of the case.

Just showing some consideration with respect to the fact that there has been a completed investigation and now we want to get some more evidence.

I might say that this Court should see the protectuality of what the government has done here.

In the District Court, that the government argued and there was never any proof in the record about this.

The government argued that they were trying to get evidence that the son was implicated, the defendant’s son and they want to nail him; they did not feel the defendant was guilty, but they felt the son was the guilty.

Then in Eighth Circuit, they changed that argument and they said that “We want to find out, who stole the mail”.

Then the government comes before this Court, in abundance both of those arguments and says to this Court, “We wanted to continue the investigation to nail the defendant, we want to get more evidence on him.”

So now they have got three arguments and none of those were supported by the record in the District Court.

So, I wonder with all these voluntary…

Justice Thurgood Marshall: Suppose, any one or all three had been the subject of some government testimony to District Court, could you be here?

Mr. Louis Gilden: I would not be here; I would have lost my motion.

I think the Court would have conceded that they gave some reason or justification for the delay and the Court found that there was no reason or justification for the delay and I would not be before this Court, well I try to probably appeal the issue, but I am sure I would have gotten very for and I do not think I would be entitled to get vary far.

I think that based upon the record below, there is an absence of any reason or justification.

Justice William H. Rehnquist: Are not you really arguing that we are bound; we must read the statute of limitations as Congress had said, the action maybe brought within five years.

But, provided that it must be brought sooner, must the government shows that it could not have been brought sooner, isn’t that really what you are arguing on the modification of the statute?

Mr. Louis Gilden: No, I just say that this is not a question of that, I am just saying that if the government just showed that they had moved their little finger one inch that would be sufficient to show that they were doing something.

Justice William H. Rehnquist: Doesn’t the statute say that they can move within five years?

Mr. Louis Gilden: Well, I know but if they are interceding constitutional rights that affect the defendant by reason of the government, we say thus government stays before this Court and this is the interesting proposition.

They have the Right to inertia and what troubles me so much…

Justice William H. Rehnquist: What they are saying is that Congress gave them five years of inertia in statute of limitation.

Mr. Louis Gilden: They maybe entitled to inertia but I think if, that if Intervening constitutional rights come into play as here, with the death of materiel witnesses and due process comes in the picture, I do not think they have their right anymore, I think they are -- they have that responsibility to foresee that within the framework of the statute limitations, that there maybe some result in prejudice that better do something about getting this case to trial.

Justice William H. Rehnquist: Well, what about a civil case, where the government is given a period to bring an action against a private individual by a statute of limitations and you can make the same showing in a civil case, does the Due Process Clause violated there?

Mr. Louis Gilden: Well, I do not think the due process -- I think you would have question of latches there, I think that is what you would have theoried there Justice Rehnquist.

Justice William H. Rehnquist: But if the Due Process Clause talks about deprivation of life, liberty or property, presumably a civil defendant could be deprived of property just as surly as a criminal defendant could be deprived of liberty by unwarranted government delay that was still within the limitations period.

Mr. Louis Gilden: Well, I think this Court is much more concerned about fundamental constitutional rights of criminal cases than they are in civil latches.

Justice William H. Rehnquist: What is the rundamental constitutional rights you are talking about other than the right to, not be deprived of liberty without due process of law.

Mr. Louis Gilden: Well, the fundamental right is the right to a fair trial, Justice Rehnquist.

If you do not have all your witnesses at trail you have not had a fair trial, and how can you go to trial when you have lost your evidence and the government…

Justice Thurgood Marshall: If stood, the day after the crime, what would you have?

Mr. Louis Gilden: Well, that -- I might say that there was a question I was presented yesterday and I can say that certain…

Justice Thurgood Marshall: I still think its here.

Mr. Louis Gilden: What sir?

Justice Thurgood Marshall: I think it is still here.

Mr. Louis Gilden: Well, it may well be, but I think that certainly the Court, the District Court does not or can deal with that issue Justice Marshall or you can say that certainly that is something the government had no control over.

But, the government had control over these proceedings and what is so interesting is that really bothers me so much is the government…

Justice Thurgood Marshall: Well, who determines how much evidence is available for prosecution other than the US Attorney?

Mr. Louis Gilden: Well, he is the only one…

Justice Thurgood Marshall: Isn’t that he is provocative and nobody else’s?

Mr. Louis Gilden: True, but let me say this, this is also…

Justice Thurgood Marshall: Weel, if he wants to little bit more, he just wants one more witness.

Mr. Louis Gilden: Well, he did not say that to the District Court, he had to…

Justice Thurgood Marshall: Would that been enough?

Mr. Louis Gilden: That would have been enough; he was trying to find somebody.

Justice Thurgood Marshall: Well, can’t you assume that?

Mr. Louis Gilden: Oh, I can assume…

Justice Thurgood Marshall: If you do not assume that he did it to deliberately, will you?

Mr. Louis Gilden: Well, let me say this, I believe it was done deliberately certainly, I believe that when…

Justice Thurgood Marshall: Well, what good is it to do it, to hold up prosecution deliberately?

Mr. Louis Gilden: Well, courts have held and this Court…

Justice Thurgood Marshall: I was told at Law School that delay was to the benefit of the defendant because he would always rely on the prosecutor's witness dying.

Mr. Louis Gilden: Well that is true and…

Justice Thurgood Marshall: Weren't you taught that in Law School.

Mr. Louis Gilden: I was taught the same thing Your Honor, but I might say too that it works for -- it is a double edge sword, it can work against defendant as well.

I worked against him here and I think that certainly delay does benefit defendant, but I think that there are two things that to have be considered here.

The Court has supervised jurisdiction over its own proceedings and let me say this, the Court, when it feels that there is been a lack of prosecution or want a prosecution that has the right to dismiss a case over a prosecution and I might say that there are many cases that hold that as well.

Justice William J. Brennan: Suppose in this very case, prosecutor had command US Attorney to come in and to testify.

Well, we have got a very large calendar in this district; we just do not have enough personnel, enough resources to put everything on as we might want as properly as you might want.

We have to select out the most important and our exercise of our discretion, prosecutorial discretion, this case sat on the backgrounder for a while, will that be enough?

Mr. Louis Gilden: That bothers me, no, I think that would be enough to have it dismissed the reason that bothers me...

Justice William J. Brennan: You think you would still prevail it. That is the only (Voice Overlap).

Mr. Louis Gilden: Yeha, I think so.

Justice William J. Brennan: But that is a practical matter, is not that true in many districts?

Mr. Louis Gilden: True, but what troubles me so much Justice Brennan, is that we now operate at the gun shot of the prosecutor, both courts and the defendants now.

Justice William J. Brennan: I suppose a speedy trial well, might have a bearing out all…

Mr. Louis Gilden: That is what troubles me so much, Justice Rehnquist talked about the root cause, the delay in running this Assistant Attorney General, I might say that we now -- the prosecutor shoots the gun and now the courts have to get ready for trial within 60 days and defendants have to get ready for trial in 60 days.

Now, we have judicial accountability that courts do and defendants and what the government wants to do, is remove all judicial accountability for their actions.

Justice William H. Rehnquist: But isn’t the speedy trial act going through the pressure on the government not to bring its indictments until it is sure that it is all ready to go to trial.

Well, certainly because they are going to have all of their evidence, I think that is what they want to do, but I don’t…

Chief Justice Warren E. Burger: Well, but the Justice Department did not sponsor the speedy trial.

Mr. Louis Gilden: No, I understand, but I think there should be judicial accountability for their inaction inertia, I mean when we are accountable, courts and defendants, we have to jump at the women and at the trigger of the government.

So, it seems to me that in view of the philosophy of the Speedy Trial Act and the policy statement of Congress and passing it, then we still…

Chief Justice Warren E. Burger: I am not sure what you mean by that, but I think if you look at the records, you would find that infinitely more cases are continued and postponed at the request of defendants by a ratio of 3-4 to 1; then are now continued and postponed with the request of the prosecution with the all parts.

Mr. Louis Gilden: Well, I would say this is probably true, but what is interesting here is that Lovasco kept calling the government saying “What you going to do?”

This was not a man who sort of took off and thought that the whole matter was going to wash away and that nothing was going to happen to him, he is hoping for delay and all that sort of thing, he wanted the resolution.

I would say certainly many defendants, people that are a guilty do not want a too broad trial, they do not want to go to jail.

But I think people that are concerned about their innocence and people that are concerned about their anxiety systems and all that are concerned about some immediate resolutions for their problems.

Justice Harry A. Blackmun: Mr. Gilden in the government’s brief, they make a second argument that the decision on that delay should have been made after trial rather than I advance of trial.

Did they ask for this help -- did they ask the Court to postpone the decision?

Mr. Louis Gilden: Never did, so this is merely an advisory opinion of asking this Court rule on, they never asked the court for the exercise of this discretion in delaying the matter until the close of the jury trial.

Justice Harry A. Blackmun: What do you think about their suggestion as a procedure?

Mr. Louis Gilden: Well I think that is a bad one, I feel that when you get into pre-acquisition delay and you raise the question of Fifth Amendment Due Process, how can you go to trial when you have lost very material evidence.

I think the District Court has to make that determination before we go to trial.

If you have lost your evidence and you have lost somebody who can prove your innocence and he finds that there is violation due process, it seems to me you cannot have a fair trial.

I go though all that charade with a purpose and at the close of the trial have the court rule on whether or not you had a fair trial.

It seems to me that you are saving two thing, you are saving the government certainly money for the trial, you are saving Judicial time and Judicial economy time with crowded dockets and you are certainly saving defendant a lot of counsel fees if he has ability to pay for a trial or case that might take two three four days or a week depending upon the circumstances.

Justice Thurgood Marshall: Once again Mr. Gilden what good is the statute of limitations.

Rather what use is it?

Mr. Louis Gilden: Well I might say that it is something the Court can be concerned about and I think it is something that as raised before I would say that the statute of limitations would be a factor in this matter had the government said anything at all.

The government had come through with any evidence it was able to show that it is justifying its delay.

Justice Thurgood Marshall: What part of the Constitution or statute tells the prosecuting attorney, that he must file his -- get his indictment within a certain number of months?

Mr. Louis Gilden: Well there is nothing in the Constitution; there is nothing in any law except the statute of limitations.

Justice Thurgood Marshall: How are you injured?

Mr. Louis Gilden: What sir?

Justice Thurgood Marshall: How are you injured?

Mr. Louis Gilden: We are injured by the death of two witnesses.

Justice Thurgood Marshall: Who guarantees you those witnesses?

Mr. Louis Gilden: Well no one guarantees it but it is my burden to prove under Marion that I have been prejudiced, and I say that we assume that burden and satisfy the District Court that we had been prejudiced, and certainly that under Marion we are entitled to show they are prejudice.

Justice Thurgood Marshall: Oh, you are entitled to show it but I wonder whether you entitle to win?

Mr. Louis Gilden: Well I -- the District Court felt that I should -- what?

Justice Thurgood Marshall: On the merits how many months do you think are necessary?

Mr. Louis Gilden: I do not want to limit that…

Justice Thurgood Marshall: Of course you can because you can get a narcotics indictment in about 16 minutes and you can get involved in conspiracy indictment in about two years, right?

Mr. Louis Gilden: That is true.

Justice Thurgood Marshall: So, there is no line to draw.

Mr. Louis Gilden: I think that the District Court can analyze the type of case it can analyze whether it is a complex conspiracy case, it can analyze whether it is simple event like here, did he steal the guns or did not he steal the guns, that he know that they were stolen or didn't he, and I think that is a very simple proposition.

Justice William H. Rehnquist: Would the gravity of the offense play any part in the calculus you are suggesting, for example, typical state law there is no statute of limitations for murder.

Whereas for ordinary theft larceny the statute the maybe three years, four years.

Would you say that the government’s time could be longer depending on the seriousness of the offense?

Mr. Louis Gilden: I would say certainly that a District Judge would certainly or a State Judge would certainly weigh very heavily dismissal of indictment based upon a murder alligation and I say that, that is something to be concerned about with respect to the exercise or discretion by the District Judge as to whether or not there was prejudicial delay in material prejudice to the defendant.

I say that no one can setup standards as to this crime deserves, this amount of prejudicial delay and this one has had some another standard of time I think it is something for the District Court or the State Court to decide, within the framework of what is the delay, what was the reason for it and how was the defendant in anyway prejudiced by the delay.

Chief Justice Warren E. Burger: Mr. Gilden are behind in your criminal calendars in the eastern district?

Mr. Louis Gilden: Oh! I think that we can get through trial within 60 days; we are not behind at all.

Chief Justice Warren E. Burger: Have you had many cases like this out there or emotions of this kind have been made.

Mr. Louis Gilden: One more a case called Barcait (ph) it was 48 months delay I believe and it went to the Eighth Circuit, it came out of Kansas city and what do you call that eastern district or the western.

Chief Justice Warren E. Burger: Both.

Mr. Louis Gilden: The District Judge in Kansas City dismissed the indictment for a 48 months delay and...

Chief Justice Warren E. Burger: Who was the judge on that one do you remember.

Mr. Louis Gilden: In the public court I think it was Judge Gibson who wrote the opinion.

So, I would say that from what I know and what in crusing all the cases it is very unusual certainly for a District Judge to dismiss a case based on prejudicial delay and material result and prejudice.

You will find that the courts are not receipted to that kind of reception to that kind of motion.

So I think what we are saying here is that the government is certainly exercising a lot of concern about the administration of justice, but I do not think the Administration of Justice is going to be in anyway affected by decision of this Court, that the defendant was prejudice from the government did nothing to explain or justify its delay.

Chief Justice Warren E. Burger: Mr. Rupp, do you have anything further?

Argument of John P. Rupp

Mr. John P. Rupp: Couple of brief comments Mr. Chief Justice.

Mr. Gilden suggest that if the government had done anything here perhaps this case should not be here, well then maybe it should not be here at the hearing on the motion to dismiss the United States Attorney in response to questions indicated that.

Furthermore as to additional witnesses received that to the date of September 26, 1973 that is true, that is there were few additional witnesses discovered, but not as to the investigation itself.

The Eight Circuit expressly credited that representation and none of the less held that the indictment in this case should be dismissed finding that that was not a sufficient justification for the 18 months delay that occurred here.

Mr. Justice Stevens, as I recall yesterday you expressed some concern about having government counsel testify routinely in response to motion such as respondents.

I should point out that that is a much greater problem under the Eighth Circuit's formulation than under what we believe the Due Process Clause means.

Whenever the defendant, under the Eighth Circuit’s formulation has been able to make a facially credible allegation of prejudice, the Eighth Circuit would have the government come in an attempt to formatively to justify any delay that occurred.

The only way that could be done is by having the United States Attorney or the Assistant United States Attorney come in, attempt the document, the course of the investigation at detail, saying who was doing what at what time for what reasons.

Government counsel might also have to take the stand under the view of the under the Due Process Clause as we believe it should be construed, but the enquiry would be much more limited.

Government counsel already takes the stand in a number of contexts for example the one that most readily comes to mind, are motions that deal with some aspect to pre-bargaining negotiations.

With respect to the questions that you asked yesterday Mr. Justice Marshall, the government's position is not that a potential defendant has an obligation to ask to be indicted, he may of course do nothing.

The question here is under what circumstances a defendant is entitled to come into court and say guilty or not, the Due Process Clause prevents the government from trying me.

Now, we have suggested that the defendant may make the records showing in any of several ways and all my response to your question yesterday was intended to indicate is that, if a defendant, a potential defendant had indicated that if the government delayed in reaching a decision whether to prosecute, he might be prejudiced, he would be in a stronger position to claim immunity from prosecution.

Justice Thurgood Marshall: Well, is not it true that he did in this case? Is that true or not?

Mr. John P. Rupp: The record is a bit unclear, the record certainly is clear that Mr. Lovasco called the Postal Inspector on several occasions, now the record indicates…

Justice Thurgood Marshall: Well, isn’t that to answer to my question?

Mr. John P. Rupp: That he had no time.

Justice Thurgood Marshall: That he did do it.

Mr. John P. Rupp: No, I think the record is precisely the contrary, that what the record shows is that Mr. Lovasco said when he was interviewed that he had -- the only guns he had sold or guns he had found in the back seat of his car, not until the motion on the hearing to dismiss, did he mention and then for the first time, that there were two additional people, Stewart and his brother and that the guns in fact were at least two or three of them came from some other source.

Justice Thurgood Marshall: Do you say, he never called the prosecutor and says, “Why do not you do some about this case?”

Mr. John P. Rupp: He did not call the prosecutor, he called the Postal Inspector, I think it is a same difference…

Justice Thurgood Marshall: Well, like the government.

Mr. John P. Rupp: Yes, that is right.

Justice Thurgood Marshall: Well, he did do that.

Mr. John P. Rupp: He did, but he did not say anything that we…

Justice Thurgood Marshall: Isn’t that what you wanted him to do?

Mr. John P. Rupp: No, he did not.

What he did is to say, “I assume, I am anxious about this,” what he did not do is give the government any cause to believe, that he was about to be prejudiced, his ability to defend himself the trial would be prejudiced when any delay would occur.

Justice Thurgood Marshall: Well, he certainly could not have told him that I am afraid that Mr. Stewart is going to die.

Mr. John P. Rupp: He could not have said that because he had said earlier that he had found all of the guns he had sold to Boa as in the back seat of his car.

Justice John Paul Stevens: Mr. Rupp before you sit down, your opponent has said that in the lower courts, the government took the position that all of the defendant need to show as prejudice and unreasonable delay. Has he correctly characterized the record?

Mr. John P. Rupp: That is incorrect Your Honor.

As I indicated during my presentation yesterday, the District Court and again, I can only refer you to the District Court’s order.

The District Court based its dismissal in this case on Rule 48 of Federal Rules of Criminal Procedure.

To some extent that is cued the proceedings during the opening round of briefs in the Court of Appeals.

The issues presented here though were argued to the Court of Appeals and then when the Court of Appeals issued its decisions, the government petitioned for rehearing, arguing both, the issues that we present here precisely as we present them here and arguing that the District Court should have delayed reaching a decision till after trial.

The reason that was not done earlier is that the motion itself was especially inadequate.

The motion does not contain an assertion that Lovasco would have been prejudiced to trial.

It only claimed the anxiety in concern and an unelaborated assertion of prejudice.

Argument of Unidentified Justice

Unidentified Justice: Mr. Rupp I asked to you that argument of part two of your brief, that you just discussed that the -- when a trial judge is met with the motion of this kind by the defendant, that he should differ ruling on until after trial, you mean after verdict or in case of all the evidence, which is unclear to me?

Rebuttal of John P. Rupp

Mr. John P. Rupp: Actually it could come at either point, there was certainly is…

Rebuttal of Unidentified Justice

Unidentified Justice: Well, it could come certainly as it could come before trial, but what is your argument?

Rebuttal of John P. Rupp

Mr. John P. Rupp: If the Court is satisfied after having heard the evidence that the defendant has suffered materiel prejudice in once to avoid, having a verdict to return which may cause some prejudice, I think that’s appropriate.

Our real concern here is having these motions disposed off and particularly the prejudice aspect to the motion disposed off, before trial of the general issue, before the Court has a real opportunity to know precisely what this case is about.

Rebuttal of Unidentified Justice

Unidentified Justice: Well, I understand your reasoning, what is your argument before or after verdict.

Rebuttal of John P. Rupp

Mr. John P. Rupp: Our position is that if the Court is satisfied before the verdict, that the defendant is been prejudiced; we fairly can appropriately dismiss the indictment at that point and not...

Rebuttal of Unidentified Justice

Unidentified Justice: Even though the Jury might acquit it…

Rebuttal of John P. Rupp

Mr. John P. Rupp: Acquit it, even though the Jury might acquit it…

Justice William H. Rehnquist: And even though if you appeal from the dismissal before verdict and the Court of Appeals besides your own, then you may not be able to prosecute a man because that is double jeopardy.

Mr. John P. Rupp: Yes, that is a problem, alright I am sorry, let me amend that.

Justice William H. Rehnquist: That would be a double jeopardy problem.

Mr. John P. Rupp: Yes that is right and I am sorry.

That would present a problem, if the Court would rule on…

Justice William H. Rehnquist: So, that has prompted my question.

Mr. John P. Rupp: Yes and I am sorry.

Our position then would be that he should wait until as we indicated in the brief after the verdict is returned and before judgment is been entered on the brief.

Rebuttal of Unidentified Justice

Unidentified Justice: Well, that is what Marion seems to contemplate.

Rebuttal of John P. Rupp

Mr. John P. Rupp: That is precisely what Marion seems to contemplate.

Rebuttal of Unidentified Justice

Unidentified Justice: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.