DARRYL S. GRANBERRY, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7396

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order dismissing an indictment on the ground that the indictment
failed to state an offense.

   1. On May 4, 1989, petitioner was charged in an indictment returned
in the United States District Court for the Eastern District of
Missouri.  The indictment charged him with two counts of mail fraud,
in violation of 18 U.S.C. 1341.  The allegations in the indictment
were that petitioner devised a scheme to defraud and to obtain money
and property from a school district and a State by submitting
applications for employment as a bus driver for the school district
and for a state school-bus-operator permit in which he misrepresented
his prior criminal record.  The indictment detailed the money and
property of which the school district and State had been defrauded,
which included the wages the school district had paid him and its
property interest in exercising control of how its money was spent.
Pet. App. E1-E7.

   On November 15, 1989, the district court dismissed the indictment
on the ground that it failed to allege an offense.  The court held
that the indictment did not allege that the State was deprived of
property or money within the meaning of 18 U.S.C. 1341, as construed
in McNally v. United States, 483 U.S. 350 (1987).  Pet. App. C1-C22.
In its ruling, the court concluded that the school district had not
been fraudulently deprived of the wages it paid petitioner and its
control of how its money was spent, because the district wanted and
paid for the services of a bus driver and petitioner provided that
service.

   The court of appeals reversed.  Pet. App. A278-A281.  The court
held that the indictment contained sufficient allegations that the
school district was deprived of money and property within the meaning
of McNally v. United States.  The court concluded that the school
district "has been deprived of money in the very elementary sense that
its money has gone to a person who would not have received it if all
the facts had been known." Id. at A280.  The court explained that the
district wanted a competent, truthful driver who had not been
convicted of a felony, and that it would not have given petitioner any
of its money if it knew the facts.  The court also concluded that the
district was deprived of property by being defrauded of the right to
control the spending of its own money.  Id. at A280-A281.

   2. Petitioner contends (Pet. 5-9) that his conduct could not have
injured the school district and that his prior criminal record was not
relevant to his ability to drive a bus competently.  Petitioner also
contends (Pet. 9-16) that the court of appeals' decision conflicts
with McNally v. United States, 483 U.S. 350 (1987), and that this use
of the mail fraud statute is an unjustifiable federal intrusion into
state interests.

   Whatever the merits of petitioner's contentions, they are not
presently ripe for review by this Court.  The court of appeals'
decision places petitioner in precisely the same position he would
have occupied if the district court had denied his motion to dismiss.
If petitioner is acquitted following a trial on the merits, his
contentions will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to present his current contentions to this Court, together with
any other claims he may have, in a petition for a writ of certiorari
seeking review of a final judgment against him.  Accordingly, review
by this Court of the court of appeals' decision would be premature at
this time.  /*/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied

   KENNETH W. STARR

      Solicitor General

   APRIL 1991

   /*/ Because this case is interlocutory, we are not responding on
the merits to the question presented by the petition.  We will file a
response on the merits if the Court requests.