DANIEL H. OVERMYER, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-1910

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals erred in reversing an
order granting a motion for a judgment of acquittal following a jury
verdict of guilty.

   On January 28, 1986, petitioner and Edmund M. Connery were indicted
in the United States District Court for the Northern District of Ohio.
 The indictment charged petitioner with six counts of bankruptcy
fraud, in violation of 18 U.S.C. 152;  two counts of conspiracy to
commit bankruptcy fraud, in violation of 18 U.S.C. 371;  and one count
of mail fraud, in violation of 18 U.S.C. 1341.  Connery, charged in
six counts, was granted a severance.  Pet. App. 21a.

   Before the case was submitted to the jury, the district court
granted a judgment of acquittal on five counts.  The court submitted
the four remaining counts to the jury.  Thereafter, the jury acquitted
petitioner on three counts.  The jury, however, returned a guilty
verdict on a count charging that petitioner knowingly filed a false
bankruptcy claim on behalf of Hadar International Leasing Company
against the bankruptcy estate of D.H. Overmyer Telecasting.  Pet. App.
21a.  The false claim was based upon various television broadcast
equipment leases between Hadar and Telecasting.  Pet. App. 22a.

   The district court granted a post-verdict judgment of acquittal on
the ground that the government had, at best, established that
petitioner filed a claim that was subject to dispute.  The court found
that a claim for lease payments prior to the installation of a
transmitter was not properly treated as a false claim, that
installation charges for work in progress were not fraudulent solely
because they represented bids from contractors rather than full legal
obligations, and that the government had not met its burden of showing
that Telecasting had overpaid Hadar for its leasing obligations.  Pet.
App. 1a-19a.

   The court of appeals reversed.  Pet. App. 20a-59a.  The court
concluded that the jury had sufficient evidence before it from which
it could reasonably conclude that petitioner's bankruptcy claim was
intended to deceive the bankruptcy court.

   Petitioner contends (Pet. 7-10) that the court of appeals ignored
the expansive definition of "claim" in the Bankruptcy Code, 11 U.S.C.
101(4).  Petitioner also contends (Pet. 11-15) that the false claim
clause of 18 U.S.C. 152 does not apply to claims filed at a point in
the proceedings where the parties contemplate full adversarial
litigation on the claims.

   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 post-trial motion
for a judgment of acquittal.  If, after the imposition of sentence by
the district court, the court of appeals reverses petitioner's
conviction because of trial error, his claims might be mooted by an
acquittal following a second trial on the merits.  If, on the other
hand, the court of appeals affirms his conviction, petitioner will
then be able to raise his present contentions before this Court,
together with any other claims he may have with respect to possible
trial errors or other errors in the proceedings, 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.  /1/

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

   KENNETH W. STARR

      Solicitor General

   JUNE 1989

   /1/ Because this case is in an interlocutory posture, we are not
responding on the merits to the questions presented by the petition.
We will file a response on the merits if the Court requests.