MIDLAND ASPHALT CORP., ET AL., PETITIONERS V. UNITED STATES OF
AMERICA

   No. 87-1905

   In the Supreme Court of the United States

   October Term, 1987

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

   Supplemental Memorandum for the United States

   In our brief in response to the petition in this case, we explained
that the courts of appeals are divided on the question whether claims
of grand jury error are immediately appealable, and we therefore
agreed that the petition for a writ of certiorari should be granted.

   Since our filing, we have learned of a recent decision of the
Seventh Circuit which further reflects the split in the circuits on
the question presented.  In United States v. Daniels, No. 88-1767 (May
31, 1988), several defendants sought leave to withdraw their guilty
pleas on the ground that the grand jury that indicted them had been
serving beyond its term.  The district court rejected that claim.  On
appeal, the Seventh Circuit dismissed for want of appellate
jurisdiction.  The court of appeals rejected the contention that
interlocutory review of the grand jury claim was required by this
Court's decision in United States v. Mechanik, 475 U.S. 66 (1986).  It
reasoned, in part, that "to the extent Mechanik bars review of grand
jury questions on appeal from the final judgment, it does so because
any errors are too insignificant to call for correction.  If the
errors are too insignificant after conviction, they are too
insignificant before conviction." Daniels, slip op. 3.

   The Daniels court noted that declining to permit grand jury errors
to be the subject of interlocutory appeals is consistent with the
policies underlying the strong presumption against such appeals,
particularly in criminal cases.  The court observed (slip op. 3) that
"(m)ultiple appeals produce leaden-footed justice and divert the time
of courts from more pressing questions raised by other parties."
Moreover, the court explained (ibid.), "(d)efects in the initiation of
(criminal) proceedings do not create 'rights not to be tried.'" In
rejecting the defendants' claim of a right to interlocutory appeal
with respect to grand jury errors, the court of appeals relied on the
First Circuit's decision in United States v. LaRouche Campaign, 829
F.2d 250 (1987), and cited as conflicting authority the Ninth
Circuit's decision in United States v. Dederich, 825 F.2d 1317 (1987).

   The decision of the Seventh Circuit in Daniels confirms our belief
that it would be appropriate for the Court to grant review of the
question presented in this case.

   Respectfully submitted

   CHARLES FRIED

      Solicitor General

   JUNE 1988