BENJAMIN OKWUMABUA, ET AL., PETITIONERS V. UNITED STATES OF AMERICA

   No. 87-1002

   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

   Memorandum for the United States in Opposition

   Petitioners contend that the court of appeals erred when it
reversed an order of the district court suppressing as evidence
statements petitioner Okwumabua had made to a federal agent.

   On January 28, 1986, petitioners were charged in an eight-count
indictment returned in the United States District Court for the
Western District of New York.  The indictment charged them with making
false statements to the Small Business Administration, in violation of
18 U.S.C. 1001;  filing a false claim with the General Services
Administration, in violation of 18 U.S.C. 1341.  Petitioners moved to
suppress the statements that petitioner Okwumabua had made during an
interview at his office.  The interview had been conducted by three
members of the General Services Administration (GSA) Inspector
General's Office following an audit of a GSA contract.  Petitioners
also moved to suppress documents that the agents had obtained from
petitioners during the audit.

   On December 26, 1986, the district court granted the motion with
respect to the statement made by petitioner Okwumabua.  The court
granted the motion on the ground that one of the agents who
participated in the interview was a criminal investigator, and that he
participated in the interview at a time when a criminal prosecution
was predictable but did not inform Okwumabua of his role and purpose
(Pet. App. A14-A15).

   The court of appeals reversed (Pet. App. A1-A9).  The court found
that the agent had no duty to inform petitioner Okwumabua that he was
conducting a criminal investigation.  Accordingly, the court
concluded, petitioner's Fifth Amendment right to remain silent had not
been violated by deception on the part of the agent.  Instead, the
court of appeals held, petitioner's statement were the voluntary
products of his free and unconstrained choice.

   Petitioners contend (Pet. 6-8) that the statements obtained from
Okwumabua during the GAS interview are inadmissible into evidence
under United States v. Kordel, 397 U.S. 1 (1970), because of
deliberate and deceptive conduct by the agents that violated his Fifth
Amendment rights.  Whatever the merits of petitioners' contention, it
is not presently ripe for review by this Court.  The court of appeals'
decision places petitioners in precisely the same position they would
have occupied if the district court had denied their motion to
suppress.  If petitioners are acquitted following a trial on the
merits, their contentions will be moot.  If, on the other hand,
petitioners are convicted and their convictions are affirmed on
appeal, they will then be able to present their current claim to this
Court, together with any other claims they may have, in a petition for
a writ of certiorari seeking review of a final judgment against them.
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.

   CHARLES FRIED

      Solicitor General

   JANUARY 1988

   /1/ Because this case is interlocutory, 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.