NORTHERN IMPROVEMENT COMPANY, ET AL., PETITIONERS V. UNITED STATES
OF AMERICA

   STEVE MCCORMICK, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-25 and 87-60

   In the Supreme Court of the United States

   October Term, 1987

   On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Eight Circuit

   Memorandum for the United States in Opposition

   Petitioners contend that the court of appeals erred in reversing an
order that had dismissed an indictment on the ground that it was
barred by the statute of limitations.

   On October 9, 1985, a grand jury sitting in the District of North
Dakota indicted petitioners on one count of violating Section 1 of the
Sherman Act, 15 U.S.C. 1.  The indictment charges that, beginning at
least as early as 1975, and continuing at least through July 28, 1981,
petitioners engaged in a continuing agreement to submit collusive,
noncompetitive, and rigged bids for municipal street improvement
projects let by the Cities of Fargo, North Dakota;  West Fargo, North
Dakota;  and Moorhead, Minnesota.  87-25 Pet. App. 18-19;  87-60 Pet.
App. 8-9.

   On April 25, 1986, the district court dismissed the indictment on
the ground that it had not been returned within the five-year period
of limitations in 18 U.S.C. 3282.  87-25 Pet. App. 29;  87-60 Pet.
App. 19.  The court held that the conspiracy terminated on the day on
which the last rigged bid was submitted, rather than the last day on
which a conspirator accepted the profits from a contract obtained by a
rigged bid (87-25 Pet. App. 28;  87-60 Pet. App. 18).  On March 24,
1987, the court of appeals reversed.  It concluded that, if the
purpose of an illegal agreement is the receipt of payments on an
illegally obtained contract, the acceptance and retention of those
contract payments are overt acts in furtherance of the conspiracy for
statute of limitations purposes.  87-25 Pet. App. 34-35;  87-60 Pet.
App. 24-25.

   Petitioners contend (87-25 Pet. 8-10;  87-60 Pet. 4-7) that an
antitrust conspiracy must be treated differently from other criminal
conspiracies -- specifically that, once a rigged bid is submitted,
trade is no longer being restrained and that any "objectives ancillary
to the objective of actually restraining trade" (87-25 Pet. 9) do not
continue the conspiracy for statute of limitations purposes.  The
corporate petitioners also contend (id. at 10-14) that this antitrust
conspiracy did not continue past the bid date because the conspirators
did not engage in joint or "cooperative" action to divide the spoils
of their illegal agreement.

   Whatever the merits of petitioners' contentions, they are not yet
ripe for review by this Court.  The decision of the court of appeals
places petitioners in precisely the same position they would have
occupied if the district court had denied their motion to dismiss.  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 contentions 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 decision of the court of appeals would be
premature at this time.  /*/

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

   CHARLES FRIED

      Solicitor General

   July 1987

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