RONALD H. GLANTZ AND ANTHONY J. BUCCI, SR., PETITIONERS V. UNITED
STATES OF AMERICA

   No. 86-1787

   In the Supreme Court of the United States

   October Term, 1986

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

   Memorandum for the United States in Opposition

   Petitioners contend that the court of appeals erred in reversing an
order granting a new trial.

   Following a jury trial in the United States District Court for the
District of Rhode Island, petitioners were convicted of conspiracy to
extort kickback payments and of the substantive crime of extorting
those payments, in violation of 18 U.S.C. 1951.  Petitioner Bucci was
also convicted of conspiracy to conceal the kickback scheme from the
Internal Revenue Service, in violation of 18 U.S.C. 371;  and of
preparing two false documents for presentation to the Internal Revenue
Service, in violation of 26 U.S.C. 7206(2).  On July 2, 1986, the
district court granted petitioners' motion for a new trial because of
alleged improprieties in the prosecutor's closing and rebuttal
arguments.

   On February 2, 1987, the court of appeals reversed (Pet. App.
3-21).  It concluded that the "substantially appropriate nature of the
prosecutor's comments, the repeated correction of any possible
deficiencies, and the strong government case all lead to the
conclusion that the district court abused its discretion" in ordering
a new trial (id. at 20).

   After the court of appeals' decision, the district court sentenced
petitioners.  They then noted an appeal of their convictions to the
court of appeals.  That appeal is now pending.  Petitioner Bucci also
filed a motion for a new trial on the ground of newly discovered
evidence.  That motion is now pending in the district court.

   Petitioners contend (Pet. 5-9) that the court of appeals erred in
not according sufficient deference to the trial court's conclusion
that a new trial was warranted.  Petitioners also contend (Pet. 9-18)
that the court below, although articulating an abuse of discretion
standard of review, incorrectly applied a de novo standard of review
to the trial court's order.  Whatever the merits of petitioner's
contentions, they are 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 for a new trial.  If the court of appeals were to
reverse petitioners' pending appeal from their judgments of conviction
and remand for a new trial, their claims might be mooted by an
acquittal following a second trial on the merits.  If, on the other
hand, the court of appeals affirms their convictions, petitioners will
then be able to present their present contentions to this Court,
together with any other claims they may have, in a petition for a writ
of certiorari seeking review of final judgments of conviction.
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.

   CHARLES FRIED

      Solicitor General

   MAY 1987

   /*/ 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.