SAMUEL ROSENGARTEN, ET AL., PETITIONERS V. UNITED STATES OF AMERICA

   No. 88-937

   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 Second Circuit

   Memorandum For The United States In Opposition

   Petitioners contend that the court of appeals erred in reversing an
order dismissing the indictment against them on the ground that a
conviction under that indictment would violate the Ex Post Facto
Clause of the Constitution (Art. I, Section 9, Cl. 3).

   On August 13, 1987, petitioners were indicted by a federal grand
jury sitting in the Southern District of New York.  /1/ The defendants
were charged with conspiring to defraud the United States by
"impeding, impairing, defeating and obstructing the lawful
governmental functions of the Internal Revenue Service in the
ascertainment, evaluation, assessment, and collection of income
taxes," in violation of 18 U.S.C. 371.  Pet. App. A3.  In particular,
the indictment alleged that the purpose of the conspiracy was to
create false income tax deductions by backdating documents relating to
a real estate tax shelter.  The agreement to backdate the documents
was designed, according to the indictment, to produce improper
deductions under Section 501 of the Tax Reform Act of 1986, 26 U.S.C.
(Supp. IV) 469.  The agreement was alleged to have taken place prior
to the effective date of the 1986 Act. Pet. App. A3.

   Prior to trial, the district court dismissed the indictment (Pet.
App. A10-A17).  In the district court's view, the defendants could not
be charged with conspiring to defeat the collection of taxes where the
agreement took place prior to the date the pertinent tax statute went
into effect.  Following what it believed to be the dictates of a prior
Second Circuit decision, the district court held that to convict the
defendants of a crime for such conduct, without proof of some overt
acts occurring after the effective date of the statute, would violate
the Ex Post Facto Clause of the Constitution.  Pet. App. A17.

   The court of appeals reversed and remanded the case for
reinstatement of the indictment (Pet. App. A1-A9).  The court
concluded that "a conspiracy to frustrate or obstruct the IRS's
function of ascertaining and collecting income taxes falls clearly
within the ban of section 371" (id. at A6).  Therefore, the court
held, the effective date of Section 501 was not determinative of
whether petitioners committed the crime of conspiring to defraud the
United States.  As the court noted, the Ex Post Facto Clause "did not
preclude the Government from protecting itself against (petitioners),
who would have prevented the IRS from properly administering its
affairs by conspiring to violate an already-enacted revenue statute
prior to its effective date" (Pet. App. A8).

   Petitioners contend (Pet. 5-14) that the decision of the court of
appeals is contrary to the decisions of this Court and other courts of
appeals construing the Ex Post Facto Clause, and that the court's
decision improperly construed the federal conspiracy statute, 18
U.S.C. 371.  Whatever the merits of petitioners' contentions, they are
not 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 dismiss the
indictment.  If petitioners are acquitted at trial, the issues they
now present will become moot.  On the other hand, if petitioners are
convicted after trial, they will be able to present their Ex Post
Facto and statutory claims 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.  /2/

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

   CHARLES FRIED

      Solicitor General

   DECEMBER 1988

   /1/ Also charged was co-defendant James Nicholas, who pleaded
guilty (Pet. App. A3).

   /2/ Because this case is interlocutory, we are not responding on
the merits to the question presented by the petition.  We will file a
response on the merits if the Court requests.