CHRIS POLYCHRON, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-100

   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 Eighth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order dismissing an indictment for failure to state a federal offense.

   Petitioner, the president of a bank, was indicted by the grand jury
sitting in the Western District of Arkansas.  The indictment charged
him with two counts of failing to file currency transaction reports
(CTRs), in violation of 31 U.S.C. 5313 and 5322;  two counts of
concealing material facts from the Department of the Treasury in
regard to those transactions, in violation of 18 U.S.C. 1001;  and one
count of conspiring to violate the currency transaction reporting
statute and regulations, in violation of 18 U.S.C. 371 (Pet. App.
D1-D8).

   On February 19, 1987, the district court dismissed the indictment.
The court noted that by statute and regulation financial institutions
are required to report currency transactions that exceed $10,000 in
amount.  The court concluded that those provisions did not require the
aggregation of transactions occurring in the same bank on the same
day.  The court also concluded that the instruction in the Currency
Reporting Form (Form 4789) stating that multiple transactions by any
person in any one day should be treated as a single transaction could
not serve as the basis for criminal liability.  Accordingly, the court
held that the indictment did not charge an offense when it alleged
that petitioner had failed to report his bank withdrawals on March 9
and March 11, 1982, where each individual withdrawal was under
$10,000, but where the withdrawals in the aggregate amounted to more
than $10,000 for each of those two days (Pet. App. A1-A9).

   The court of appeals reversed.  The court ruled that the statute
sufficiently apprised petitioner that when a financial institution or
its officer or employee acting within the scope of his employment
breaks an otherwise reportable transaction into multiple transactions
in a single day, each of which does not exceed $10,000, the bank or
its officer or employee may be held criminally responsible for failing
to file a CTR or causing the bank to fail to file a CTR (Pet. App.
B1-B9).

   Petitioner contends (Pet. 21-30) that individual currency
transactions of less than $10,000 may not be aggregated to support an
indictment, even when the transactions occur on the same day at the
same bank.  He also contends (Pet. 26-30) that the court of appeals
improperly relied on the instructions on the Currency Reporting Form
to support the indictment.  Finally, petitioner contends (Pet. 30-32)
that the decision of the court of appeals was contrary to the Ex Post
Facto and Due Process Clauses of the Constitution.

   Whatever the merits of petitioner's contentions, they are not
presently ripe for review by this Court.  The court of appeals'
decision places petitioner in precisely the same position he would
have occupied if the district court had denied his motion to dismiss.
If petitioner is acquitted following a trial on the merits, his
contentions will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to raise his present contentions before this Court, together with
any other claims he may have, in a petition for a writ of certiorari
seeking review of a final judgment against him.  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

   AUGUST 1988

   /1/ Because this case is in an interlocutory posture, we are not
responding on the merits to the questions presented by the petition.
We will file a reponse on the merits if the Court requests.