ERNESTINE TREECE, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7334

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The order of the court of appeals (Pet. App. 1) is not published,
but the judgment is noted at 919 F.2d 739.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 7,
1990.  The petition for a writ of certiorari was filed on March 8,
1991, and is accordingly out of time under Rule 13.1 of the Rules of
this Court.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the Sentencing Guidelines apply to a wire fraud and to an
interstate transportation of fraudulently obtained money, both of
which occurred before the effective date of the Sentencing Guidelines,
if the particular wire fraud and interstate transporation were also
part of a scheme that began before and continued after that effective
date.

                               STATEMENT

   Petitioner was indicted in the Eastern District of Michigan on 43
counts of wire fraud, in violation of 18 U.S.C. 1343, and six counts
of interstate transportation of fraudulently obtained money, in
violation of 18 U.S.C. 2314.  She pleaded guilty to two wire fraud
counts and one transportation count.  On one of the wire fraud counts
and on the transportation count, she received non-Guidelines sentences
-- namely, consecutive terms of five and ten years' imprisonment.  On
the other wire fraud count, she received a Guidelines sentence of 33
months' imprisonment, to run consecutively to the sentences on the
other counts.  She was also sentenced to three years' supervised
release and ordered to pay $240,271.60 in restitution, an amount for
which she and her co-defendant were made jointly and severally liable.
 /1/

   1. Between May 1986 and March 1988 petitioner and her co-defendant,
Connie Bennett, induced Bennett's elderly, widowed aunt, Mrs. Eleanore
Kriewall, to turn over her life's savings to them through a series of
lies and false promises.  Petitioner, who lived in Michigan, made
hundreds of telephone calls -- over 400 in the last five months of the
scheme alone, sometimes as many as 18 per day, and at all hours -- to
Mrs. Kriewall in California.  Bennett made only the first two calls,
fabricating debts and expenses that she asked Mrs. Kriewall to help
her pay, and falsely claiming that she was about to inherit millions
of dollars from which she would reimburse Mrs. Kriewall.  The calls
became increasingly bizarre, with petitioner claiming to need money in
connection with various tragedies and catastrophes that had never
occurred, such as a diagnosis that she was terminally ill, the deaths
of nine family members and two neighbors, and the shooting of other
family members.  On several occasions, petitioner told Mrs. Kriewall
that a briefcase containing money to repay her had been "kidnapped"
and was being held for ransom.  Plea Tr. 8-10, 15-20;  Presentence
Report (PSR) at 4-7;  Addendum to PSR at A-1.

   As a result of the calls, Mrs. Kriewall wired 93 payments totaling
over $240,000 to petitioner and Bennett.  Her Western Union charges
alone exceeded $8,000.  When Mrs. Kriewall ran out of money,
petitioner persuaded her to obtain cash advances on her credit cards
and urged her to borrow against her home.  The scheme collapsed when
Mrs. Kriewall, by then almost penniless, moved in with her son.  PSR
at 6;  Addendum to PSR at A-1.

   2. At the plea hearing, petitioner acknowledged her guilt under
Counts 6, 21, and 47 of the indictment.  Counts 6 and 47 alleged that
she had committed wire fraud on May 30, 1986, and February 27, 1988,
respectively.  Count 21 alleged that she had fraudulently caused Mrs.
Kriewall to send $7,500 to her on December 11, 1986.  Petitioner
admitted, in her plea to Count 6, that on May 30, 1986, she telephoned
Mrs. Kriewall and falsely claimed that Bennett had sent her money by
overnight mail, that Bennett had mistakenly overpaid Mrs. Kriewall by
$2,500, and that Mrs. Kriewall should wire that amount to petitioner
immediately.  Mrs. Kriewall did so, even though she never received any
money from Bennett.  Plea Tr. 8-9, 15-17.  Petitioner also admitted,
in her plea to Count 26, that on December 11, 1986, she telephoned
Mrs. Kriewall and falsely claimed that she had been overpaid by $5,000
on Bennett's inheritance, that a court demanded repayment of the
money, and that she had spent the money and needed a total of $7,500
to cover that debt and post a bond.  Mrs. Kriewall wired the money to
petitioner.  Plea Tr. 9-10, 17-19.  Lastly, petitioner admitted that
on February 27, 1988, she telephoned Mrs. Kriewall and falsely claimed
that petitioner's son and former President Gerald Ford would be
arriving at Mrs. Kriewall's house the next day to deliver a briefcase
containing all of the money owed to her.  Plea Tr. 10, 19-20.

   3. At sentencing, petitioner argued that the Sentencing Guidelines
were applicable to all three counts, even though only one of them
(Count 47) post-dated the effective date of the Guidelines, November
1, 1987.  Defendant's Sentencing Memorandum (Def. Memo.) at 1-2.
Petitioner theorized that, because Counts 6 and 21 each provided that
"the allegations contained in Paragraphs I and II of Count One are
realleged herein," and because Count One (a wire fraud count) alleged
that the scheme to defraud Mrs. Kriewall had lasted from May 22, 1986,
to March 5, 1988, /2/ the offenses charged in Counts 6 and 21 should
be treated as "continuing offenses" akin to conspiracies that straddle
the effective date of the Guidelines and that are accordingly
sentenced under the Guidelines.  Def. Memo. 2.

   The district court rejected this argument, reasoning that each new
"fraud is a new, distinct act indictable as such and should be
considered as of that date." Sent. Tr. 2.

   4. The court of appeals affirmed in an unpublished order.  Pet.
App. 1.  The court found that "no prejudicial error intervened in the
judgment and proceedings in the district court." Ibid.

   In addition to the order, the court of appeals issued its ruling
from the bench at oral argument.  Pet. App. 2.  In rejecting what it
characterized as petitioner's "rather ingenious argument," the court
explained (ibid.) that

      a wire fraud and a transportation of fraudulently obtained money
      across state lines are not the same as a conspiracy.  There's
      only one element that is anything like a conspiracy, and that
      element is * * * a scheme to defraud * * *, which may indicate
      that two people have done some planning as in a conspiracy, but
      it only takes one person in a * * * wire fraud case to commit
      that offense.  There is no requirement that there be two people
      as in a conspiracy * * *.  * * * Our case is a * * * wire fraud
      case.  It's clear that the fraud, the use of the interstate
      facilities occurred prior to the effective date of guidelines, *
      * * and that the offense therefore was committed prior to that
      time and that the guidelines shouldn't apply. ARGUMENT

   Counts 6 and 21 of the indictment charged petitioner with
committing crimes on May 30, 1986, and December 11, 1986,
respectively.  At her plea hearing, petitoner acknowledged that she
had committed those crimes on the dates alleged.  Although those
crimes plainly antedated the effective date of the Sentencing
Guidelines, petitioner claims (Pet. 5-11) that she was entitled to
receive Guidelines sentences on both of them.  The court of appeals
correctly rejected this contention, and its decision does not conflict
with any decision of this Court or of any other court of appeals.
Further review is therefore not warranted.

   1. Petitioner's claim is contrary to the explicit terms of the
governing statute.  The Sentencing Guidelines became effective on
November 1, 1987.  Sentencing Reform Amendments Act of 1985, Pub. L.
No. 99-217, Section 4, 99 Stat. 1728 (amending the Sentencing Reform
Act of 1984, Pub. L. No. 98-473, Section 235, 98 Stat. 2031).  On
December 7, 1987, as part of the Sentencing Act of 1987, Congress
specified that the Sentencing Guideline provisions "shall apply only
to offenses committed after the taking effect of" the Sentencing
Reform Act of 1984.  Pub. L. No. 100-182, Section 2(a), 101 Stat.
1266.

   It is plain that both before and after the December 7, 1987,
amendment, the Sentencing Reform Act of 1984 applied only to offenses
committed on or after November 1, 1987.  See United States v. Newman,
889 F.2d 88, 93-94 (6th Cir. 1989), cert. denied, 110 S. Ct. 2566
(1990);  United States v. Stewart, 865 F.2d 115, 117-118 (7th Cir.
1988);  United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987).
The legislative history of Section 235 of the Sentencing Reform Act of
1984 explained that "(t)he (Act) will apply to any offense or other
event occurring after the effective date * * *.  As to an offense
committed prior to the effective date, the preexisting law will apply
as to all substantive matters including the imposable sentence." S.
Rep. No. 225, 98th Cong., 1st Sess. 189.  See also 1 U.S.C. 109.  The
December 7, 1987, amendment was designed to clarify that the
Sentencing Guidelines apply only to offenses committed on or after the
effective date of the 1984 Act and to avoid litigation challenging on
ex post facto grounds the use of Guidelines harsher than sentencing
practices in place at the time of the offense.  133 Cong. Rec. H10,017
(daily ed. Nov. 16, 1987) (section-by-section analysis).  Similarly,
the President explained in signing the Sentencing Act of 1987 that
"(t)he purpose of (Section 2 of the 1987 Act) is to preclude potential
litigation regarding the applicability of the (1984) Sentencing Reform
Act to offenses that occurred before the Act's effective date of
November 1, 1987." 23 Weekly Comp. Pres. Docs. 1452-1453.

   In light of the language and legislative history of the pertinent
statutes, petitioner was not entitled to have her sentences evaluated
under Sentencing Guidelines that took effect after her offenses were
committed.  The courts that have addressed the issue have all adopted
this position.  See United States v. Corpus, 882 F.2d 546, 553 (1st
Cir. 1989), cert. denied, 110 S. Ct. 3251 (1990);  United States v.
Argitakos, 862 F.2d 423, 424-425 (2d Cir. 1988);  United States v.
Charleus, 871 F.2d 265, 269 (2d Cir. 1989);  Gallardo v. Quinlan, 874
F.2d 186, 188 (3d Cir.), cert. denied, 110 S. Ct. 373 (1989);  United
States v. Watson, 868 F.2d 157, 158 (5th Cir. 1989);  United States v.
Newman, supra;  United States v. Smith, 874 F.2d 371, 373 (6th Cir.),
cert. denied, 110 S. Ct. 137 (1989);  United States v. Stewart, supra;
 United States v. George, 891 F.2d 140, 143 (7th Cir. 1989);  United
States v. Rewald, supra;  United States v. Burgess, 858 F.2d 1512,
1513-1514 (11th Cir. 1988);  United States v. Metallo, 908 F.2d 795,
800 (11th Cir. 1990).

   2. Petitioner's attempt to evade the language and legislative
history of the above statutes by means of a "continuing offense"
theory is unavailing.

   a. Both 18 U.S.C. 1343 and 18 U.S.C. 2314 prohibit particular
conduct by a person "having devised or intending to devise" a
fraudulent scheme.  /3/ Counts 6 and 21 alleged violations of those
statutes by means of particular conduct occurring on particular dates.
 The wire fraud charged in Count 6 was complete when, on May 30, 1986,
petitioner fraudulently induced Mrs. Kriewall to wire her $2,500.  The
fraud charged in Count 21 was complete when, on December 11, 1986,
petitioner caused Mrs. Kriewall to wire her $7,500 in response to her
misrepresentations.

   Contrary to petitioner's contention (Pet. 6), these crimes did not
become "continuing offenses" merely because the counts charging them
realleged by reference that they were part of a larger fraudulent
scheme that began before the effective date of the Guidelines and
ended after that date.  "(E)ach * * * use of the wires pursuant to a
criminal fraud constitute(s) a separate, independent, freestanding
crime * * *." United States v. Fermin Castillo, 829 F.2d 1194, 1199
(1st Cir. 1987).  Indeed, this is the reason why each violation of 18
U.S.C. 1343 may be sentenced separately, even though the violations
"ar(o)se out of a single scheme and course of conduct." Id. at
1199-1200 (collecting cases).  Cf. United States v. Eckhardt, 843 F.2d
989, 993 (7th Cir.) (statute of limitations for wire fraud "does not
begin running with the completion of the fraud scheme;  rather, it
runs from the date of the charged call * * * in furtherance of the
scheme.  * * * It is therefore irrelevant when the fraud scheme itself
ended, so long as the charged call * * * took place within the
statutory period"), cert. denied, 488 U.S. 839 (1988).  Similarly,
"(e)ach interstate or foreign transportation of stolen securities
constitutes a separate violation of (18 U.S.C.) Section 2314, even if
the various acts of transportation are part of a single scheme."
United States v. Chitty, 760 F.2d 425, 428 (2d Cir.), cert. denied,
474 U.S. 945 (1985).  See also United States v. Martin, 800 F.2d 560,
562 (6th Cir. 1986) (quoting Chitty).  Thus, the fact that the larger
scheme straddled the effective date of the Guidelines is no basis for
imposing Guidelines sentences on counts charging offenses committed
before that date.  See United States v. Watford, 894 F.2d 665, 669
(4th Cir. 1990) (Guidelines applicable to mail fraud conspiracy that
straddled effective date of Guidelines, but inapplicable to
substantive offenses committed before that date);  /4/ United States
v. Thomas, 895 F.2d 51, 57-58 (1st Cir. 1990) (Guidelines applicable
to drug conspiracy that straddled effective date of Guidelines, but
inapplicable to substantive offense committed before that date);
United States v. Johnson, 889 F.2d 1032, 1036-1037 (11th Cir. 1989)
(same).

   b. Petitioner's attempt (Pet. 5-6) to analogize her crimes to
conspiracies and other crimes that have been treated as continuing
offenses subject to Guidelines sentences because they straddled the
effective date of the Guidelines is flawed.  The gravamen of the
offense of conspiracy is the unlawful agreement.  Braverman v. United
States, 317 U.S. 49, 53 (1942).  Accord United States v. Broce, 488
U.S. 563, 570 (1989) (agreement "is all but synonymous" with
conspiracy);  Iannelli v. United States, 420 U.S. 770, 777 (1975).
When an agreement begins before and continues after the effective date
of the Guidelines, courts properly apply the Guidelines to the
conspiracy because it can fairly be said that the crime was committed
after the effective date.  See, e.g., United States v. Edgecomb, 910
F.2d 1309, 1311 (6th Cir. 1990) (collecting cases);  United States v.
Thomas, 895 F.2d at 57-58;  United States v. Johnson, 889 F.2d at
1036.  Similarly, defendants who, in violation of 18 U.S.C. 3146(a),
fail to appear for sentencing before the effective date of the
Guidelines and who remain at large after that date are deemed to have
committed a continuing offense subject to a Guidelines sentence.  See,
e.g., United States v. Gray, 876 F.2d 1411, 1418-1419 (9th Cir. 1989),
cert. denied, 110 S. Ct. 2168 (1990).  See also United States v.
Frank, 864 F.2d 992, 996, 1008 (3d Cir. 1988) (defendant who, in
violation of 18 U.S.C. 1073, fled to avoid prosecution and was not
apprehended until November 6, 1987, was guilty of continuing offense
subject to Guidelines), cert. denied, 490 U.S. 1095 (1989).  By
contrast, the gist of violations of 18 U.S.C. 1343 and 2314 is the use
of the wire facilities, or the transportation of the illegally
obtained money, in furtherance of the fraudulent scheme.  See United
States v. Fermin Castillo, 829 F.2d at 1199 ("(E)ach use of the wires
constitutes a separate crime under 18 U.S.C. Section 1343, even if the
several uses are in pursuance of but one criminal enterprise");
United States v. Wright, 791 F.2d 133, 136 (10th Cir. 1986)
("gravamen" of violation of 18 U.S.C. 2314 "is the movement of
illegally obtained money from one locale to another.  * * * What is
significant is, when the transaction is completed, money exists at the
final destination").  Thus, once the particular wire fraud has been
completed or the particular money transported, the crime is over,
regardless of whether the scheme continues and other crimes are
committed in furtherance of it.  /5/ Because petitioner completed the
offenses charged in Counts 6 and 21 before November 1, 1987, the
Guidelines were inapplicable to those offenses.  /6/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   VICKI S. MARANI

      Attorney

   MAY 1991

   /1/ Petitioner's co-defendant, Connie Bennet, was indicted with
petitioner and pleaded guilty to four counts of wire fraud.  She was
sentenced to a total of 20 years' imprisonment.  Gov't C.A. Br. 3 n.1.

   /2/ Paragraph I (Pet. App. 3) of Count One alleged that "from on or
about May 22, 1986 until on or about March 5, 1988, defendants
ERNESTINE M. TREECE * * * and CONNIE K. BENNETT * * * knowingly
devised and intended to devise a scheme to defraud and to obtain money
from Eleanore Kriewall by false and fraudulent pretenses,
representations, and promises."

   Paragraph II (Pet. App. 1-9) of Count One described "the scheme and
false and fraudulent pretenses, representations and promises."

   /3/ 18 U.S.C. 1343 provides:

      Whoever, having devised or intending to devise any scheme or
      artifice to defraud, or for obtaining money or property by means
      of false or fraudulent pretenses, representations, or promises,
      transmits or causes to be transmitted by means of wire, radio,
      or television communication in interstate or foreign commerce,
      any writings, signs, signals, pictures, or sounds for the
      purpose of executing such scheme or artifice, shall be fined not
      more than $1,000 or imprisoned not more than five years, or
      both.

18 U.S.C. 2314 provides, in pertinent part:

      Whoever, having devised or intending to devise any scheme or
      artifice to defraud, or for obtaining money or property by means
      of false or fraudulent pretenses, representations, or promises,
      transports or causes to be transported, or induces any person or
      persons to travel in, or to be transported in interstate
      commerce in the execution of a scheme or artifice to defraud
      that person or those persons of money or property having a value
      of $5,000 or more * * * (s)hall be fined not more than $10,000
      or imprisoned not more than ten years, or both.

   /4/ Contrary to petitioner's suggestion (Pet. 10), there is no
basis for concluding that the Fourth Circuit deemed it "significant"
that the indictment in Watford did not allege "in each and every count
* * * that the fraudulent scheme spanned the pre- and post-Guidelines
time frame." The court of appeals' opinion does not indicate whether
each count included such an allegation, and its decision clearly does
not rest on such a finding.

   /5/ Petitioner's analogy to the situation in United States v.
Purther, 823 F.2d 965 (6th Cir. 1987), undermines rather than supports
her argument.  That case involved the ordering of restitution under
the Victim and Witness Protection Act of 1982 (VWPA) (then codified at
18 U.S.C. 3579 and 3580 and subsequently renumbered as 18 U.S.C. 3663
and 3664), not the applicability of the Sentencing Guidelines.
Purther pleaded guilty to an information that charged him with
committing mail fraud on August 17, 1983.  The question was whether it
was proper for the district court to require him to make restitution
to his victims for losses attributable to the fraudulent scheme but
incurred before the effective date of the VWPA, i.e., before January
1, 1983.  The Sixth Circuit upheld the restitution order, reasoning
that the VWPA applied to offenses occurring on or after its effective
date;  that the date of Purther's offense was August 17, 1983, because
"it is not the scheme to defraud, but the use of the mails to execute
the scheme that constitutes the offense of mail fraud";  and that, for
restitution purposes, the offense must be deemed a continuing one
because the losses stemmed from an ongoing fraud that lasted at least
until August 17, 1983.  823 F.2d at 967-968.

   Unlike Purther, the instant case presents no dispute as to
restitution.  However, the cases are analogous in other respects, to
petitioner's detriment.  Like the VWPA, the Sentencing Guidelines
apply to offenses occurring on or after their effective date.  And
just as the date of Purther's offense was the date he used the mails
to execute the fraudulent scheme, so the dates of petitioner's
offenses are the dates she used the wires and caused the money to be
transported.  Since those dates preceded the effective date of the
Guidelines, Purther -- by analogy -- supports the conclusion that
petitioner was not entitled to be sentenced under the Guidelines.

   United States v. Henson, 848 F.2d 1374 (6th Cir. 1988), cert.
denied, 488 U.S. 1005 (1989), also cited by petitioner (Pet. 9-10), is
equally unhelpful to her.  There, the Sixth Circuit upheld the
applicability of the Criminal Fine Enforcement Act (formerly codified
at 18 U.S.C. 3623;  repealed effective November 1, 1987) to a
conspiracy that straddled the effective date of the Act.  Henson in no
way supports petitioner's argument that a substantive act of fraud
committed before the effective date of the Guidelines is subject to
the Guidelines if it is an aspect of a larger scheme that straddles
their effective date.

   Moreover, even if Henson and Purther were inconsistent with the
court of appeals decision in this case (which they are not), the
situation would present an intra-circuit conflict, rather than a basis
for this Court's review.  Wisniewski v. United States, 353 U.S. 901
(1957).

   /6/ Petitioner's reliance (Pet. 8 and n.2) on Purther, supra, and
on Pinkerton v. United States, 328 U.S. 640 (1946), for the
proposition that mail and wire frauds are in effect conspiracies and
may therefore be treated as continuing offenses is misleading.  In
Purther, the Sixth Circuit did indeed state that "(a) mail fraud
scheme that is carried out over a period of time resembles a typical
continuing conspiracy" (823 F.2d at 968) but it did so in the
restitution context, noting in the next sentence the difficulty of
determining "precisely when each victim of a scheme such as Purther's
actually suffered his or her loss." And in Pinkerton, this Court's
statement that "(a) scheme to use the mails to defraud, which is
joined in by more than one person, is a conspiracy" appears in a
discussion of vicarious liability, and is followed by the sentence,
"(y)et all members are responsible, though only one did the mailing."
328 U.S. at 647.  Thus, neither Purther nor Pinkerton supports
petitioner's contention that an act of fraud committed before the
effective date of a sentencing law should nevertheless be sentenced
under that law simply because it was part of a scheme that continued
beyond the law's effective date.