No. 97-16686
        __________________________________________________

        United States Court of Appeals
        for the
        Ninth Circuit

        DANIEL J. BERNSTEIN

                                Appellee
        v.

        UNITED STATES DEPARTMENT OF STATE

                                        Appellant
        __________________________________________________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE NORTHERN DISTRICT OF CALIFORNIA
        __________________________________________________

        BRIEF OF AMICUS CURIAE

        The Thomas Jefferson Center
        for the Protection of Free Expression
        __________________________________________________


Counsel for Amicus Curiae

                     J. Joshua Wheeler
                     Robert M. O'Neil
                     The Thomas Jefferson Center for
                     the Protection of Free Expression
                     400 Peter Jefferson Place
                     Charlottesville, VA  22911
                     804-295-4784



        TABLE OF CONTENTS


TABLE OF AUTHORITIES    . . . . . . . . . . . . . . . . . . . . . .     ii

INTEREST OF AMICUS CURIAE       . . . . . . . . . . . . . . . . . .     1

STATEMENT OF THE CASE   . . . . . . . . . . . . . . . . . .     1

SUMMARY OF ARGUMENT     . . . . . . . . . . . . . . . . . .     2


ARGUMENT

  I.    THE DISTRICT COURT CORRECTLY HELD
        THAT ENCRYPTION IS A FORM OF
        EXPRESSION FULLY PROTECTED BY THE
        FIRST AMENDMENT . . . . . . . . . . . . . . . . . . . . . .     4

 II.    ENCRYPTION PROGRAMS ARE FULLY
        PROTECTED SPEECH BECAUSE THEY
        FACILITATE AND MAKE POSSIBLE
        CONFIDENTIAL AND SENSITIVE
        COMMUNICATIONS  . . . . . . . . . . . . . . . . . . . . . .     10

III.    THE DISTRICT COURT CORRECTLY HELD
        THAT DENIAL OF EXPORT LICENSES FOR
        ENCRYPTION PROGRAMS IMPOSED A
        PRIOR RESTRAINT . . . . . . . . . . . . . . . . . . . . . .     16


CONCLUSION       . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19





        i





        TABLE OF AUTHORITIES


CASES                                                                   Page(s)


Bantam Books, Inc., et al. v. Sullivan, et al.,                         16
372 U.S. 58 (1963)

Bernstein v. United States, 922 F. Supp. 1426                           4,7,8,9
(N.D. Cal. 1996)

Bernstein v. United States, 945 F. Supp. 1279                           4,17
(N.D. Cal. 1996)

Bernstein v. United States, No. C-95-0582, 1997                 4,5
U.S. Dist. Lexis 13146 (N.D. Cal. August 25, 1997)

Freedman v. Maryland, 380 U.S. 51 (1965)                                17

New York Times v. United States, 403 U.S. 713 (1971)            18

Reno v. ACLU, 117 S. Ct. 2329 (1997)                                    2,5,6

Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961)         17

Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)          5

United States v. O'Brien, 391 U.S. 367 (1968)                           8

WIPBS, Inc., et al. v. City of Dallas, et al.,                          16,17
493 U.S. 215 (1990)

Yniguez v. Arizonans for Official English, 69 F.3d 920                  2,6,8
(9th Cir. 1995), (en banc) vacated, 117 S. Ct. 1055 (1997)

Young v. American Mini Theaters, 427 U.S. 50 (1976)                     18


        ii
        
        
        TABLE OF AUTHORITIES (continued)

OTHER AUTHORITIES                                                       Page(s)


1 The Papers of Thomas Jefferson 15                                     12,13
(Julian P. Boyd, ed., 1950).

George Fisher, The American Instructor                                  11
(Philadelphia, 1748).

12 The Papers of James Madison 360-65                                   12,13
(Charles F. Hobson et al., eds., 1979).

David Kahn, The Codebreakers 171-74 (1967).                             11,13

Fletcher Pratt, Secret and Urgent, The Story of Codes                   11
and Ciphers 150-53 (1939).

2 The Republic of Letters:  The Correspondence Between          14
Thomas Jefferson and James Madison, 1776-1826 750
(James M. Smith, ed., 1995).

24 The Papers of Alexander Hamilton 167-169                             15
(Harold C. Syrett, ed., 1963-1987).

Ralph E. Weber, Masked Dispatches:  Cryptogramy and             12,13,14,15
Cryptology in American History, 1775-1900 93 (1993).

Ralph E. Weber, United States Diplomatic Codes and                      15
Ciphers, 1775-1938 1078 (1979).






        iii
        
        
        
        INTEREST OF AMICUS CURIAE
        
        The Thomas Jefferson Center for the Protection of Free Expression,
located in Charlottesville, Virginia, is a nonprofit, nonpartisan
organization devoted solely to the protection of free speech and free
press.  The Center has, since its opening in 1990, pursued that mission
in various forms, including the filing of amicus curiae briefs in cases
involving a variety of free expression issues.  The Center has filed
briefs in both state and federal courts, including a number in the
United States Court of Appeals for the Ninth Circuit.


        STATEMENT OF THE CASE
        
        Amicus curiae accept the Statement of the Case set forth in the brief
of Appellee.
        
        SUMMARY OF ARGUMENT

        This case presents, for the first time to an appellate court, the basic
issue of whether the encoding or encryption of information or ideas is
"speech" within the First Amendment.  The district court has three times
held that such communication, despite the novelty of its format, is as
fully protected under the Constitution as are more traditional media.
Amicus urges this Court to affirm that conclusion, for two distinct
reasons.
        On one hand, as the district court consistently and correctly held,
computer programs that make encryption possible are themselves fully
protected expression.  They are as much entitled to such protection as
are other languages -- a conclusion which receives strong support from
this Court's recent recognition of First Amendment protection for
non-English languages in Yniguez v. Arizonans for Official English, 69
F.3d 920 (9th Cir. 1995) (en banc), vacated, 117 S. Ct. 1055 (1997).
Communication of ideas and information in digital form is, as the
Supreme Court ruled in Reno v. ACLU, 117 S. Ct. 2329 (1997), as much
protected "speech" as communication in spoken or printed words.
        The same conclusion follows with equal clarity by a different path
which the district court had no need to explore -- that encryption
programs are fully protected speech because they facilitate confidential
communications.  Since the beginning of our nation, cryptography has
been extensively used to protect communication of secret and sensitive
messages.  A careful review of American history demonstrates the degree
to which the official communications of the Framers depended upon their
ability to encode and decode vital and sensitive messages.  Since
encryption has for over two centuries made possible such essential
communications, its claim to First Amendment protection rests equally
firmly on this historical record.
        Finally, amicus urges affirmance of the district court's conclusion
that the challenged licensing scheme imposes an impermissible prior
restraint.  Licensing that restricts or forbids protected expression
comes to court bearing a very heavy burden; it will be sustained only if
it satisfies several criteria that the instant export licensing system
plainly failed to meet.  The presence of national security concerns in
no way dispenses with application of those criteria.  Nor are there
other factors which would warrant treating this licensing scheme
differently.  Accordingly, since the Government has failed either to
meet or to avoid the obligations which the First Amendment imposes on
any attempt to restrain protected speech, we urge this Court to affirm
the judgment below on the prior restraint issue.

I.      THE DISTRICT COURT CORRECTLY HELD THAT ENCRYPTION IS A FORM OF
EXPRESSION FULLY PROTECTED BY THE FIRST AMENDMENT.

        The district court's judgment on the status of encryption is as
important as it is novel.  In Bernstein v. United States, 922 F. Supp.
1426, 1434 (N.D. Cal. 1996) ("Bernstein I"), the district court readily
found that a scholarly paper was as fully protected, under the First
Amendment, on the subject of encryption as on any other topic -- though
an initial administrative ruling had failed even to recognize the
protected status of such an essay.  More novel, and more difficult, was
the status of the encryption program itself.  Yet the district court was
equally clear that such a digital medium was as fully protected as was
the use of any other language to communicate ideas and information.
That holding seems indisputably correct.  (The two later judgments,
Bernstein v. United States, 945 F. Supp. 1279 (N.D. Cal. 1996)
("Bernstein II") and Bernstein v. United States, No. C-95-0582, 1997
U.S. Dist. Lexis 13146 (N.D. Cal. August 25, 1997), relied on the
analysis in Bernstein I and did not revisit the basic First Amendment
issue.)
        Two lines of reasoning sustain that conclusion.  On one hand, as the
Supreme Court has repeatedly recognized, expression is not denied First
Amendment protection because it occurs in a novel or unfamiliar form.
Tinker v. Des Moines School Dist., 393 U.S. 503, 505 (1969).  Had the
key terms "speech" and "press" been confined to those forms of
communication which the Framers had known and used, much current
dissemination of ideas and information would be denied protection simply
because of the novelty of its format.  The oldest and most durable of
the world's guarantees of free expression, the First Amendment, has in
fact kept pace with changes in technology and has adapted time and again
to new media.
        Never has that process of adaptation been clearer or more appropriate
than it was in the Supreme Court's recent invalidation of the attempt to
ban "indecency" on the Internet.  Reno v. ACLU, 117 S. Ct. 2329 (1997).
After analyzing and rejecting several factors the Government claimed
would limit protection of speech in cyberspace, Justice Stevens
concluded: "Our cases provide no basis for qualifying the level of First
Amendment scrutiny that should apply to this medium."  Id. at 2344.
That statement removes any doubt whether expression in digital form
deserves full First Amendment protection -- an issue that had been in
doubt in some quarters because of the uncertain treatment other new
communications media received when first tested in court.  Thus, while
speech on licensed broadcasting, for example, remains less than fully
protected, digital expression may not be relegated to such a
second-class status.  That judgment is vital to the central issue of the
present case.  What the high Court has said about expression on the
Internet is directly applicable to digital speech in the closely
analogous context of encryption.
        Also apposite is this Court's recent ruling on the status of language
as protected speech.  In Yniguez v. Arizonans for Official English, 69
F.3d 920 (9th Cir. 1995), vacated, 117 S. Ct. 1055 (1997), this Court
refused to grant less than full protection to communication in languages
other than English.  In so doing, the Court addressed and rejected
several of the arguments the Government has advanced in this case and
which the district court has also rejected.   What Judge Patel did on
that vital issue was simply to follow this Court's clear direction in
holding that there existed no "meaningful difference . . . between
computer language, particularly high-level languages . . . and German or
French."  Bernstein I, 922 F. Supp. at 1435.
        Thus, the first and most basic reason why the district court was right
in finding encryption to be well within the First Amendment seems almost
tautological in its clarity -- it is protected speech because it is
"speech" by any reasonable definition, even though it does not involve
words that can immediately be read or heard.
        The Government argues, nonetheless, that full protection does not
extend to the expression involved in this case. No suggestion has been
made that the speech before the court is legally obscene, or defamatory,
or involves incitement, or falls outside the realm of protection for any
other such recognized reason.  Instead, the Government invokes several
other considerations which, in its view, cause such digital material to
fall beyond the bounds of "speech" for First Amendment purposes and thus
to forfeit constitutional protection.  In Bernstein I, Judge Patel
systematically analyzed and rejected each of these contentions, holding
that encryption was indeed protected expression despite its unfamiliar
format.
         While recognizing that cryptographic programs might entail some
communicative elements, the Government initially claimed that such
material was more like regulable "conduct" than protected "speech."  Id.
at 1436.  Thus, under cases like United States v. O'Brien, 391 U.S. 367
(1968), a lower level of First Amendment scrutiny should apply.  The
district court took a quite different view of this digital material:
"Bernstein's encryption system is written, albeit in computer language
rather than English. . . .  It would be convoluted indeed to
characterize Snuffle as conduct in order to determine how expressive it
is when, at least formally, it appears to be speech."  Id. at 1435.
That conclusion seems compelled by this Court's view of language in
Yniguez.  There, too, an analogy had been drawn to "conduct;" this
Court, en banc, was "unpersuaded by the comparison between speaking
languages and burning flags," and thus soundly rejected the "conduct"
claim.  Yniguez, 69 F.3d at 934-36.
        The Government in this case has also argued that encryption programs
fall outside the First Amendment because their nature and purpose are
more functional than communicative.  The district court found that
distinction equally unconvincing:  "Whether source code and object code
are functional is immaterial to the analysis. . . .  The functionality
of a language does not make it any less like speech."  Bernstein I, 922
F. Supp. at 1435.  Later, the court below cautioned that the
Government's contention, logically extended, "assumes that once language
allows one to actually do something, like play music or make lasagna,
the language is no longer speech."  The logic of that claim, concluded
Judge Patel, "is dubious at best."  Support for it, she noted, "in First
Amendment law is nonexistent."  Id. at 1436.
        Despite the clarity and conviction of these rulings, the district court
in Bernstein I assumed for purpose of argument that the O'Brien conduct
standard might apply.  Even if the encryption program were to be
analyzed as expressive conduct rather than (as the court had already
ruled) pure speech, the licensing scheme would nonetheless fail to meet
even the diminished level of scrutiny that would apply to such a case.
The denial of export licenses would still amount to an unconstitutional
prior restraint -- an issue on which we shall focus in Section III.  In
the district court's view, therefore, it was important, if not
essential, that encryption be treated as pure speech.  Such a finding
was central to the analysis below.  In this very first appellate review
of the status of encryption programs, it is a view we urge this Court to
affirm.


II.     ENCRYPTION PROGRAMS ARE FULLY PROTECTED SPEECH BECAUSE THEY
FACILITATE AND MAKE POSSIBLE CONFIDENTIAL AND SENSITIVE COMMUNICATIONS.

        The district court's judgment on the status of encryption is correct
for another and different reason which that court had no need to
consider -- that a medium which is vital to the exercise of free speech
may itself claim First Amendment protection, unless such protection is
barred by one of the narrow exceptions we have already reviewed (and
which are not apposite here).
        The record of history eloquently supports this view.  Since the
earliest days of our nation, encoding or cryptography has been vital to
the conduct of confidential and sensitive communications.  That record
also shows beyond doubt that many of those who framed the First
Amendment guarantees of free speech and press relied heavily on the use
of cryptography -- that they equated the ability to encode and decode
certain communications with the capacity to communicate.  It would be
ironic, against such overwhelming historic evidence, if courts were now
to withhold First Amendment protection from the very medium that made
free speech possible among those who shaped the constitutional
guarantees we invoke today.
        At the dawn of the American nation, as well as in seventeenth and
eighteenth century England, codes, ciphers and other forms of secret
communication were extensively used.  Many prominent British authors and
public figures relied extensively upon cryptography to protect sensitive
or confidential communications.  For example, the noted diarist Samuel
Pepys developed a cipher technique for his diaries so complex and so
sophisticated that it was not broken until the twentieth century.
Fletcher Pratt, Secret and Urgent, The Story of Codes and Ciphers 150-53
(1939).  In London of the 1720s, there was a constant tension between
those who sought to encode correspondence and the deciphering activities
of the Royal Mail seeking to decode such communications.  David Kahn,
The Codebreakers 171-74 (1967).
        In colonial America, secret communications were widely used to thwart
the efforts of British agents and censors.  In 1748, Benjamin Franklin
published George Fisher's text on the use of codes, ciphers and secret
writings.  George Fisher, The American Instructor (Philadelphia, 1748).
Franklin was not only a publicist and user of encoding, but also a
developer of cryptographic systems, including an ingenious "homophonic
substitution cypher" which aided his correspondence and that of fellow
patriots.  Kahn, supra, at 185.  As conflict between the crown and the
American colonies intensified, the need for such devices to ensure
confidentiality magnified progressively and dramatically.  David W.
Gaddy, Introduction in Ralph E. Weber, Masked Dispatches:  Cryptograms
and Cryptology in American History, 1775-1900 (1993).
        The role and views of Thomas Jefferson prove particularly instructive
on this, as on so many issues.  In 1764, a young Jefferson suggested to
his friend John Page the use of a 100 year old English cipher to encode
personal letters in order to protect information about Jefferson's
fruitless pursuit of a young woman.  1 The Papers of Thomas Jefferson 15
(Julian P. Boyd, ed., 1950) [hereinafter Jefferson Papers].  Later,
during the Revolutionary War, Jefferson extensively used encryption to
protect his personal notes, to convey confidential reports and
information, and to protect sensitive political information.  See
generally id.
        After the Revolution, while serving as ambassador to France, Jefferson
carried on an extensive encoded correspondence with James Madison on
such vital matters as the framing of the Bill of Rights.  One especially
significant letter from Jefferson to Madison, in August, 1789, relied on
encryption; its subject matter included the proposed text of what was to
become the First Amendment.  12 The Papers of James Madison 360-65
(Charles F. Hobson et al., eds., 1979) [hereinafter Madison Papers].
The specific comments about the text that became the free speech and
press clause appear in a paragraph immediately following a partially
enciphered paragraph.  Id.  Such practices were as much the rule as the
exception; correspondence throughout the Jefferson Papers is replete
with evidence of coding, ciphers and other forms of secret
communication.  See generally, Jefferson Papers, supra.
        Jefferson was not only an extensive user of encryption, but (like
Franklin) also a developer of cryptographic systems.  One especially
sophisticated device -- a "cipher cylinder" -- which he fashioned
shortly before he became president was not surpassed for military
communication purposes until the 1920s and remained in use by the United
States Navy as late as 1967.  See Weber, supra, at 83; Kahn, supra, at
192-95.
        James Madison, too, relied heavily on encoding in his communications.
Apart from matters of state where, for example, he used a sophisticated
cipher to inform Jefferson of his intent to introduce a Bill of Rights,
Madison also encrypted highly sensitive personal communications.  See
Madison Papers, supra.  Notable among his mementoes are letters written
in 1783, in which Madison freely discussed (but wished others not to
learn about) his unsuccessful courtship of one Catherine Floyd.  See
Weber, supra, at 83.
        Especially revealing is the role that cryptography played in
facilitating communication as partisan differences emerged in the new
nation.  Jefferson and Madison corresponded extensively during the
administration of John Adams, sharing mounting concern about the
president's policies.  2 The Republic of Letters:  The Correspondence
Between Thomas Jefferson and James Madison, 1776-1826 750 (James M.
Smith, ed., 1995).  James M. Smith, after studying that correspondence
at length, concluded that "the increasing hostility to the excesses of
the French Revolution and the stresses and strains of organizing an
opposition party forced Madison and Jefferson to be more circumspect
about letters that they put into the public mail. . . .  By August
[1793], they resorted to their 1785 cipher for encoding sensitive
passages."  Id.
        There is evidence of extensive reliance on encryption across the
political spectrum.  Alexander Hamilton and his political associates
used cryptography for secret communications during the early years of
the nineteenth century.  In January, 1800, in fact, Hamilton wrote to
Rufus King a partial report on a sensitive issue, noting that he would
await an adequately protective cipher before he completed the dispatch.
24 The Papers of Alexander Hamilton 167-169 (Harold C. Syrett, ed.,
1963-1987).  Aaron Burr, too, was a frequent user of encoding.  He wrote
a "political code" in 1801 to Congressman Edward Livingston.  Ralph E.
Weber, Masked Dispatches:  Cryptogramy and Cryptology in American
History, 1775-1900 93 (1993).  Several years later Burr and his allies
used secret, enciphered correspondence to further their scheme to
establish a new government in what was then Spanish territory.  Id.
        History of the early years of the Republic is, in fact, replete with
evidence of extensive reliance on cryptography for the most sensitive of
communications.  Many messages of great public importance would almost
certainly not have been sent if they could not have been encoded by the
sender, decoded by the recipient, and during transmission be kept safe
from the eyes and ears of all others.  As Ralph E. Weber concludes of
this period:  "Because of foreign and domestic threats to liberty and
freedom, codes and ciphers became integral elements in American public
and private communications."  Ralph E. Weber, United States Diplomatic
Codes and Ciphers, 1775-1938 1078 (1979).  There can be no doubt about
the critical importance of cryptography to the very people who shaped
the guarantees of the First Amendment -- indeed, in one instance, to the
very text by which Thomas Jefferson conveyed to James Madison crucial
comments on that charter of liberty.  It would be anomalous if, in the
late twentieth century, courts were to deny protection to the very
process of communication that was so vital to the early establishment of
expressive freedom in our Bill of Rights.  Thus, for a reason the
district court had no occasion to reach, the judgment below was
eminently sound and should be affirmed.

III.    THE DISTRICT COURT CORRECTLY HELD THAT DENIAL OF EXPORT LICENSES
FOR ENCRYPTION PROGRAMS IMPOSED A PRIOR RESTRAINT.

        The district court, after finding encryption to be protected speech,
correctly held that refusal of an export license because of a program's
content was a prior restraint.  That judgment fully reflects applicable
First Amendment principles.  The Supreme Court has never wavered in its
conviction that "[a]ny system of prior restraints of expression comes to
this Court bearing a heavy presumption against its constitutional
validity."  Bantam Books, Inc., et al. v. Sullivan, et al., 372 U.S. 58,
70 (1963).  See also WIPBS, Inc., et al. v. City of Dallas, et al., 493
U.S. 215, 225 (1990).  The administrative denial of a license or permit
must, at the very least, meet the conditions which the Supreme Court
established in Freedman v. Maryland, 380 U.S. 51 (1965) -- that the
censor bears the burden of proof, that any period of restraint must be
brief, and that a prompt and final judicial determination must be
available to a person who challenges the denial.  The export licensing
system that is the focus of this appeal lacks some, if not all, of the
Freedman standards, a deficiency which led Judge Patel to conclude in
Bernstein II: "[T]he ITAR scheme, a paradigm of standardless discretion,
fails [the Freedman test] on every count."  Bernstein II, 945 F. Supp.
1279, 1289 (N.D. Cal. 1996).  As the district court elaborated later:
"[The licensing scheme] fails to provide for a time limit on the
licensing decision, for prompt judicial review and for a duty on the
part of the ODTC to go to court and defend a denial of a license . . ."
Id. at 1290.
        While licensing the export of encryption programs is obviously
different from licensing motion pictures, those differences argue for
greater, not lesser, protection in this case.  Motion pictures have
always been viewed as proper subjects for municipal review and licensing
-- Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961) -- a reality
which underlies the Freedman case and others that have applied its
tripartite standard to review of licensing systems.
        By contrast, the material at issue in this case -- encryption programs
-- claims a fuller measure of First Amendment protection, as the
district court properly held.  None of the factors that have led courts
to subject regulation of motion pictures and other media to more relaxed
scrutiny -- for example, "secondary effect" on the surrounding
community, Young v. American Mini Theaters, 427 U.S. 50 (1976) -- could
possibly be invoked with respect to cryptographic programs.  Freedman
thus represents the most tolerant view of the licensing function that
could properly apply to a content-based license denial.  Indeed, a
persuasive case could be made that the most appropriate standard for
reviewing what is clearly a prior restraint would be that of New York
Times v. United States, 403 U.S. 713 (1971) -- under which the
challenged licensing procedure would surely fail.  Yet even under the
lesser Freedman standard, the district court detailed the specific ways
in which this licensing system falls far short of meeting strictures the
Supreme Court has imposed to check government's power to grant or
withhold permits for expressive activity.  Accordingly, we urge this
Court to affirm the district court's judgment that the export licensing
scheme, as applied to protected expression, is a constitutionally
invalid prior restraint.


        CONCLUSION

        For the forgoing reasons, amicus respectfully urges this Court to
affirm the judgment of the district court.

                                                Respectfully submitted,


                                             ______________________________
                                             J. Joshua Wheeler
                                             Robert M. O'Neil
                                             The Thomas Jefferson Center for
                                             the Protection of Free Expression

                                                Counsel for Amicus Curiae
                                                
                                                
                                                
                                                
        CERTIFICATE OF COMPLIANCE

        Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the foregoing
brief is proportionally spaced, has a type face of 14 points and
contains 3380 words, according to the word processing system used to
prepare this brief.  In addition, the brief does not have an average of
more than 280 words per page, including footnotes and quotations.


                                                ______________________________
                                                        J. Joshua Wheeler




        PROOF OF SERVICE

STATE OF VIRGINIA                      )               Brief of
                                       )               Amicus Curiae
CITY OF CHARLOTTESVILLE                )


        I am employed in the City of Charlottesville, State of Virginia and am
admitted to practice in the Ninth Circuit.  I am over the age of 18 and
not a party to the within action; my business address is 400 Peter
Jefferson Place, Charlottesville, Virginia  22911-8691.

        On November ___, 1997, I served two copies of the foregoing document(s)
described as brief of Amicus Curiae on the interested parties in this
action by placing true copies thereof in sealed envelopes addressed as
follows:

        Cindy A. Cohn, Esq.                     Scott R. McIntosh, Esq.
        McGlashan & Sarrail                     U.S. Department of Justice
        117 Bovet Road, Sixth Floor             Civil Division, Appellate Staff
        San Mateo, California  94402            601 D Street, N.W., Room 9550
                                                Washington, D.C.  20530-0001

___     BY FEDERAL EXPRESS:  I deposited such envelope, postage prepaid,
with the Federal Express office in Charlottesville, Virginia, for
delivery on November 10, 1997.

        I declare under penalty of perjury under the laws of the State of
Virginia that the above is true and correct.

        Executed on November ___, 1997 at Charlottesville, Virginia.



                                            ______________________________
                                                        J. Joshua Wheeler