Opposition Brief — Mariani v. United States

DOMINIC MARIANI, PETITIONER

¥.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

SIDNEY M. GLAZER

Attorney

Department of Justice

Washingion, D.C. 20530

(202) 633-2217

ry

QUESTION PRESENTED

Whether the government made improper use of peti-

tioner’s immunized grand jury testimony.

(I)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-833

DOMINIC MARIANI, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-14a)

is reported at 851 F.2d 595. The opinion of the district

court (Pet. App. 17a-30a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 11, 1988. A petition for rehearing was denied on

September 20, 1988. Pet. App. 1Sa-16a. The petition for a

writ of certiorari was filed on November 19, 1988. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of New York, petitioner was con-

victed of conspiring to participate in the affairs of an

(1)

2

enterprise through a pattern of racketeering activity, in

violation of 18 U.S.C. 1962(d); conspiring to commit ex-

tortion, in violation of 18 U.S.C. 1951; making illegal

payments to a union representative, in violation of 29

U.S.C. 186(a)(2); making illegal payments to influence the

operation of an employee benefit plan, in violation of 18

U.S.C. 1954; perjury, in violation of 18 U.S.C. 1623(a);

and obstruction of justice, in violation of 18 U.S.C. 1503.

He was sentenced to concurrent four-year terms of impris-

onment on the racketeering, extortion, and illegal pay-

ment counts, to be served consecutively to concurrent one-

year sentences on the perjury and obstruction of justice

counts. After a post-trial evidentiary hearing to determine

whether the government had improperly used testimony

that petitioner gave to a grand jury under a grant of im-

munity pursuant to 18 U.S.C. 6002, the district court

vacated petitioner’s convictions on the racketeering, extor-

tion, and illegal payment counts (Pet. App. 17a-30a). The

court of appeals reversed and reinstated the convictions

(id. at la-14a).

1. In 1982, Anthony Giliberti, a witness for the prose-

cution at petitioner’s trial, told federal prosecutors about a

longstanding criminal enterprise involving the commercial

moving business in New York City. Giliberti had worked

for Teamsters Local 814, a corrupt local union. He said

that petitioner, who owned or operated two moving com-

panies, had made payoffs to Jimmy Rotondo, a member

of a New York organized crime family that was involved

with Local 814. As a consequence, petitioner was per-

mitted to use nonunion labor and to remain delinquent in

his payments to the union pension and welfare funds. Pet.

App. 6a-7a.

Petitioner was called before a grand jury in 1983. He

testified that he had been in the moving business in New

York City since 1952 and that Local 814 had represeated

ee

3

his companies’ employees. Asserting his privilege against

compulsory self-incrimination, petitioner refused to say

whether he knew Rotondo or whether he had made pay-

offs to Rotondo or representatives of Local 814. Pet. App.

Sa.

In August 1984, petitioner testified before the same

grand jury pursuant to a grant of immunity under 18

U.S.C. 6002.' He admitted that his companies had used

nonunion labor and had been delinquent in making

payments to Local 814’s pension and welfare funds, but

had not been subjected to a strike that affected other mov-

ing companies. He also testified that he knew Giliberti and

Rotondo. He denied ri#king payoffs to either of them or

to anyone else associated with Local 814, however. Pet.

App. Sa-6a.

In December 1984, Warren Wagner, who was also a

witness for the prosecution at petitioner’s trial, supplied

additional information to federal prosecutors concerning

corruption in the New York moving business. Wagner, the

chief executive of one of petitioner’s competitors, stated

that throughout the 1970s his company, petitioner’s com-

pany, and two other moving companies engaged in various

bid-rigging schemes and that they had all made payoffs to

Local £14 at various times. Petitioner was subsequently in-

dicted along with a number of other movers, officials of

Local 814, and organized crime figures. Pet. App. 7a-8a.

Petitioner was charged and convicted following a six-

month trial on the racketeering and extortion counts and

' Section 6002 provides “use” immunity rather than broader “trans-

actional” immunity. The statute states that “no testimony or other in-

formation compelled under the order (or any information directly or

indirecily derived from such testimony or other information) may be

used against the witness in any criminal case, except a prosecution for

perjury, giving a false statement, or otherwise failing to comply with

the order.”

ee Se

4

the counts alleging that he made corrupt payoffs to union

officials. Those are the counts he now challenges. He was

also charged and convicted of perjury and obstruction of

justice in connection with his immunized grand jury testi-

mony. Those counts are not at issue here. Pet. App. 17a,

20a.

2. Following the trial, the district court held a hearing

to determine whether the government had made improper

use of petitioner’s immunized testimony. The district court

concluded that the government had not made any evi-

dentiary use of the immunized testimony. The district

court also concluded that petitioner would have been in-

dicted in the absence of his immunized testimony. Pet.

App. 26a. Nevertheless, the district court vacated all of

petitioner’s convictions except those for perjury and

obstruction of justice.

Relying on Kastigar v. United States, 406 U.S. 441

(1972), where this Court upheld the constitutionality of

Section 6002, the district court first noted that the statute

was “designed to leave the witness who is compelled to

testify in substantially the same position as if the witness

had not testified.” Pet. App. 22a. The court then conclud-

ed that the government had used the immunized testimony

in three ways. First, petitioner’s admission that he knew

Rotondo ensured that petitioner “could not deny at trial a

key part of the government’s evidence without risking

another perjury prosecution.” Jd. at 24a. Second, peti-

tioner’s testimony improperly “corroborated” Giliberti’s

and Wagner’s testimony, the district court concluded, even

though it was not used at trial and even though petitioner

would have been indicted if he had not given the immu-

nized testimony. /d. at 24a-26a. Third, the prosecutors

(correctly) concluded, based in part on petitioner’s immu-

nized performance before the grand jury, that he was such

a bad witness that he would not be called as a witness in his

own defense. Jd. at 20a-21a.

3. The court of appeals reversed and remanded for re-

instatement of the jury’s verdict. It noted that “[t}he evi-

dence given by Giliberti * * * and Wagner was quite suffi-

cient to indict [petitioner] and convict him of racketeering

conspiracy” (Pet. App. 9a) and that “the evidence used at

[petitioner’s] trial was derived from sources entirely inde-

pendent of any immunized testimony given by [peti-

tioner]” (id. at 12a). In these circumstances, the court con-

cluded, “we cannot see how the government prosecutors’

knowledge of [petitioner’s] immunized testimony could be

considered impermissible use of that testimony.” /bid.

With respect to the district court’s conclusion that the

government had improperly used petitioner’s testimony

that he knew Rotondo, the court of appeals stated that the

“short answer is that the government simply did not use”

that statement at trial, but relied on Giliberti and Wagner

to tie petitioner to Rotondo. Pet. App. 12a. Similarly, the

court of appeals concluded that petitioner’s admissions

about corruption in the New York City moving business

“were in no sense used to corroborate Giliberti and

Wagner.” Jd. at 13a. Finally, with respect to the district

court’s conclusion that the prosecution had improperly

used petitioner’s immunized testimony because the prose-

cutors had decided that based on petitioner’s performance

they did not need to prepare to cross-examine him, the

court stated that it could “not see how the prosecutor’s

judgment that [petitioner] would not take the stand can be

considered a use of the immunized testimony.” /bid. The

court added: “Were these supposed non-evidentiary uses

of [petitioner’s] immunized testimony found to be so im-

permissible that they barred prosecution thereafter for the

matters covered by the witness, it would be impossible ever

6

to prosecute a witness for such matters, once the witness

had given immunized testimony.” /bid.

\ARGUMENT

1. As we observed in our memorandum in opposition

filed in December 1988, this case is at present in an inter-

locutory posture. After the district court reinstates the

jury verdict, the court of appeals will review the case for

trial error if petitioner appeals. For this reason, the case

does not warrant review by this Court at this time.

2. In any event, the court of appeals did not err. It is

undisputed that the prosecution did not make any evi-

dentiary use of petitioner’s immunized testimony, and it is

also undisputed that petitioner would have been indicted

and convicted whether or not he had given his immunized

testimony. Pet. App. 9a, 26a. In these circumstances, peti-

tioner’s convictions should not be reversed.

That is especially so since the “uses” that the district

court concluded the government made of petitioner’s im-

munized testimony are so insubstantial. No use at all was

made of petitioner’s admission that he knew Rotondo and

his statements describing the corrupt operation of the

moving business in New York City, except perhaps to fur-

ther confirm the merits of the case in the prosecutors’

minds. But where, as here, the defendant would have been

indicted anyway, that “use” is immaterial, as it “leaves the

witness and the prosecutorial authorities in substantially

the same position as if the witness had claimed the Fifth

Amendment privilege.” Kastigar v. United States, 406

U.S. at 462. Similarly, as the court of appeals stated, the

prosecutors’ decision not to prepare to cross-examine peti-

tioner “could not have strengthened the government’s

case.” Pet. App. 13a.

7

Petitioner suggests (Pet. 19) that, under the decision

below, “the government could routinely enjoy a prospec-

tive criminal defendant’s deposition before indictment.”

But there is no basis for any suggestion that the prose-

cutors acted other than in good faith in immunizing peti-

tioner.? Moreover, as the court of appeals concluded, peti-

tioner’s “convictions are the result of his choosing to deny,

under oath, any knowledge or any part in the conspiracy.

Instead of * * * telling thé truth when sworn before the

grand jury, he elected to deceive and obstruct. He thus ran

the risk that others would tell the story and implicate

him.” Pet. App. 13a.

3. Nor is there any merit to petitioner’s suggestion that

review is warranted to resolve a conflict in the courts of

appeals. Two of the four cases on which petitioner relies,

United States v. Crowson, 828 F.2d 1427 (9th Cir. 1987),

cert. denied, 109 S.Ct. 87 (1988), and United States v.

Byrd, 765 F.2d 1524 (11th Cir. 1985), offer him no sup-

port at all, as the courts of appeals affirmed criminal con-

victions in those cases. The court in Crowson stated, con-

sistent with the decision below: “[I]f the government can

prove a prior, independent source for its evidence, then

the non-evidentiary purposes of trial strategy, etc., would

seemingly have been developed anyway. Thus, any non-

evidentiary use of the immunized testimony would have

been inevitable and harmless in any regard.” 828 F.2d at

2 Petitioner suggests (Pet. 23 n.7) that the government should have

replaced the attorneys who elicited petitioner’s immunized grand jury

testimony with other attorneys at his trial. While that course of action

would have avoided any question as to the possible improper use of

petitioner’s immunized testimony, it would have seriously disrupted

the investigation in this case. Whatever the wisdom of using new pros-

ecutors where it is practical to do so, there is no rule that an attorney

who is exposed to some immunized testimony is forbidden from pros-

ecuting at trial, as the district court noted (Pet. App. 29a n.1).

8

1432. Similarly, the court in Byrd held that “[s]o long as

none of the evidence presented to the grand jury is de-

rived, directly or indirectly, from the immunized

testimony, it can fairly be said that the defendant’s im-

munized testimony has not been used to incriminate him.

* ** If and when the government seeks to elicit or in-

troduce evidence indirectly derived from Byrd’s testimony

* * * the government would have the burden of showing

by a preponderance of the evidence * * * that the evidence

adduced was derived from independent sources.” 765 F.2d

at 1530-1531. Nor does United States v. Semkiw, 712 F.2d

891 (3d Cir. 1983), conflict with the decision here. The

court of appeals there merely concluded that it did not

know what use the government had made of immunized

testimony, and therefore remanded “to the district court

so that it may conduct an evidentiary hearing.” Jd. at 895.

Finally, review is not warranted on account of any ten-

sion between the decision below and the decision in United

States v. McDaniel, 482 F.2d 305 (8th Cir. 1973). In that

case, which did not involve a grant of use immunity under

Section 6002, the prosecutor read transcripts of the

defendant’s immunized testimony before a state court

grand jury while unaware that under the applicable state

law the defendant had transactional immunity with respect

to that testimony. As the court of appeals here recognized

(Pet. App. lla), the court in McDaniel did not hold that

any nonevidentiary use of immunized testimony, no mat-

ter how insubstantial, is proscribed. Rather, the court in

McDaniel reasoned that, because the prosecutor in that

case was unaware that the defendant’s prior testimony was

immunized, he had no reason to segregate his testimony

from his other sources of information, and could not carry

his burden of showing that the testimony had not been

9

used improperly. The court below added that, “[t]o the

extent that McDaniel can be read to foreclose the prosecu-

tion of an immunized witness where his immunized testi-

mony might have tangentially influenced the prosecutor’s

thought processes in preparing the indictment and pre-

paring for trial, we decline to follow that reasoning.” /bid.

Since McDaniel need not be read to require such a result

(and thereby virtually convert “use” immunity into trans-

actional” immunity), there is no reason for this Court to

review the correct decision of the court below.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

SIDNEY M. GLAZER

Altorney

MARCH 1989

3 In addition, the defendant’s attorney in McDaniel urged him to

“fully divulge all his illegal actions” to the grand jury because the state

statute gave him transactional immunity, and the defendant “gave

self-incriminating testimony filling three volumes of transcript.” 482

F.2d at 307. Here, in contrast, petitioner did not fully divulge his

knowledge of the corruption in the New York City moving business,

but instead lied to the grand jury.

ts: US. GOVERNMENT PRINTING OFFICE: 1989—241-699/00141