Opposition — Swinehart v. United States

Supreme Court, U.S.

Pia Se

No. 79-1770 JUL 9 1980

OCTOBER TERM, 1979

ROBERT J. SWINEHART, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

Louis M. FISCHER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Un the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1770

ROBERT J. SWINEHART, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

7 BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTION PRESENTED

Whether the government violated petitioner’s rights

through the consensual recording or subsequent use of

certain conversations that petitioner had, prior to the

return of this indictment, with a business associate

who was also an attorney.

7%

II

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Clark v. United States, 289 U.S. 1 .......

Grand Jury Empanelled February 14,

1978, In re, 603 F.2d 469 ..............

Hoffa v. United States, 385 U.S. 293 .....

Lopez v. United States, 373 U.S. 427 .....

Powell v. Alabama, 287 U.S. 45.........

United States v. Aldridge, 484 F.2d 655,

cert. denied, 415 U.S. 921..............

United States v. Landof, 591 F.2d 36 .....

United States v. Levy, 577 F.2d 200 ......

United States v. Morrison, 602 F.2d 529,

cert. granted, No. 79-395 (June 30,

United States v. Stern, 511 F.2d 1364, cert.

denied, 423 U.S. 829...................

Velsicol Chemical Corp. v. Parsons, 561

F.2d 671, cert. denied, 435 U.S. 942 ....

Constitution, statutes and rule:

United States Constitution:

Fourth Amendment .................

Fifth Amendment ...................

Sixth Amendment ............. 2, 3, 4, 5

Pe MO is Sslb a 6 dative awk cisiivascuh

or)

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Constitution, statutes, and rule, continued:

Oe Fe ee ee

Ge by A Ae | Pee Seen arte

Miscellaneous:

8 Wigmore, Evidence (McNaughton rev.

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OPINION BELOW

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

12a) is reported at 614 F.2d 853.

JURISDICTION

The judgment of the court of appeals (Pet. App.

13a-14a) was entered on January 17, 1980, and a peti-

tion for rehearing was denied (Pet. App. 15a) on

March 7, 1980. On April 4, 1980, Mr. Justice Brennan

extended the time within which to file a petition for a

writ of certiorari to and including May 6, 1980 (Pet.

App. 17a), and the petition was filed on May 5, 1980.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Petitioner and co-defendant Robert Perry were in-

dicted on June 29, 1978, in the United States District

Court for the Eastern District of Pennsylvania on 21

counts of embezzlement from an employee benefit fund

(18 U.S.C. 664) and bankruptcy fraud (18 U.S.C. 152),

arising out of the bankruptcy of Hourly Messengers, a

Philadelphia delivery service, of which petitioner and

‘Perry were majority shareholders and principal offi-

cers. The bankruptcy petition was filed in 1974. In

1976, while petitioner’s fraudulent activities were on-

going, the government secured the cooperation of at-

torney Arthur Kafrissen, another shareholder in

Hourly Messengers, who agreed to record his conver-

sations with petitioner. The government provided

2

petitioner with the recorded conversations after his

indictment in June 1978.

In October. 1978 a two-week suppression hearing

was held on petitioner’s and Perry’s claims that the

government had improperly derived evidence from

immunized testimony that they had given at a cred-

itors’ meeting. Transcripts of the taped conversations

between petitioner and Kafrissen were marked as

exhibits at the suppression hearing, and petitioner did

not contend at that time that the government had vio-

lated his attorney-client privilege or Sixth Amendment

rights.

The trial court denied the suppression motions. Plea

negotiations followed and, on October 16, 1978, both

defendants entered into substantially identical plea

agreements. Petitioner pleaded guilty to five counts of

the indictment, and the government agreed that an

appropriate sentence would be 18 months’ imprison-

ment, five years’ probation, and restitution (Pet. App.

3a). The plea agreement provided that petitioner

would “fully cooperate” with the government by giving

truthful testimony and “unreserved disclosure,” and

further required that he “take” any polygraph exam-

inations that the government might request (Pet. App.

3a-4a). Moreover, the agreement gave the govern-

ment ‘“‘sole discretion” to determine whether

petitioner’s cooperation had been sufficient (Pet. App.

@ 4a).

When petitioner failed a polygraph examination

prior to sentencing, the government concluded that he

was not cooperating as required by the agreement,

3

and it refused to recommend the sentence that had

been agreed upon (Pet. App. @@ 4a-5a).

Petitioner then moved to withdraw his guilty plea

or, alternatively, for specific enforcement of the

agreement. The district court heard evidence and con-

cluded that the government had not abused its discre-

tion in refusing to recommend the 18-month sentence

(Pet. App. @ 5a-6a).1 The government’s evidence

showed how the polygraph had been interpreted and

why the government concluded that petitioner had

provided inconsistent information. That conclusion was

based upon the polygraph results, upon information

supplied by the Philadelphia District Attorney, and

partly upon two recorded conversations between

petitioner and Kafrissen (Pet. App. 5a n.1).? The dis-

trict court denied petitioner’s motion, sentenced him to

three years’ imprisonment and five years’ probation,

and imposed a requirement of restitution (Pet. App.

6a).

In the decision that is challenged here, the court of

appeals vacated and remanded, holding that a further

hearing was necessary to determine the validity of

petitioner’s contention that the plea agreement re-

1Co-defendant Robert Perry had entered into a plea agree-

ment that was virtually identical, except that his recommended

term of imprisonment was to be only one year and one day (Pet.

App. 3a). The court found that Perry had also breached the

agreement, and he was sentenced to 18 months’ imprisonment

(Pet. App. 6a). :

2The district court admitted the conversations, not for the

truth of the matters asserted therein, but for the limited pur-

pose of demonstrating inconsistencies in the information that

petitioner had provided under the agreement (see Sentencing

Transcript (“S. Tr.”) 218-219).

4

quired him only to “take’—rather than “pass”’—~a

polygraph examination. Petitioner also argued that his

attorney-client privilege or Sixth Amendment rights

had somehow been violated, but the court of appeals

rejected that contention, noting that petitioner had

failed to establish the existence of an attorney-client

relationship with Kafrissen, that petitioner had not.

preserved his objection at the suppression hearing and

that the trial court had not relied on the tapes in im-

posing sentence in any event (Pet. App. 5a n.1). Judge

Sloviter dissented on the ground that the attorney-

client privilege claim should also be remanded for fur-

ther fact-finding (Pet. App. @ 10a-12a).

ARGUMENT

1. We note at the outset that petitioner’s conviction

and sentence have been vacated by the court of ap-

peals and the case has been remanded for further

findings on the issue of petitioner’s compliance with

the plea agreement. It is possible that petitioner will

succeed in showing that the agreement required him

only to submit to—rather than pass—a polygraph

examination, in which case petitioner may be entitled

either to plead anew or to obtain specific performance

of the agreement. In any event, petitioner’s present

claim is interlocutory and need not be reviewed at this

stage of the proceedings.

2. On the merits, petitioner’s contentions are un-.

founded. The recording of petitioner’s conversations

with Kafrissen, which occurred with the latter’s con-

sent, did not violate petitioner’s rights under the

Fourth, Fifth or Sixth Amendments. Petitioner volun-

5

tarily chose to engage in conversations with Kafrissen,

whose consent precluded any claim that petitioner’s

Fourth or Fifth Amendment rights were violated. See

Hoffa v. United States, 385 U.S. 293 (1966); Lopez v.

United States, 373 U.S. 427 (1963). Petitioner’s Sixth

Amendment claim would also lack merit, even if he

had been consulting Kafrissen as an attorney, because

the recordings were made almost two years before the

return of this indictment, well before any “critical

stage” of this prosecution (S. Tr. 215-216; Court of

Appeals Supplemental Appendix (“App.”) 114-A). See

Powell v. Alabama, 287 U.S. 45 (1932).

3. Petitioner apparently contends that the govern-

ment’s limited use of the recordings to demonstrate its

basis for abandoning the plea agreement violated

either his attorney-client privilege or some other un-

specified rights related thereto. That argument lacks

merit for several reasons. First, there was no violation

of any valid attorney-client privilege. The district

court apparently held that the privilege was waived

under the fraud exception (S. Tr. 218-219), while the

court of appeals held that petitioner had not carried his

burden of proving that Kafrissen was his lawyer (Pet.

App. 5a n.1). Since there was no valid attorney-client

3Petitioner contends generally (Pet. 9) that the government’s

misconduct tainted the prosecution from the outset and “cannot

result in a constitutionally valid conviction.” While it is difficult

to respond to petitioner’s generslizations, petitioner apparently

conceives of Kafrissen’s cocperation as government misconduct

that:‘somehow violated the Sixth Amendment by violating

petitioner’s attorney-client privilege. Both courts below have

held that no valid attorney-client privilege was involved here.

The’ district court apparently held that the attorney-client

privilege had been waived because of petitioner’s on-going fraud

6

privilege in either event, neither the creation nor any

subsequent use of the tapes was improper. Second,

petitioner’s objection to the tapes was untimely.

Petitioner was provided with the tapes before he en-

tered his guilty plea, and he was thus well aware of

(S. Tr. 218-219), while the court of appeals found that petitioner

had not even established that Kafrissen was his attorney (Pet.

App. 5a n.1).

The court of appeals properly held that petitioner had not car-

ried the burden of proving an attorney-client relationship. See

In re Grand Jury Empanelled February 14, 1978, 603 F.2d 469,

474 (3d Cir. 1979); United States v. Landof, 591 F.2d 36, 38 (9th

Cir. 1978); United States v. Stern, 511 F.2d 1364, 1367 (2d

Cir.), cert. denied, 423 U.S. 829 (1975). At sentencing,

petitioner’s counsel baldly asserted that Kafrissen was

petitioner’s attorney at the time of the consensual overhearings

(S. Tr. 217, 335). Petitioner makes the same generalized asser-

tion here (see Pet. 3), but the record flatly contradicts it. Kaf-

rissen testified that he was himself represented by counsel dur-

ing the relevant period, and the only reference to petitioner was

as a “former” client (Suppression Hearing Transcript (7th day)

(“H. Tr.”) 7-39 to 7-42, 7-44 to 7-45 ). Petitioner did not chal-

lenge that characterization. The only evidence that even tends

to support petitioner’s contention consists of a few isolated ref-

erences to legal matters that petitioner has distilled from the

voluminous transcript of the overhearings (see Pet. App. 22a-

24a). Those references are not persuasive. Given a continuing

business relationship, particularly a relationship in which one of

the principals is a lawyer and the business is engaged in illegal-

ity, it is inevitable that business discussions will occasionally in-

volve matters that have legal significance. Such isolated refer-

ences are insufficient, however, to establish the existence of an

attorney-client relationship. See 8 Wigmore, Evidence § 2292

(McNaughton rev. ed. 1961). Moreover, the record clearly es-

tablishes an on-going fraud that would defeat the attorney-client

privilege in any event. Clark v. United States, 289 U.S. 1

(1933); United States v. Aldridge, 484 F.2d 655 (7th Cir. 1973),

cert. denied, 415 U.S. 921 (1974). There is thus no basis for as-

serting that the government acted improperly in obtaining Kaf-

rissen’s cooperation in its investigation of petitioner.

7

whatever claim he might have had. He had a two-week

suppression hearing on his claim that the government’s

evidence was derived from immunized testimony. If

petitioner believed that the tapes had been created in

violation of his rights under the Sixth Amendment or

the attorney-client privilege, or that their use would

violate those rights, he should have moved to suppress

or for other appropriate relief at that time. See Fed.

R. Crim. P. 12. Instead, he chose to enter a plea with

full knowledge of the underlying facts.

4. Petitioner also complains that his rights were de-

nied by the court’s use of the tapes at sentencing. That

contention has no merit because the record contains no

evidence to suggest that the district court considered

the recordings in determining the sentence to be im-

posed. The district judge specifically stated that he

was “starting from scratch” in determining an appro-

priate sentence, without any reliance on the plea

agreement, and that he was well familiar with the na-

ture of petitioner’s criminal conduct and the harm that

*Petitioner attempts to explain his inaction by stating that

the government had “advised defense trial counsel that it would

not use the transcripts” (Pet. 3). The affidavit of petitioner’s

trial counsel, however, states only that he was advised “that the

government did not intend to use the transcripts of taped con-

versations between [petitioner] and Arthur Kafrissen as part of

their evidence-in-chief” (Pet. App. 25a; emphasis added). If

there had been any merit to petitioner’s contention that the rec-

ordings violated a genuine attorney-client relationship, it is in-

conceivable that he would have failed to pursue his claim simply

because of that representation. Moreover, if the conversations

had been privileged, petitioner’s failure to protect the privilege

would have resulted in a waiver long ago. See Velsicol Chemi-

cal Corp. v. Parsons, 561 F.2d 671 (7th Cir. 1977), cert. denied,

435 U.S. 942 (1978).

8

had been done (App. 96-A to 97-A, 103-A). The court

made no reference to the recorded conversations,

which it had previously admitted only for the limited

purpose of determining whether the plea bargain had

been breached (S. Tr. 218-219).

5. Petitioner erroneously asserts that the decision

below is inconsistent with the Third Circuit’s prior de-

cisions in United States v. Morrison, 602 F.2d 529 (3d

Cir. 1979), cert. granted, No. 79-395 (June 30, 1980),

and United States v. Levy, 577 F.2d 200 (8d Cir.

1978). Petitioner’s assertion is ill-founded in that those

cases both involved situations in which the existence of

a valid attorney-client relationship was not at issue.

Because petitioner is unable to prove the existence of

any attorney-client privilege that could survive his

on-going fraud, the holdings of those cases are inappo-

site, and this Court’s decision in Morrison could not

affect the outcome here.5

5We reiterate in this connection that this case is presently at

an interlocutory stage. Accordingly, even in the unlikely event

that this Court’s decision in Morrison could have some rele-

vance to petitioner’s situation, there is no reason to delay fur-

ther proceedings in the district court pending disposition of

Morrison.

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

LouIsS M. FISCHER

Attorney

JULY 1980

w U.S. GOVERNMENT PRINTING OFFICE: 1980 323768 25