# Opposition — Swinehart v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2354%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 827 ## Text 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 SNE HIND 6 iis ohn sccinbawbeasss Wisc eeuee RR es ea ree, NONE «40th pies, dof a dhialt eerie Ss oath 596 b aps I Se Gc the. Ce ds bok pase cas tesa ns RIN BPE Re a sae Vhs ca dd eve os des 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) a, & Ill Constitution, statutes, and rule, continued: Oe Fe ee ee Ge by A Ae | Pee Seen arte Miscellaneous: 8 Wigmore, Evidence (McNaughton rev. ES ES Sos i ais aig lath w dtd eae 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2354%3A2. Public record. Not legal advice.