Opposition — Computer Sciences Corp. v. United States

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No. 82-728 ALEXANOER L. STevas.

L CLERK

Iu the Supreme Court of the Hnited States

OctToser TERM, 1982

COMPUTER SCIENCES CORPORATION, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

' (202) 633-2217

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In the Supreme Court of the Mnited States

OctToser Term, 1982

No. 82-728

COMPUTER SCIENCES CORPORATION, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners contend that the court of appeals erred in

reversing a district court order dismissing the indictment

against them on the grounds that: (1) the false claims sta-

tute, 18 U.S.C. 287, was the sole statutory provision under

which they could be prosecuted for their alleged criminal

conduct, and (2) the momentary entry of unauthorized

persons into the grand jury room violated Fed. R. Crim. P.

6(d).

1. On October 8, 1980, petitioners were charged with

various offenses (described below) in a 57-count indictment

filed in the United States District Court for the Eastern

District of Virginia. The indictment alleged that on March

21, 1972, the General Services Administration (GSA)

entered into a contract with the Information Network Divi-

sion (Infonet) of the Computer Sciences Corporation

(CSC). Under the terms of the contract, CSC, through

Infonet, was to provide the government with computer

2

services, such as data processing and computer program-

ming, at a fixed price.

The indictment charged that petitioners engaged in at

least three distinct criminal schemes relating to the contract

with GSA. First, the indictment alleged that petitioner

Luke bribed James Lindsey, a GSA contracting officer, in

exchange for inside information to assist CSC in obtaining

the contract. Second, the indictment alleged that petitioners

fraudulently overcharged the government for computer

processing services, in excess of the fixed price authorized

by the contract. Third, the indictment alleged that petition-

ers fraudulently overcharged GSA for a particular compu-

ter program known as “BPS/CQ$T” by falsely represent-

ing that the program was a substantially improved version

of a program previously provided to GSA at a lower price.

Count | charged petitioners with conspiring to partici-

pate in the affairs of an enterprise through a pattern of

racketeering activity, in violation of 18 U.S.C. 1962(d). The

enterprise was the Infonet Division of CSC. The alleged

pattern of racketeering activity consisted of the following

offenses: bribery (18 U.S.C. 201(b)); using the mails with

intent to promote and carry on the bribery (18 U.S.C. 1952);

mail fraud (18 U.S.C. 1341); and wire fraud (18 U.S.C.

1343). Count 2 charged petitioners with the substantive

offense of participating in the affairs of an enterprise

through a pattern of racketeering activity, in violation of 18

U.S.C. 1962(c). The predicate acts constituting the alleged

pattern of racketeering activity consisted of essentially the

same offenses that were alleged as predicate acts in Count |.

Count 3 charged petitioner CSC alone with using and

investing income received from a pattern of racketeering

activity in the operation of an enterprise (the Infonet Divi-

sion), in violation of 18 U.S.C. 196Xa). The remaining

counts of the indictment charged various petitioners with

3

mail fraud, wire fraud, and presenting false claims to an

agency of the United States, in violation of 18 U.S.C. 287.'

On March 5, 1981, the district court issued an opinion

and order dismissing the indictment (Pet. App. 21a-63a; 511

F. Supp. 1125). The court dismissed the mail and wire fraud

counts (Counts 4 through 43) on the theory that the facts

alleged in those counts also established violations of the

false claims statute, 18 U.S.C. 287, and that the false claims

statute was the exclusive vehicle for prosecuting on those

facts (Pet. App. 34a-40a). The district court also dismissed

the RICO counis (Counts | through 3) on three grounds: (1)

the Infonet Division of CSC was not an “enterprise” within

the meaning of the RICO statute; (2) the indictment failed

to establish that the racketeering activity benefitted or

advanced the Infonet Division; and (3) the mail and wire

fraud charges having been dismissed, the RICO counts

could no longer stand because the bribery allegation was the

only remaining predicate act, thus leaving an insufficient

number of predicate acts to form a “pattern of racketeering

activity” (Pet. App. 28a-42a). Finally, the court held that

the entire indictment was subject to dismissal because, on

five occasions during the 18-month grand jury investiga-

tion, the proceedings before the grand jury were interrupted

by the entrance into the grand jury room of persons not

authorized to be present under Fed. R. Crim. P. 6(d) (Pet.

App. 55a-62a).

‘Counts 4 through 27 charged petitioners CSC, Luke, Allen, and

Marti with causing checks drawn on the United States Treasury to be

mailed to CSC offices in Falls Church, Virginia, for the purpose of

executing the scheme to defraud the United States, in which CSC

overbilled GSA for computer services, in violation of 18 U.S.C. 1341.

Petitioner Derrick was also joined in Counts 6 through 27.

Counts 28 through 37 charged petitioners CSC, Luke, Allen, Marti,

and Derrick with causing wire transmissions to be sent between compu-

ter terminals in the Eastern District of Virginia aud a computer center

outside the State of Virginia for the purpose of executing a scheme to

4

On the government's appeal, the court of appeals re-

versed the district court's order in all respects, except that it

affirmed the dismissal of the RICO counts (1-3) against

petitioner CSC (Pet. Apo. la-18a).

2. Petitioners contend that because the indictment

charges them with violating the false claims statute, 18

U.S.C. 287, the government is precluded frum also attempt-

ing to prosecute them, for the same alleged misconduct,

under the mail fraud (18 U.S.C. 1341), wire fraud (18

U.S.C. 1343) and RICO (18 U.S.C. 1961 et seq.) statutes.

Accordingly, pet. tioners argue that the court of appeals

erred in reinstating the mail and wire fraud counts and the

RICO counts. Petitioners also contend that the court of

appeals erred in ruling that dismissal of the indictment was

not an appropriate sanction for the momentary entrances

by unauthorized persons into the grand jury room during its

proceedings.

Whatever the merits of petitioners’ contentions, they are

not presently ripe for review by this Court. The judgment

that petitioners are challenging is not a conviction, but

defraud the United States, in which CSC overbilled GSA for computer

services, in violation of 18 U.S.C. 1343.

Counts 38 through 43 charged petitioners CSC, Luke, Allen, Loux,

and Blecker with causing invoices that overbilled GSA for the

BPS/CO$T computer program system to be mailed from the Eastern

District of Virginia to CSC offices in El Segundo, California, in viola-

tion of 18 U.S.C. 1341.

Counts 44 through 55 charged petitioners CSC, Luke, Allen and

Marti with knowingly causing false claims to be presented to GSA for

computer services, in violation of 18 U.S.C. 287. Petitioner Derrick was

also joined in Counts 46 through 55.

Finally, Counts 56 and 57 charged petitioners CSC, Luke, Allen,

Loux, and Blecker with knowingly causing false claims to be presented

to GSA for the BPS/C@§T computer program system, in violation of

18 U.S.C. 287.

5

rather is a ruling on their motion to dismiss the indictment.

The court of appeals’ decision places petitioners in no dif-

ferent position than they would have been in if the district

court had ruled against them in the first instance. Since such

an interlocutory ruling would not have been appealable by

petitioners (Roche v. Evaporated Milk Association, 319

U.S. 21, 29-31 (1943); Heike v. United States, 217 U.S. 423

(1910)), review of the court of appeals’ decision at this time

would be premature. If petitioners are acquitted following a

trial on the merits, their claims will be moot. Ii, on the other

hand, petitioners are convicted, then they will be able to

present their present contentions to this Court, together

with any other claims they may have, in a petition for a writ

of certiorari seeking review of a final judgment against

them. We note, in this connection, that more than two years

have elapsed since the filing of the indictment and petition-

ers have not yet been brought to trial. Petitioners have

failed to present any persuasive reasons why this Court

should further delay the trial of this case by departing from

its usual practice of denying review in interlocutory cases.”

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

NOVEMBER 1982

2Indeed, the reasons advanced by petitioners in favor of immediate

review (Pet. 9, 11, 20) demonstrate that this case is no different from

many other interlocutory cases in which the Court has denied certiorari.

Because this case is interlocutory we are not responding on the merits to

the questions presented by the petition. We will file a response on the

merits if the Court requests.

DOJ-1962-11