Opposition Brief — Rivieccio v. United States

Supreme Court, U.S.

(>) FILED

No. 90-1542 | JUN 3

OFFICE OF THE Ciena

1991

Iu the Supreme Cow of the Uuited States

OCTOBER TERM, 1990

BARTHOLOMEW RIVIECCIO, PETITIONER

Uv.

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

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, IIT

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a defendant may secure dismissal of

an indictment on the basis of a claim that the govern-

ment made derivative use of immunized testimony

before the grand jury.

2. Whether the government made any noneviden-

tiary use of petitioner’s immunized testimony at his

trial.

(1)

TABLE OF CONTENTS

Page

aS A SR a 1

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Neen sasneedanibensllindsibbiom 2

Cael a et ee a 9

a dsnaidahaiundahewbuniaioonh 18

TABLE OF AUTHORITIES

Cases: |

Bank of Nova Scotia v. United States, 487 U.S.

Ee ET SE . 14,16

Braswell v. United States, 487 U.S. 99 (1988) __... 11

Gelbard v. United States, 408 U.S. 41 (1972) ........ 6

Holt v. United States, 218 U.S. 245 (1910) ............ 6

Kastigar v. United States, 406 U.S. 441 (1972)... 4,8,

10,15

Lawn Vv. United States, 355 U.S. 339 (1958) 6, 12,13

United States v. Beery, 678 F.2d 856 (10th Cir.

Nc ccseckuneestiane 13, 14

United States v. Blue, 384 U.S. 251 (1966) .......... 6, 12

United States v. Byrd, 765 F.2d 1524 (11th Cir.

1985) ...... 2 ICR Ea a pei SD 14,17

United States v. Calandra, 414 U.S. 338 (1974)... 6, 12,

13

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

SEIN SEs ES a IO 17

United States v. Garrett, 797 F.2d 656 (8th Cir

A ET EE 13

United States v. Gregory, 730 F.2d 692 (11th Cir

ER 13, 14

United States v. Hampton, 775 F.2d 1479 (11th

ici apeelseuaunnammnnewioas 13, 14

United States v. Hinton, 543 F.2d 1002 (2d Cir.),

cert. denied, 429 U.S. 980 (1976) _.........-.0......... 6,13

United States v. Mariani, 851 F.2d 595 (2d Cir.

1988), cert. denied, 490 U.S. 1011 (1989) _........ 5,8

United States v. Mechanik, 475 U.S. 66 (1986) ....... 6,9

(111)

Cases—Continued : Page

United States v. McDaniel, 482 F.2d 305 (8th Cir.

SUITE cncishsaninntinissinmianaepasdeidianaeneeiacshiuaiiniudandanaaumnbeciienemninincs 16, 17

United States v. North, 910 F.2d 843, on reh’g,

920 F.2d 940 (D.C. Cir. 1990), cert. denied, No.

90-1887 (May 28, 1991) ..................... icra 12, 13, 14

United States v. Palumbo, 897 F.2d 245 (7th Cir.

ALE SRS ENE SR ETS oe et ase NN el in ee 13

United States v. Pantone, 634 F.2d 716 (3rd Cir.

IRR Ire FERRE ce oni ere oe ENE Ls ta Oh bs NS 17

United States v. Semkiw, 712 F.2d 891 (3d Cir.

aa dice dec bar td dedean amide 16, 17

United States v. Serrano, 870 F.2d 1 (1st Cir.

SI aris lncc:sctatsamscll niente etesescenseiiniaticalconsiaa dataiiateamlan 14,18

United States v. Society of Independent Gasoline

Marketers, 624 F.2d 461 (4th Cir. 1979), cert.

denied, 449 U.S. 1078 (1981) .................-........ 12

United States v. Washington, 431 U.S. 181 (1977)... 6,12

United States v. Zielezinski, 740 F.2d 727 (Sth

ERR RPP rere nee rece ere rome aera ee 13

Constitution and regulations:

U.S. Const. Amend. V (Due Process Clause) ........ 12,18

SSIES ERNIE ee heen 2

SR ARE RIE UU erert entice ee ae =e ean an ES 2

ERR Malenel ee ee tee ee eee eae 2

| ERE SE ict neuen Se ene pane 2

oc a aalaieatniedabianaimamanen’ HL

Gu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1542

BARTHOLOMEW RIVIECCIO, PETITIONER

Vv.

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. Al-

A138) is reported at 919 F.2d 812. The memorandum

and order of the district court (Pet. App. A14-A61)

are reported at 723 F. Supp. 867.

JURISDICTION

The judgment of the court of appeals was entered

on November 2, 1990. A petition for rehearing was

denied on January 8, 1991. The petition for a writ

of certiorari was filed on April 5, 1991. The jurisdic-

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

1254(1).

(1)

2

STATEMENT

After a jury trial in the United States District

Court for the Eastern District of New York, peti-

tioner was convicted on one count of conspiring to

commit mail fraud, in violation of 18 U.S.C. 371; ten

counts of mail fraud, in violation of 18 U.S.C. 1341;

nine counts of bribery of bank officials, in violation

of 18 U.S.C. 215; one count of misapplication of

eredit union funds, in violation of 18 U.S.C. 657; and

one count of bank fraud, in violation of 18 U.S.C.

1344. He was sentenced to concurrent five-year

terms of imprisonment on each count and was or-

dered to pay restitution. The court of appeals af-

firmed. Pet. App. Al-A13.

1. The evidence at trial established that, from

1981 to April 1986, petitioner participated in a

fraudulent scheme to induce the HYFIN Credit

Union and Chemical Bank to finance the purchase

and rehabilitation of buildings, most of which were

located in Brooklyn. In order to obtain loans from

the credit union, petitioner bribed some of its officers

by giving them shares in corporations that owned

properties involved in the scheme. The loans were

improper for several other reasons as well: they were

unsecured; they were made to petitioner’s real estate

corporations in violation of a New York law barring

corporations from obtaining loans from credit

unions; they exceeded the credit union’s lending

limits; and they were completed without the neces-

sary paperwork. After petitioner had fallen so

deeply in debt that the credit union would no longer

make loans to him, he applied for and received loans

from Chemical Bank without disclosing that he owed

millions of dollars to the credit union. Pet. App.

A3-A4.

3

2. In April 1986, an employee of the credit union

disclosed petitioner’s scheme to the government, and

an investigation began. State and federal agents

searched petitioner’s offices and the credit union pur-

suant to search warrants and seized numerous docu-

ments. Shortly thereafter, three of petitioner’s accom-

plices in the scheme, two employees of the credit

union and its attorney, agreed to plead guilty to vari-

ous charges, to cooperate in the investigation, and to

testify at subsequent proceedings. Pet. App. A4. See

Gov’t C.A. Br. 11.

In June 1987, petitioner’s attorneys produced doc-

uments in response to subpoenas issued by a federal

grand jury investigating the financial affairs of the

credit union. After receiving use immunity under 18

U.S.C. 6002, petitioner testified before the grand

jury on July 2, July 9, and September 10, 1987.

Although the purpose of petitioner’s grand jury ap-

pearance was to authenticate the documents produced

in response to the grand jury subpoenas, the scope

of the questioning extended beyond the authentica-

tion of records. In particular, petitioner answered

questions pertaining to, among other things, the prep-

aration of the documents, the ownership and opera-

tion of the real estate corporations, and the identity

of his associates in the project, including his account-

ant, Ralph Strafaci. Pet. App. A4-A5.

Petitioner was not indicted by the grand jury that

heard his testimony. In February 1988, a new grand

jury was impanelled, and, on May 5, the second

grand jury returned an indictment against petitioner.

The same grand jury returned superseding indict-

ments on July 1 and November 3, 1988. The gov-

ernment did not present the 1988 grand jury with

any of the transcripts of petitioner’s immunized testi-

mony before the 1987 grand jury. Pet. App. A5.

4

3. A week before jury selection was scheduled to

begin, petitioner moved to dismiss the superseding

indictment on the ground that the government had

made improper use of his immunized testimony be-

fore the grand jury. The court deferred considera-

tion of the motion until after trial. After the jury

had returned its guilty verdicts, the court conducted

a hearing, in accordance with Kastigar v. United

States, 406 U.S. 441 (1972), to determine whether

the government had made any improper use of peti-

tioner’s immunized testimony before the grand jury

or at trial. Based upon the record of the hearing and

affidavits submitted by the prosecutor who tried the

case, the court denied the motion to dismiss. Pet.

App. Al14-A61.

a. Petitioner conceded at the Kastigar hearing

that “all the evidence introduced at trial, with the

exception of the testimony of one witness, Ralph

Strafaci, was derived from ‘legitimate independent

sources.’”’ Pet. App. Al9. Petitioner argued, how-

ever, that the prosecutor learned of Strafaci from

petitioner’s grand jury testimony or, at a minimum,

that petitioner’s testimony “caused the prosecutor to

‘focus’ on Strafaci.” Jd. at A20. The district court

rejected that contention, concluding that the evidence

“clearly demonstrate[d] that Mr. Strafaci’s identity,

his role as [petitioner’s] accountant, and his useful-

ness as a witness, were known to the United States

Attorney prior to [petitioner’s] appearance before

the grand jury.” Jbid. The court explained that an

investigator on the staff of the U.S. Attorney’s Of-

fice, Anthony Valenti, met Strafaci during the search

of petitioner’s offices and learned at that time that

Strafaci was the accountant for petitioner’s corpora-

tions. Jd. at A20-A21. The court also found that

“there was simply nothing in [petitioner’s] testimony

5

before the grand jury * * * that would have caused

the United States Attorney to ‘focus’ on Strafaci.”’

Id. at A238.

Petitioner’s only other claim of trial error, the

court continued, was that the government had made

improper use of knowledge it had gained regarding

his demeanor. Pet. App. A23. The court noted that

Valenti had asked a prosecutor who had examined

petitioner before the 1987 grand jury how petitioner

reacted to questioning; in response, the prosecutor

stated that petitioner came across as a “wise guy.”

Id. at A23-A24; see id. at A8 n.2. (A different prose-

cutor tried the case.) The district court found this

claim to be precluded by United States v. Mariani,

851 F.2d 595 (1988), cert. denied, 490 U.S. 1011

(1989), a case in which the Second Circuit stated

that it would not “foreclose the prosecution of an

immunized witness where his immunized testimony

might have tangentially influenced the prosecutor’s

thought processes in preparing the indictment and

preparing for trial.” Pet. App. A24. Moreover, the

court continued, petitioner “did not take the stand

and any possible advantage derived from hearing

about the kind of witness he would make was not

put to any use.” Pet. App. A24-A25.

b. The district court then turned to petitioner’s

contention that the government had made improper

use of his immunized testimony before the grand

jury. “The essence of [that] claim,” the court said,

was “that, even if his conviction is based on evidence

that has an independent source and even if a new

indictment could be obtained on the basis of the un-

tainted trial record, the conviction must nevertheless

be set aside and the present indictment must be dis-

missed because some of the evidence before the grand

jury was tainted.” Pet. App. A25. The court re-

jected that contention on three alternative grounds.

6

First, the district court noted, this Court has re-

peatedly held “that an indictinent returned by a

properly constituted grand jury is not subject to

challenge on the ground that it was based on uncon-

stitutionally obtained evidence,” Pet. App. A26-A27,

quoting United States v. Washington, 431 U.S. 181,

185 n.3 (1977),’ and there was no indication that

the statute authorizing grants of use immunity, 18

U.S.C. 6002, was intended to alter that principle, Pet.

App. A33-A35. The district court found that peti-

tioner was not entitled to invoke an exception to that

general rule, recognized by the Second Circuit as an

exercise of its “supervisory power,” which requires

dismissal of an indictment returned by the same

grand jury before which a defendant has given im-

munized testimony. Pet. App. A39-A41; see United

States v. Hinton, 548 F.2d 1002 (2d Cir.), cert. de-

nied, 429 U.S. 980 (1976). Here, the district court

noted, petitioner did not testify before the grand

jury that indicted him. Pet. App. A41.

Second, relying on United States v. Mechanik, 475

.S. 66 (1986), the district court found that peti-

tioner’s conviction rendered harmless any error in

the proceedings before the grand jury. “Whether evi-

dence derived from the defendant’s compelled testi-

mony here affected the grand jury’s determination to

indict,” the court explained, “it is clear that the petit

jury’s subsequent verdict was based on evidence de-

rived entirely from legitimate independent sources.”’

Pet. App. A44. Thus, “[mJeasured by the petit

1The district court cited and discussed Holt v. United

States, 218 U.S. 245, 248 (1910), Lawn v. United States,

355 U.S. 339 (1958), United States v. Blue, 384 U.S. 251

(1966), Gelbard v. United States, 408 U.S. 41, 60 (1972),

and United States v. Calandra, 414 U.S. 338 (1974).

7

jury’s verdict .. . any error in the grand jury pro-

ceeding connected with the charging decision was

harmless beyond a reasonable doubt.” Jd. at A44-

A45 (quoting Mechanik).

Finally, the district court concluded that even if

Mechanik left room for post-trial review of petition-

er’s claim, any alleged misuse of petitioner’s im-

munized testimony could not have affected the grand

jury’s decision to indict. Pet. App. A53. “[T]aking

at face value the allegations regarding the misuse of

[ petitioner’s] testimony,” the court explained, “all of

the alleged misuse did no more than * * * authenti-

cate documents that were otherwise authenticated by

other witnesses or that a grand jury would have ac-

cepted as authentic in the absence of any suggestion

to the contrary.” Ibid. In fact, the court continued,

the fact that petitioner failed “to substantiate most

of his claims of misuse, combined with the compelling

untainted evidence before the grand jury, has forced

him to argue that the indictment must be dismissed

if any tainted evidence was heard by the grand jury.”

Id. at A55-A57.° The district court found that Sec-

* The court rejected petitioner’s claim that the government

learned of grand jury witness Elizabeth Cataldo from his

testimony, finding that the government had established “an

independent untainted source for the identity of Cataldo and

for the decision to call her before the grand jury.” Pet. App.

A56 n.11. Similarly, the court found that the grand jury

that returned petitioner’s indictment was not exposed to the

transcript of his testimony. Jd. at A56-A57 n.11. The “only

support for [petitioner’s] claim of misuse” before the grand

jury, the court found, was a single answer by investigator

Valenti, in testimony before the second grand jury, which

suggested, incorrectly, that petitioner had produced certain

documents. Jd. at A57-A58 n.12. The court concluded, how-

ever, that it was “inconceivable that the grand jury’s action

would have been different if, instead of referring to [peti-

8

ond Circuit cases foreclosed that contention, and it

concluded that ‘“‘[t]he alleged misuse of [petitioner’s ]

testimony * * * had no significant effect on the course

of events.” Jd. at A60.

4, The court of appeals affirmed, addressing in

turn petitioner’s claims that the government had mis-

used his immunized testimony at trial and before the

grand jury. Pet. App. Al-A13.

With respect to the trial, the court of appeals up-

held the district court’s finding that Strafaci’s testi-

mony ‘was derived from independent legitimate

sources.” Pet. App. A7-A8. The court found that

any contention that the government had made “in-

direct use” of petitioner’s testimony—+.e., ‘to shape

and focus the questioning of witnesses and * * * to

ascertain petitioner’s demeanor”—was foreclosed by

United States v. Mariani, supra. Id. at A8-A9. In

any event, the court added, petitioner’s demeanor

was never in issue since he chose not to testify at

trial. 7d. at AQ.

With respect to the grand jury proceedings, the

court assumed, “for the sake of argument, that the

Government did misuse [petitioner’s] immunized

testimony” before the grand jury. It concluded, how-

ever, that even in that event petitioner “would not

be entitled to a dismissal of the indictment.” Pet.

App. Al0. The court explained that “an indictment

returned by a properly constituted grand jury is not

subject to challenge on the ground that it was based

on unconstitutionally obtained evidence” and that

neither Kastigar nor the federal immunity statute,

18 U.S.C. 6002, “altered the effect of this rule.”

tioner] as the source of the documents, [the investigator ]

had simply said that he obtained them from the various cor-

porate entities.” Jd. at A58-A59 n.12.

9

Pet. App. A10. Although the court recognized excep-

tions for cases in which an individual has been in-

dicted by a grand jury that has heard his immunized

testimony or in which the indictment rests “almost

exclusively on tainted evidence,” it found that neither

exception applied to this case. Jd. at All n.4.

The court declined to reach the question whether

Mechanik independently foreclosed petitioner’s claim.

Id. at A12-A13 n.5.

ARGUMENT

_ Petitioner contends that the court of appeals erred

in its determinations (1) that the government’s al-

leged misuse of petitioner’s immunized grand jury

testimony did not justify dismissal of the indictment

and (2) that the alleged non-evidentiary use of that

testimony at triai did not warrant reversal of his

convictions. Although the Second Circuit’s reasoning

on the first issue conflicts with decisions of other

courts of appeals, the conflict has no bearing on the

resolution of this case. The second issue is a factual

one on which the courts below were manifestly cor-

rect and which would not be decided differently by

any other court of appeals. Further review is there-

fore not warranted.

1. Petitioner’s challenge to the validity of his in-

dictment presents only the question of what remedies

are available for an alleged misuse of immunized

testimony before the grand jury. Notwithstanding

petitioner’s attempts to cast the court’s holding in

more pejorative terms (e.g., Pet. 1, 11), the court

did not authorize prosecutors to use immunized testi-

mony to secure an indictment. Rather, assuming for

purposes of argument that such a violation has oc-

curred, it held that dismissal of the indictment was

not an avaiiable remedy under the circumstances of

this case.

10

Although the court of appeals assumed arguendo

that petitioner’s immunized testimony was put to

some use before the grand jury, petitioner’s showing

of impropriety was in fact extremely weak. After

having had a full opportunity to develop his claims

in a Kastigar hearing, petitioner was able to point to

only three respects in which, he asserted, the govern-

ment had made improper evidentiary use of his im-

munized testimony during the grand jury proceed-

ings, and none of those claims withstands analysis.

First, he argued that, as a result of his testimony,

the government had identified, or focused upon, ac-

countant Strafaci. Pet. C.A. Br. 5, 8. The district

court, however, found that there was “simply noth-

ing” in petitioner’s testimony that would have caused

the government to focus on Strafaci. Pet. App. A7;

see id. at A20-A23. Moreover, the record established

that government investigator Valenti met Strafaci

while executing a search warrant at petitioner’s of-

-fices, long before petitioner testified. Far from over-

looking Strafaci’s significance, Valenti asked Strafaci

to have a lawyer call him on Strafaci’s behalf, indi-

cating that Valenti had an investigative interest in

Strafaci from the outset.

Second, petitioner argued that the government was

“apparently [un]interested” in bookkeeper Cataldo

until after she was identified in petitioner’s testi-

mony. Pet. C.A. Br. 7-8. Here again, the district

court found that the government was aware of

Cataldo’s identity from another source before peti-

tioner testified; that Cataldo was never viewed as

a potential prosecution witness; and that, when

Cataldo was called to testify before the grand jury

that indicted petitioner, she merely authenticated

1} ¥

documents that, with one exception, had been au-

thenticated by other witnesses.*

Third, petitioner complained that, in testimony

before the grand jury that returned the indictment,

Valenti identified petitioner as the source of certain

records relevant to the case.‘ The district court ac-

knowledged that Valenti’s testimony inaccurately

characterized petitioner as the source of the docu-

ments and was improper under Braswell vy. United

States, 487 U.S. 99 (1988). Pet. App. A57-A59 n.12.

But the district court found that “it is inconceivable

that the grand jury’s action would have been any dif-

ferent if, instead of referring to the defendant as

the source of the documents, [the investigator] had

simply said he obtained them from various corporate

entities.” Jd. at A58-A59 n.12.

On these findings, the district court set forth three

reasons why petitioner was not entitled to dismissal

of the indictment. It held, in the alternative, (1) that

an indictment returned by a grand jury before which

an immunized defendant has not testified is not sub-

ject to challenge on the ground that it rested in part

cn incompetent evidence, (2) that petitioner’s con-

viction rendered any error in the grand jury harm-

’ Pet. App. A56n.11. At trial, other witnesses authenticated

all of the documents Cataldo had identified. bid.

4 Pet. C.A. Br. 13-14. Referring to false net worth state-

ments that petitioner submitted to Chemical Bank, the prose-

cutor elicited the following testimony (id. at 14):

[Q]: And have you examined then [sic] in light of

the documents and papers you retrieved either from

[petitioner] personally as a result of Grand Jury sub-

poena, or other means, and the documents that were

seized with search warrants at the Hyfin Credit Union?

[A]: Yes, I have.

12

less, and (3) that there was abundant evidence, un-

tainted by his immunized testimony, to support the

indictment.

The court of appeals chose to rest its decision ex-

clusively on the first ground. Accord United States

v. Society of Independent Gasoline Marketers, 624

F.2d 461, 473-474 (4th Cir. 1979), cert. denied, 449

U.S. 1078 (1981). This Court’s decisions fully sup-

port that disposition. As both of the courts below

noted, this Court has established that an otherwise

valid indictment “is not subject to challenge on the

ground that it was based on unconstitutionally ob-

tained evidence.” United States v. Washington, 431

U.S. at 185 n.8. Accord United States v. Calandra,

414 U.S. 338 (1974); United States v. Blue, 384

U.S. 251 (1966); Lawn v. United States, 355 U.S.

339 (1958). Lawn is particularly instructive. In

that case, the defendants argued that the Due

Process Clause entitled them to a hearing to deter-

mine whether an indictment had been based on docu-

ments that they had been compelled to produce in

violation of their privilege against compelled self-

incrimination. This Court upheld the trial court’s

refusal to hold such a hearing, explaining that the

defendants had not established a foundation for a

hearing and that ‘‘an indictment returned by a le-

gally constituted nonbiased grand jury, like an in-

formation drawn by a prosecutor, if valid on its

face, is enough to call for a trial of the charge on

the merits.” 355 U.S. at 349.

It is true, as petitioner indicates, that other courts

have held that an indictment is subject to dismissal

if the government fails to establish an independent

source for evidence submitted to the grand jury.

United States v. North, 910 F.2d 843, 868-873, on

rehearing, 920 F.2d 940, 947-949 (D.C. Cir. 1990),

13

cert. denied, No. 90-1337 (May 28, 1991); United

States v. Palumbo, 897 F.2d 245, 251 (7th Cir.

1990); United States v. Garrett, 797 F.2d 656, 659-

665 (8th Cir. 1986); United States v. Beery, 678

F.2d 856, 859-860, 863 (10th Cir. 1982); United

States v. Hampton, 775 F.2d 1479, 1485 & n.34, 1489

(11th Cir. 1985) ; United States v. Gregory, 730 F.2d

692, 697-698 (11th Cir. 1984). See also United

States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984).

Those courts have read Calandra, Lawn, and other

similar cases only to foreclose inquiry into whether

the grand jury was exposed to evidence that was

previously obtained in violation of the defendant’s

constitutional rights; they have viewed reliance on

a defendant’s immunized testimony in a grand jury

investigation as a violation that occurs in the grand

jury itself. E.g., United States v. North, 910 F.2d at

868-869; United States v. Garrett, 797 F.2d at 660-

662: United States v. Beery, 678 F.2d at 859-860.

This distinction is elusive at best, and in any

event, it is inapplicable to this case. This is not a

case in which the grand jury that returned the indict-

ment violated petitioner’s rights by compelling him

to testify and then relying on that testimony in its

charging decision.” Rather, petitioner claims that the

grand jury that returned his indictment was affected

by the derivative use of immunized testimony that

was given before a different grand jury. There is no

difference in principle between that claim and an

argument that a grand jury has relied on a coerced

confession (or evidence derived from it) in return-

5 The court of appeals acknowledged that its prior cases

require dismissal of an indictment in that situation. See,

e.g., United States v. Hinton, supra.

14

ing an indictment. Both should be equally vulnerable

to the principle that an otherwise valid indictment

is not subject to challenge on the ground that it was

based on evidence obtained in violation of a defend-

ant’s constitutional rights.

In any event, the facts of this case do not require

resolution of this issue. In accordance with Bank of

Nova Scotia v. United States, 487 U.S. 250, 255-256

~ (1988), any claim that the government has made im-

proper use of immunized testimony in securing an

indictment is, at a minimum, subject to harmless

error analysis. United States v. North, 910 F.2d at

873; United States v. Serrano, 870 F.2d 1, 16 (1st

Cir. 1989); United States v. Hampton, 775 F.2d at

1489 n.51; United States v. Byrd, 765 F.2d 1524,

1529 n.8 (11th Cir. 1985); United States v. Gregory,

730 F.2d at 698; United States v. Beery, 678 F.2d

at 8638. After careful analysis of the particulars of

petitioner’s claims, the district court found that the

“only support” for his contention was a single an-

swer by a government investigator, incorrectly iden-

tifying petitioner as the source of documents pro-

duced in response to subpoena. That answer, the

court concluded, could not conceivably have affected

the grand jury’s charging decision. Pet. App. A57-

A59 n.12. The government’s “overwhelming and un-

tainted evidence at trial” established that ‘the

United States Attorney would have been able to pro-

vide ample evidence to warrant an indictment” even

without petitioner’s testimony. /d. at A60. The facts

of this case therefore do not call for review of the

question whether a prejudicial misuse of immunized

testimony may justify dismissal of an indictment.°

®This Court declined to review this question in United

States v. North, No. 90-1337 (May 28, 1991).

15

2. Petitioner also contends (Pet. 27-29) that the

court of appeals erred in its disposition of his claim

that the government made indirect use of his im-

munized testimony at trial. The district court and

the court of appeals correctly rejected that claim on

these facts.

The district court noted that, as far as the trial

was concerned, petitioner’s only claim of noneviden-

tiary use was that the government had capitalized

on what it learned of his demeanor during his grand

jury appearances. Pet. App. A23. Valenti admitted

that he asked one of the prosecuters who examined

petitioner how petitioner answered questions, and

was told that petitioner came across as a “wise guy.”’

Id. at A8 n.2, A23-A25. The government could not

possibly have made any use of that observation at

trial, however, since petitioner did not testify. Jd. at

A23-A25.

The facts also contradict petitioner’s unelaborated

assertion that his immunized testimony was used at

trial “to shape and focus the questioning of witnesses

and in otherwise preparing for trial.” Pet. 27. See

Pet. C.A. Br. 17. The court of appeals sustained the

district court’s finding that none of the evidence in-

troduced during the trial was derived from peti-

tioner’s testimony. Pet. App. A6-A8. The prosecutor

who tried the case did not examine petitioner before

the grand jury. Furthermore, in affidavits submitted

in connection with the Kastigar hearing, the trial

prosecutor stated that although he read one volume

of petitioner’s testimony and glanced at another, he

did not look at the volume containing the most sub-

stantial portion of petitioner’s testimony; that the

volumes he did examine involved primarily the au-

thentication of documents; and that, by the time he

prepared for trial, he recalled only that petitioner

16

authenticated documents in the grand jury. Gov’t

C.A. Br. 12-13. It is impossible to conceive how the

prosecutor’s recollection that petitioner had authenti-

cated documents could have assisted him in focusing

and shaping evidence that was derived entirely from

legitimate sources.’

The cases on which petitioner relies, United States

v. McDaniel, 482 F.2d 305 (8th Cir. 1973), and

United States v. Semkiw, 712 F.2d 891 (3d Cir.

1983), involved far more substantial claims of non-

evidentiary use. In McDaniel, the prosecutor read

transcripts of immunized grand jury testimony in

which the defendant ‘fully confessed his misdeeds.”

482 F.2d at 311. Moreover, at the time he read the

transcripts, the prosecutor was unaware that the

testimony had been obtained pursuant to a grant of

7 Petitioner does not seek review of the contention, which

he advanced in the court of appeals, that the government

made improper nonevidentiary use of his testimony before

the grand jury. See Pet. i. In any event, the record estab-

lishes that, a year before petitioner testified before the grand

jury, three of his accomplices in the scheme to defraud the

credit union agreed to plead guilty and cooperate with the

government. All three were fully debriefed before petitioner

gave his immunized testimony. Petitioner was not indicted

by the grand jury that heard his testimony, nor was that

testimony presented to the grand jury which returned the

indictment. Gov’t C.A. Br. 10-13; Pet. App. A56-A57 n.11.

Further, the district court rejected all of petitioner’s claims

of derivative use before the grand jury (except for the in-

vestigator’s reference to petitioner as the source of corporate

documents, which the court determined to be harmless), and

it concluded that there was abundant evidence to sustain the

indictment. Pet. App. A55-A61 & nn.11-12. Under the stand-

ard applied in Bank of Nova Scotia, those facts leave no

room for a determination that any nonevidentiary use of

petitioner’s testimony during the proceedings culminating in

his indictment had any effect on the charging decision.

17

immunity, and therefore “could have perceived no

reason to segregate [the] testimony from his other

sources of information.” /bid. The court concluded

that, “[u]nder these circumstances,” the government

could not satisfy its burden of showing that the testi-

mony was not used “in some significant way short of

introducing tainted evidence,” such as in “planning

cross-examination, and otherwise generally planning

trial strategy.” Jbid. Similarly, in Semkiw, the

court of appeals remanded the case to the district

court for a hearing into the possibility that the trial

prosecutor had disvovered the defendant’s deiense

through his access to the defendant’s immunized tes-

timony, and thus had derived an unfair advantage in

preparing his case. 712 F.2d at 893-895. In the in-

stant case, the trial prosecutor’s affidavits foreclosed

a similar contention. ,

It does not appear that McDaniel, Semkiw, or

any other court of appeals decision would require

reversal of a conviction in a case in which the prose-

cution has made “merely tangential” nonevidentiary

use of immunized testimony.* But in any event, re-

view of that question should await a case in which there

is a concrete indication that the government has

7 See United States v. Serrano, 870 F.2d at 17-18 (“a prose-

cution is not foreclosed merely because ‘the immunized testi-

mony might have tanget:tially infiuenced the prosecutor’s

thovght processes in preparing the indictment and preparing

for trial’”’) ; United States v. Pantone, 634 F.2d 716 (3d Cir.

1980) (mere exposure of prosecutor to immunized testimony

does not require reversal of conviction); United States v.

Crowson, 828 F.2d 1427, 1431 (9th Cir. 1987) (assuming

arguendo that nonevidentiary use was prohibited, but finding

that the government carried its burden of showing that no

such use was made); United States v. Byrd, 765 F.2d at

1532 (a violation of the privilege against compelled self-

18

made some nonevidentiary use of immunized testi-

mony. See United States v. Serrano, 870 F.2d at 17

(declining to review untimely claim of noneviden-

tiary use on the ground that the record on appeal was

“clearly inadequate to resolve this highly factual is-

sue” and “contain[ed] none of the findings relevant

to this fact-intensive issue’). Here, the prosecutor

specifically denied any such use, and petitioner’s

claim consists entirely of an uneiaborated assertion

that the government nonetheless used his testimony

to focus and shape evidence that was derived entirely

from legitimate sources.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

JUNE 1991

incrimination ordinarily does not occur “unless {the] use of

the immunized testimony resulted in the introduction of evi-

dence not obtained wholiy from independent sources”). The

D.C. Cireuit reserved judgment on whether the Fifth Amend-

ment prohibits nonevidentiary use in United States v. North,

910 F.2d at 856-860.

W ov. 8. eovernwenr PRINTING OFFICE, 1991 262061 20580