Opposition Brief — Buljubasic v. United States

No. 86-1608

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1986

IVAN BULJUBASIC, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SIDNEY M. GLAZER

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether petitioner is entitled to a new trial because

a co-defendant’s motion for severance was not granted

until late in the trial.

2. Whether the district court properly permitted

evidence and closing argument regarding petitioner’s

failure to report an alleged extortion attempt to law en-

forcement authorities.

3. Whether the district court properly refused to grant

immunity to a prospective defense witness.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Anderson v. Charles, 447 U.S. 404 (1980) .............. 10

Commonwealth v. Moran, 387 Mass. 644, 442 N.E. 2d

ee ee ec cebcesebaseneesdes 5

Doyle v. Ohio, 426 U.S. 610 (1976) ................... 4

Government of Virgin Islands v. Smith, 615 F.2d 964

ee ed a ee cbeaecbeosensecee 12

Opper v. United States, 348 U.S. 84 (1954) ............. 6

People v. Byron, 116 Ill. 2d 81, 506 N.E.2d 1247 (1987) .. 5

Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) ........ 11, 12, 13

Richardson v. Marsh, No. 85-1433 (Apr. 20, 1987) ...... 6

State v. Clarke, 448 A.2d 1208 (R.1. 1982) ............. 5

State v. Webb, 424 So.2d 233 (La. 1982) ............... 5

United States v. Barber, 442 F.2d 517 (3d Cir.), cert.

I ere 8

United States v. Bazzano, 712 F.2d 826 (3d Cir. 1983),

cert. denied, 465 U.S. 1078 (1984) .................. 12

United States v. Becker, 585 F.2d 703 (4th Cir. 1978), cert.

Ee, GD og ccc cnccccenscccccese 8

United States v. Bounos, 693 F.2d 38 (7th Cir. 1982) ..... 12

United States v. Caldwell, 543 F.2d 1333 (D.C. Cir. 1974),

cert. denied, 423 U.S. 1067 (1976) .................. 12

United States v. D’Antonio, 801 F.2d 979 (7th Cir. 1986) . 12

United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert.

SEED oo ccc cccsesncescassess 8

United States v. DiPasquale, 740 F.2d 1282 (3d Cir. 1984),

cert. denied, 469 U.S. 1228 (1985) .................. 6

United States v. Doe, 465 U.S. 605 (1984) ........... 11, 12, 13

United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir.

1976), cert. denied, 429 U.S. 1120(1977) ............. 8

(i111)

IV

Cases — Continued: Page

United States v. Fortna, 796 F.2d 724 (Sth Cir. 1986), cert.

denied, No. 86-587 (Nov. 10, 1986) ................. 4

United States v. Gottesman, 724 F.2d 1517 (11th Cir.

Sn cc nckdanki ake baaddetd weed ee aeadenes taney 12

United States v. Graham, 548 F.2d 1302 (8th Cir. 1977) .. 12

United States v. Hendrix, 752 F.2d 1226 (7th Cir.), cert.

GEE, Ge Gs SE 6: nb. o4 4540 Hh0neddedecdce 8

United States v. Holcomb, 797 F.2d 1320 (Sth Cir. 1986) . 4

United States v. Hunter, 672 F.2d 815 (10th Cir. 1982) ... 12

United States v. Karas, 624 F.2d 500 (4th Cir. 1980), cert.

Gee BI as: HED vo kh ak cd wh ddan see ccecece 12

United States v. Lane, No. 84-744 (Jan. 27, 1986) ....... 6

United States v. Lowell, 649 F.2d 950 (3d Cir. 1981) ..... 12

United States v. Mendia, 731 F.2d 1412 (9th Cir.), cert.

Ge a aes SE bb bcc cdbocscodinvacdina 12

United States v. Paradis, 802 F.2d 553 (ist Cir. 1986) .... 8

United States v. Pennell, 737 F.2d 521 (6th Cir. 1984),

cert. denied, 469 U.S. 1158 (1985) .................. 12

United States v. Romanellé, 726 F.2d 173 (Sth Cir. 1984) . 4

United States ¥. Steele, 585 F.2d 793 (3d Cir.), cert.

See Ge Ce, EE 656i nce wha an dame heNdee se 12

United States v. Stotts, 792 F.2d 1318 (Sth Cir. 1986) .... 4

United States v. Thevis, 665 F.2d 616 (Sth Cir.), cert.

Bonind., 561) :S. GEBB CIH onc ccc ccdecccadsacacvss 12

United States v. Turkish, 623 F.2d 769 (2d Cir. 1980),

cert. denied, 449 U.S. 1077 (1981) .................. 12

United States v. Watkins, 811 F.2d 1408 (11th Cir. 1987) . 6

United States v. Whittington, 783 F.2d 1210, on reh’g, 786

F.2d 644 (Sth Cir. 1986), cert. denied, No. 85-1974

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Fed. R. Crim. P.:

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Jn the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1608

IVAN BULJUBASIC, PETITIONER

Vv,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-15) is

reported at 808 F.2d 1260.

JURISDICTION

The judgment of the court of appeals was entered on

January 7, 1987. A suggestion for rehearing en banc was

denied on February 2, 1987 (Pet. App. 16). The petition

for a writ of certiorari was filed on April 2, 1987. The

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

1254(1).!

' The court of appeals determined that petitioner’s en banc request,

which was captioned “Petition for Rehearing En Banc,” constituted “a

suggestion of rehearing en banc (without a petition for rehearing)”

(Pet. App. 16). The petition for a writ of certiorari would therefore

appear to be out of time under Rule 20 of the Rules of this Court.

(1)

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of Illinois, petitioner was con-

victed on one count of conspiracy to commit mail fraud

and to destroy a building by fire or explosive, in violation

of 18 U.S.C. 371; on three counts of attempting to destroy

a building by fire or explosive, in violation of 18 U.S.C.

844(i); and on two counts of mail fraud, in violation of 18

U.S.C. 1341. He was sentenced to three concurrent ten-

year terms of imprisonment on the explosive violations, to

be followed by a two-year term of imprisonment on one of

the mail fraud counts. He was also placed on probation

for five years and was ordered to pay a total of $41,000 in

fines and $4,200 in restitution to a victim of the offense.

1. The evidence at trial showed that petitioner ac-

quired a Chicago apartment building through Slobodan

Pavlovic, the owner of a real estate company. Through the

assistance of llija Zabic, petitioner hired Ivan Siprak and

Robert Samuelson to set fire to the building. Petitioner in-

structed Pavlovic to pay Zabic, Siprak, and Samuelson

once the arson was completed. Samuelson set the building

on fire, Pavlovic paid $9,000 to Zabic and Siprak, and

petitioner filed insurance claims for the resulting damage.

The police eventually apprehended all of the participants

in the scheme. Pet. App. 1-2.

2. Petitioner and Pavlovic were indicted together and

their cases were joined for trial. See Fed. R. Crim. P.

8(b).2 On November 6, 1985 (13 months after indictment

and 12 days before trial), Pavlovic moved for a severance

on the ground that he and petitioner expected to maintain

inconsistent defenses. The district court determined that

2 Prior to petitioner's trial, Zabic was convicted of arson and

Samuelson and Siprak pleaded guilty to the charge of attempted

arson.

3

Pavlovic had failed to show that his defense would conflict

with petitioner’s. The court therefore denied the severance

motion. Pet. App. 2-4.

On November 18, 1985, Pavlovic renewed his severance

motion, suggesting to the court for the first time that he

would allege that petitioner coerced him, through threats

of violence, to pay Zabic and Siprak for their efforts in

connection with the arson. The court indicated that a

severance would be necessary in the event that Pavlovic of-

fered evidence of compulsion, but in light of Pavlovic’s

refusal to commit himself to a compulsion defense at that

point, the court denied the severance motion pending fur-

ther developments. In the meantime, in order to avoid any

prejudice to petitioner, the court instructed Pavlovic to

avoid any reference to his defense of compulsion in the

presence of the jury until it became clear that he would

provide evidence supporting that theory. Pet. App. 5-6.

After two weeks of trial, Pavlovic stated to the court

under oath, outside the jury’s presence, that he would

testify that petitioner coerced him into engaging in the

arson scheme. At that point, the court determined that a

severance was warranted; the court therefore declared a

mistrial with respect to Pavlovic and proceeded with the

trial against petitioner alone. The prosecutor then granted

Paviovic use immunity under 18 U.S.C. 6003, and

Pavlovic testified that petitioner instructed him to pay

Zabic for the arson. The jury convicted petitioner, and

Paviovic’s case was set for a new trial. Pet. App. 7.

The court of appeals affirmed petitioner’s conviction. It

found that it was proper for the district court to grant the

severance when it did and that, in light of the protective

measures Ordered by the district court, conducting a joint

trial up to the time of the severance did not prejudice peti-

tioner. The court also found that there was no merit to

petitioner’s claims regarding the admission of certain

4

evidence at trial and regarding the government’s refusal to

grant immunity to a proposed defense witness who refused

to testify at trial. Pet. App. 7-15.

ARGUMENT

1. Petitioner contends (Pet. 19) that the court of ap-

peals’ standard “for determining the degree and nature of

antagonistic defense which requires a severance” conflicts

with the standard employed by ¢he Fifth Circuit. That con-

tention is incorrect.

The court of appeals stated that a severance is not re-

quired “[ujnless the defenses are so inconsistent that the

making of a defense by one party will lead to an un-

justifiable inference of another’s guilt, or unless the accept-

ance of a defense precludes acquittal of other defendants”

(Pet. App. 5 (emphasis in original)). The Fifth Circuit ap-

plies a virtually identical standard, stating that “severance is

required only when the defense of one party, if believed,

necessarily indicates the guilt of the other. In other words,

the defenses must be ‘more than merely antagonistic —they

must be antagonistic to the point of being mutually ex-

clusive.’ ” United States v. Holcomb, 797 F.2d 1320, 1324

(1986) (citations omitted). See also United States v. Fortna,

796 F.2d 724, 738 n.13 (Sth Cir. 1986), cert. denied, No.

86-587 (Nov. 10, 1986); United States v. Stotts, 792 F.2d

1318, 1321 (Sth Cir. 1986). Thus, there is no conflict be-

tween the Seventh Circuit and Fifth Circuit standards.’

} Petitioner's statement that “the Fifth Circuit standard does not re-

quire that the antagonism be mutually exclusive” (Pet. 20) is plainly

incorrect. In United States v. Romanello, 726 F.2d 173 (1984), the one

Fifth Circuit case on which petitioner relies (Pet. 20-23), that court

embraced precisely that standard. See 726 F.2d at 177 (“To compel

severance the defenses must be antagonistic to the point of being ir-

reconcilable and mutually exclusive.”).

5

Petitioner also contends that the decision of the Seventh

Circuit conflicts with decisions of several state courts with

regard to the proper standard to apply in determining

whether a severance should be granted based on a claim of

antagonistic defenses. In the first place, the question

whether a severance should be granted in a particular set-

ting is ordinarily a matier of non-constitutional criminal

procedure on which the states are free to adopt rules at

variance with the rules applied in the federal system. A dif-

ference in approach between state and federal courts on

such an issue should therefore be no source of concern to

this Court. Beyond that, however, we discern no conflict

between the decison in this case and the four state court

decisions cited by petitioner. Two of those state court deci-

sions expressly adopted a standard indistinguishable from

the one applied by the court in this case. See Com-

monwealth v. Moran, 387 Mass. 644, 659, 442 N.E.2d

399, 408 (1982) (severance granted when defenses were

“mutually antagonistic and irreconcilable”); State v.

Clarke, 448 A.2d 1208 (R.1. 1982) (severance granted “if

[the] conflict between [the] defenses is real and substantial

and of such an irreconcilable nature that it is likely [the]

jury will infer guilt on [the] basis of {the} conflict alone”).

The other two state court decisions use more general

language, but do not employ a standard that is discernibly

different from the one employed by the Seventh Circuit.

See People v. Byron, 116 Ill. 2d 81, 506 N.E.2d 1247

(1987) (“Severance is required where the defenses of

codefendants are so antagonistic that severance is im-

perative to insure a fair trial.”); State v. Webb, 424 So.2d

233 (La. 1982) (severance required when one defendant

“intends to lay blame for the offense at the feet of [the]

codefendant”).

In any event, a severance was granted in this case as

soon as it became clear that Pavlovic’s defense would con-

flict with petitioner’s. Petitioner argues (Pet. 23-31) that

he was prejudiced by the district court’s decision to

6

postpone granting a severance until it became clear that

Pavlovic would present a conflicting defense. As the court

of appeals’ analysis shows, however, there is no merit to

that claim.

This Court has recognized that society has a strong in-

terest in prosecuting criminal cases through joint trials.

Richardson v. Marsh, No. 85-1433 (Apr. 21, 1987), slip

op. 9-10; United States v. Lane, No. 84-744 (jan. 27,

1986), slip op. 10. Once it is established that joinder is

proper—as it plainly was here—trial courts exercise

substantial discretion in determining whether a joint trial

is appropriate in a particular case. See Fed. R. Crim. P.

14; Opper v. United States, 348 U.S. 84, 95 (1954); United

States v. Watkins, 811 F.2d 1408, 1410 (11th Cir. 1987);

United States v. DiPasquale, 740 F.2d 1282, 1293 (3d Cir.

1984), cert. denied, 469 U.S. 1228 (1985). The trial court

acted properly here in continuing with the joint trial until

it became clear that a severance would be necessary.

Throughout the period that the joint trial continued, the

district court took steps to protect petitioner from undue

prejudice, while at the same time properly refusing to

grant a severance based solely on Pavlovic’s unsupported

representation that the defenses would conflict. As the

court of appeals observed (Pet. App. 4), during the four

years prior to the trial, both petitioner and Pavlovic “af-

fected absolute ignorance of the events.” Even as of the

time of Pavlovic’s severance motion on November 14,

1985, Pavlovic’s position seemed to be that he made a pay-

ment to Zabic at petitioner’s request, but that he did not

know the purpose of the payment —a defense that was not

at all irreconci:able with petitioner’s defense of complete

ignorance of the arson (see /bid.).

It was not until November 18 that Pavlovic first sug-

gested that he would raise a defense of compulsion and

that in support of that defense he would offer evidence

that petitioner had a reputation as a dangerous person

7

who carried firearms (Pet. App. 5). In light of the belated

nature of Pavlovic’s claim, the district court justifiably ex-

pressed skepticism that Pavlovic’s proposed defense would

be supported by any evidence. The court’s skepticism was

especially justified because, even after November 18, peti-

tioner’s counsel refused to commit himself to a coercion

defense. Jd. at 6. Because it was not yet clear, even from

Pavlovic’s counsel, whether Pavlovic would ultimately

choose to rely on that defense, the district court properly

refused to grant a severance at that time. Instead, the

court took steps to avoid any possible prejudice to peti-

tioner by forbidding Pavlovic from making any reference

to petitioner’s reputation, his practice of carrying

firearms, or his conduct in coercing Pavlovic to participate

in the offense, until it became clear that Pavlovic would

testify or offer some other evidence to support his defense

of compulsion. /d. at 6-7.

Not until December 6, 1985, two weeks into the trial,

did Pavlovic commit himself to relying on the defense of

compulsion. At that point Pavlovic made his sworn state-

ment outside the presence of the jury in which he claimed

that petitioner forced him to make an arson payment to

Zabic. Based on that statement, the district court granted

a severance.

For the district court to have granted a severance any

earlier would have been improvident. To grant a severance

on the basis of a defendant’s representation that he might

raise a defense that would be inconsistent with some other

defendant’s defense would invite manipulation and result

in a large number of unjustified severances. Rather than

granting a severance that might well have turned out to be

unnecessary, the district court wisely delayed granting the

severance but in the interim took steps to avoid any prej-

udice from the potential conflict between the positions of

the two defendants. As the court of appeals noted, the

district court “kept out ail evidence that would have un-

8

fairly prejudiced [petitioner] and even prevented

Pavlovic’s counsel from intimating that [petitioner] may

have coerced Pavlovic into cooperating” (Pet. App. 11).

Although petitioner contends that he was prejudiced by

the joint trial prior to the time the severance was granted,

he does not make a convincing showing to support his

claim. His principal complaint is that Pavlovic’s attorney

conducted a searing cross-examination of petitioner that

was far more effective than the cross-examination con-

ducted by the government (Pet. 24-29). In fact, although

Pavlovic’s counsel cross-examined petitioner in a sarcastic

manner (Pet. App. 12), that was hardly enough to estab-

lish conflicting defenses or to prejudice petitioner ir-

reparably in the eyes of the jurors. As the court of appeals

noted, Pavlovic’s lawyer was sarcastic with other witnesses

too, and his “sarcasm did not add to the evidence already

in the lists against petitioner” (ibid.).

Petitioner also complains (Pet. 15-16) of other respects

in which Pavlovic’s counsel buttressed the government’s

case against petitioner. In each of those instances,

however, Pavlovic’s counsel was simply underscoring the

evidence against petitioner in order to minimize his own

client’s role in the offense, a tactic that is not unusual in

joint trials and that does not rise to the level of mutually

exclusive or irreconcilable defenses that require a sev-

erance. See United States v. Paradis, 802 F.2d 553,

561-562 (ist Cir. 1986); United States v. DeLuna, 763 F.2d

897, 921 (8th Cir.), cert. denied, 474 U.S. 980 (1985);

United States v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.),

cert. denied, 471 U.S. 1021 (1985); United States v.

Becker, 585 F.2d 703, 707 (4th Cir. 1978), cert. denied,

439 U.S. 1080 (1979); United States v. Ehrlichman, 546

F.2d 910, 929 (D.C. Cir. 1976), cert. denied, 429 U.S.

1120 (1977); United States v. Barber, 442 F.2d 517, 530

(3d Cir.), cert. denied, 404 U.S. 958 (1971).

9

Finally, as the court of appeals noted, the case against

petitioner was quite strong.* Accordingly, any prejudice

petitioner might have suffered from Pavlovic’s cross-

examination of him or of any of the government’s wit-

nesses could not have affected the outcome of the trial,

and thus was not sufficient to render the district court’s

handling of the severance requests an abuse of discretion.

2. Petitioner next contends (Pet. 32-39) that the gov-

ernment improperly impeached his trial testinony. Peti-

tioner testified that, two years after the arson, Zabic at-

tempted to extort money from him (Pet. App. 13). On

cross-examination, petitioner admitted that he had failed

to notify the police of the extortion attempt. He explained

his failure to do so on the ground that he was a suspect in

the arson investigation and he expected that the police

would not believe him (ibid.).

This Court has held that the Due Process Clause pro-

hibits the government from administering Miranda warn-

ings and then using the defendant’s post-arrest silence to

impeach the defendant’s exculpatory testimony at trial.

Doyle v. Ohio, 426 U.S. 610 (1976). But the principles of

Doyle cannot be extended to a case such as this one, where

a defendant claims to have been a victim of a separate,

subsequent crime, and the government seeks to impeach

that claim by showing that the defendant failed to report

the alleged crime against him. A defendant who has once

been given Miranda warnings in connection with a police

interview is not thereafter forever immunized from im-

peachment by his silence in connection with a wholly

separate matter.

4 In addition to the direct evidence given by Zabic, Pavlovic, and

Samuelson, there was corroborative testimony from two other

witnesses. Moreover, the dilapidated condition of the building, the

obtaining of insurance for substantially more than the value of the

building, and petitioner’s efforts to remove all the tenants from the

building before the arson provided strong circumstantial support for

the direct evidence of petitioner’s guilt (see Pet. App. 11).

10

Petitioner’s failure to report the alleged extortion at-

tempt logically supports the inference that the extortion

did not take place, and there is nothing unfair about

allowing the government to ask the jury to draw that in-

ference. In addition to the fact that the alleged extortion

by Zabic was an entirely separate crime from the arson, it

was a crime in which petitioner claimed to be the victim.

Moreover, petitioner was last given Miranda warnings

more than a year before the extortion supposedly took

place, and even at that time petitioner had not invoked his

right to remain silent, but had freely discussed the arson

allegations with the police (Pet. App. 13).°

Petitioner makes the related contention that it was im-

proper for the district court to bar him from testifying that

the reason he did not report the Zabic extortion in 1983

was that he was relying on the Miranda warnings he re-

ceived in 1981 and 1982. As the court of appeals noted

(Pet. App. 14), the district court properly barred peti-

tioner from giving that explanation because the apparent

purpose of offering that testimony was to evoke sympathy

by offering into evidence an ethnic slur from a police of-

ficer that had accompanied one of the Miranda warnings

petitioner had received. In any event, even if the district

court was incorrect in barring the evidence regarding the

Miranda warnings, the error was inconsequential, since

petitioner was permitted to explain that the reason he did

not report Zabic’s extortion attempt was that he had been

told as early as 1981 that he was a suspect in the arson in-

vestigation (see Tr. 2314). Thus, petitioner was able to

give essentially the same explanation for his conduct that

he would have given if he had been permitted to refer ex-

pressly to the Miranda warnings: that he did not tell the

> Because petitioner did not invoke his right to remain silent, but in-

stead spoke freely with the police, this case is more akin to Anderson

v. Charles, 447 U.S. 404 (1980), than to Doyle.

11

police about the extortion attempt because, stil being a

suspect in the arson investigation, he did not think the

police would believe him. In light of the collateral nature

of the inquiry into the extortion matter and the limited

scope of the district court’s restriction on petitioner’s

testimony, petitioner could not have been prejudiced by

the district court’s order barring reference to the Miranda

warnings.

3. Finally, petitioner contends (Pet. 39-41) that the

trial court should have granted use immunity to Ivan

Siprak after Siprak invoked his privilege against com-

pulsory self-incrimination and declined to testify as a

defense witness.

A United States Attorney may request an order for

witness immunity when “the testimony * * * from such in-

dividual may be necessary to the public interest” and the

witness has refused to testify on the basis of his privilege

against compulsory self-incrimination. 18 U.S.C. 6003.

This Court has never recognized the existence of judicial

authority to immunize defense witnesses absent a request

from the government. Rather, the Court has explained

that the authority to immunize witnesses “is peculiarly an

executive one, and only the Attorney General or a

designated officer of the Department of Justice has

authority to grant use immunity.” Pillsbury Co. v.

Conboy, 459 U.S. 248, 261 (1983). See id. at 253-254. The

corollary of this principle is that “[n]o court has authority

to immunize a witness” (id. at 261; see id. at 262). See also

United States v. Doe, 465 U.S. 605, 616-617 (1984) (“Con-

gress expressly left this decision exclusively to the Justice

Department.”). Following these principles, the courts of

appeals have overwhelmingly ruled that judges may not

immunize defense witnesses without a request from the

prosecution.®

6 See, e.g., United States v. Whittington, 783 F.2d 1210, 1219-1220,

on reh’g, 786 F.2d 644 (Sth Cir. 1986), cert. denied, No. 85-1974

12

Prior to this Court’s decisions in Doe and Conboy, the

Third Circuit held that a district court may immunize a

defense witness when that witness has essential, ex-

culpatory information that is unavailable from other

sources. See Government of Virgin Islands v. Smith, 615

F.2d 964 (3d Cir. 1980). Whatever the validity of the Third

Circuit’s rule, it is applicable by its terms only when the

defendant makes “a convincing showing” that the prof-

fered testimony is “both clearly exculpatory and essential

to the defendant’s case” (id. at 972). In addition,

“{iJmmunity will denied if the proffered testimony is

found to be * * * cumulative” (ibid.). The Third Circuit

thus has found a judicial grant of immunity appropriate

only when there is “a probable certainty that * * * [the] ex-

pected testimony * * * would * * * in itself exonerate [the

defendant].” United States v. Lowell, 649 F.2d 950, 965

(1981) (emphasis in original). See also United States v.

Steele, 685 F.2d 793, 808 (3d Cir.), cert. denied, 459 U.S.

908 (1982).’

(Oct. 14, 1986); United States v. Pennell, 737 F.2d 521, 526-528 (6th

Cir. 1984), cert. denied, 469 U.S. 1158 (1985); United States v. Men-

dia, 731 F.2d 1412, 1414-1415 (9th Cir.), cert. denied, 469 U.S. 1035

(1984); United States v. Gottesman, 724 F.2d 1517, 1524 (11th Cir.

1984); United States v. Bounos, 693 F.2d 38, 39 (7th Cir. 1982);

United States v. Hunter, 672 F.2d 815, 818 (10th Cir. 1982); United

States v. Thevis, 665 F.2d 616, 638-641 (Sth Cir.), cert. denied, 456

U.S. 1008 (1982); United States v. Karas, 624 F.2d 500, 505 (4th Cir.

1980), cert. denied, 449 U.S. 1078 (1981); United States v. Turkish,

623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449 U.S. 1077

(1981); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977);

United States v. Caldwell, 543 F.2d 1333, 1336 n.115 (D.C. Cir. 1974),

cert. denied, 423 U.S. 1087 (1976).

’ The Third Circuit has also held that the Due Process Clause may

require a grant of use immunity to a defense witness if the prosecutor,

through selective use of immunity, has deliberately distorted the

judicial fact-finding process. United States v. Bazzano, 712 F.2d 826,

839-840 (1983) (en banc), cert. denied, 465 U.S. 1078 (1984); United

States v. Lowell, 649 F.2d 950, 964-965 (1981); see also United States

v. D’Antonio, 801 F.2d 979, 982-983 (7th Cir. 1986). As the court of

13

Although the Third Circuit’s approach to the issue is

different from that of other circuits, there is no need for

the Court to address that difference in this case. First, the

Third Circuit has yet to determine whether its recognition

of judicial immunity survives this Court’s remarks in Doe

and Conboy. In light of those intervening decisions, the

Third Circuit may reconsider its analysis of the issue of

defense witness immunity. Second, petitioner has not

demonstrated that he would have obtained a favorable rul-

ing on his request to immunize Siprak even in the Third

Circuit, because petitioner failed to show that if Siprak

were immunized, he would give testimony that clearly ex-

culpated petitioner.

Contrary to petitioner’s assertion, the record does not

reflect that Siprak’s testimony would have been helpful to

petitioner. At trial petitioner predicted that Siprak would

testify that petitioner was not present on one occasion

when Siprak and Zabic went to Pavlovic’s office to collect

money for the arson from Pavlovic. That prediction was

based on two statements Siprak had previously made to in-

vestigators. The statements, however, were inconsistent

with one another in important respects. In addition, the

statements were inconsistent with the accounts of that

meeting given by both Zabic and Pavlovic at trial, and the

statements were made in the course of an account by

Siprak that was apparently designed to minimize his

culpability in the arson scheme. See Gov’t C.A. Br. 43-46.

Moreover, other portions of Siprak’s prior statements

were damaging to petitioner, and testimony from him on

those subjects would not have been helpful to petitioner's

defense. For example, in one of his pretrial statements,

Siprak said that he had overheard Zabic talking with

Pavlovic about getting money from petitioner, and in

appeals noted (Pet. App. 15), in this case all the significant par-

ticipants in the arson scheme other than Ivan Siprak testified at trial.

There was therefore “nothing lopsided about the presentation of

evidence here” (ibid.).

14

another statement, Siprak said that Zabic had told him

Pavlovic was holding funds to be paid to Zabic at peti- |

tioner’s direction. See id. at 43-45. Accordingly, far from

providing clearly exculpatory evidence, the effect of im- |

munizing Siprak, in all likelihood, would have been to

strengthen the case against petitioner. In these cir-

cumstances, it was not error for the district court to

decline to compel the government to seek an order of im-

munity for Siprak so that he could be forced to testify as a

defense witness at trial.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SIDNEY M. GLAZER |

Altorney

JUNE 1987

US. GOVERNMENT PRINTING OFFICE: 1986— 181-483/40389