Opposition Brief — Whittington v. United States

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No. 85-1974 | AUG

26 1986

. SPANWL, JR.

CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1986

RICHARD A. WHITTINGTON AND

W. Lewis DeMoss, JR., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THe FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

VINCENT L. GAMBALE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTION PRESENTED

Whether the district court should have granted immunity

to two prospective defense witnesses.

(I)

Opinions below

Statement

Argument

Conclusion

TABLE OF CONTENTS

ES EES ae ge

TABLE OF AUTHORITIES

Cases:

Autry v. Estelle, 706 F.2d 1394,

cert. denied, 465 U.S. 1085 ...........

Daley, In re, 549 F.2d 469, cert. denied,

ere ey eee

Government of Virgin Islands v. Smith,

DEE, £6.00 encedseeseseciness

Pillsbury Co. v. Conboy,

ED hase sass tans ce sesenoces

Thompson v. Garrison, 516 F.2d 986, |

Gert, ames, S25 U.S. FSS nc ccecnsess

United States v. Alessio, 528 F.2d 1079,

cert. denied, 426 U.S. 948 ............

United States v. Allstate Mortgage Corp.,

507 F.2d 492, cert. denied, 421 U.S. 999

United States v. Burns, 684 F.2d 1066,

cert. denied, 459 U.S. 1174 ...........

United States v. Caldwell, 543 F.2d 1333,

Gert. Gemsed. 42735 U.S. 1667 .. cc ccccce

United States v. Graham,

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IV

Page

Cases—Continued:

United States v. Heffington, 682 F.2d 1075,

ourt. pean, Gap US. TID ov cvcacceccccccses 5

United States v. Herbst, 641 F.2d 1161,

COTE, GUE, Se SE PE Wao echsccccescceces 5

United States v. Karas, 624 F.2d 500,

ee a ee 5

United States v. Lenz, 616 F.2d 960,

ee ee, ee Ls ET ha ke ceanees ueea dens |

United States v. Lowell, 649 F.2d 950 .......... 6

United States v. Thevis, 665 F.2d 616,

Gumt. Game, GO UT. BE onc cacccccscccsccs 5

United States v. Turkish, 623 F.2d 769,

Ce a, Ge es FTE ove ca ccusvwstecass 5

Constitution and statutes:

OB gE 8 Ee 3

Dairy Production Stabilization Act of 1983,

Pub. L. No. 98-180, 97 Stat. 1128 et seq. ...... 2

DOLE aes. au sexe ab eae ekeatwhe a0 s0s 2

EE eat oii baa ik ee lala eee ak & 2

a i ten 2

Dp a Gas Mab aceasc kaa waae eae saeas 5

Miscellaneous:

Note, The Case Against a Right to Defense

Witness Immunity, 83 Colum. L. Rev. 139

i en Se eee rer 5

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1974

RICHARD A. WHITTINGTON AND

W. Lewis DEMoss, JR., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The original opinion of the court of appeals (Pet. App.

la-42a) is reported at 783 F.2d 1210. The opinion of the

court of appeals on rehearing (Pet. App. 43a-55a) is

reported at 786 F.2d 644.

JURISDICTION

The judgment of the court of appeals was entered on

February 27, 1986. A petition for rehearing was denied on

April 2, 1986. The petition for a writ of certiorari was filed

on May 30, 1986. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Following a bench trial in the United States District

Court for the Western District of Louisiana, petitioners

were convicted on two counts of making material false

(1)

2

statements to the United States Department of Agriculture

(“USDA”) for the purpose of receiving milk subsidies, in

violation of 18 U.S.C. 1001; on one count of submitting a

false claim for milk subsidies, in violation of 18 U.S.C. 287;

and on one count of conspiring to commit those offenses, in

violation of 18 U.S.C. 371. Petitioner Whittington was

sentenced to a five-year term of probation, fined $10,000,

and ordered to pay restitution of $69,830.85. Petitioner

DeMoss was sentenced to a five-year term of probation and

fined $10,000. The court of appeals affirmed (Pet. App.

la-42a).

1. The evidence at trial, the sufficiency of which is not

now challenged, is detailed ia the opinion of the court of

appeals (Pet. App. 2a-27a). Briefly, it showed that petition-

ers and co-defendant Richard Wolfe! conspired to obtain

USDA milk subsidies to which they were not entitled under

the Dairy Production Stabilization Act of 1983, Pub. L.

No. 98-180, 97 Stat. 1128 e¢ seq.

In June 1983, petitioners were officers and members of

the board of directors of Louisiana Pacific Resources, Inc.

(Louisiana Pacific), which operated a dairy farm known as

the Riverland Dairy (Pet. App. 3a). By the summer of 1983.

Louisiana Pacific’s dairy operations had become unprofit-

able; petitioner Whittington accordingly began negotia-

tions looking toward the sale of the dairy’s property to

Wolfe (id. at 4a-7a). Petitioners and Wolfe, however,

wished to keep the dairy in business during the negotiations

so that it might qualify for milk subsidy payments under the

Dairy Production Stablization Act, which was then pend-

ing in Congress. Accordingly, they arranged for Louisana

Pacific to lease the dairy to another company, Triple Crown

Farms. A written lease was executed in September 1983 (id.

at 7a; GX G-1l).

'Wolfe was convicted of conspiracy and making a false statement

(Pet. App. 12a).

3

The milk subsidy statute was enacted later that year. To

petitioners’ surprise, however, it provided that a dairy oper-

ator could qualify for a subsidy only if it had been produc-

ing milk in 1982 and still was engaged in milk production as

of November 29, 1983. Because petitioners had leased their

dairy to Triple Crown in September 1983, and thus were not

operating it on November 29, 1983, they did not qualify for

a subsidy.” Petitioners nevertheless applied for a subsidy,

falsely representing to USDA that Triple Crown was man-

aging the dairy for them. A few months later, in April 1984,

petitioners received a $139,741.40 subsidy ,ayment based

on their false claims. Pet. App. 3a, 9a, 20a-222, 24a-25a.

2. At trial, Murray Lynn, a vice-president of Lousiana

Pacific’s bank, and Johnny Terrell, Triple Crown’s book-

keeper, were subpoenaed as prospective defense witnesses.

Both Lynn and Terrell had earlier told government investi-

gators that the dairy had not been leased to Triple Crown,

asserting instead that Triple Crown had acted as a manag-

ing agent for Louisiana Pacific (Pet. App. 30a, 45a). Terrell

also had testified before a grand jury that the arrangement

between Triple Crown and Louisiana Pacific was a man-

agement agreement rather than a lease (ibid.). Prior to

petitioner’s trial, Terrell had been indicted for perjury based

upon that testimony, and Lynn had been advised that he

was under investigation for obstruction of justice for giving

false information about the case to the government agents

(ibid.).

When Lynn and Terrell appeared at trial in response to

the defense subpoenas, they refused to testify, asserting

their Fifth Amendment privilege against compelled self-

incrimination. The district court upheld Terrelli’s assertion

of the privilege because he had been indicted for perjury

?Triple Crown also was ineligible for the subsidies because it had not

been operating the dairy in 1982 (Pet. App. 9a).

4

based on his grand jury testimony about the matters at issue

at trial (Pet. App. 45a). The district court also upheld

Lynn’s invocation of the privilege (ibid.). Petitioners then

requested the district court to grant immunity to Lynn and

Terrell so that they would be available to testify for the

defense, although petitioners made no showing that either

Lynn or Terrell actually would testify favorably to the

defense if they were granted immunity (see II-B Tr. 293-276,

293-279). The court denied that request, observing that the

“[g]ranting of immunity is an executive act” (id. at 293-276).

The court of appeals (Pet. App. 29a-42a) upheld the

district court’s refusal to immunize Lynn and Terrell. The

court of appeals rejected petitioners’ claim that the govern-

ment had attempted to intimidate Lynn and Terrell, finding

that prosecutorial action directed against those individuals

had been prompted by legitimate law enforcement objec-

tives (id. at 34a-39a).° And the court of appeals affirmed the

district court’s conclusion that it lacked the authority to

immunize defense witnesses, holding that “in the absence of

governmental abuse the [district] court may not direct the

government to grant use immunity to a defense witness who

invokes the fifth amendment” (id. at 40a-41a).‘

ARGUMENT

Petitioners contend (Pet. 22-31) that the refusal of the

courts below to immunize prospective defense witnesses

Lynn and Terrell conflicts with decisions of this Court and

of the Second and Third Circuits.

’Petitioners also complained that Lynn was served another subpoena

in court just prior tc his testimony. The court concluded (Pet. App. 39a)

that, although that government action was “unseemly,” it did not

compromise the fairness of the trial.

‘The court of appeals also rejected petitioners’ contention, which they

do not raise here, that the prospective witnesses’ assertion of their

privilege should not have been sustained (Pet. App. 31a-34a, 46a-54a).

5

|. Contrary to petitioners’ claim (Pet. 28-30), this Court

never has recognized the existence of judicial authority to

immunize defense witnesses. The federal immunity statute

(18 U.S.C. 6003(b)) vests the power to grant immunity in

the Executive Branch rather than the Judiciary. The Court

accordingly 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, of course, is that “[nJo court

has authority to immunize a witness” (id. at 261; see id. at

262). Not surprisingly, then, the courts of appeals have held

overwhelmingly that judges may not immunizc defense wit-

nesses without a request from the prosecution.°

2. Despite this authority, the Third Circuit has held that

a district court may immunize a defense witness when that

witness has essential exculpatory information that is unavail-

able from other sources. See Government of Virgin Islands

‘See, e.g., Autry v. Estelle, 706 F.2d 1394, 1401-1402 (Sth Cir. 1983),

cert. denied, 465 U.S. 1085 (1984); United States v. Heffington, 682

F.2d 1075, 1080-1081 (Sth Cir. 1982), cert. denied, 459 U.S. 1108 (1983);

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

456 U.S. 1008 (1982); United States v. Herbst, 641 F.2d 1161, 1168 (Sth

Cir.), ert. denied, 454 U.S. 851 (1981); 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. Lenz, 616 F.2d 960, 962 (6th

Cir.), cert. denied, 447 U.S. 929 (1980); Jn re Daley, 549 F.2d 469,

479-480 (7th Cir.), cert. denied, 434 U.S. 829 (1977); United States v.

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

well, 543 F.2d 1333, 1356n. 115(D.C. Cir. 1974), cert. denied, 423 U.S.

1087 (1976); United States v. Alessio, 528 F.2d 1079, 1081-1082 (9th

Cir.), cert. denied, 426 U.S. 948 (1976); Thompson v. Garrison, 516

F.2d 986, 988 (4th Cir.), cert. denied, 423 U.S. 933 (1975); United States

v. Alistate Mortgage Corp., 507 F.2d 492, 494-495 (7th Cir.), cert.

denied, 421 U.S. 999 (1974). See also Note, The Case Against a Righi to

Defense Witness Immunity, 83 Colum. L. Rev. 139 (1983).

6

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

proffered testimony is “clearly exculpatory” and “essential

to the defendant’s case.” In addition, “[iJmmunity will be

denied if the proffered testimony is found to be * * *

cumulative.” Jd. at 972. The Third Circuit thus has found a

judiciai grant of immunity appropriate only when there is “a

probable certainty that * * * [the] expected testimony * * *

would * * * in itself exonerate [the defendant].” United

States v. Lowell, 649 F.2d 950, 965 (3d Cir. 1981) (empha-

sis in original).

There is no need for the Court to reconcile the conflicting

rules stated by the Third Circuit and the court below,

because petitioners have failed to satisfy even the Third

Circuit’s requirements for a judicial grant of immunity.®

Petitioners made no proffer concerning the testimony of

Lynn and Terreil, and thus failed to show that the prospec-

tive witnesses would have testified favorably to the

defense—let alone that their evidence “in itself” would have

exonerated petitioners.’ Nor was there any showing that

SEven apart from the inapplicability of the Third Circuit standard on

the record here, that court has not addressed the propriety of it in any

case since this Court’s ‘decision in Pillsbury Co. v. Conboy, supra. The

Third Circuit thus has not yet had an opportunity to consider the

implications of the Conboy analysis for its immunity approach. Until it

does so, there will be no need for this Court to address the validity of the

Third Circuit’s pre-Conboy standard.

’We note that both Lynn and Terrell offered their exculpatory ver-

sions of the arrangement between petitioners and Triple Crown prior to

the return of any indictment and prior to the government’s accumula-

tion of substantial evidence showing that Triple Crown had in fact

leased the dairy from petitioners. On the other hand, the witnesses’

refusal to testify at trial came after those developments and after the

alleged falsity of their prior statements led to their own legal difficulties.

These circumstances suggest that, if the witnesses were immunized, they

very well might have contradicted their prior statements and further

undermined the defense.

0 te Crieiag am,

7

Lynn and Terrell were essential defense witnesses. To the

contrary, all three defendants (including the signatories of

the Triple Crown lease, Whittington and Wolfe), as well as

the attorneys for Whittington and Triple Crown, testified

for the defense concerning the nature of the agreement

between Louisiana Pacific and Triple Crown. See, e.g., II-B

Tr. 293-249 to 293-260; III Tr. 356; V Tr. 604-606, 617,

646-648, 727-745. The testimony of Lynn and Terrell, even

if favorable to the defense, would thus have been entirely

cumulative.

3. Petitioners also note (Pet. 30-31) that the Second Cir-

cuit has articulated a standard permitting district courts to

direct the government to request immunity for a defense

witness when “(1) the government has engaged in a discrim-

inatory use of immunity to gain a tactical advantage or,

through its own overreaching, has forced the witness to

invoke the Fifth Amendment; and (2) the witness’ testimony

will be material, exculpatory and not cumulative.” United

States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982), cert.

denied, 459 U.S. 1174 (1983). Petitioners assert that the

application of this standard to their case would require a

grant of immunity to Lynn and Terrell. In fact, however, the

court below appears to have applied a standard quite sim-

ilar to the one urged by petitioners (see Pet. App. 36a-37a,

41a). In doing so, the court of appeals, like the district court,

rejected petitioners’ claims of government overreaching or

misconduct (id. at 32a-40a; III Tr. 311-316). This factual

finding, which is fatal to petitioners’ position, does not

warrant review by the Court.®

*Petitioners’ claim would fail in the Second Circuit for a wholly

independent reason as well: as noted above, they failed to make a

showing that the testimony at issue would be either exculpatory or

noncumulative.

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

VINCENT L. GAMBALE

Attorney

AUGUST 1986

DO}J-1986-08

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