Opposition Brief — Reiter v. United States

, AUG qa WO

No. 89-1878» a

| sccceH F. SPANIOL, JR,

—_

D

x

eee ee

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

MARK REITER, PETITIONER

‘Ge

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

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner’s due process rights were

violated because five defense witnesses were not

granted use immunity.

2. Whether the district court erred in excluding

opinion testimony interpreting intercepted conversa-

tions that had not been introduced into evidence.

3. Whether the district court properly denied peti-

tioner’s request for additional copies of certain tape-

recorded conversations.

(1)

-

aa a

,

=

a

=o

ae

2

r

rer) a

aS

sae oe

TABLE OF CONTENTS

Page

asec Sasiatiesceivncneiecereeinercecones 1

ee cada lacigvvuunnweahorenve cesestetentors 1

re auesusrensvokumvicucosons - =

Nee ee nn sawesvieiiceteusee cr ry, 5

SSS 10

TABLE OF AUTHORITIES

Cases:

Autry Vv. Estelle, 706 F.2d 1394 (5th Cir. 1983),

cert. denied, 465 U.S. 1085 (1984)... 6

Daley, In re, 549 F.2d 469 (7th Cir.), cert. denied,

Neen co wcrrmenoorenscumnrevetinsces 7

Government of the Virgin Islands v. Smith, 615

| eee 5, 6

Mattheson V. King, 751 F.2d 1482 (5th Cir. 1985),

cert. dismissed, 475 U.S. 1188 (1986) ................. 6

People v. Adams, 53 N.Y.2d 241, 440 N.Y.2d 902,

8 | | es ae 8

People v. Chin, 67 N.Y.2d 22, 499 N.Y.S.2d 638,

i ccewececrcessecezenenepnecncnns 8

People v. Owens, 63 N.Y.2d 824, 482 N.Y.S.2d 250,

a evenvenmnunensucnaves 8

Pillsbury Co. v. Conboy, 459 U.S. 248 (19838) ........ 6

United States v. Alessio, 528 F.2d 1079 (9th Cir.),

cert. denied, 426 U.S. 948 (1976) _.......00000000000... 7

United States v. Angiulo, 897 F.2d 1169 (1st Cir.

199), petition for cert. pending, No. 90-10........ 8

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

1974), cert. denied, 423 U.S. 1087 (1976) _...... 7

United States v. Capozzi, 883 F.2d 608 (8th Cir.

1989), cert. denied, 110 S. Ct. 1947 (1990)... 7,8

United States v. D’Apice, 664 F.2d 75 (5th Cir.

ale ceumereasinnriiess 7

United States v. Eagle Rawk, 815 F.2d 1213 (8th

Cir. 1987), cert. denied, 484 U.S. 1012 (1988)... 7

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

ne RE i ol RE Re 7

IV

Cases—Continued: Page

United States v. Hardrich, 707 F.2d 992 (8th

Cir.), cert. denied, 464 U.S. 991 (1983) _........... 7

United States v. Heffington, 682 F.2d 1075 (5th

Cir. 1982), cert. denied, 459 U.S. 1108 (1983) _.. 6

United States v. Hooks, 848 F.2d 785 (7th Cir.

RR Ra Aree Los comod Ae oI in TS 6-7, 8

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

1980), cert. denied, 449 U.S. 1078 (1981)... 7

United States v. Lenz, 616 F.2d 960 (6th Cir.),

cert. denied, 447 U.S. 929 (1980) 0.00. 7

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

1964), cert. denied, 469 U.S. 1158 (1985)... 6

United States v. Thevis, 665 F.2d 616 (5th Cir.),

cert. denied, 456 U.S. 1008 (1982)... 7

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

1980), cert. denied, 449 U.S. 1077 (1981)... 7,8

Statutes and rule:

Immunity of Witnesses Act, 18 U.S.C. 6001 et seq... 5,6

ge : EEA aie treet Pan SNe Noted 2

18 U.S.C. 1962 (c) 0.002... thasicathiape agian tal aed eae Coal 2

pg A eR FTE 2

7 | REE nny One enna es 6m 2

I oe ee 2

BO RR OOD soca cee icceeseencesemcnrveomctrperetocecsececc, 2

Se I ea ae ee 1

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1878

MARK REITER, 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

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A16) is reported at 897 F.2d 639.

JURISDICTION

The judgment of the court of appeals was entered

on February 26, 1990. A petition for rehearing filed

by the United States was denied on May 4, 1990."

1The government filed a rehearing petition seeking recon-

sideration of the reversal of the conviction of petitioner’s co-

defendant, Leonard Rollack. Neither petitioner nor the gov-

ernment sought further review of the judgment against peti-

tioner in the court of appeals. Pursuant to Rule 13.4 of the

Rules of this Court, however, a rehearing petition filed by

“any party” tolls the time in which to file a petition for a writ

of certiorari for all parties.

(1)

2

Pet. App. Al7. The petition for a writ of certiorari

was filed on May 31, 1990. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of participating in the affairs

of an enterprise through a pattern of racketeering

activity (RICO) (Count 1), in violation of 18 U.S.C.

1962(c); RICO conspiracy (Count 2), in violation of

18 U.S.C. 1962(d); operating a continuing criminal

narcotics enterprise (CCE) (Count 3), in violation

of 21 U.S.C. 848(a); distributing heroin (Counts 5

and 6), in violation of 21 U.S.C. 841; using a tele-

phone to facilitate the commission of a narcotics fel-

ony (Count 7), in violation of 21 U.S.C. 843(b) ; and

conspiring to impede and obstruct the Internal Rev-

enue Service in the collection of taxes (Count 13), in

violation of 18 U.S.C. 371. The district court sen-

tenced petitioner to life imprisonment without parole

on Counts 3 and 5. On the remaining counts, the

court imposed consecutive terms totalling 60 years’

imprisonment, to be followed by a lifetime term of

special parole. Petitioner was also fined a total of

$4 million.

1. Briefly summarized, the evidence at the four-

month trial showed that petitioner was a major sup-

plier of heroin. He employed several men who stored,

cut, and packaged heroin and distributed it to peti-

tioner’s clients. Gov’t C.A. Br. 30-38. Among those

clients was a racketeering enterprise operated by

Eugene Romero and James Jackson. Between 1980

and 1987, petitioner distributed approximately 45

kilograms of pure heroin worth more than $10 mil-

lion to Romero and Jackson. Jd. at 6-20.

3

Petitioner’s initial contact person in the Romero-

Jackson organization was Steven Ash. After Ash fell

behind in his payments to petitioner by approxi-

mately $100,000, petitioner met with Romero and

Jackson and asked to have Ash replaced as his con-

tact; thereafter, petitioner worked directly with Ro-

mero. Petitioner subsequently learned that the boy-

friend of Ash’s sister was cooperating with the gov-

ernment. Petitioner told Jackson and Romero that he

feared that Ash and his sister would also cooperate,

and he instructed Jackson and Romero “to get rid of

them.” Gov’t C.A. Br. 17. Petitioner’s instructions

were carried out; both Ash and his sister were shot

and killed. Jd. at 18-20.

Although petitioner sold his heroin for as much

as $240,000 per kilogram, he reported little or no

income to the IRS between 1980 and 1987. He lived

lavishly, however. Petitioner rented a Manhattan

apartment, owned a house in Merrick, New York,

and owned or leased a number of luxury cars and

expensive boats. Gov’t C.A. Br. 40-43.

2.a. Petitioner called 23 witnesses in his own be-

half. Gov’t C.A. Br. 23. He also asked the district

court to direct the government to grant use immunity

to five of his criminal accomplices, including Romero.

The district court refused to do so on the ground that

each was an actual or potential target of prosecu-

tion. 7d. at 140-145.

b. During its investigation, the government con-

ducted court-authorized electronic surveillance of two

telephone lines in petitioner’s Manhattan apartment.

Each conversation was simultaneously recorded in

triplicate. One set of tapes was sealed and preserved

for possible use at trial. The other two sets were

used to make copies for the parties. Prior to trial,

the government gave petitioner a copy of the wire-

4

tap log sheets that were made contemporaneously

during the surveillance. For each call, the log sheets

gave the time, the date, the identification of the par-

ties, and a brief description of the conversation. Peti-

tioner also received a copy of all the intercepted con-

versations, which had been made from the unsealed

tapes. During the trial, petitioner contended that one

of the tapes he had received was blank, and that the

log for that tape indicated that it should have con-

tained conversations. The government made a new

copy of that tape for petitioner. However, the gov-

ernment refused petitioner’s request to unseal all of

the tapes that had been sealed and provide a new

copy of all the intercepted conversations from those

tapes. The government resisted that request on the

ground that it was unnecessary and burdensome. The

district court upheld the government’s refusal to make

a whole new copy of all the intercepted conversations

from the sealed tapes. Gov’t C.A. Br. 101-114.

ce. At trial, Edward Seidlick, a private investiga-

tor, testified for petitioner as an expert in electronic

surveillance. After Seidlick gave his opinion as to

the meaning of conversations recorded on the tapes

that the government had introduced into evidence,

petitioner sought to question Seidlick about other

tapes that had not been introduced. The district

court ruled that petitioner had failed to proffer a

theory under which either the additional tapes or

Seidlick’s testimony concerning those tapes could be

admitted. Gov’t C.A. Br. 108-110.

3. The court of appeals found petitioner’s claims

that he had been unfairly restricted in presenting his

defense to be “without merit,” and affirmed his con-

victions. Pet. App. A16.

-

vo

ARGUMENT

1. Petitioner first contends (Pet. 10-15) that the

failure of the district court to order the government

to grant use immunity, pursuant to 18 U.S.C. 6001

et seq., to five prospective defense witnesses violated

his right to due process. The government declined to

grant use immunity to the five witnesses because

each was an actual or potential target of prosecution.

Gov’t C.A. Br. 140-145.

In Government of the Virgin Islands v. Smith, 615

F.2d 964, 966 (1980), the Third Circuit stated that a

due process violation would be found ‘‘where govern-

ment actions denying use immunity to defense wit-

nesses were undertaken with the ‘deliberate intention

of distorting the judicial fact finding process.’” Al-

though petitioner relies heavily on the Smith case,

that case is readily distinguishable from this one.

The district court correctly concluded in this case

that the government was not attempting to distort

the fact finding process, but was legitimately unwill-

ing to grant immunity to petitioner’s witnesses be-

cause each was an actual or potential target of a

criminal prosecution.~” As the Third Circuit recog-

2 Petitioner suggests (Pet. 14) that the facts showed that

the government was attempting to distort the fact finding

process because it granted immunity to 14 prosecution wit-

nesses, but was unwilling to grant immunity to the five de-

fense witnesses. The two groups, however, are not compar-

able. All but three of the 14 witnesses to whom petitioner

refers had entered into plea agreements and were no longer

potential targets of prosecution. Of the three remaining wit-

nesses, two were low-level employees who cut and packaged

heroin for petitioner, and the third had failed to file a cur-

rency transaction report with respect to the sale of a boat to

petitioner. Those witnesses were clearly distinguishable from

the witnesses petitioner sought to immunize. For example,

Romero was a drug kingpin.

6

nized in Smith, a defendant “should not be empow-

ered to give his confederates an immunity bath.” 615

F.2d at 973.’

Petitioner notes (Pet. 11) that the Third Circuit

held in Smith that a court has inherent authority to

immunize witnesses. 615 F.2d at 969. We disagree

with that conclusion. The federal immunity statute,

18 U.S.C. 6001 et seqg., vests the power to grant im-

munity in the Executive Branch, not the Judiciary.

This Court accordingly has explained that the au-

thority to immunize witnesses ‘‘is peculiarly an exec-

utive one, and only the Attorney General or a desig-

nated officer of the Department of Justice has au-

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

Conboy, 459 U.S. 248, 261 (1983). The corollary of

that principle is that “|[n]o court has authority to

immunize a witness.” Jbid. Not surprisingly, the

great majority of the courts of appeals have held that

judges may not immunize defense witnesses without

a request from the prosecution.*

3 Moreover, in Smith, unlike in this case, the prosecutor

never explained why she was unwilling to grant immunity.

615 F.2d at 967. That failure was compounded by the fact

that the witness at issue was a minor subject to the exclusive

jurisdiction of the juvenile authorities, and the juvenile au-

thorities had made clear that they did not object to granting

use immunity to the witness. /bid. And in sharp contrast to

this case, the testimony that the witness would have given in

Smith was “highly relevant, and possibly exculpatory.” Id.

at 969.

* See, e.g., United States V. Hooks, 848 F.2d 785, 803 (7th

Cir. 1988) ; Matteson v. King, 751 F.2d 1432, 1443 (5th Cir.

1985), cert. dismissed, 475 U.S. 1138 (1986); United States

V. Pennell, 737 F.2d 521, 527 (6th Cir. 1984), cert. denied, 469

U.S. 1158 (1985) ; Autry v. Estelle, 706 F.2d 1394, 1401-1402

(5th Cir. 1983), cert. denied, 465 U.S. 1085 (1984*; United

States v. Heffington, 682 F.2d 1075, 1080-1081 (5th Cir.

(

In light of Pillsbury Co. v. Conboy, we doubt that

the Third Circuit would now conclude that courts

have inherent authority to immunize witnesses. But

no grant of immunity would be warranted in this case

in any event. The Third Circuit made clear in Smith

that immunity would not be granted where “the prof-

fered testimony is found to be ambiguous, not clearly

exculpatory, cumulative, or if it is found to relate

only to the credibility of the government’s witnesses.”’

615 F.2d at 972. That is essentially the same test

that was applied in this case in deciding that the

government’s refusal to immunize the five defense

witnesses did not deny petitioner a fair trial. The

due process test used by the Second Circuit in cases in

which the prosecutor has refused to immunize a de-

fense witness is whether the refusal is not justified

by legitimate prosecutorial interests and whether

“the witness’s testimony will clearly be material, ex-

1982, cert. denied, 459 U.S. 1108 (1983); United States v.

Thevis, 665 F.2d 616, 638-641 (5th Cir.), cert. denied, 456

U.S. 1008 (1982) ; United States v. D’Apice, 664 F.2d 75, 77

(5th Cir. 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) ; In 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. Caldwell,

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

U.S. 1087 (1976); United States v. Alessio, 528 F.2d 1079,

1080-1082 (9th Cir.), cert. denied, 426 U.S. 948 (1976) ; see

also United States v. Capozzi, 883 F.2d 608, 613 (8th Cir.

1989), cert. denied, 110 S. Ct. 1947 (1990) ; United States v.

Eagle Hawk, 815 F.2d 1218, 1217 (8th Cir. 1987), cert. de-

nied, 484 U.S. 1012 (1988); United States v. Hardrich, 707

F.2d 992, 993-994 (8th Cir.), cert. denied, 464 U.S. 991

(1983).

8

culpatory, and not cumulative.” United States v.

Turkish, 623 F.2d 769, 778 (2d Cir. 1980), cert. de-

nied, 449 U.S. 1077 (1981). Petitioner has failed to

show that the witnesses he seeks to immunize would

exculpate him. Instead, he has merely made conclu-

sory statements such as that “each defense witness

was expected to contradict certain key cooperating

witnesses.”’ Pet. 15. Moreover, the witnesses were

all targets of active criminal investigations. There

was therefore a strong and legitimate prosecutorial

interest in not immunizing the witnesses and making

their ultimate prosecution more difficult.

A number of courts, including the Second Circuit,

have suggested that in extreme instances the govern-

ment’s refusal to immunize a defense witness might

give rise to a due process violation. See, e.g., United

States v. Angiulo, 897 F.2d 1169, 1190-1192 (1st

Cir. 1990), petition for cert. pending, No. 90-46;

United States v. Capozzi, 883 F.2d 608, 613-614 (8th

Cir.), cert. denied, 110 S. Ct. 1947 (1990); United

States v. Turkish, 623 F.2d at 771-779; People v.

Adams, 53 N.Y.2d 241, 247, 440 N.Y.S.2d 902, 904,

423 N.E.2d 379, 381 (1981); People v. Owens, 63

N.Y.2d 824, 482 N.Y.S.2d 250, 472 N.E.2d 26

(1984); People v. Chin, 67 N.Y.2d 22, 32, 499

N.Y.S.2d 638, 646, 490 N.E.2d 505, 515 (1986).

See also United States v. Hooks, 848 F.2d 785, 801-

803 (7th Cir. 1988). No court, however, has ever

reversed a conviction on that basis. Moreover, the

courts that have discussed the due process issue

have made clear that reversal on that ground

wuld be appropriate only in cases where the bal-

ance of interests was far more compelling in the

defendant’s favor than in this case. Thus, the deci-

sion in this case does not conflict with the decision of

any other court cf appeals or any state court.

9

2. Contrary to petitioner’s contention (Pet. 15-

16), the district court properly refused to permit pe-

titioner’s expert witness, private investigator Ed-

ward Seidlick, to interpret words and phrases used

in tape-recorded conversations that had not been in-

troduced into evidence. First, petitioner has not

shown how the conversations are relevant. Second,

Seidlick was not competent to introduce the tapes.

He was not a party to the conversations; nor could

he verify their accuracy and authenticity. Moreover,

to the extent that the conversations did not involve

discussions of petitioner’s narcotics business but were

introduced to prove the truth of the matters asserted,

they were hearsay. Because the government could

not cross-examine petitioner about the statements,

they were properly excluded. Petitioner has not prof-

fered a theory under which those recordings should

have been admitted. Accordingly, he has not shown

that the district court abused its discretion in exclud-

ing them.

3. Finally, petitioner argues (Pet. 16-17) that the

district court should have ordered the government to

unseal the sealed tapes during trial and make new

copies from them. That argument is wholly without

merit. The government provided a copy of all the

intercepted conversations to petitioner two months

before trial. Subsequently, the government provided

a corrected copy of the one faulty tape that had been

supplied to petitioner, and it offered to correct any

other problem petitioner identified from a comparison

of the tapes with the log. But petitioner identified no

additional problems. The district court acted well

within its discretion in denying petitioner’s motion

that the government comply with his burdensome re-

quest where petitioner could do no more than offer

10

the groundless speculation that “there may be ex-

culpatory information on the original tapes.” Pet.

17.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

AUGUST 1990

%Y US GOVERNMENT PRINTING OFFICE; 1990 262203 20039