# Opposition Brief — Reiter v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1614%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 498 U.S. 817 ## Text , 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1614%3A2. Public record. Not legal advice.