Petition for Writ of Certiorari — Montoya v. United States

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941 967 ww o- ~ 135,

No.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1994

FILIBERTO E. MONTOYA

and ROSARIO MONTOYA,

Petitioners,

- VS -

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUANITA R. BROOKS

McKENNA & CUNEO

750 "B" Street, Suite 3200

San Diego, California 92101

Telephone: (619) 595-5400

Counsel of Record for Petitioners

AAI OS? ICA a ik ie OEE i Bm NE ide

ee

QUESTIONS PRESENTED FOR REVIEW

Whether the decision to prosecute an

immunized witness based solely on the content of that

witness’ immunized testimony violates the Fifth

Amendment to the Constitution, Kastigar v. United

States, 406 U.S. 441 (1972), and 18 U.S.C. § 6002.

Whether the decision to prosecute an

immunized witness and his wife based solely on the

content of this witness’ immunized testimony is

vindictive prosecution in violation of the Due Process

Clause of the Fifth Amendment.

Vi.

TABLE OF CONTENTS

Page

TE CPU Ce civscntcicccnccarstesioesens 2

JURISDICTION OF THIS COURT............... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......................04. 3

STATEMENT OF THE CASE ...................... 5

A. PEO TNE wckcctekcddscocnactivvcaneieetni bonis 5

B. FRU CRs nicicis niccuocadvunaniadicunnsicsieldees 7

THIS PETITION FOR CERTIORARI

SHOULD GE GIN ee sai cheehintinndcc: 9

A. The Opinion Creates A Split In

The Circuits By Allowing The

Government To Use Immunized

Testimony To Decide To

Prosecute An Immunized

OI oink icecetnnaienhciiaitanencecatans.. 9

B. This Case Presents An Important

Question Concerning The Scope

Of This Court's Holding In

| EAE I nn 12

C. The Opinion Sets A Dangerous

Precedent When It Allows The

Government To Punish Mr.

Montoya And, "For Extra

Measure,” Mrs. Montoya Based

On Evidence That Could Not Be

TABLE OF AUTHORITIES

Page

Cases

, 406 U.S. 441

6s RE 6, 7,9, 10, 11,12, 13, 14

SO EF” eee 13

Nix. Vv. WILLIAMS, 467 U.S. 431 (1984)... ee 13

, 950 U.S. 422

HEGRE Se OS ee 13

, 765 F.2D 1524 (11TH

+ ERS Se nee 10

, 973 F.2D 333 (4TH

ir saves tswnendkanincdevebaneconines 10

, 482 F.2D 305

NN ER ance chccssusarsnnheigsverscnsyeseoeses 9,14

, 910 F.2D 843

(D.C.CirR.), modified in part, 920 F.2D

940 (1990), cert. denied, 500 U.S. 941

ge Ee SS ae eee eee 11

, 39 M.J. 246

coop scanaseesnecuenasnnnesees 10

40 M.J.A. 478

RE hai aan cntinsescissven-sovenensencenss 11

41 M.J.A. 544

RN oan ascksiscveiecgusppessaveetetsesabes 11

Statutes

Bre I vsnssisisnsnnseasescenaya 1,3, 5,6,12, 14, 15

USC. 6 CIN 2s 3

riioeey hesiteealle

ATTORNEYS' MANUAL, TITLE 9,

SECTION 23.400 (1990) ...........ccccccssessororcerees 14

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1994

ee

————

FILIBERTO E. MONTOYA

and ROSARIO MONTOYA,

Petitioners,

- Vs =

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

we ee

nee ree or nee mee

The Petitioners, Filiberto E. Montoya and

Rosario Montoya, respectfully pray that a writ of

certiorari issue to review the judgment of the United

/iI

States Court of Appeals for the Ninth Circuit entered on

May Xx 1995.

I

THE OPINION BELOW

This Petition for Certiorari is from the published

opinion by the Ninth Circuit Court of Appeals in United

States v. Montoya, 45 F.3d 1286 (9th Cir. 1995) ("the

Opinion"). A true and correct copy of the Opinion is

attached hereto as Appendix A.

On May 48.1995, the Ninth Circuit Court of

Appeals denied a petition for rehearing of this case,

with Senior Circuit Judge Bright voting for rehearing,

and denied petitioners' suggestion for rehearing en

banc, with Senior Circuit Judge Bright recommending

en banc review. A true and correct copy of that order

is attached hereto as Appendix B.

i.

JURISDICTION OF THIS COURT

On January 12, 1995, the Ninth Circuit Court of

Appeals entered the Opinion, with a dissent by Senior

Circuit Judge Bright, affirming the convictions of

x ee

Rosario Montoya and Filiberto E. Montoya. (Appendix

A.) On May 42, 1995, the Ninth Circuit Court of

Appeals denied the petition for rehearing, with Senior

Circuit Judge Bright voting for rehearing, and denied

the suggestion for rehearing en banc, with Senior

Circuit Judge Bright recommending en banc review.

(Appendix B.) The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

tl.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person .. . shall be

compelled in any criminal

case to be a witness

against himself, nor be

deprived of life, liberty, or

property without due

process of law....

Title 18, U.S.C. § 6002:

Whenever a witness

refuses, on the basis of his

privilege against self-

incrimination, to testify or

eS

provide other information in

a proceeding before or

ancillary to

(1) a court or grand

jury of the United States;

(2) an agency of the

United States, or

(3) either House of

Congress, a joint committee

of the two Houses, ora

committee or a sub-

committee of either House,

and the person presiding

over the proceeding

communicates to the

witness an order issued

under this title, the witness

may not refuse to comply

with the order on the basis

of his privilege against self-

incrimination; but no

testimony or other

information compelled

under the order (or any

information directly or

indirectly derived from such

testimony or other

information) may be used

against the witness in any

criminal case, except ina

prosecution for perjury,

giving a false statement, or

as

otherwise failing to comply

with the order.

IV.

STATEMENT OF THE CASE

A. The Facts

In the fall of 1988, Assistant United States

Attorney ("AUSA") Reese, who was participating in

investigations of money laundering in San Diego

County and similar crimes in Oklahoma, was contacted

by an attorney on behalf of Petitioner FILIBERTO E.

MONTOYA ("Mr. Montoya"). AUSA Reese wrote a

letter granting Mr. Montoya informal immunity and

interviewed him in November, 1988, and January,

February and May, 1989. Based on those discussions,

AUSA Reese decided to call Mr. Montoya as a witness.

Mr. Montoya was granted court ordered immunity,

18 U.S.C. § 6002, and he testified before the grand

jury in San Diego in January, 1989, and at the

Oklahoma trial in May 1989. (The Opinion at 1298.)

In February, 1990, AUSA Reese prepared a

Memorandum to the United States Attorney requesting

that authority be sought from the Department of Justice

5

i i

to prosecute Mr. Montoya for the very acts about which

he had testified. AUSA Reese explained that

Mr. Montoya "appeared to testify falsely . . ." and "[was]

also believed to have testified falsely during a trial

(although a perjury prosecution could not be

sustained)... ." After review of AUSA Reese's

Memorandum by the United States Attorney and the

Department of Justice, permission to prosecute was

granted by the United States Attorney General. (The

Opinion at 1290.) Pe

Mr. Montoya's immunized testimony was

therefore used three times by the government: (1) by

AUSA Reese in deciding to initiate prosecution of

Mr. Montoya and his wife; (2) by the United States

Attorney in seeking permission to prosecute

Mr. Montoya and his wife, and; (3) by the United States

Attorney General in granting permission to prosecute

Mr. Montoya and his wife. In the Opinion, the Dissent

believed those "uses" violated the Fifth Amendment,

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

/I/

18 U.S.C. § 6002. (The Opinion at 1301-03, J. Bright

dissenting.) (Citations omitted.)

B. The Opinion

In the Opinion, the Ninth Circuit Court of

Appeals, over the dissent of Senior Circuit Judge

Bright, held, in part, it did not violate the Fifth

Amendment privilege against self-incrimination,

18 U.S.C. § 6002, or Kastigar v. United States, 406

U.S. 441 (1972) for the government to use a review of

Mr. Montoya's immunized testimony and nothing more

in deciding whether Mr. Montoya should be

prosecuted. Senior Circuit Judge Bright dissented

because the "decision to initiate prosecution of an

immunized witness may be considered non-evidentiary

use of immunized testimony." (The Opinion at 1301,

J. Bright, dissenting.) (Citation omitted.) .

The Opinion also held that the Montoyas failed

to prove "an improper prosecutorial motive through

objective evidence" to allow a presumption of vindictive

prosecution, and thus concluded the presumption of

vindictiveness did not arise. (The Opinion at 1299.)

Se

Senior Circuit Judge Bright dissented, and found there

was a presumption of vindictiveness because the

government "did not have enough proof to proceed

with perjury charges" and "decided to punish

Mr. Montoya with using the information the

Government always had to prosecute him, and then,

for extra measure, proceeding to recommend

prosecution of Mrs. Montoya." (The Opinion at 1303,

J. Bright, dissenting.)

Senior Circuit Judge Bright noted further,

the Government should

have prosecuted Montoya

initially, rather than granting

him immunity. [The

Government], however,

resorted to subterfuge. If

Montoya lied, [the

Government], under the

statute, could have initiated

the prosecution for perjury.

Instead, [the Government]

turned Montoya's Fifth

Amendment privilege

against self-incrimination on

its head, concluding that

Montoya lied and [the

Government] proceeded on

a course to "fix" him.

c.

Senior Circuit Judge Bright would therefore have

reversed the convictions based on the government's

vindictiveness. (The Opinion at 1303, J. Bright,

dissenting.)

V.

The Opinion creates a split with the Eight

Circuit, which noted in United States v. McDaniel, 482

F.2d 305 (8th Cir. 1973), that Kastigar v. United States,

406 U.S. 441 (1972) and the Fifth Amendment

prohibits "all prosecutorial use of [immunized]

testimony, not merely that which results in the

presentation of evidence before the jury." Id. at 311.

McDaniel, noted further, "[s]uch [non-evidentiary] use

could conceivably include . . . deciding to initiate

prosecution... ." Id. at 311.

The Opinion also creates a split with the

Eleventh Circuit, which noted in United States v. Byrd,

765 F.2d 1524, 1530 (11th Cir. 1985), that Kastigar

"made no mention of any burden on the Government to

erect an impenetrabie barrier between the prosecutors

who hear or read the immunized testimony and those

who decide to indict, even though the potential problem

Ww vi ." (Emphasis added.) According

to Byrd, "[a]t a minimum, the existence of independent

evidence sufficient to establish probable cause to indict

must be deemed to raise a presumption that the

decision to indict was not tainted." Id. at 1530-31.

(Emphasis added.) The Ninth Circuit in contrast, now

allows the prosecution to taint the decision to indict by

using immunized testimony in deciding whether that

witness should be prosecuted.

There is also a split among the circuit courts of

appeal on "whether Kastigar

permits . . . 'non-evidentiary use of immunized

testimony." See, United States v. Harris, 973 F.2d

333, 337 n.2 (4th Cir. 1992) (government may not alter

- 10 -

SORA RRRR NT IN RA 06

investigative strategy as a result of immunized

statement); United States v. North, 910 F.2d 843, 856-

60 (D.C.Cir.) (discussion of non-evidentiary use of

immunized testimony), modified in part, 920 F.2d 940

(1990), cert. denied, 500 U.S. 941 (1991).

Also completeiy at odds with the Opinion is the

United States Court of Military Appeals. In United

States v. Olivero, 39 M.J. 246 (C.M.A. 1994), the

United States Court of Military Appeals held, in a case

almost identical to the one at bar, that Kastigar

prohibits "using" immunized testimony to decide to

prosecute the immunized witness and that a decision

to prosecute based on immunized testimony violates

Kastigar. Id. The holding of the United States Court of

Military Appeals in Olivero has been repeated in United

States v. Corcoran, 40 M.J.A. 478 (C.M.A. 1994) and

United States v. McGeeney, 41 M.J.A. 544 (C.M.A.

1994).

III

III

ant Question C

The Scope Of This Court's

Holding In Kastigar

The phrase "non-evidentiary use" never appears

in Kastigar, where the Supreme Court simply held that

the Fifth Amendment "prohibits the prosecutorial

authorities from using the compelled testimony in any

respect and it therefore insures that the testimony

cannot lead to the infliction of criminal penalties on the

witness." 406 U.S. at 453. (Emphasis in original.) The

plain meaning of "any" (emphasized by the Supreme

Court) precludes what the Ninth Circuit now allows: A

decision whether a witness should be prosecuted may

be based solely on what the witness said while

immunized.

The Supreme Court in Kastigar also noted the

"total prohibition on use" of immunized testimony bars

the "use" of that testimony as an "investigatorial lead,’

and also bar{s] the use of any evidence obtained by

focusing investigation on a witness as a result of his

compelled disclosures." Kastigar at 460. (Citation

«48.

omitted.) Despite this explicit prohibition, United

States v. Montoya now stands for the proposition that

the government may use "immunized testimony as an

investigatory lead in deciding to initiate prosecution . . .

." (Opinion at 1301, J. Bright dissenting.)

The Supreme Court in Kastigar noted further an

immunity statute violates the Fifth Amendment if it

"failed to protect a witness from future prosecution

based on knowledge and sources of information

obtained from the compelled testimony.” Kastigar, 406

U.S. at 454, quoting Ullman v. United States, 350 U.S.

422, 437 (1956), (emphasis added by the Supreme

Court in Kastigar). Because of the Opinion, § 6002

now violates the Fifth Amendment by failing to protect

Mr. Montoya from prosecution based on the

government's knowledge of what he said while

immunized.

The Supreme Court has repeatedly held

immunized testimony cannot be "used" in any way:

Murphy v. Waterfront Commission of New York, 378

U.S. 52, 79 (1964) ("cannot be used in any manner");

- 43-

Nix v. Williams, 467 U.S. 431, 442 (1984) (the Fifth and

Sixth Amendments prohibit evidence that is discovered

as "the fruit of unlawful police conduct... ."); Kastigar,

supra, at 461 (". . . the compelled testimony can in no

way lead to the infliction of criminal penalties."). Yet,

the Ninth Circuit now allows immunized testimony to be

used in deciding whether an individual should be

prosecuted. (The Opinion at 1297.)

The proper application of Kastigar to the

decision to prosecute is of critical importance. Even

the Department of Justice could not have predicted the

radical change the Opinion has made to Fifth

Amendment law; the portion of McDaniel forbidding an

indictment based on a review of immunized testimony

is quoted in the United States Attorneys’ Manual.

United States Attorneys' Manual, Title 9, Section

23.400 (1990). The United States Attorneys' Manual

also states before an immunized witness may be

prosecuted, "the Government will also have to show

that it has made no 'non-evidentiary' use of testimony

or its fruits, such as a decision to focus on the witness

Se

as a potential defendant.” Id. at 9-23.330. (Emphasis

added.)

The Opinion thus changes the assumptions of

prosecutors and defense attorneys in the Ninth Circuit

about the risks present in testifying under a grant of

immunity. Because of the Opinion, hundreds of new

prosecutions may result in the Ninth Circuit as

prosecutors realize they have free reign to immunize

witnesses before the grand jury, and then to make their

decision to prosecute based on their firsthand, private,

under oath interview of that potential defendant. The

Opinion thus drastically alters the nature of the

representation and prosecution of grand jury

witnesses. It is such an aberrant departure from

previous case law that it is a de facto reversal of

Kastigar and § 6002, and this petition for certiorari

should be granted.

///

/i/

III

///

«ths

On Evidence That Could Not Be

Perjury

The Opinion concludes, without analysis, that

“the presumption of vindictiveness did not arise in this

case” (citations omitted). As noted by the Dissent, the

government "did not have enough proof to proceed with

perjury charges so [it] obviously decided to punish Mr.

Montoya with using the information the government

always had to prosecute him, and then, for extra

measure, proceeding to recommend prosecution of

Mrs. Montoya." (The Opinion at 1303, J. Bright,

dissenting.) As noted by the Dissent, "the evidence in

the record indicates a realistic likelihood of personal

pique and personal frustration which gives rise to a

presumption of prosecutorial vindictiveness.” Id.

{I

/II

///

///

- 16 -

Vi.

CONCLUSION

For the foregoing reasons, petitioners pray that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

DATED: May 30, 1995

Respectfully submitted,

McKENNA & CUNEO

ANITA R. BROOKS

Attorney of Record

Counsel for Petitioners,

FILIBERTO E. MONTOYA

and ROSARIO MONTOYA:

JUANITA R. BROOKS

KNUT S. JOHNSON

McKENNA & CUNEO

750 "B" Street, Suite 3200

San Diego, California 92101

Telephone: (619) 595-5400

PAUL POTTER

POTTER, COHEN &

SAMULON

3852 E. Colorado Boulevard

Pasadena, California 91107

Telephone: (818) 795-0681