# Petition for Writ of Certiorari — Montoya v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 814

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1844%3A1. Public record. Not legal advice.