Opposition Brief — Montoya v. United States

) x Suprsme Court, U.S,

FILED

In the Supreme Court of the

OCTOBER TERM, 1995

FILIBERTO E. MONTOYA AND ~

ROSARIO MONTOYA, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Drew S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) §14-2217

QUESTIONS PRESENTED

1. Whether a federal prosecutor violated the Fifth

Amendment or 18 U.S.C. 6002 when he sought ap-

' proval from the Attorney General to prosecute a wit-

ness who testified under a grant of use immunity

because the witness had given false and misleading

testimony.

2. Whether the federal prosecutor’s decision to

recommend prosecution because the witness had

given false and incomplete testimony is evidence of

vindictive prosecution in violation of the Due Process

Clause.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Blackledge v. Perry, 417 U.S. 21 (1974) .........cccccceceseeeee

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

North Carolina v. Pearce, 395 U.S. 711 (1969) .............

Rogers v. United States, 340 U.S. 367 (1951) ................

United States v. Apfelbauwm, 445 U.S. 115 (1980) ..........

United States v. Burke, 856 F.2d 1492 (11th Cir.

abl nhl dae the cembadebenpoebmnedccoeess

United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985) ..

United States v. Mariani, 851 F.2d 595 (2d Cir. 1988),

cert. denied, 490 U.S. 1011 (1989) .................cssccsseccseees

United States v. McDaniel, 482 F.2d 305 (8th Cir.

a a a oe spaaldgsbanetbosponnseenes

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

United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983) ..

United States v. Serrano, 870 F.2d 1 (1st Cir. 1989) .....

Constitution and statutes:

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(IIT)

IV

Miscellaneous: Page

2S. Beale & W. Bryson, Grand Jury Law and Practice

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US. Attys Manual (ect. 1, TOGO): cccccccsvssicisscnsvisasoncosvasisis 3, 10

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 94-1967

FILIBERTO E. MONTOYA AND

ROSARIO MONTOYA, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 429-

466) is reported at 45 F.3d 1286.

JURISDICTION

The judgment of the court of appeals was entered on

January 12, 1995. The petition for rehearing was

denied on May 3, 1995. Pet. App. B. The petition for a

writ of certiorari was filed on June 2, 1995. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

After entering guilty pleas in the United States

District Court for the Southern District of Cali-

fornia, petitioner Filiberto Montoya was convicted of

conspiring to commit bank fraud and to engage in

monetary transactions in property derived from drug

trafficking, in violation of 18 U.S.C. 371, 1344, and

1957(a), and petitioner Rosario Montoya was con-

victed of making a false statement on a loan appli-

cation, in violation of 18 U.S.C. 1014. Filiberto was

sentenced to 41 months’ imprisonment, to be followed

by three years of supervised release. Rosario was

sentenced to 24 months’ imprisonment, the service of

which was suspended in lieu of a three-year term of

supervised probation. The court of appeals affirmed,

with one judge dissenting. Pet. App. 429-466.

1. The present proceedings arose out of the

government’s investigation of the Contreras-Subias

drug trafficking organization. The government

learned that several real properties in San Diego

County, California, were connected with the

Contreras organization. Assistant United States

Attorney (AUSA) Reese was assigned to investigate.

During the course of that investigation, the govern-

ment obtained documents indicating that petitioner

Filiberto Montoya had acted as a real estate agent in

transactions in which members of the Contreras

organization or its nominees acquired real property.

Pet. App. 435-436.

A separate investigation revealed that Montoya was

involved in a real estate transaction in Oklahoma on

behalf of the Contreras family. The investigation led

to money laundering indictments of members of the

Contreras organization in Oklahoma. AUSA Reese

3

was assigned to assist in that prosecution. Pet. App.

436.

Montoya’s attorney contacted Reese, and they

discussed the possibility of Montoya’s cooperating in

the investigation. Reese wrote a letter granting

Montoya informal use immunity, and Montoya was

subsequently interviewed several times. Montoya

later testified under a formal grant of immunity

before the grand jury in San Diego and at the

Oklahoma trial. Pet. App. 436.

Pursuant to Department of Justice Guidelines that

require express written authority of the Attorney

General to prosecute an individual for an offense that

is closely related to the individual’s compelled testi-

mony, see U.S. Attorneys’ Manual § 9-23.400 (Oct. 1,

1990), Reese requested authorization from the

Attorney General to prosecute petitioners on the

instant charges. In the application, Reese stated that

Montoya had given false and incomplete testimony

both before the San Diego grand jury and at the

Oklahoma trial. Reese described two incidents

involving Montoya’s testimony that led him to that

conclusion. First, Montoya initially denied to the

grand jury that he knew the leader of the Contreras

organization. The application then explained why

Reese believed that Montoya had deliberately

withheld information about his acquaintance with the

leader. Second, at the Oklahoma trial, Montoya

denied knowledge of certain summaries of expenses of

the properties. Previously, however, Montoya had

given the government information which tended to

show that the Contreras family rather than the

nominal owners controlled the properties. Based on

Reese’s application, the Attorney General granted

4

authorization for the instant prosecution. Pet. App.

436-437, 451.

Because of Reese’s exposure to Montoya’s im-

munized statements and testimony, petitioners’

prosecution was turned over to another AUSA, who

later was replaced by AUSA Weiner. Pet. App. 436-

437 & n.l. The transcripts of Montoya’s grand jury

and trial testimony were not made available to the

Weiner team investigators, and the reports of his

post-immunity interviews were sealed. Id. at 448 n.9.

The instant indictment followed.

2. Petitioners filed a motion to dismiss the indict-

ment on the ground that it was tainted by Montoya’s

immunized testimony. In its response to the motion,

the government filed declarations from nine prose-

cutors and agents who participated in the Reese and

Weiner investigations. The district court denied the

motion to dismiss, finding that the government had

shown that the evidence used to indict Montoya came

from independent sources. Pet. App. 437-438. The

district court granted reconsideration, but once again

denied the motion to dismiss. Jd. at 438-439. The

court also denied petitioners’ motion to dismiss based

on vindictive prosecution. /d. at 439. Thereafter,

petitioners entered conditional guilty pleas _pre-

serving their right to appeal the denial of their

motion to dismiss. bid.

3. The court of appeals affirmed. Pet. App. 429-460.

The court first rejected petitioners’ claims that the

government had made evidentiary use of Montoya’s

immunized testimony. Pet. App. 444-448. The court

concluded that “(t]he nine detailed declarations filed

by the Government establish that the indictment

rested entirely on [independent] sources.” Id. at 448.

—

5

The court next rejected petitioners’ contention

that Reese’s consideration of the falsity and incom-

pleteness of Montoya’s immunized testimony in

deciding to recommend prosecution constituted an

impermissible non-evidentiary use of that testimony.

The court assumed, without deciding, that “some non-

evidentiary uses” might be prohibited by the federal

immunity statute. Pet. App. 449. Nevertheless, the

court concluded that “Reese’s involvement in re-

questing permission to prosecute was too remote

from the criminal proceeding against Montoya to

constitute non-evidentiary use of the immunized

testimony against him.” Id. at 452-453.

In reaching that conclusion, the court noted that

Reese was not preparing the indictment, but was

seeking the Attorney General’s approval for a prose-

cution. Pet. App. 450. It further noted that Reese’s

application did not contain a summary of Montoya’s

immunized testimony. Rather, it merely described

the two incidents that led Reese to believe that

Montoya had given false and incomplete testimony.

Id. at 451. The purpose of transmitting that

information, the court explained, was not to show that

Montoya was guilty of an offense, but to show that

unusual circumstances justified his prosecution. Id.

at 452. The court concluded that a rule that prevented

the Attorney General from considering such in-

formation would interfere with the Attorney

General’s exercise of her discretion, would not be in

the best interest of immunized witnesses, and would

conflict with the public interest. Jbid.

Finally, the court rejected petitioners’ contention

that their prosecution was unconstitutionally moti-

vated by government vindictiveness. The court con-

6

cluded that petitioners had failed to prove an “im-

proper motive” for the prosecution. Pet. App. 458.

Judge Bright dissented. Pet. App. 460, 466. In his

view, AUSA Reese violated Montoya’s Fifth Amend-

ment privilege by using Montoya’s immunized testi-

mony in recommending Montoya’s prosecution. Pet.

App. 462. In addition, Judge Bright concluded that

Reese’s decision to recommend prosecution based on

his conviction that Montoya’s testimony was false

created a presumption of prosecutorial vindictiveness.

Id. at 465-466.

ARGUMENT

1. Petitioners contend (Pet. 9-15) that the govern-

ment improperly used Filiberto Montoya’s immunized

testimony against him in violation of the federal

immunity statute and the Fifth Amendment. That

contention is without merit.’

a. The immunity statute, 18 U.S.C. 6002, provides

in pertinent part that “no testimony or other

information compelled under [an immunity] order

* * * may be used against the witness in any

criminal case.” In Kastigar v. United States, 406

U.S. 441, 448-449 (1972), the Court held that the

immunity statute’s protection against the use of

compelled statements is coextensive with the Fifth

Amendment. The Court further held that the statute

imposes the burden on the government to show that

“the evidence it proposes to use is derived from a

1 Although Rosario Montoya lois standing to assert her

husband’s Fifth Amendment privilege, Rogers v. United States,

340 U.S. 367, 371 (1951), the government has agreed to dismiss

her indictment’ should her husband prevail on his immunity

claim. Pet. App. 440 n.4.

7

legitimate source wholly independent of the compelled

testimony.” 406 U.S. at 460.

The court of appeals found that the government had

met its burden of showing that the evidence it used to

obtain an indictment against Montoya was derived

from sources that were wholly independent of the

immunized testimony, Pet. App. '448, and petitioners

do not challenge that conclusion. Rather, they con-

tend (Pet. 6) that AUSA Reese’s consideration of the

falsity and incompleteness of Montoya’s testimony in

recommending his indictment constituted an im-

proper non-evidentiary use.

Consistent with the language in Kastigar cited

above, some courts have held that Kastigar precludes

only evidentiary uses of immunized statements. See

United States v. Serrano, 870 F.2d 1, 16 (ist Cir.

1989); United States v. Mariana, 851 F.2d 595, 600-601

(2d Cir. 1988), cert. denied, 490 U.S. 1011 (1989);

United States v. Byrd, 765 F.2d 1524, 1528-1531 (11th

Cir. 1985). Other courts have held that certain non-

evidentiary uses are also prohibited. See United

States v. Semkiw, 712 F.2d 891, 893-895 (3d Cir. 1983);

United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.

1973). The court of appeals in this case did not

attempt to resolve that issue as a genera! matter.

Rather, it assumed that some non-evidentiary uses

fall within the prohibitions of the immunity statute.

Pet. App. 449. It held, however, that the particular

use at issue here falls outside the scope of the

immunity statute. Jd. at 449-453. That holding is

correct.

As the court of appeals noted, AUSA Reese used

the immunized testimony for the limited purpose of

seeking the Attorney General’s authorization to

prosecute. Pet. App. 450. After the Attorney General

8

authorized a prosecution, the actual decision to seek

an indictment was made by AUSA Weiner, who never

read any of Montoya’s immunized testimony. Gov't

C.A. Br. 8; Pet. App. 456 & n.11. As the court of

appeals concluded, “Reese’s involvement in re-

questing permission to prosecute was too remote

from the criminal proceeding against Montoya to

constitute non-evidentiary use of the immunized

testimony against him.” Pet. App. 452-453.

Moreover, AUSA Reese did not consider Montoya’s

testimony as substantive evidence of his guilt, but as

evidence that he had not been truthful in his

testimony. Consistent with that limited purpose,

Reese did not provide a summary of Montoya’s testi-

mony to the Attorney General. Rather, he provided

two examples from the testimony that showed that

Montoya had given false and incomplete testimony.

Pet. App. 451. The immunity statute does not

preclude the government from deciding to prosecute

an immunized witness because it is convinced that the

witness has given false and incomplete testimony.

This Court’s decision in United States v.

Apfelbaum, 445 U.S. 115 (1980), is instructive.

There, the Court held that the Fifth Amendment does

not preclude the government from using a witness’s

immunized testimony at a subsequent prosecution for

perjury. The Court explained that the Fifth Amend-

ment does not provide a shield for a witness to commit

perjury. Jd. at 130-132. When a person gives false and

incomplete testimony, the government is not limited

to filing perjury charges against him. Because such

testimony is not protected by the Fifth Amendment,

the government may also consider it in deciding to

prosecute the witness for an offense related to the

immunized testimony, as long as the government’s

9

evidence against the witness is derived from sources

that are independent of the immunized testimony.

. See 2 S. Beale & W. Bryson, Grand Jury Law and

Practice § 9.19, at 64 (1994 Cum. Supp.) (“it is not a

‘use’ of immunized testimony for the government to

decide to prosecute the witness because it is

convinced that the witness has perjured himself in

the course of testify-ing under the grant of

immunity”); United States v. Burke, 856 F.2d 1492,

1494 (11th Cir. 1988) (rejecting claim that government

improperly decided to pro-secute defendant based on

belief she had perjured herself in giving immunized

testimony).

A contrary rule would defeat the purposes of the

immunity statute. A major advantage of Section 6002

is that it encourages more complete testimony than a

transactional immunity statute. Under a transac-

tional immunity statute, a witness could, with

impunity, reveal just enough information to obtain

blanket immunity and then profess to remember no

more. Under Section 6002, by contrast, the govern-

ment’s retention of the power to prosecute based on

independent evidence creates a strong disincentive

for the witness to withhold information. Thus, the

United States Attorneys’ Manual expressly provides

that “less than complete testimony should not appear

to be rewarded by a declination of prosecution in a

case where independent evidence clearly exists and

the situation otherwise warrants prosecution.” U.S.

Attorneys’ Manual § 9-23.400 (Oct. 1, 1990). By pre-

cluding the government from considering, in deciding

whether to prosecute, that a witness has given false

and incomplete testimony, petitioner’s approach

would deprive the government of the ability to en-

10

courage full disclosure by immunized witnesses—a

major goal of Section 6002.

b. Petitioners contend that the decision below

conflicts with United States v. Olivero, 39 M.J. 246

(C.M.A. 1994), and United States v. McDaniel, supra.

There is, however, no conflict. In Olivero, the United

States Court of Military Appeals held that the

decision to prosecute may not be based on immunized

testimony. 39 M.J. at 249. And in McDaniel, the

Eighth Circuit stated that the prohibited non-eviden-

tiary uses of immunized testimony “could con-

ceivably” include “assistance in * * * deciding to

initiate prosecution.” 482 F.2d at 311. But in those

cases, the government could not show that the person

who made the decision to prosecute was unaffected by

the immunized testimony. Olivero, 39 M.J. at 249-250;

McDaniel, 482 F.2d at 311. Moreover, in those cases,

no contention was made that the immunized testi-

mony was considered for the limited purpose of

deciding whether the witness had given false and

incomplete testimony. Jbid. Accordingly, neither

case addressed the situation presented here, .e.,

where the person who made the decision to prosecute

did not consider the immunized testimony, and those

who did consider the immunized testimony did so for

the limited purpose of deciding whether the witness

had given false and incomplete testimony. There is

therefore no conflict between those decisions and the

decision below.”

2 Petitioners’ reliance (Pet. 10) on United States v. Byrd,

supra, is misplaced. There, the Eleventh Circuit held that

Kastigar does not require a court “to inquire into a prosecutor’s

motives in seeking indictment.” 765 F.2d at 1530. “So long as

all the evidence presented to the grand jury is derived from

11

2. Petitioners’ contention (Pet. 16) that the

government engaged in vindictive prosecution is also

without merit. Under the doctrine of vindictive pro-

secution, it violates due process for a prosecutor to

use the charging process to penalize the exercise of

constitutional or statutory rights. See, e.g., Black-

ledge v. Perry, 417 U.S. 21 (1974); North Carolina v.

Pearce, 395 U.S. 711, 723-724 (1969). The short

answer to petitioners’ claim of vindictive prosecution

is that Filiberto Montoya had no constitutional or

statutory right to give false and incomplete testi-

mony under the grant of immunity. E.g., Apfelbaum,

445 U.S. at 127. Accordingly, to the extent the de-

cision to prosecute petitioners rested on Montoya’s

lack of candor in giving his immunized testimony,

that consideration did not have the effect of penalizing

the exercise of any of his legally protected rights.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DrEw S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

AUGUST 1995

legitimate sources independent of the defendant’s immunized

testimony, and the grand jury finds that independent evidence

sufficient to warrant the return of an indictment, the

-defendant’s privilege against self-incrimination has not been

violated.” Ibid. Byrd therefore provides no assistance to

petitioners here. ;