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\deflang1033\pard\plain\f3\fs17 
\par No. 94-1967
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par FILIBERTO E. MONTOYA AND 
\par ROSARIO MONTOYA, PETITIONERS
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE NINTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JO ANN HARRIS
\par Assistant Attorney General
\par 
\par JOEL M. GERSHOWITZ
\par Attorney
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par       QUESTIONS PRESENTED
\par 
\par 1. Whether a federal prosecutor violated the Fifth
\par Amendment or 18 U.S.C. 6002 when he sought ap-
\par proval from the Attorney General to prosecute a wit-
\par ness who testified under a grant of use immunity
\par because the witness had given false and misleading
\par testimony.
\par 2. Whether the federal prosecutor's decision to
\par recommend prosecution because the witness had
\par given false and incomplete testimony is evidence of
\par vindictive prosecution in violation of the Due Process
\par Clause.
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Opinion below  . . . .1 
\par Jurisdiction  . . . . 1
\par Statement  . . . . 2
\par Argument  . . . . 6
\par Conclusion  . . . . 11
\par 
\par     TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Blackledge  v. Perry, 417 U.S. 21 (1974)  . . . . 11
\par Kastigar  v. United States, 406 U. S. 441 (1972)  . . . .6, 7 
\par North  Carolina v. Pearce, 395 U. S. 711(1969)  . . . . 11
\par Rogers v. United States, 340 U. S. 367 (1951 )  . . . . 6
\par United States v. Apfelbaum, 445 U.S. 115 (1980 )  . . . . 8, 11 
\par United States v. Burke, 856 F.2d 1492 (llth Cir.
\par 1988)  . . . . 9
\par United States v. Byrd, 765 F.2d 1524 (llth Cir. 1985) . .
\par United States v. Mariani, 851 F.2d 595 (2d Cir. 1988),
\par cert. denied, 490 U.S. 1011 (1989)  . . . .7, 10, 11 
\par United States v. McDaniel, 482 F.2d 305 (8th Cir.
\par 1973)  . . . . 7, 10
\par United States v. Olivero, 39 M.J. 246 (C.M.A. 1994)  . . . . 9, 10
\par United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983) . . . . 7
\par United States v. Serrano, 870 F.2d l (lst Cir. 1989)  . . . . 7
\par 
\par Institution and statutes:
\par 
\par U..S. Const. Amend. V  . . . .6, 8 
\par 18 U. S. C. 371  . . . . 2
\par 18 U.S.C. 1014  . . . . 2
\par 18 U.S.C. 1344  . . . . 2
\par 18 U.S.C. 1957(a)  . . . .2 
\par 8 U. S. C. 6002  . . . . 6, 10
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IV
\par 
\par Miscellaneous:
\par 
\par 2 S. Beale & W. Bryson, Grand Jury Law and Practice
\par (1994 Cum. Supp.)  . . . . 
\par U.S. Atty's Manual (Oct. 1, 1990)  . . . . 3,  
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par       OCTOBER TERM, 1995
\par 
\par     No. 94-1967
\par 
\par FILIBERTO E. MONTOYA AND
\par ROSARIO MONTOYA, PETITIONERS
\par 
\par       v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par    FOR THE NINTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par 
\par        OPINION BELOW
\par 
\par The opinion of the court of appeals (Pet. App. 429-
\par 466) is reported at 45 F.3d 1286.
\par 
\par         JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par January 12, 1995. The petition for rehearing was
\par denied on May 3, 1995. Pet. App. B. The petition for a
\par writ of certiorari was filed on June 2, 1995. The juris-
\par diction of this Court is invoked under 28 U.S. C.
\par 1254(1).
\par 
\par          (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par         STATEMENT
\par 
\par After entering guilty pleas in the United States
\par District Court for the Southern District of Cali-
\par fornia, petitioner Filiberto Montoya was convicted of
\par conspiring to commit bank fraud and to engage in
\par monetary transactions in property derived from drug
\par trafficking, in violation of 18 U.S.C. 371, 1344, and
\par 1957(a), and petitioner Rosario Montoya was con-
\par victed of making a false statement on a loan appli-
\par cation, in violation of 18 U.S.C. 1014. Filiberto was
\par sentenced to 41 months' imprisonment, to be followed
\par by three years of supervised release. Rosario was
\par sentenced to 24 months' imprisonment, the service of
\par which was suspended in lieu of a three-year term of
\par supervised probation. The court of appeals affirmed,
\par with one judge dissenting. Pet. App. 429-466.
\par 1. The present proceedings arose out of the
\par government's  investigation of the Contreras-Subias
\par drug trafficking organization.  The government
\par learned that several real properties in San Diego
\par county, California,  were connected with the
\par Contreras organization.  Assistant United States
\par Attorney (AUSA) Reese was assigned to investigate.
\par During the course of that investigation, the govern-
\par ment obtained documents indicating that petitioner
\par Filiberto Montoya had acted as a real estate agent in
\par transactions in which members of the Contreras
\par organization or its nominees acquired real property.
\par Pet. App. 435-416.
\par A separate investigation revealed that Montoya was
\par involved in a real estate transaction in Oklahoma on
\par behalf of the Contreras family. The investigation led
\par to money laundering indictments of members of the
\par Contreras organization in Oklahoma. AUSA Reese
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par was assigned to assist. in that prosecution. Pet. App.
\par 436. Montoya's attorney contacted Reese, and they
\par discussed the possibility of Montoya's cooperating in
\par the investigation.  Reese wrote a letter granting
\par Montoya informal use immunity, and Montoya was
\par subsequently interviewed several times.  Montoya
\par later testified under a formal grant of immunity
\par before the grand jury in San Diego and at the
\par Oklahoma trial. Pet. App. 436.
\par Pursuant to Department of Justice Guidelines that
\par require express written authority of the Attorney
\par General to prosecute an individual for an offense that
\par is closely related to the individual's compelled testi-
\par mony, see U.S. Attorneys' Manual 59-23.400 (Oct. .1,
\par 1990), Reese requested authorization from the
\par Attorney General to prosecute petitioners on the
\par instant charges. In the application, Reese stated that
\par Montoya had given false and incomplete testimony
\par both before the San Diego grand jury and at the
\par Oklahoma trial.  Reese described two incidents
\par involving Montoya's testimony that led him to that.
\par conclusion. First, Montoya initially denied to the
\par grand jury that he knew the leader of the Contreras
\par organization.  The application then explained why
\par Reese believed that Montoya had deliberately
\par withheld information about his acquaintance with the
\par leader.  Second, at the Oklahoma trial, Montoya
\par denied knowledge of certain summaries of expenses of
\par the properties, Previously, however, Montoya had
\par given the government information which tended to
\par show that the Contreras family rather than the
\par nominal owners controlled the properties. Based cm
\par Reese's application, the Attorney General granted
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par authorization for the instant prosecution. Pet. App.
\par 436-437,451.
\par Because of Reese's exposure to Montoya's im-
\par munized statements and testimony, petitioners'
\par prosecution was turned over to another AUSA, who
\par later was replaced by AUSA Weiner. Pet. App. 436-
\par 437 & n.1. The transcripts of Montoya's grand jury
\par and trial testimony were not made available to the
\par Weiner team investigators, and the reports of his
\par post-immunity interviews were sealed. Id. at 448 n.9.
\par The instant indictment followed.
\par 2. Petitioners filed a motion to dismiss the indict-
\par ment on the ground that it was tainted by Montoya's
\par immunized testimony. In its response to the motion,
\par the government filed declarations from nine prose-
\par cutors and agents who participated in the Reese and
\par Weiner investigations. The district court denied the
\par motion to dismiss, finding that the government had
\par shown that the evidence used to indict Montoya came
\par from independent sources. Pet. App. 437-438. The
\par district court granted reconsideration, but once again
\par denied the motion to dismiss. Id. at 438-439. The
\par court also denied petitioners' motion to dismiss based
\par on vindictive prosecution. Id. at 439. Thereafter,
\par petitioners entered conditional guilty picas pre-
\par serving their right to appeal the denial of their
\par motion to dismiss. Ibid.
\par 3. The court of appeals affirmed. Pet. App. 429-460.
\par The court first rejected petitioners' claims that the
\par government had made evidentiary use of Montoya's
\par immunized testimony. Pet. App. 444-448. The court
\par concluded that "[t]he nine detailed declarations filed
\par by the Government establish that the indictment
\par rested entirely on [independent] sources." Id. at 448.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par The court next rejected petitioners' contention
\par that Reese's consideration of the falsity and incom-
\par pleteness of Montoya's immunized testimony in
\par deciding to recommend prosecution constituted an
\par impermissible non-evidentiary use of that testimony.
\par The court assumed, without deciding, that "some non-
\par evidentiary uses" might be prohibited by the federal
\par immunity statute. Pet. App. 449. Nevertheless, the
\par court concluded that "Reese's involvement in re-
\par questing permission to prosecute was too remote
\par from the criminal proceeding against Montoya to
\par constitute non-evidentiary use of the immunized
\par testimony against him." Id. at 452-453.
\par In reaching that conclusion, the court noted that
\par Reese was not preparing the indictment, but was
\par seeking the Attorney General's approval for a prose-
\par cution. Pet. App. 450. It further noted that Reese's
\par application did not contain a summary of Montoya's
\par immunized testimony. Rather, it merely described
\par the two incidents that led Reese to believe that
\par Montoya had given false and incomplete testimony.
\par Id. at 451.  The purpose of transmitting that
\par information, the court explained, was not to show that
\par Montoya was guilty of an offense, but to show that
\par unusual circumstances justified his prosecution. Id.
\par at 452. The court concluded that a rule that prevented
\par the Attorney General from considering such in-
\par formation would interfere with the Attorney
\par General's exercise of her discretion, would not be in
\par the best interest of immunized witnesses, and would
\par conflict with the public interest. Ibid.
\par Finally, the court rejected petitioners' contention
\par that their prosecution was unconstitutionally moti-
\par vated by government vindictiveness. The court con-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par eluded that petitioners had failed to prove an "im-
\par proper motive" for the prosecution. Pet. App. 458.
\par Judge Bright dissented. Pet. App. 460,466. In his
\par view, AUSA Reese violated Montoya's Fifth Amend-
\par ment privilege by using Montoya's immunized testi-
\par mony in recommending Montoya's prosecution. Pet.
\par App. 462. In addition, Judge Bright concluded that
\par Reese's decision to recommend prosecution based on
\par his conviction that Montoya's testimony was false
\par created a presumption of prosecutorial vindictiveness.
\par Id. at 465-466.
\par 
\par          ARGUMENT
\par 
\par 1. Petitioners contend (Pet. 9-15) that the govern-
\par ment improperly used Filiberto Montoya's immunized
\par testimony against him in violation of the federal
\par immunity statute and the Fifth Amendment. That
\par contention is without merit. 1
\par a. The immunity statute, 18 U.S.C. 6002, provides
\par in pertinent part that "no testimony or other
\par information compelled under [an immunity] order
\par *** may be used against the witness in any
\par criminal case." In Kastigar v. United States, 406
\par U.S. 441, 448-449 (1972), the Court held that the
\par immunity statute's protection against the use of
\par compelled statements is coextensive with the Fifth
\par Amendment. The Court further held that the statute
\par imposes the burden on the government to show that
\par "the evidence it proposes to use is derived from a
\par 1 Although Rosario Montoya lacks standing to. assert her
\par husband's Fifth Amendment privilege, Rogers v. United States,
\par 340 US. 367, 371, \{1951), the government has agreed to dismiss
\par her indictment should her husband prevail on his immunity
\par claim. Pet. App. 440 n.4.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par legitimate source wholly independent of the compelled
\par testimony." 406 U.S. at 460.
\par The court of appeals found that the government had
\par met its burden of showing that the evidence it used to
\par obtain an indictment against Montoya was derived
\par from sources that were wholly independent of the
\par immunized testimony, Pet. App. 448, and petitioners
\par do not challenge that conclusion. Rather, they con-
\par tend (Pet. 6) that AUSA Reese's consideration of the
\par falsity and incompleteness of Montoya's testimony in
\par recommending his indictment constituted an im-
\par proper non-evidentiary use.
\par Consistent with the language in `Kastigar cited
\par above, some courts have held that Kastigar precludes
\par only evidentiary uses of immunized statements. See
\par United States v. Serrano, 870 F.2d 1, 16 (lst Cir.
\par 1989); United States v. Matiana, 851 F.2d 595, 600-601
\par (2d Cir. 1988), cert. denied, 490 U.S. 1011 (1989);
\par United States v. Byrd, 765 F.2d 1524, 1528-1531 (11th
\par Cir. 1985). Other courts have held that certain non-
\par evidentiary uses are also prohibited. See United
\par States v. Semkiw, 712 F.2d 891,893-895 (3d Cir. 1983);
\par United States v. McDaniel, 482 F.2d 305,311 (8th Cir.
\par 1973). The court of appeals in this case did not
\par attempt to resolve that issue as a general matter.
\par Rather, it assumed that some non-evidentiary uses
\par fall within the prohibitions of the immunity statute.
\par Pet. App. 449. It held, however, that the particular
\par use at issue here falls outside the scope of the
\par immunity statute. Id. at 449-453. That holding is
\par correct.
\par As the court of appeals noted, AUSA Reese used
\par the immunized testimony for the limited purpose of
\par seeking the Attorney General's authorization to
\par prosecute. Pet. App. 450. After the Attorney General
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par authorized a prosecution, the actual decision to seek
\par an indictment was made by AUSA Weiner, who never
\par read any of Montoya's immunized testimony. Gov't
\par C.A. Br. 8; Pet. App. 456 & n.11. As the court of
\par appeals concluded, "Reese's involvement in re-
\par questing permission to prosecute was too remote
\par from the criminal proceeding against Montoya to
\par constitute non-evidentiary use of the immunized
\par testimony against him." Pet. App. 452453.
\par Moreover, AUSA Reese did not consider Montoya's
\par testimony as substantive evidence of his guilt, but as
\par evidence that he had not been truthful in his
\par testimony. Consistent with that limited purpose,
\par Reese did not provide a summary of Montoya's testi-
\par mony to the Attorney General. Rather, he provided
\par two examples from the testimony that showed that
\par Montoya had given false and incomplete testimony.
\par Pet. App. 451.  The immunity statute does not
\par preclude the government from deciding to prosecute
\par an immunized witness because it is convinced that the
\par witness has given false and incomplete testimony.
\par This Court's decision in United States v.
\par Apfelbaum, 445 U.S. 115 (1980), is instructive,
\par There, the Court held that the Fifth Amendment does
\par not preclude the government from using a witness's
\par immunized testimony at a subsequent prosecution for
\par perjury. The Court explained that the Fifth Amend-
\par ment does not provide a  shield for a witness to commit
\par perjury. Id. at 130-132. When a person gives false and
\par incomplete testimony, the government is not limited
\par to filing perjury charges against him. Because such
\par testimony is not protected by the Fifth Amendment,
\par the government may also consider it in deciding to
\par prosecute the witness for an offense related to the
\par immunized testimony, as long as the government's
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par evidence against the witness is derived from sources
\par that are independent of the immunized testimony.
\par See 2 S. Beale & W. Bryson, Grand Jury Law and
\par Practice $9.19, at 64 (1994 Cum. Supp.) ("it is not a
\par `use' of immunized testimony for the government to
\par decide to prosecute the witness because it is
\par convinced that the witness has perjured himself in
\par the course of testifying under the grant of
\par immunity"); United States v. Burke, 856 F.2d 1492,
\par 1494 (llth Cir. 1988) (rejecting claim that government
\par improperly decided to prosecute defendant based on
\par belief she had perjured herself in giving immunized
\par testimony).
\par A contrary rule would defeat the purposes of the
\par immunity statute. A major advantage of Section 6002
\par is that it encourages more complete testimony than a
\par transactional immunity statute. Under a transac-
\par tional immunity statute, a witness could, with
\par impunity, reveal just enough information to obtain
\par blanket immunity and then profess to remember no
\par more. Under Section 6002, by contrast, the govern-
\par ment's retention of the power to prosecute based on
\par independent evidence creates a strong disincentive
\par for the witness to withhold information. Thus, the
\par United States Attorneys' Manual expressly provides
\par that "less than complete testimony should not appear
\par to be rewarded by a declination of prosecution in a
\par case where independent evidence clearly exists and
\par the situation otherwise warrants prosecution." U.S.
\par Attorneys' Manual $9-23.400 (Oct. 1, 1990). By pre-
\par cluding the government from considering, in deciding
\par whether to prosecute, that a witness has given false
\par and incomplete testimony, petitioner's approach
\par would deprive the government of the ability to en-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par courage full disclosure by immunized witnesses-a
\par major goal of Section 6002.
\par b. Petitioners contend that the decision below
\par conflicts with United States v. Olivero, 39 M.J. 246
\par (C.M.A. 1994), and United States v. McDaniel, supra.
\par There is, however, no conflict. In Olivero, the United
\par States Court ,of Military Appeals held that the
\par decision to prosecute may not be based on immunized
\par testimony. 39 M.J. at 249. And in McDaniel, the
\par Eighth Circuit stated that the prohibited non-eviden-
\par tiary uses of immunized testimony "could con-
\par ceivably" include "assistance in * * * deciding to
\par initiate prosecution." 482 F.2d at 311. But in those
\par cases, the government could not show that the person
\par who made the decision to prosecute was unaffected by
\par the immunized testimony. Olivero, 39 M.J. at 249-250;
\par McDaniel, 482 F.2d at 311. Moreover, in those cases,
\par no contention was made that the immunized testi-
\par mony was considered for the limited purpose of
\par deciding whether the witness had given false and
\par incomplete testimony. Ibid. Accordingly, neither
\par case addressed the situation presented here, i.e.,
\par where the person who made the decision to prosecute
\par did not consider the immunized testimony, and those.
\par who did consider the immunized testimony did so for
\par the limited purpose of deciding whether the witness
\par had given false and incomplete testimony. There is
\par therefore no conflict between those decisions and the
\par decision below?
\par 
\par ___________________(footnotes)
\par 
\par 2 Petitioners' reliance (Pet. 10) on United States v. Byrd,
\par supra, is misplaced.  There, the E1eventh Circuit held that
\par Kastigar does not require a court "to inquire into a prosecutor's
\par motives in seeking indictment." 765 F.2d at 1530. "So long as
\par all the evidence presented to the grand jury is derived from
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11
\par 
\par 2. Petitioners' contention (Pet. 16) that the
\par government engaged in vindictive prosecution is also
\par without merit. Under the doctrine of vindictive pro-
\par secution, it violates due process for a prosecutor to
\par use the charging process to penalize the exercise of
\par constitutional or statutory rights. See, e.g., Black-
\par ledge v.  Perry,417  U. S. 21 (1974) ; North Carolina  v.
\par Pearce, 395 U.S. 711, 723-724 (1969). The short
\par answer to petitioners' claim of vindictive prosecution
\par is that Filiberto Montoya had no constitutional or
\par statutory right to give false and incomplete testi-
\par mony under the grant of immunity. E.g., Apfelbaum,
\par 445 U.S. at 127. Accordingly, to the extent the de-
\par cision to prosecute petitioners rested on Montoya's
\par lack of candor in giving his immunized testimony,
\par that consideration did not have the effect of penalizing
\par the exercise of any of his legally protected rights.
\par 
\par         CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par 
\par Respectfully submitted.
\par 
\par           DREW S. DAYS, III
\par            Solicitor General
\par 
\par        Jo ANN HARRIS
\par            Assistant Attorney General
\par 
\par           JOEL M. GERSHOWITZ
\par            Attorney
\par 
\par AUGUST 1995
\par 
\par ___________________(footnotes)
\par 
\par legitimate sources independent of the defendant's immunized
\par testimony, and the grand jury finds that independent evidence
\par sufficient to warrant the return of an indictment, the
\par defendant's privilege against self-incrimination has not been
\par violated."  Ibid.  Byrd therefore provides no assistance to
\par petitioners here.
\par 
\par 
\par }