MARTIN SCHWIMMER, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-779

   In The Supreme Court Of The United States

   October Term, 1989

   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

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A16) is reported
at 882 F.2d 22.  The opinion of the district court holding petitioner
in contempt (Pet. App. A21-A24) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 1, 1989.
 A petition for rehearing was denied on September 14, 1989.  The
petition for a writ of certiorari was filed on November 13, 1989.
This Court's jurisdiction is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether compelling petitioner to testify before a grand jury while
the appeal from his conviction was pending violated the Fifth or Sixth
Amendments or the ethical prohibition of attorney contacts with
represented persons.

                               STATEMENT

   1. On June 16, 1987, a grand jury sitting in the Eastern District
of New York returned an indictment charging petitioner with conspiring
to conduct the affairs of an enterprise through a pattern of
racketeering activity, in violation of 18 U.S.C. 1962(d);  conspiring
to defraud the United States, in violation of 18 U.S.C. 371;  76
counts of receiving illegal payments to influence the operations of an
employee benefit plan, in violation of 18 U.S.C. 1952;  and six counts
of tax evasion, in violation of 26 U.S.C. 7201.  The indictment
alleged that petitioner and his co-defendants skimmed $14 million in
concealed commissions from the benefit plans of two union locals.
Pet. App. A3.  The indictment also charged that as part of the scheme,
petitioner made illegal payments to several union officials.  After a
jury trial at which petitioner did not testify, he was convicted of
the charged offenses.  On February 14, 1989, petitioner was sentenced
to ten years' imprisonment, fined $1.6 million, and ordered to forfeit
$4.5 million.  Pet. App. A3.  Petitioner appealed his conviction.

   At the close of the sentencing proceedings, petitioner was served
with a subpoena to appear before a grand jury investigating the
activities of the union officials to whom petitioner had made illegal
payments.  The grand jury issuing the subpoena is not the same grand
jury that indicted petitioner, although the prosecutor who tried
petitioner's case is handling the grand jury investigation.  Pet. App.
A3-A4.

   On March 8, 1989, petitioner appeared before the grand jury and was
presented with an order, signed by the Chief Judge of the United
States District Court for the Eastern District of New York, compelling
him to testify pursuant to a grant of use immunity under 18 U.S.C.
6002.  Despite the grant of immunity, petitioner refused to testify,
claiming that his compelled testimony before the grand jury without
his attorney would violate his Fifth and Sixth Amendment rights as
well as the ethical prohibition against attorney contacts with persons
who are represented by counsel.  Pet. App. A4.

   Petitioner moved to quash the subpoena, and the government moved
for an order holding petitioner in contempt for his refusal to
testify.  After a hearing, the district court granted the government's
motion.  It found (Pet. App. A22-A23) that the grant of use immunity
protected petitioner's Fifth Amendment privilege against compelled
self-incrimination and his Sixth Amendment right to counsel.  The
court therefore held petitioner in contempt of court but suspended the
order of confinement pending his appeal of the contempt order.

   2. The court of appeals affirmed.  It first held (Pet. App. A7)
that a grant of use immunity to obtain testimony from a convicted
defendant whose appeal is pending does not violate the defendant's
Fifth Amendment privilege against compelled self-incrimination.
Because the immunity order prohibits the government from making direct
or indirect use of petitioner's testimony, the court held, his
testimony before the grand jury could not incriminate him with regard
to the case on appeal, even if the appeal resulted in a reversal and a
new trial.  The court further held (Pet. App. A10-A14) that the grant
of use immunity protected petitioner's Sixth Amendment right to
counsel during appeal.  In particular, the court found that
petitioner's testimony would not compromise his counsel's ability to
argue on appeal that the evidence was insufficient to support
petitioner's conviction.  Finally, the court rejected petitioner's
claim that the prosecutor's act of questioning him before the grand
jury outside the presence of his counsel would violate Disciplinary
Rule 7-104(A)(1) of the Model Code of Professional Responsibility,
which forbids attorneys from contacting persons who are represented by
counsel unless the contacts are authorized by law.  The prosecutor's
act of questioning petitioner on behalf of the grand jury, the court
held, would clearly be "authorized by law." Pet. App. A14-A16.

   3. On December 27, 1989, the court of appeals ruled on petitioner's
direct appeal of his conviction.  The court remanded the case to the
district court for a hearing on whether the government's case at
petitioner's trial was derived from a violation of the attorney-client
privilege in regard to confidential communications passing from
petitioner to an accountant hired by his attorneys to assist in the
preparation of his defense.  The court did not rule on petitioner's
remaining contentions.  Instead, it retained jurisdiction of the
appeal pending the district court's decision on remand.

                               ARGUMENT

   Petitioner renews his contentions (Pet. 15-45) that his compelled
testimony before the grand jury without the presence of his counsel
would violate his Fifth Amendment privilege against compelled
self-incrimination, his Sixth Amendment right to counsel, and
Disciplinary Rule 7-104(A)(1).  These contentions are without merit.

   1. Petitioner first claims (Pet. 16-35) that his compelled
testimony before the grand jury will violate his Sixth Amendment right
to the effective assistance of counsel on appeal from his conviction.
He argues that, absent a waiver, the Sixth Amendment prohibits all
contact between the government and a defendant outside the presence of
counsel between his indictment and the conclusion of his direct
appeal.  In addition, petitioner claims that the court of appeals
erred in finding that the grant of use immunity would protect that
right.

   The proposed questioning of petitioner before the grand jury is not
part of the investigation or prosecution of petitioner;  it is part of
the investigation of others for conduct in which petitioner was
involved.  The grant of use immunity for petitioner's testimony
ensures that petitioner's testimony before the grand jury will not be
used in any further proceedings against him, but will be used only
against other persons who are under investigation.  While petitioner
enjoys a Sixth Amendment right to counsel with respect to the
appellate proceedings in his own case, the grand jury testimony that
he is being asked to provide is not properly viewed as part of those
proceedings.  Even though the subject matter of the grand jury's
questions may relate to the subject matter of the charges in
petitioner's case, the fact that petitioner's answers cannot be used
against him means that petitioner's grand jury appearance is not part
of any proceedings against him.  Because of the grant of immunity,
petitioner is not at risk on account of anything he may say about the
events that underlay the charges against him.  He therefore does not
enjoy a Sixth Amendment right to the presence of counsel with respect
to the grand jury's investigation, which is solely directed at other
persons.  See Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985) (even
when defendant has been indicted and is represented, Sixth Amendment
does not apply to questioning that relates to offenses other than
those with which he is charged).

   Even if petitioner would enjoy a Sixth Amendment right to counsel
with respect to his appearance before the grand jury, that right would
not entitle him to insist that his counsel accompany him into the
grand jury room.  Instead, as the court of appeals held, petitioner's
ability to consult with counsel during recesses in the grand jury
proceedings would fully protect his Sixth Amendment right to counsel.
Since the government may not directly or indirectly use petitioner's
grand jury testimony in any current or subsequent proceeding against
petitioner, see Kastigar v. United States, 406 U.S. 441, 460-462
(1972), the need for the presence of counsel to protect the defendant
from improvident admissions is not present in this setting.
Accordingly, the application of Rule 6(d) Fed. R. Crim. P., which bars
petitioner's counsel from accompanying him into the grand jury room,
would not violate the Sixth Amendment.

   Petitioner fails to point to any way in which his testimony before
the grand jury would infringe his Sixth Amendment right to counsel on
his appeal.  It is difficult to foresee, at least in advance of his
appearance before the grand jury, how his immunized grand jury
testimony might adversely affect his counsel's presentation and
argument of issues to the court of appeals.  Moreover, now that
petitioner's counsel has briefed and argued petitioner's case on
appeal, it appears that no issue petitioner has raised in the court of
appeals would be affected by the content of any testimony petitioner
would be likely to give before the grand jury.

   Petitioner argues that his counsel's effectiveness on appeal may be
undercut because he may be ethically foreclosed from asserting
petitioner's innocence on appeal if petitioner makes incriminating
statements before the grand jury.  This claim fails for two reasons.
First, petitioner's brief in the court of appeals did not challenge
the sufficiency of the evidence to support his conviction.  Second,
even if counsel had raised the issue, petitioner would only have to
show that the evidence was not sufficient to justify the jury's
verdict.  No breach of ethics occurs when an attorney who knows that
his client is guilty argues that the government has failed to prove
his client's guilt beyond a reasonable doubt.

   Petitioner's claim that his compelled grand jury testimony will
violate his Sixth Amendment rights at any retrial that may be held in
this case is speculative and premature.  If petitioner's conviction
withstands appellate review, as the great majority of convictions do,
he will not be subject to retrial.  In that circumstance, petitioner's
grand jury testimony would give the government no advantage in any
later proceeding or adversely affect counsel's ability to represent
him.  See United States v. Kember, 648 F.2d 1354, 1364-1365 (D.C. Cir.
1980).

   Like any other grand jury witness, petitioner has the right to have
counsel present outside the grand jury room during his testimony and
to consult with counsel whenever he wishes.  Petitioner may also
invoke the attorney-client privilege with respect to any
communications that fall within the privilege.  Thus, this case
presents no reason to deviate from the settled rule that "(a) witness
'before a grand jury, cannot insist as a matter of constitutional
right, on being represented by his counsel.'" United States v.
Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion) (quoting In re
Groban, 352 U.S. 330, 333 (1957)).

   Petitioner contends (Pet. 31-33) that the court of appeals'
rejection of his Sixth Amendment claim conflicts with the decision of
the Sixth Circuit in United States v. Doss, 563 F.2d 265 (1977) (en
banc).  As the court of appeals noted (Pet. App. A8-A9), however, Doss
is easily distinguishable.  There, the government called a defendant
before the grand jury before he had been informed of his indictment
and questioned him with the intention of obtaining evidence for the
pending prosecution.  The court of appeals reversed his conviction for
perjury because it found improper the prosecutor's use of the grand
jury process to gather evidence for a pending prosecution.  The court
explicitly held, however, that "where a defendant is indicted for a
particular crime, that fact does not prevent his being called before a
grand jury to give evidence upon a wholly different and separate
offense so long as he is not questioned about the offense for which he
stands indicted." 563 F.2d at 266.

   Petitioner does not challenge the legitimacy of the grand jury
investigation or the need for his testimony.  Nor has there been any
showing that the government had an improper purpose in calling
petitioner.  Moreover, petitioner has been convicted and sentenced, so
it is clear that the government is not using the grand jury as a
pretrial discovery device.  Finally, the Doss court expressly
distinguished situations such as the present one in which an indicted
defendant is called before a grand jury to testify about matters other
than the charges on which he has been indicted.  Thus, the court of
appeals' decision in this case does not conflict with the decision in
Doss.

   2. For the same reasons, petitioner's Fifth Amendment claim is
without merit.  Petitioner argues (Pet. 35-43) that, as a defendant in
a pending criminal case, he has a Fifth Amendment right to remain
silent that is broader than his privilege against compelled
self-incrimination.  Therefore, he argues, the use immunity he has
been granted does not fully protect his Fifth Amendment rights.

   At the outset, petitioner's assertion that he has a Fifth Amendment
right to remain silent that is broader than his privilege against
compulsory self-incrimination is contrary to this Court's decision in
Kastigar.  In that case, the Court squarely held that the immunity
created by 18 U.S.C. 6002 "is coextensive with the scope of the
privilege against self-incrimination." Although the government may not
call a defendant as a witness at trial and force him to invoke his
Fifth Amendment privilege, that prohibition simply reflects a
recognition that no valid purpose would be served by forcing a
defendant to invoke his privilege in the presence of the jury.
Kastigar clearly establishes that there is no Fifth Amendment "right
to silence" that survives once the privilege against compulsory
self-incrimination has been supplanted, whether by a grant of immunity
or otherwise.

   The court of appeals' Fifth Amendment analysis is in accordance
with well-settled law.  Every court that has addressed the issue has
held that a defendant whose appeal is pending may be compelled to
testify under a grant of use immunity.  See In re Grand Jury
Proceedings (Garcia Rosell), 889 F.2d 220, 222 (9th Cir. 1989);
United States v. Kember, 648 F.2d at 1362-1363;  United States v.
Pantone, 634 F.2d 716, 719 (3d Cir. 1980);  United States v. Kelly,
464 F.2d 709, 712-713 (5th Cir. 1972).  Thus, as long as the
government can meet its burden of showing that its evidence in any
subsequent retrial of petitioner is untainted by his grand jury
testimony, petitioner's Fifth Amendment rights have not been violated.

   3. Petitioner's final claim (Pet. 44-45) is that the prosecutor's
interrogation of him before the grand jury without the presence of
counsel violated Disciplinary Rule 7-104(A)(1).  That rule provides
that an attorney shall not "(c)ommunicate * * * on the subject of a
representation with a party he knows to be represented by a lawyer in
the matter unless he has the prior consent of the lawyer representing
such other party or is authorized by law to do so."

   The court of appeals correctly rejected that claim.  At the very
least, contacts between defendants and prosecutors in the course of
grand jury proceedings are "authorized by law" within the meaning of
the rule.  Federal prosecutors are legally authorized to investigate
and prosecute federal crimes, see 28 U.S.C. 547, and an integral part
of that duty is the responsibility to conduct grand jury
investigations.  In this case, the prosecutor obtained a court order
directing petitioner to testify and thus at least implicitly
authorizing the prosecutor to conduct the questioning before the grand
jury.  Moreover, even if petitioner were correct that the rule
prohibited the prosecutor from questioning him before the grand jury,
he would not be entitled to an order prohibiting the questioning.
Violations of ethical rules ordinarily do not give rise to the sort of
injunctive relief petitioner seeks.  Instead, the proper course would
be to report the prosecutor's conduct to the local bar authorities and
seek disciplinary action.  Accordingly, petitioner's "ethical rule"
argument is without merit.

                              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

   J. DOUGLAS WILSON

      Attorney

   JANUARY 1990