DOMINIC MARIANI, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-833

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order dismissing the indictment against petitioner on the ground that
the government had made impermissible use of testimony given by
petitioner before a grand jury.

   Following a jury trial in the United States District Court for the
Eastern District of New York, petitioner was convicted of conspiring
to participate in the affairs of an enterprise through a pattern of
racketeering activity, in violation of 18 U.S.C. 1962(d);  conspiring
to commit extortion, in violation of 18 U.S.C. 1951;  making illegal
payments to a union representative, in violation of 29 U.S.C.
186(a)(2);  and making illegal payments to influence the operation of
an employee benefit plan, in violation of 18 U.S.C. 1954.  He was
sentenced to concurrent four-year terms of imprisonment, to be served
consecutively to a sentence imposed on a separate conviction.

   On August 17, 1987, after a post-trial evidentiary hearing pursuant
to Kastigar v. United States, 406 U.S. 441 (1972), the district court
vacated petitioner's convictions and dismissed the indictment against
him.  The court ruled that, in obtaining the conviction, the
government had made impermissible non-evidentiary use of the testimony
that petitioner had given to a grand jury under a grant of immunity
(Pet. App. 17a-30a).

   The court of appeals reversed and remanded the case for
reinstatement of the verdict of conviction and for sentencing (Pet.
App. 1a-14a).  The court concluded that the district court's findings
regarding the government's alleged non-evidentiary use of petitioner's
immunized testimony were erroneous and that the uses the government
allegedly made of the testimony were insubstantial.

   Petitioner contends (Pet. 19-24) that the decision of the court of
appeals permits the non-evidentiary use of immunized testimony and
incorrectly construes both the federal immunity statute, 18 U.S.C.
6002, and this Court's leading decision dealing with the use of
immunized testimony, Kastigar v. United States, 406 U.S. 441 (1972).
Whatever the merits of petitioner's contentions, they are not ripe for
review by this Court.  The court of appeals' decision places
petitioner in precisely the same position he would have occupied if
the district court had denied his motion to dismiss the indictment.
If, after reinstatement of the conviction and sentencing by the
district court, the court of appeals were to reverse petitioner's
conviction and remand for a new trial because of trial error,
petitioner's immunity claims might be mooted by an acquittal following
a second trial on the merits.  If, on the other hand, the court of
appeals affirms his conviction, petitioner will be able to present his
Kastigar claim to this Court, together with any other claims he may
have, in a petition for a writ of certiorari seeking review of a final
judgment against him.  Accordingly, review by this Court of the court
of appeals' decision would be premature at this time.  /*/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   DECEMBER 1988

   /*/ Because this case is interlocutory, we are not responding on
the merits to the question presented by the petition.  We will file a
response on the merits if the Court requests.