LEANDER MAX SMALL, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1594

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court, of
Appeals for the Eleventh Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that (1) the district court erred when it
refused his request to immunize a defense witness, and (2) the
evidence was insufficient to support his conviction.

   1. Following a jury trial in the United States District Court for
the Southern District of Florida, petitioner was convicted on 18
counts of mail fraud.  He was sentenced to concurrent terms of five
years' imprisonment, $17,000 in fines, and five years' probation.  The
court of appeals affirmed by unpublished order.  Pet. App. A.

   In June 1982 petitioner and co-defendant W. Ed Herder operated a
mail solicitation business known as United States Testing Authority
(USTA).  /1/ Petitioner and Herder caused USTA to mail hundreds of
thousands of solicitations to the general public nationwide, offering
a valuable prize free of charge in exchange for returning a survey
card on television viewing habits and a $14.80 handling fee.  Contrary
to the representation made in the literature sent to the public, USTA
had no client for its survey.  Moreover, the "prize" awarded to 9,999
of every 10,000 individuals who responded to the solicitation was
merely a membership in a financially unsuccessful film processing club
owned by petitioner and Herder.  One in 10,000 persons received one of
the prizes listed in the solicitation that had a minimal value.

   Concerned that no use was being made of the information furnished
by those who responded to USTA's survey, petitioner prevailed upon
Herder to commission a survey of the responses.  The survey was not
completed, in part because petitioner and Herder stopped paying for
the services of the individual they had retained to analyze the
responses.

   The scheme led to an investigation by the United States Postal
Service and an order issued by postal authorities creasing delivery of
mail to USTA.  As a consequence, in September 1982 USTA closed its
business.  At the same time petitioner and Herder established a
successor to USTA, which they called American Testing Institute (ATI).
 They prevailed upon an employee, an elderly bookkeeper, to agree to
be listed as the president of ATI on corporate documents.  However,
Herder and petitioner maintained direct control over ATI's daily
operations.  The business format engaged in by ATI was identical to
that of its predecessor.  Petitioner and Herder even continued to use
the same printer.  They told the printer that if asked about
petitioner and Herder, he was to reply that they were merely
consultants to ATI and had no other connection with the company.

   In time, a number of the recipients of "awards" complained to
petitioner and Herder by mail and telephone.  Petitioner and Herder
ridiculed the complaints and frequently threw them away without
responding to them.  An employee was told to hang up on people who
called and demanded refunds.  By early 1983, the Postal Service had
stopped delivering mail to ATI.

   Thereafter, government investigators examining the bank accounts of
USTA and ATI discovered that more than 225,000 checks in the amount of
$14.80 each had been deposited, for a total dollar amount in excess of
$3,325,000.  Between July 1982 and March 1983, USTA and ATI disbursed
$1,715,000 to Herder and his mother.  Another $183,000 was paid to
petitioner during that period.

   2. At trial, petitioner asked the court to compel the government to
immunize or to grant judicial immunity to Peter Gayle, whom the
defense proposed to call as a defense witness.  Petitioner proffered
to the court that Gayle would reveal that he and Herder -- and not
petitioner -- devised and implemented the USTA scheme;  that Gayle
received $556,000 from the scheme;  and that Gayle authored the letter
and survey card that was mailed to the public by USTA (10 R.
1202-1205).  In response to a proffer by petitioner's co-defendant's
counsel, the government confirmed that Gayle had appeared before the
grand jury under an agreement that barred the government from using
his grand jury testimony against him, but that the informal immunity
agreement did not extend to the trial (id. at 1213-1215).  Gayle was
not summoned as a witness for the prosecution.

   The court denied petitioner's motion (10 R. 1216).  Moreover, the
court examined Gayle's grand jury testimony in camera and advised
petitioner that the testimony was not exculpatory (ibid.).

   3. Petitioner alleges that the Government's limited immunization of
Gayle constituted an abuse of process, which the court was duty-bound
to remedy by immunizing the witness at trial.  That argument is
insubstantial.  No violation of petitioner's due process rights
resulted from the informal immunity agreement between the government
and Gayle in the grand jury proceeding, and the district court was not
authorized to grant immunity to Gayle.

   This Court never has recognized the existence of judicial authority
to immunize defense witnesses absent a request from the government.
The federal immunity statute (18 U.S.C. 6003(b)) vests the power to
grant immunity in the Executive Branch rather than the Judiciary.  The
Court accordingly has explained that the authority to immunize
witnesses "is peculiarly an executive one, and only the Attorney
General or a designated officer of the Department of Justice has
authority to grant use immunity." Pillsbury Co. v. Conboy, 459 U.S.
248,261 (1983).  See id. at 253-254.  The corollary of this principle
is that "(n)o court has authority to immunize a witness" (id. at 261;
see id. at 262).  See also United States v. Doe, 465 U.S. 605, 616-617
(1984).  Following these principles, the courts of appeals have
overwhelmingly ruled that judges may not immunize defense witnesses
without a request from the prosecution.  /2/

   Prior to this Court's decision in Doe and Conboy, the Third Circuit
held that a district court may immunize a defense witness when that
witness has essential, exculpatory information that is unavailable
from other sources.  See Government of Virgin Islands v. Smith, 615
F.2d 964 (3d Cir. 1980).  Whatever the validity of the Third Circuit's
rule, it is applicable by its terms only when the defendant makes "a
convincing showing" that the proffered testimony is "both clearly
exculpatory and essential to the defendant's case." Id. at 972.  In
addition, "(i)mmunity will be denied if the proffered testimony is
found to be * * * cumlative." Ibid.  The Third Circuit thus has found
a judicial grant of immunity appropriate only when there is "a
probable certainty that * * * (the) expected testimony would * * * in
itself exonerate (the defendant)." United States v. Lowell, 649 F.2d
950, 965 (1981) (emphasis in original).  See also United States v.
Steele, 685 F.2d 793, 808, cert. denied, 459 U.S. 908 (1982).

   Although the Third Circuit's approach to the issue is different
from that of other circuits, there is no need for the Court to address
that difference in this case.  First, the Third Circuit has yet to
determine whether its recognition of judicial immunity survives this
Court's remarks in Doe and Conboy.  In light of those intervening
decisions, the Third Circuit may reconsider its analysis of the issue
of defense witness immunity.  Second, petitioner has not demonstrated
that he would have obtained a favorable ruling on his request to
immunize Gayle even in the Third Circuit.  Petitioner failed to show
that Gayle would give unambiguous testimony that clearly exculpated
petitioner.  Indeed, according to the proffer, Gayle was not at all
involved in ATI;  he ceased his association with Herder before USTA
was displaced by ATI.  Even if, as petitioner proffered, Gayle helped
Herder originate the scheme, realized a substantial profit from it,
and authorized the survey card and letter mailed to the public,
petitioner remained criminally liable for his knowing and active
participation in the fraudulent activity that went far beyond the
matters to which Gayle might have testified.  Moreover, the district
court, which examined Gayle's grand jury testimony, specifically
determined that it was not exculpatory (10 R. 1216).  In sum, the
"(d)ifferences among the circuits are here a strawman because
(petitioner) fails all their tests." Autry v. Estelle, 706 F.2d 1394,
1401 (5th Cir. 1983), cert. denied, 465 U.S. 1085 (1984).

   4. Petitioner claims (Pet. 34-35) that the evidence failed to show
that he devised the mail fraud scheme or manifested an intent to
defraud third parties.  That fact-bound claim does not warrant review
by this Court.  The government was not required to demonstrate that
petitioner helped create the fraud.  Its theory of prosecution was
that petitioner aided and abetted his co-defendant in executing the
illicit scheme (11 R. 1262-1263, 1317, 1323 (prosecution's closing
argument)).  The jury, properly instructed on aiding and abetting (id.
at 1334-1336), rejected petitioner's contention that he was an
innocent, unaware company employee performing largely ministerial
chores for Herder.  Among other facts, petitioner's receipt of more
than $180,000 from the scheme in a period of less than a year strongly
supports the government's position that petitioner was not just an
innocent employee of Herder's.  Because the evidence, examined in the
light most favorable to the government, adequately supports the jury
verdict, petitioner's claim is unpersuasive.

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

   CHARLES FRIED

      Solicitor General

   MAY 1987