JOANNE C. NEWAK, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-757

   In The Supreme Court Of The United States

   October Term, 1989

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

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The initial opinion of the Air Force Court of Military Review (Pet.
App. 109-115) is reported at 15 M.J. 541.  The opinion of the Court of
Military Appeals reversing in part the judgment of the court of
military review and remanding the case to that court (Pet. App.
117-132) is reported at 24 M.J. 238.  The opinions of the court of
military review on remand (Pet. App. 135-141) and on appeal after
resentencing (Pet. App. 149-155) are unreported.  The opinion of the
Court of Military Appeals affirming the final judgment of the court of
military review (Pet. App. 156-157) is not yet officially reported.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on
September 8, 1989.  The petition for a writ of certiorari was filed on
November 7, 1989.  The jurisdiction of this Court is invoked under 28
U.S.C. 1259(1) (Supp. V 1987).

                          QUESTION PRESENTED

   Whether petitioner is entitled to dismissal of the charges against
her because an attorney who represented her before trial suffered from
a conflict of interest, even though petitioner was represented at
trial by a different attorney and petitioner suffered no prejudice
from the pretrial representation by her first attorney.

                               STATEMENT

   Following a general court-martial at Hancock Field in New York,
petitioner, an officer in the United States Air Force, was convicted
of using and transferring a substance that she believed to be
amphetamine, in violation of Article 80 of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. 880;  possession of amphetamine, in
violation of Article 92, UCMJ, 10 U.S.C. 892;  possession, use, and
transfer of marijuana, in violation of Article 134, UCMJ, 10 U.S.C.
934;  conduct unbecoming an officer by making homosexual comments and
advances toward a female enlisted member, in violation of Article 133,
UCMJ, 10 U.S.C. 933;  and sodomy with a second female enlisted member,
in violation of Article 125, UCMJ, 10 U.S.C. 925.  The court-martial
sentenced petitioner to confinement for seven years, dismissal from
the service, and forfeiture of all pay and allowances.  The convening
authority modified the findings and reduced petitioner's confinement
to six years.  The Court of Military Appeals set aside some of the
findings of guilt and remanded the case for further proceedings.  A
rehearing on sentence was held on the remaining offenses, and
petitioner was sentenced to 14 months' confinement, dismissal from the
service, and forfeiture of all pay and allowances.  On further review,
the court of military review and the Court of Military Appeals both
affirmed.

   1. In May or June 1981, Airman Donna Ryan went to the Air Force
Office of Special Investigations (OSI).  Ryan was a member of the
security police squadron and had previously received administrative
punishment for driving while intoxicated (DWI).  Believing that she
was innocent of the DWI offense, Ryan went to the OSI for assistance.
Tr. 71.  While at the OSI office, Ryan was asked if she would assist
the OSI in an undercover capacity.  Ryan decided to do so in order to
prove that, despite the DWI incident, she was still "a good cop." Tr.
72.

   On June 17, Ryan, along with petitioner and several other female
military members, attended a softball game.  While sitting in the
bleachers, Ryan discussed her DWI incident with petitioner.
Petitioner told Ryan that the reason she had been punished for DWI was
because she was bisexual, which Ryan denied.  Later, petitioner
invited Ryan to go with her to a bar, and Ryan accepted.  Tr. 72.
Petitioner subsequently put her arm around Ryan, kissed her on the
neck, and said that she loved her.  Ryan pulled away from petitioner.
Tr. 73.

   On July 6, Ryan saw petitioner at another softball game.  Along
with Airman John Liles, they agreed to meet later at Ryan's dormitory
room.  Petitioner drove Ryan and Liles to several bars in the local
area.  While sitting in her car outside one bar, petitioner reached
into a compartment between the seats and pulled out some speckled
pills.  Petitioner told Ryan and Liles that the pills were "speed" and
passed them out.  Tr. 73, 74.  Petitioner and Liles each ingested one
and a half pills;  Ryan placed her pill into her pocket and later gave
it to the OSI.  Tr. 74.  The pill was tested and found to contain
caffeine.  Tr. 104-105;  PX 1.

   On July 9, Ryan and petitioner again met at the softball field
while petitioner was umpiring a game, and they later went for a ride
in petitioner's car.  Petitioner told Ryan that Airman Lynne Peelman
had come to her house one evening after breaking up with her
boyfriend.  According to petitioner, while she and Peelman were in the
basement petitioner kissed Peelman, Peelman responded, and they
ultimately engaged in intimate physical contact.  Tr. 75-76.

   On July 10, petitioner invited Ryan to her house for dinner, where
they were ultimately joined by Airman Liles.  During a tour of her
home, petitioner removed a zip-lock bag from beneath a dresser in her
bedroom.  Ryan estimated that the bag contained about an ounce of
marijuana.  Petitioner also pulled out a film canister containing the
same type of pills that she had previously given Ryan and Liles.
Petitioner gave Ryan and Liles two of the pills each.  Liles ingested
his pills, but Ryan placed hers in her pocket.  Tr. 76-77.  The pills
were later tested and found to contain caffeine.  Tr. 104-105;  PX 1.
Later that evening, petitioner and Peelman rolled and smoked four or
five marijuana cigarettes.  Ryan simulated smoking the cigarettes, as
she had been taught to do by the OSI.  Ryan retrieved three cigarette
remnants, which were tested and found to contain marijuana.  Tr.
77-78, 104-105;  PX 1.

   2. During the summer of 1981, petitioner and Peelman were notified
that they were under investigation, and Captain John Powers, the base
defense counsel, was informally assigned to them.  Captain Powers saw
petitioner and Peelman separately and formed an attorney-client
relationship with each of them.  Late in August or early in September,
Captain Powers learned that he was to be transferred;  he subsequently
introduced his replacement, Captain Raymond Smith, to petitioner and
Peelman.  Captain Smith then entered into an attorney-client
relationship with petitioner and Peelman.  Pet. App. 119.

   The investigation ultimately focused on petitioner.  On about
October 20, the base staff judge advocate met with Captain Smith
informally to discuss the possibility of granting Peelman use
immunity.  The base staff judge advocate told Captain Smith that he
would recommend to the convening authority that Peelman be given use
immunity, and he advised Smith to encourage Peelman to cooperate.
Smith and Powers discussed the matter and contacted their supervisor,
who decided that Smith should sever his attorney-client relationship
with petitioner.  Pet. App. 120-121.  Smith withdrew as petitioner's
counsel and a new attorney was assigned to petitioner on October 23,
id. at 121, the same day that petitioner was formally charged with all
of the narcotics offenses as well as the charge of conduct unbecoming
an officer.  Tr. 7-7.1.  Peelman was formally granted use immunity a
month later, on November 17.  Pet. App. 120-121.  Based on information
provided by Peelman, petitioner was charged with sodomy on December
31, 1981.  Tr. 8-8.1.

   Captain Smith thereafter represented Peelman, who testified against
petitioner at trial.  During the course of his representation, Smith
may have relied on information that he learned from petitioner in
formulating his advice for Peelman.  Pet. App. 121-122.

   3. On appeal, petitioner argued that Captain Smith labored under a
conflict of interest because before trial he represented both
petitioner and Peelman, who later became a prosecution witness.  The
court of military review rejected petitioner's argument, on the ground
that she was assigned a different attorney before any charges were
filed.  Pet. App. 111-113.  The Court of Military Appeals, however,
agreed with petitioner and held that Captain Smith's joint pretrial
representation of petitioner and Peelman was improper.  The court
reasoned that, due to his discussions with the base staff judge
advocate regarding immunity for Peelman and his subsequent
representation of Peelman, "Captain Smith played an important role in
producing the testimony of Airman Peelman" against petitioner at her
trial.  Id. at 128.  Accordingly, the court vacated the findings of
guilt "in which Peelman's testimony constituted either the only
evidence of (petitioner's) guilt or such strong evidence that we are
unable to conclude that (petitioner) was not prejudiced from Peelman's
testimony thereon." Id. at 132 n.6.  The court remanded the case to
the court of military review for it to determine whether the remaining
findings of guilt were also tainted.  Id. at 129.  /1/

   On remand, the court of military review found that the remaining
findings of guilt were not tainted.  The court held that the remaining
convictions could stand if the government could prove "that it '"had
an independent, legitimate source for the disputed evidence."'" Pet.
App. 138 (quoting United States v. Gardner, 18 M.J. 612, 615
(A.F.C.M.R. 1984), aff'd, 22 M.J. 28 (C.M.A. 1986), quoting in turn
Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 n.18 (1964)).  After
examining the record, the court determined that the government had
carried its burden.  Pet. App. 138-139.  It found that the proof of
petitioner's remaining convictions -- violating a military regulation
by transferring a substance that petitioner believed was amphetamine;
possessing and using marijuana;  and engaging in conduct unbecoming an
officer by making homosexual remarks to and advances toward a female
enlisted member -- was based entirely on the testimony of Airman Ryan
and the physical evidence that Ryan obtained.  Id. at 138.  Since that
"evidence was developed and known to the Government long before either
Captain Powers or Captain Smith * * * became involved in the case,"
id. at 138-139, the improper joint representation did not have any
"spillover" effect on the remaining convictions, id. at 139.  Because
some of petitioner's convictions had been reversed, however, the court
ordered a rehearing as to her sentence.  Id. at 140.  See id. at
141-148.

   Following the rehearing on sentence, the court of military review,
Pet. App. 149-155, and the Court of Military Appeals, id. at 156, both
affirmed the findings and sentence.

                               ARGUMENT

   Petitioner contends that she is entitled to dismissal of the
charges against her because Captain Smith improperly represented both
petitioner and Peelman for a brief period during the pretrial stage of
the case.  Relying on Cuyler v. Sullivan, 446 U.S. 335 (1980),
Holloway v. Arkansas, 435 U.S. 475 (1978), and Glasser v. United
States, 315 U.S. 60 (1942), petitioner contends that the military
appellate courts erred in undertaking to determine whether she was
prejudiced by that conflict of interest.  In her view, this Court's
decisions hold that once a defendant has shown that her counsel
suffered from a conflict of interest, the court may not inquire
whether a defendant was prejudiced.  Accordingly, petitioner submits,
the only remedy is to dismiss the charges against her.  The courts
below, however, correctly rejected petitioner's claim, and the unusual
facts of this case do not warrant review by this Court.

   Cuyler, Holloway, and Glasser are not controlling here.  In those
cases, a lawyer jointly represented at trial defendants charged with
identical criminal conduct whose interests conflicted.  This Court
held that in such cases the defendant is denied the assistance of
counsel in violation of the Sixth Amendment and is entitled to a new
trial at which he is represented by a lawyer who does not suffer from
divided loyalties.  Cf. Chapman v. California, 386 U.S. 18, 23 & n.8
(1967) (forcing a defendant to stand trial without counsel requires
reversal in every case).  In this case, however, Captain Smith did not
represent petitioner at trial.  Captain Smith withdrew as petitioner's
counsel once charges were filed against her, Pet. App. 121, and he did
not thereafter represent petitioner at any hearing in the case.  In
fact, the record shows that petitioner has been continuously
represented by her current lawyer from the pretrial Article 32 hearing
/2/ to date.  Accordingly, Cuyler, Holloway, and Glasser do not govern
this case.

   The inquiry undertaken by the military appellate court into the
question whether petitioner was prejudiced is consistent with well
settled authority in this Court.  For instance, this Court has long
held that the government's failure to provide a defendant with counsel
at a pretrial stage of a criminal case can be harmless error in an
appropriate case.  Rushen v. Spain, 464 U.S. 114, 117-118 n.2 (1983);
Moore v. Illinois, 434 U.S. 220, 232 (1977);  Coleman v. Alabama, 399
U.S. 1, 10-11 (1970).  See also Milton v. Wainwright, 407 U.S. 371
(1972);  Gilbert v. California, 388 U.S. 263, 272, 274 (1967);  United
States v. Wade, 388 U.S. 218, 242 (1967).  Compare White v. Maryland,
373 U.S. 59, 60 (1963) (reversal required in a capital case where
defendant's unaccepted guilty plea entered at arraignment in the
absence of counsel was later introduced against him at trial);
Hamilton v. Alabama, 368 U.S. 52, 54-55 (1961) (reversal required in a
capital case where the defendant forfeited the right to enter an
insanity plea at arraignment, where he lacked counsel).  Moreover, the
Court has held that the Sixth Amendment is not violated if a
government informant meets with a defendant and his counsel before
trial, as long as the government does not make use of privileged
information in preparing and presenting its case at trial.
Weatherford v. Bursey, 429 U.S. 545, 551-559 (1977).  Cf. Hoffa v.
United States, 385 U.S. 293, 308-309 (1966).  The military appellate
courts were therefore correct in ruling that not every Sixth Amendment
violation requires a judgment of conviction to be set aside, much less
dismissal of the charges against the accused.  /3/

   This Court's decision in United States v. Morrison, 449 U.S. 361
(1981), is instructive on the correct inquiry in a case like this one.
 In that case, after the defendant was indicted and had retained
counsel, federal narcotics agents conversed with the defendant in the
absence of her attorney and sought to persuade her to retain a new
lawyer.  The Court held that the agents' conduct, although improper,
did not require a dismissal of the indictment, because the defendant
was not prejudiced by the agents' conduct.  The Court reasoned that
"(c)ases involving Sixth Amendment deprivations are subject to the
general rule that remedies should be tailored to the injury suffered
from the constitutional violation and should not necessarily infringe
on competing interests." 449 U.S. at 364.  After canvassing its
earlier Sixth Amendment decisions, the Court noted that "when before
trial but after the institution of adversary proceedings, the
prosecution has improperly obtained incriminating information from the
defendant in the absence of his counsel, the remedy characteristically
imposed is not to dismiss the indictment but to suppress the evidence
or to order a new trial if the evidence has been wrongfully admitted
and the defendant convicted." Id. at 365 (citing Gilbert, supra;
Wade, supra;  and Massiah v. United States, 377 U.S. 201 (1964)).  As
the Court summarized, "(o)ur approach has thus been to identify and
then neutralize the taint by tailoring relief appropriate in the
circumstances to assure the defendant the effective assistance of
counsel and a fair trial." 449 U.S. at 365.

   The military appellate courts correctly followed that approach in
this case.  The Court of Military Appeals found that Captain Smith's
joint pretrial representation of petitioner and Peelman injured
petitioner because he "played an important role in producing
(Peelman's) testimony" against petitioner at trial.  Pet. App. 128.
Accordingly, the Court of Military Appeals vacated petitioner's
convictions on all the charges that were based entirely on Peelman's
testimony, or in which Peelman's testimony provided "strong evidence"
of petitioner's guilt, Pet. App. 132 n.6, and the court of military
review dismissed those charges on remand, id. at 137, 140.  That
action left standing only petitioner's convictions on the three
charges originally filed against her before Peelman was granted use
immunity.  In order to determine whether petitioner was also entitled
to relief on those charges, the Court of Military Appeals directed the
court of military review on remand to determine whether Peelman's
testimony had any "spillover" effect on those counts.  In undertaking
that inquiry, the court of military review required the government to
prove that it had "an independent, legitimate source for the disputed
evidence," id. at 138, which is the same burden that the government
must carry under Kastigar v. United States, 406 U.S. 441, 460 (1972),
to show that it has not made improper use of testimony given by a
defendant under a grant of use immunity.  /4/ Given the nature of the
Sixth Amendment violation that the Court of Military Appeals found in
this case, the Kastigar standard is an appropriate one to determine
whether petitioner was denied the effective assistance of counsel or a
fair trial.  Cf. Weatherford v. Bursey, 429 U.S. at 550-559.  In sum,
the military appellate courts undertook precisely the inquiry
contemplated by this Court's precedents and crafted a remedy that
neutralized the adverse effect on petitioner from Captain Smith's
conflict of interest.

   The only remaining question is whether the government satisfied the
Kastigar standard in this case.  The court of military review twice
found that the government carried its burden, since the offenses of
which petitioner now stands convicted were all based upon information
and physical evidence that Airman Ryan gave to the OSI in June and
July 1981, well before Captain Smith became petitioner's lawyer.  Pet.
App. 138-139 (remand decision), 154-155 (decision on appeal following
resentencing).  /5/ The Court of Military Appeals did not disturb
those findings.  Petitioner does not argue that the government's proof
of the amphetamine, marijuana, and conduct-unbecoming-an-officer
charges were based on Peelman's testimony.  In fact, petitioner
concedes that Ryan supplied the proof for those charges.  Pet. 6.
Under these circumstances, further review of petitioner's claims is
not warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOE R. LAMPORT

      Col., OJAG, USAF

   ROBERT E. GIOVAGNONI

      Col., OJAG, USAF

   MORRIS D. DAVIS

      Capt., OJAG, USAF Appellate Government Counsel Government Trial
      and Appellate Division

   JANUARY 1990

   /1/ The courts of military review have independent fact-finding
authority under Article 66(c) of the UCMJ, 10 U.S.C. 866(c), which the
Court of Military Appeals does not have under Article 67, 10 U.S.C.
867.

   /2/ Article 32 of the UCMJ, 10 U.S.C. 832, requires an impartial
officer to investigate the factual basis for a charge before it may be
referred to a general court-martial.  An Article 32 hearing is similar
to the type of preliminary hearing that is held in the civilian courts
to determine whether there is probable cause to believe that the
accused has committed a crime.

   /3/ It is not clear that petitioner can even assert a claim under
the Sixth Amendment, since she had not been charged with a crime at
the time that Captain Smith discussed the subject of use immunity for
Peelman with the base staff judge advocate.  See Moran v. Burbine, 475
U.S. 412, 428-431 (1986), and United States v. Gouveia, 467 U.S. 180,
187 (1984) (a defendant's Sixth Amendment right to counsel attaches
"only at or after the initiation of adversary judicial proceedings
against" him);  United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A.
1985), cert. denied, 477 U.S. 904 (1986) (in the military a
defendant's right to counsel does not attach until the preferral of
charges against him).  Petitioner's claim is therefore more properly
characterized as a due process claim, and under a due process analysis
it is clear that automatic reversal is not required.

   /4/ Although the court of military review did not cite Kastigar in
its opinion in this case, the court of military review clearly applied
the Kastigar standard.  The court quoted the correct standard, Pet.
App. 138, it expressly drew "an analogy between the situation at bar
and the Government's ability to establish that it made no improper use
of an accused's immunized testimony," id. at 137, and it cited the
decisions in United States v. Lucas, 25 M.J. 9 (C.M.A. 1987), cert.
denied, 484 U.S. 1027 (1988), and United States v. Gardner, 18 M.J. at
615, which discussed Kastigar.

   /5/ The court of military review, exercising its independent
fact-finding power, found that there was no spillover of tainted
evidence from the dismissed allegations to those remaining.  Pet. App.
139.