STANLEY SIMON, PETITIONER V. UNITED STATES OF AMERICA

   MARIO BIAGGI, PETITIONER V. UNITED STATES OF AMERICA

   RICHARD BIAGGI, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-785, No. 90-931, No. 90-937

   In The Supreme Court Of The United States

   October Term, 1990

   On Petitions 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
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 36-142) /1/ is
reported at 909 F.2d 662.  The opinions of the district court denying
petitioner Simon's motions for severance and mistrial (Pet. App.
145-184, 185-221) are reported at 672 F. Supp. 112 and 705 F. Supp.
852.  Other district court opinions are reported at 674 F. Supp. 1034,
675 F. Supp. 790, and 705 F. Supp. 790, 830, 848, 864, and 867.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 29, 1990.
A petition for rehearing in No. 90-785 was denied on July 30, 1990.
Pet. App. 143-144.  A petition for rehearing in No. 90-931 was denied
on September 10, 1990.  90-931 Pet. App. 71a-73a.  The petition for a
writ of certiorari in No. 90-785 was filed on October 29, 1990.  The
petitions for a writ of certiorari in No. 90-931 and No. 90-937 were
both filed on December 10, 1990 (a Monday).  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether two counts charging petitioner Simon with extortion and
tax evasion were properly joined with other counts in the indictment.

   2. Whether there was a disparity between the allegations in the
indictment and the proof at trial concerning the date of an
extortionate demand by petitioner Simon that constituted an
impermissible amendment of the indictment.

   3. Whether the court of appeals was correct in concluding that the
erroneous inclusion of certain language in the jury instruction on
extortion did not prejudice petitioner Simon.

   4. Whether the district court properly denied petitioner Simon's
motion for a new trial, which was based on new evidence suggesting
that a government witness had understated the extent of his admitted
tax evasion.

   5. Whether the district court properly denied petitioner Mario
Biaggi's request for the discovery of certain documents and the
issuance of certain trial subpoenas.

   6. Whether the district court correctly excluded evidence of
petitioner Mario Biaggi's state of mind, after Biaggi withdrew the
proffer of evidence.

   7. Whether the district court properly found that the government
made no use of immunized testimony given by petitioner Richard Biaggi
before a state grand jury.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of New York, petitioners and three others were
convicted on various charges arising out of the affairs of the Wedtech
Corporation, a manufacturing company that received defense contracts.
Petitioners Mario Biaggi and Stanley Simon were each convicted of
participating in and conspiring to participate in the affairs of the
Welbilt Electronic Die Corporation (later known as the Wedtech
Corporation) through a pattern of racketeering activity, in violation
of 18 U.S.C. 1962(c) and (d) (Counts 1 and 2).  Mario Biaggi was also
convicted on two counts of extortion, in violation of 18 U.S.C. 1951
(Counts 3 and 10), two counts of bribery, in violation of 18 U.S.C.
201(c) (1982) (Counts 4 and 11), one count of receiving a gratuity, in
violation of 18 U.S.C. 201(g) (1982) (Count 5), two counts of mail
fraud, in violation of 18 U.S.C. 1341 (Counts 6 and 12), three counts
of making false statements, in violation of 18 U.S.C. 1001 (Counts 7,
8, and 9), two counts of filing false tax returns, in violation of 26
U.S.C. 7206(1) (Counts 14 and 15), and one count of perjury, in
violation of 18 U.S.C. 1623 (Count 18).  Simon was also convicted on
three counts of extortion (Counts 19-21), one count of perjury (Count
22), and one count of tax evasion (Count 23).  Petitioner Richard
Biaggi was convicted on one count each of aiding and abetting bribery
(Count 4), receiving a gratuity (Count 5), and mail fraud (Count 6),
and on two counts of filing false tax returns (Counts 16 and 17).

   Mario Biaggi was sentenced to a total of eight years' imprisonment
and a $242,000 fine.  Simon was sentenced to a total of five years'
imprisonment and a $70,000 fine.  Richard Biaggi was sentenced to a
total of two years' imprisonment and a $71,000 fine.  Pursuant to
agreements between the government and certain of the defendants, the
district court also entered judgments of forfeiture for $350,000
against Mario Biaggi and $25,000 against Simon.  The court of appeals
affirmed on all the counts on which Mario Biaggi and Simon were
convicted;  it reversed Richard Biaggi's convictions on Counts 4, 5,
and 6 and dismissed those counts;  and it remanded the remaining
counts against Richard Biaggi for resentencing.  Pet. App. 142;  Gov't
C.A. Br. 256-263.  /2/

   1. The evidence adduced at trial, the sufficiency of which is not
now in dispute, is summarized in the opinion of the court of appeals.
It established that the company later known as Wedtech was a small
sheet metal fabricating company located in the South Bronx area of New
York City.  It was founded by petitioners' co-defendant John Mariotta,
who is of Puerto Rican descent.  In 1975, Wedtech was accepted into
the Small Business Administration's "Section 8(a)" program, under
which minority-owned businesses are eligible for government contracts
without competitive bidding.  Pet. App. 59.

   In 1978, petitioner Mario Biaggi, then a congressman from the
Bronx, met Mariotta and Fred Neuberger, a co-owner of Wedtech.  Biaggi
was at that time a partner in the law firm of Biaggi & Ehrlich, which
was retained by Wedtech for an annual retainer of $20,000.  The
retainer was later increased in stages to $150,000.  Biaggi withdrew
as a member of the law firm in 1979, after the House of
Representatives adopted a rule limiting its members' outside income.
The law firm bought Biaggi's interest in the firm for $320,000,
payable over ten years;  he remained in an "of counsel" relationship
to the firm.  Biaggi's son, petitioner Richard Biaggi, became a
partner in the firm in 1983.  Pet. App. 59-60.

   Starting in 1978, Mario Biaggi contacted various government
officials on behalf of Wedtech, urging that Wedtech be awarded defense
contracts through the SBA's Section 8(a) program and loans from the
Economic Development Administration.  Wedtech also benefited from the
services of attorney E. Robert Wallach (who frequently contacted White
House official Edwin Meese on Wedtech's behalf), former White House
assistant Lyn Nofziger, and other Washington lobbyists.  Pet. App. 60.

   In 1982, Wedtech was awarded a $27 million contract to make small
engines for the Army, and in 1984 Wedtech was awarded a $24 million
contract to make pontoons for the Navy.  Despite these contracts,
Wedtech experienced serious financial difficulties and filed for
bankruptcy at the end of 1986.  Pet. App. 60-61.

   The evidence against petitioners and their co-defendants came
primarily from four Wedtech officials, Fred Neuberger, Mario Moreno,
Lawrence Shorten, and Anthony Guariglia, who all pleaded guilty to
various offenses arising from their own activities at Wedtech and who
testified pursuant to grants of use immunity.  Pet. App. 61.  The
court of appeals grouped the evidence into six categories, four of
which are particularly relevant to petitioners' convictions:  (1) the
five percent stock interest;  (2) the $50,000 Loop Drive payment;  (3)
the benefits to Simon;  and (4) the Section 8(a) fraud.  /3/

   a. The Five Percent Stock Interest.  In 1983, Wedtech made a public
offering of its stock.  At that time, the company issued two and
one-half percent of its stock to Bernard Ehrlich and an equal
percentage to Richard Biaggi.  The government's evidence showed that
Richard was given his shares as a nominee for his father, that the
total five percent stock interest was paid to influence Congressman
Biaggi to use the power of his office to help secure government
contracts for Wedtech, and that the payment was made in response to an
extortionate demand by Congressman Biaggi, aided by Ehrlich.  Both
Ehrlich and Richard Biaggi later sold about one-third of their stock,
each realizing more than $600,000.  Pet. App. 61-62;  Gov't C.A. Br.
19-20, 24-27.  /4/

   b. The $50,000 Loop Drive Payment.  After Wedtech obtained the
contract to make pontoons for the Navy, it needed a waterside property
for testing the vessels.  The company identified a site known as One
Loop Drive in the Bronx, a property owned by the city of New York.  In
order to obtain a lease from the city, Ehrlich sought the help of
petitioner Stanley Simon, then the Bronx Borough President and a
member of the Board of Estimate, which was responsible for approving
city leases.  Simon arranged for Wedtech officials to meet with the
appropriate city official, and Ehrlich negotiated a three-year lease
for Wedtech at a price well below what the city had originally
requested.  After the lease was negotiated, in June 1984, it had to be
approved by the Board of Estimate.  Wedtech needed prompt approval in
order to satisfy the terms of its contract with the Navy, but the
matter failed to pass at the Board's June 13 meeting and was deferred
until the July meeting.  Mario Biaggi called Simon and demanded his
assistance in having the lease approved at the next meeting.  The
Board approved the lease at its July 12 meeting.  Pet. App. 62-63;
Gov't C.A. Br. 33-34.

   On July 13, Wedtech paid Ehrlich's law firm $50,000 for "Ports and
terminal matter.  Services rendered June 1984." The evidence supported
the conclusion that the $50,000 was a bribe to Mario Biaggi to induce
him to use his official position to secure approval for the Loop Drive
Lease, and a payment in response to extortionate demands by Mario
Biaggi.  Pet. App. 63-64, 99-102.

   c. Benefits to Simon.  Neuberger testified that, at a benefit
function at the Yonkers racetrack, Simon made an extortionate demand
for $50,000 in connection with the Loop Drive lease.  Simon told
Neuberger that he needed help with his reelection campaign, and that
he expected $75,000 or $100,000.  Neuberger objected that it was
illegal for a corporation to make a campaign contribution.  Simon
suggested making the payment in the form of donations to various
charitable organizations and "some other expenses." They agreed on a
figure of $50,000.  /5/ Neuberger then gave instructions to a Wedtech
employee to release a total of $50,000 from a Wedtech account for
purposes that Simon would later indicate to her.  Ultimately, the
major expenditures were $20,000 in charitable contributions to two
synagogues, $10,000 as a political contribution to "Friends of Simon,"
and $10,000 in cash.  The Wedtech employee gave the $10,000 in cash in
a sealed envelope to Ralph Lawrence, Simon's assistant in the Bronx
Borough President's office, and Lawrence gave the unopened envelope to
Simon.  Pet. App. 64-66;  Gov't C.A. Br. 34.

   Simon received three other unlawful benefits, one of which was paid
by Wedtech.  First, after Ehrlich told Moreno that Simon wanted
Wedtech to hire Henry Bittman, Simon's brother-in-law, Wedtech hired
Bittman as a payroll clerk and eventually raised his salary to
$35,000.  Wedtech employees testified that Bittman's work was
unsatisfactory but that he was kept on the payroll because of a
promise to Simon.  Pet. App. 67;  Gov't C.A. Br. 14, 35.  Second,
after Simon's assistant Ralph Lawrence received a salary increase,
Simon demanded one-half of all of Lawrence's subsequent salary
increases as a kickback.  Over the next three and one-half years, as
Lawrence's salary rose to approximately $52,000, he provided half of
his salary increases to Simon, for a total of about $14,000, in the
form of cash, goods, and services.  Pet. App. 68;  Gov't C.A. Br. 43.
Third, after Simon introduced Sabino Fogliano, a Bronx contractor, to
various New York City officials, Fogliano complied with Simon's
request to supply approximately $9,000 worth of marble and tile work
for Simon's home.  Fogliano never billed Simon for the work because he
knew he would not be paid.  Pet. App. 69;  Gov't C.A. Br. 44-45.

   d. The Section 8(a) Fraud.  A company qualifies for the SBA's
Section 8(a) program if it is at least 51 percent owned by "one or
more socially and economically disadvantaged individuals" (15 U.S.C.
637(a)(4)(A)(i)(I)), a category that includes Hispanic Americans (15
U.S.C. 637(a)(5);  13 C.F.R. 124.105(b)).  Pet. App. 70.  Mariotta,
who is of Puerto Rican descent, and his partner Neuberger sought to
qualify Wedtech for the Section 8(a) program.  To do so, they created
false documents to make it appear that Mariotta owned two-thirds of
Wedtech's stock, although in fact each of the two men owned half.
Pet. App. 70;  Gov't C.A. Br. 10.

   When Wedtech became a public corporation, Mariotta and other
individuals (including Mario Biaggi) devised fraudulent stock purchase
agreements to make it appear that Mariotta retained an ownership
interest of over 50 percent in the company.  Insiders who had received
stock purported to assign their interests to Mariotta, who was
obligated to pay for the shares over a ten-year period;  upon
Mariotta's failure to pay, the shares would revert to the insiders.
Mariotta verbally agreed not to make the payments, thereby ensuring
that the insiders would retain their interests in the company.  Pet.
App. 70-71, 111-112, 126-127;  Gov't C.A. Br. 28-31.

   2. The court of appeals addressed a broad range of claims raised by
petitioners and their co-defendants.  Pet. App. 36-142.  The court
rejected Simon's claims that two counts were misjoined (id. at 75-79);
 that the indictment was constructively amended at trial with respect
to the $50,000 extortion from Wedtech (id. at 115 n.10);  and that the
district court's extortion instruction required reversal (id. at
133-138).  The court also considered and rejected Mario Biaggi's
claims that he was unfairly denied discovery of certain documents and
the issuance of certain trial subpoenas (id. at 131-133) and that he
was erroneously denied permission to introduce state of mind evidence
regarding the issuance of Wedtech shares to Richard Biaggi (id. at
129-131).  Finally, the court considered and rejected Richard Biaggi's
claim that he was entitled to a hearing concerning the claimed use of
immunized testimony that he had given to a state grand jury.  Id. at
115-119.

                               ARGUMENT

   1. Petitioner Simon maintains (90-785 Pet. 12-20) that two counts
against him, Counts 21 and 23, were improperly joined with the other
counts.  Count 21 charged Simon with extorting from Ralph Lawrence,
his assistant in the Bronx Borough President's office, half of
Lawrence's salary increases.  Count 23 charged Simon with tax evasion
for the year 1985, based on his failure to report the $50,000 in
benefits from Wedtech, the salary kickbacks from Lawrence, and the
$9,000 of tilework from Sabino Fogliano.

   The district court originally denied Simon's severance motion (Pet.
App. 180-183) on the authority of Rule 8(a) of the Federal Rules of
Criminal Procedure, which provides that two or more offenses may be
joined if the offenses "are of the same or similar character or are
based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common
scheme or plan." During the trial of this case, the court of appeals
decided United States v. Turoff, 853 F.2d 1037 (2d Cir. 1988), holding
that, if a misjoinder claim is made based on multiple defendants and
multiple offenses, it should be analyzed under Rule 8(b), which
governs joinder of defendants.  /6/ Simon then moved for a mistrial,
reasserting his misjoinder claim.  The district court denied the
motion.  Pet. App. 185-221.  It determined that, even after Turoff,
Rule 8(a) remains the appropriate provision when, as here, a defendant
in a multiple-defendant case objects to joinder of counts in which he
alone is charged.  Pet. App. 191-195.  But the court also specifically
decided that, even if Rule 8(b) were applicable, joinder was proper.
Pet. App. 191, 197, 217-221.

   Without resolving the question whether Rule 8(a) might properly
apply in these circumstances, the court of appeals agreed with the
district court that joinder was proper even under Rule 8(b).  Pet.
App. 75-78.  Petitioner's objection thus does not go to the proper
legal standard;  rather, it goes only to the application of Rule 8(b)
to the facts of this case.  This case-specific application of the Rule
does not warrant review.

   In any event, the courts below were correct in their application of
the Rule.  With regard to Count 21, although Simon's extortion of
Lawrence involved a different victim, the extortion of Lawrence and
the extortion of Wedtech were part of the "same series of acts or
transactions." Fed. R. Crim. P. 8(b).  As the court of appeals
explained, Simon used Lawrence as the means of obtaining benefits from
Wedtech (particularly the $10,000 payment), and "(p)roof of one scheme
was helpful to a full understanding of the other." Pet. App. 77;  see
also id. at 214-221.  Thus there was a sufficient relatedness of facts
and participants to fulfill the "same series" requirement of Rule
8(b).  United States v. Attanasio, 870 F.2d 809, 814-815 (2d Cir.
1989);  United States v. Turoff, 853 F.2d at 1044.

   With regard to Count 23, the core of the tax count concerned the
unreported income extorted from Wedtech and from Lawrence.  Pet. App.
78, 197.  As to those sources, joinder was clearly appropriate.  See
United States v. Turoff, 853 F.2d at 1043 ("The most direct link
possible between non-tax crimes and tax fraud is that funds derived
from nontax violations either are or produce the unreported income.");
 United States v. Coppola, 788 F.2d 303, 306-307 (5th Cir. 1986);
United States v. Kenny, 645 F.2d 1323, 1344 (9th Cir.), cert. denied,
452 U.S. 920 (1981).  As the court of appeals observed, moreover,
since a tax count deals with all taxes evaded on a single year's
income, it also was not error to join the tax count simply because it
included the "relatively small amount of income from the unrelated
transaction involving Fogliano." Pet. App. 78.  Accordingly, Simon's
motion for a severance was properly denied.

   2. Petitioner Simon also contends (90-785 Pet. 30-34) that the
proof at trial concerning his extortion of Wedtech produced an
impermissible amendment of the indictment.  His claim relates
exclusively to the date on which he made an extortionate demand of
Wedtech official Neuberger for $50,000 in exchange for Simon's
influence on behalf of the Loop Drive lease.  Count 1 alleged that
Simon's demand for $50,000 occurred "(i)n or about mid-1984." C.A.
App. A155.  Count 1 also alleged, in Racketeering Act 4, that Simon
extorted the money "(b)eginning in or about mid-1984 and continuing up
to and including early 1986." C.A. App. A166.  Count 19, the
substantive extortion count concerning the $50,000, similarly alleged
that the extortion occurred "(b)eginning in or about mid-1984 and
continuing up to and including early 1986." C.A. App. A196.  Although
Neuberger testified that Simon first made the extortionate demand at
the Yonkers Raceway in June 1984, the government ultimately
acknowledged, on the basis of other evidence, that the Yonkers
racetrack meeting "probably" occurred in November 1984.  See note 5,
supra.  Simon argues that the government thereby constructively
amended the indictment, in violation of the Fifth Amendment.  The
court of appeals correctly rejected this argument.

   As the court of appeals concluded (Pet. App. 115 n.10), the
evidence that the demand was made in November did not reflect a
modification of an essential element of the offense, and thus did not
amount to an amendment of the indictment.  See United States v.
Miller, 471 U.S. 130, 136, 138-140 (1985);  United States v.
Attanasio, 870 F.2d at 817;  United States v. Begnaud, 783 F.2d 144,
147 & n.4 (8th Cir. 1986);  United States v. Weiss, 752 F.2d 777, 787
(2d Cir.), cert. denied, 474 U.S. 944 (1985).  Simon was convicted of
the offense charged in the indictment, extortion under color of
official right.  The evidence showed the participants, the victim, and
the nature of the extortionate scheme to be precisely those charged in
the indictment.  Although there was a difference between Neuberger's
testimony and the defense evidence regarding the date of the meeting
between Neuberger and Simon, the date on which an extortion occurs is
not an essential element of a federal extortion offense.  See United
States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988), cert. denied,
489 U.S. 1088 (1989);  United States v. Heimann, 705 F.2d 662, 665-666
(2d Cir. 1983).  /7/

   As the court of appeals concluded, the discrepancy in the proof
regarding the date of Simon's demand did not result in an amendment of
the indictment.  Pet. App. 115 n.10.  Indeed, the language of the
indictment, alleging that the extortion took place "in or about
mid-1984," and that it continued into 1986, was broad enough to cover
an initial demand occurring either in June or November 1984.  Although
the evidence showed that the date of the offense was probably later
than the government witness recalled, there was no doubt as to the
nature of the offense charged, and Simon could not have been misled as
to the nature of the charge against him as a result of the confusion
as to the date of the meeting.  Petitioner's claim thus is not
meritorious.  United States v. Attanasio, 870 F.2d at 817;  United
States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.), cert. denied, 484
U.S. 957 (1987);  United States v. Heimann, 705 F.2d at 666-667.

   3. Petitioner Simon further contends (90-785 Pet. 20-24) that the
district court erred in that portion of the jury instructions in which
it explained the "inducement" element of extortion.  Simon argues that
that portion of the charge permitted the jury to infer inducement from
the receipt of entirely lawful campaign contributions.

   The charge at issue was as follows (Pet. App. 133):

      (I)f the defendant repeatedly accepted money or benefits from
      representatives of Wedtech, and if the amount of money or
      benefits accepted could reasonably have affected the defendant's
      exercise of his duties, then you may find defendant induced the
      payment of money.

The court of appeals found this language erroneous in the context of
this case, explaining why it was inappropriate here, despite the fact
that the same language had been approved in another case, United
States v. O'Grady, 742 F.2d 682, 694-695 (2d Cir. 1984) (en banc)
(concurring opinions) (Pet. App. 135):

         The O'Grady standard, permitting an inference of inducement
      from repeated acceptance of substantial benefits, makes sense as
      applied to an appointed official who has no lawful basis for
      receiving cash or other benefits from those conducting business
      with his agency. It does not apply, however, to an elected
      official who may lawfully receive campaign contributions.
      Permitting an inference of inducement from an elected official's
      repeated acceptance of substantial benefits would subject every
      recipient of campaign contributions to conviction for extortion.

   The court went on, however, to hold that the instructional error
did not require the reversal of Simon's conviction, because "(t)here
was no issue put to the jury in Simon's case as to whether any payment
was a lawful political contribution or an unlawful extortion or
bribe." Pet. App. 137.  As the court explained, neither the
prosecution nor Simon contended that the Lawrence kickbacks or the job
for Bittman were campaign contributions.  Ibid.  To be sure, the
government contended that the $50,000 Simon demanded at the Yonkers
Raceway was a campaign contribution that Simon extorted.  Simon's
defense, however, was not that the payment was a lawful contribution
but rather that the demand was never made and the money never received
on his behalf.  Id. at 137-138.  Furthermore, the court noted, the
entire instruction on extortion included language that required a
finding that the defendant had acted "unlawfully" and language that
defined extortion under color of right as the "misue" of public
office.  Pet. App. 138;  see Gov't C.A. framed by the parties'
contentions, these passages of the jury charge provide adequate
assurance that Simon suffered no prejudice by the erroneous inclusion
of the 'pattern of benefits' language from O'Grady." Pet. App. 138.
The court of appeals was therefore correct in determining that, on the
facts of this case and in the overall context of the jury
instructions, the challenged portion of the charge does not require
reversal.  /8/

   4. Petitioner Simon claims (90-785 Pet. 24-29) that the district
court erred in denying without a hearing his motion for a new trial,
which was based on a claim of new evidence concerning government
witness Sabino Fogliano.  This contention is insubstantial.

   The newly discovered evidence advanced in support of Simon's new
trial motion was that, although Fogliano testified about his own tax
evasion and admitted that he had failed to report $600,000 to $800,000
over several years, the full extent of his actual tax evasion was not
revealed.  After the conclusion of the trial in this case, Fogliano
pleaded guilty in New York State court to charges of evading income
taxes of $8.5 million.  Pet. App. 69-70.  Simon argues from this fact
that Fogliano lied on the witness stand, that the federal prosecutors
probably knew of his perjury, and that, had the jury known the full
extent of Fogliano's tax evasion, it may have discounted his testimony
and acquitted Simon.

   The general standard for granting a new trial based on newly
discovered evidence is that the new evidence would probably lead to an
acquittal.  United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985);
 United States v. Gonzalez, 748 F.2d 74, 77 (2d Cir. 1984);  United
States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981), cert. denied, 456
U.S. 946 (1982).  If the new trial motion is based on the use of
perjured testimony, however, and the government knew or should have
known of the perjury, then a new trial should be granted "if there is
any reasonable likelihood that the false testimony could have affected
the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103
(1976);  United States v. Petrillo, 821 F.2d 85, 88 (2d Cir. 1987).

   The district court in this case found that petitioner's motion
failed under either of these standards.  705 F. Supp. at 864, 865-866.
 The court observed that the government had notified the defense that
Fogliano was a tax evader before trial, that the government brought
out Folgiano's tax evasion and the ongoing state investigation on
direct examination, and that the defense pursued the tax evasion on
cross-examination.  Id. at 866.  The jury thus clearly knew that
Fogliano was a tax evader, and that his crime involved a substantial
amount of money.  The district court concluded (ibid.):

      It is disingenuous to suggest that had the jury known Fogliano
      was a bigger tax evader than he was made out to be they would
      have acquitted Simon of the charges against him.  Such evidence,
      had it been adduced at trial, would have been merely
      "'additional evidence tending further to impeach the credibility
      of a witness whose character had already been shown to be
      questionable;' it could hardly have transformed the jury's image
      of (the government's witness) from paragon to knave."

   The new evidence was cumulative and related only to the impeachment
of the witness, rather than to Simon's guilt or innocence.  Moreover,
there was abundant independent evidence, apart from the testimony of
Fogliano, that supported Simon's conviction.  Gov't C.A. Br. 204-205.
The district court was therefore correct in finding that the new
evidence did not warrant a new trial under either standard.  /9/

   5. Petitioner Mario Biaggi claims (90-931 Pet. 25-31) that the
district court's refusal to order the production of certain documents
and the issuance of certain trial subpoenas precluded him from
presenting his defense.  He sought to subpoena several government
officials, including Edwin Meese, who had been a White House official
at the time Wedtech was awarded its major government contracts, and he
sought to obtain documents that would show the involvement of Meese
and other officials in obtaining contracts for Wedtech.  The "Meese
defense" was designed to show that Wedtech already had the aid of
senior Republican Executive Branch officials and therefore had no need
to bribe a Democratic congressman.  Pet. App. 131-133.

   The short answer to this contention is that, as the court of
appeals explained, petitioner was allowed ample opportunity to present
this defense to the jury.  The district court's refusal to order
production of the requested documents and testimony was well within
its discretion to prevent the expansion of an already lengthy trial
into cumulative and irrelevant matters.  Pet. App. 132.  See also 705
F. Supp. at 849.  The court of appeals pointed out that the defense
was able to establish through the four cooperating witnesses "the
considerable role played by Meese in assisting Wedtech in its dealings
with the Executive Branch and the substantial payments made to Meese's
advisor, lawyer/lobbyist E. Robert Wallach, who received $800,000 and
one percent of Wedtech's stock for exercising his influence with
Meese." Pet. App. 132.  The court of appeals also noted that the
prosecution never disputed the allegations of Meese's involvement on
behalf of Wedtech.  The prosecution argued that Wedtech had unlawfully
sought to influence numerous people in both the Executive and
Legislative Branches.  Id. at 132-133.  As the district court
repeatedly observed, the documents and testimony sought to be
compelled by petitioner would at most implicate others in the unlawful
dealings with Wedtech;  they would not exonerate petitioner.  See,
e.g., 675 F. Supp. at 811;  674 F. Supp. at 1036-1037.

   The handling of discovery requests is generally committed to the
discretion of the district court.  The record in this case
demonstrates that the court did not abuse that discretion in making
its rulings and that petitioner suffered no prejudice to his
substantial rights.  See United States v. Paiz, 905 F.2d 1014, 1027
(7th Cir. 1990);  United States v. Balk, 706 F.2d 1056, 1059-1060 (9th
Cir. 1983).

   6. Petitioner Mario Biaggi also claims error (90-931 Pet. 18-24) in
the district court's exclusion of evidence that he asserts would have
shown his belief that the Wedtech stock that was issued to his son was
in fact his son's property.  Specifically, Mario Biaggi proffered the
testimony of his daughter-in-law, Richard's wife, that on one occasion
Richard offered to use part of the proceeds from sale of the shares of
stock to repay a loan from his father.  At another time, Richard
purportedly offered to make a gift to his father of ten percent of the
shares;  his father initially declined the offer and agreed to accept
the gift only if his accountants could assure him such a transfer
would be lawful.  Pet. App. 129-130;  Gov't C.A. Br. 144.

   Mario Biaggi argues that the district court's refusal to allow this
testimony deprived him of critical defense evidence;  he further
argues that the court of appeals departed from its own precedents
allowing such state-of-mind evidence when it affirmed the district
court's ruling.  In fact, as the court of appeals made clear,
petitioner himself withdrew his proffer of this evidence, making a
tactical decision not to introduce it once he realized that it would
open the door to the prosecution's rebuttal evidence showing other
occasions on which Biaggi had used his children to mask his own
improper transactions.  Pet. App. 130.  Contrary to petitioner's
contention (90-931 Pet. 19 n.3), the record is clear that he disavowed
any intention to introduce the evidence.  See Gov't C.A. Br. 147-152.
As the court of appeals concluded, "(h)aving elected, for
understandable tactical reasons, not to press for admission of the
evidence to show the Congressman's state of mind, Biaggi cannot
complain on appeal about the consequences of his decision." Pet. App.
131.

   7. Finally, petitioner Richard Biaggi contends (90-937 Pet. 11-15)
that it was error for the district court to find, without holding a
so-called Kastigar hearing (Kastigar v. United States, 406 U.S. 441
(1972)), that the government had adequately shown that it did not use
the testimony Richard Biaggi gave to a New York state grand jury under
a grant of immunity.  This claim is incorrect.

   The district court explained in a post-trial opinion that it had
earlier decided to postpone the Kastigar hearing until after trial.
After trial, however, the court concluded that the trial had obviated
the need for such a hearing.  After reviewing Richard Biaggi's
immunized grand jury testimony and the trial record, the court found
it to be clear that the government's case "was obtained from sources
wholly independent of * * * Richard Biaggi's grand jury testimony."
705 F. Supp. at 867.  In a thorough discussion of the issue, the court
of appeals agreed with the district court that review of the immunized
testimony and the trial record fully demonstrated that the government
had made no use of Richard Biaggi's immunized testimony.  The court
emphasized that the charges in this case did not even relate to the
immunized testimony.  Pet. App. 115-119.  No further review of this
essentially factual determination is warranted.

   As the court of appeals explained, Richard Biaggi's immunized
testimony in the state grand jury concerned two episodes of bribery,
both involving payments through a company called Portatech, to a
General Castellano in the New York National Guard and to Bernard
Ehrlich, who was also a general in the National Guard.  The charges in
this case did not concern the Portatech bribes.  Indeed, there was
only one brief reference to Castellano in the government's case
(described by the court of appeals as "fleeting and inconsequential"),
and that reference did not concern any attempt to bribe Castellano.
Pet. App. 116-117.  Additionally, the government used one Portatech
document in its case (to cross-examine Richard Biaggi's wife about her
knowledge of her husband's business dealings), but the document was
obtained from Wedtech pursuant to a subpeona issued before Richard
Biaggi's grand jury testimony.  Pet. App. 117.  /10/

   In short, the purpose of a Kastigar hearing was fully satisfied by
the trial court's review of petitioner's grand jury testimony and the
entire trial record of this case.  From that review, both the district
court and the court of appeals were satisfied that the government met
its burden of showing that it had not made any use of Richard Biaggi's
immunized testimony.  That case-specific determination is correct and
does not warrant further review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   KATHLEEN A. FELTON

      Attorney

   FEBRUARY 1991

   /1/ "Pet. App." refers to the appendix to the petition in No.
90-785.

   /2/ Co-defendant John Mariotta was convicted on both RICO counts,
two counts of mail fraud, four counts of tax evasion, and three counts
of bribery.  He was sentenced to a total of eight years' imprisonment
and a $291,000 fine.  A judgment of forfeiture was entered against him
for $11,700,000.  The court of appeals affirmed his mail fraud and tax
convictions, and reversed his convictions on the RICO and bribery
counts;  those counts were remanded for a new trial.

   Co-defendant Bernard Ehrlich was convicted on both RICO counts, two
counts of extortion, two counts of mail fraud, three counts of
bribery, and two counts of receiving a gratuity.  He was sentenced to
six years' imprisonment and a $222,000 fine.  He was also ordered to
forfeit $350,000.  The court of appeals affirmed each of his
convictions.

   Co-defendant Peter Neglia was convicted on the substantive RICO
count, and one count each of bribery, receipt of a gratuity, and
obstruction of justice.  He was sentenced to three years' imprisonment
and a $30,000 fine.  His RICO conviction was reversed and dismissed,
and the bribery and obstruction of justice counts were remanded for
resentencing.

   None of these co-defendants has filed a petition for a writ of
certiorari.

   /3/ The other two categories were a slush fund used by Mariotta and
other Wedtech officials, Pet. App. 71-72, 126-127, and the bribery of
SBA official Peter Neglia, id. at 72-73, 102-105.

   /4/ The court of appeals found ample evidence to establish that the
stock was held by Richard Biaggi for his father, but it found
insufficient evidence that Richard was aware of the unlawful nature of
the transaction.  It therefore reversed Richard's convictions on
Counts 4, 5, and 6 (aiding and abetting bribery, gratuity, and mail
fraud), but let stand his convictions for filing false tax returns.
Pet. App. 88-94.

   /5/ Neuberger testified that the Yonkers racetrack meeting occurred
in June 1984.  Another Wedtech employee placed the meeting in November
1984.  In the defense case, Simon introduced evidence that he had met
Neuberger at the Yonkers racetrack in November 1984, not June 1984.
In its summation, the government stated that the meeting at the
Yonkers racetrack "probably" took place in November 1984.  Pet. App.
64-65, 114;  Gov't C.A. Br. 190.

   /6/ Fed. R. Crim. P. 8(b) provides:

         Two or more defendants may be charged in the same indictment
      or information if they are alleged to have participated in the
      same act or transaction or in the same series of acts or
      transactions constituting an offense or offenses.  Such
      defendants may be charged in one or more counts together or
      separately and all of the defendants need not be charged in each
      count.

   /7/ Simon suggests that occurrence of the meeting in June was an
essential element of the extortion because a vote approving the Loop
Drive lease occurred in July.  Pet. 30, 32, 34.  As the court of
appeals noted, however, the Loop Drive lease had to been executed in
November, and Simon's help was still needed to complete the
transaction.  Pet. App. 114-115.

   /8/ Because the court of appeals found that there was no issue
about whether the extorted payments were lawful campaign
contributions, this case is unlike McCormick v. United States, No.
89-1918 (argued Jan. 8, 1991), in which petitioner claimed that
particular payments made to him were legitimate campaign
contributions.  Simon challenges the court of appeals' analysis of the
trial record (90-785 Pet. 23), but the court of appeals' reading of
the record is well supported and does not merit review.

   /9/ With regard to Simon's claim that the district court should
have held an evidentiary hearing to establish the extent to which the
government knew the full amount of Fogliano's tax evasion, the
district court found that the claim of government misconduct was
entirely speculative, unsupported by any firm evidence, and "wholly
insufficient" to require an evidentiary hearing.  705 F. Supp. at 866.
 Particularly in light of the fact that at the time of trial the state
investigation was still in progress, there is no basis for Simon's
assertion that the federal prosecutors must have known the exact
extent of Fogliano's tax evasion.

   /10/ Petitioner also argued below that his grand jury testimony was
indirectly used against him by providing the motivation for the
cooperation of the four Wedtech witnesses who testified for the
government.  The court of appeals properly rejected that claim.  As
the court explained, the witnesses were questioned extensively at
trial about their motivation for cooperating with the government, and
none of them testified they were motivated by anything Richard Biaggi
had said to the state grand jury.  Pet. App. 118-119.