JEOFFREY ALLEN MEACHAM AND DENNIS FRANKLIN LOZON, PETITIONERS V.
UNITED STATES OF AMERICA

   No. 86-854

   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 Fourth Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Question presented
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-7a) is not yet
reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 29,
1986.  A petition for reharing was denied on September 26, 1986.  The
petition for a writ of certiorari was filed on November 25, 1986.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the provisions in the guilty plea agreements of three
government witnesses requiring them to testify truthfully at trial
were properly admitted during the direct examination of the witnesses.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Maryland, petitioners were convicted of conspiracy to
possess and distribute cocaine, in violation of 21 U.S.C. 846.  Both
petitioners were sentenced to seven years' imprisonment.  The court of
appeals affirmed (Pet. App. 1a-7a).

   At trial, the government established that petitioners supplied
cocaine in a series of transactions to two unindicted co-conspirators,
Terrence and Ronald Levee, for distribution in the Baltimore area.  A
third unindicted co-conspirator acted as a representative of and
courier for the Levees in some of the transactions.  On several
occasions, the parties met in Chicago, Salt Lake City, and Phoenix to
exchange cocaine for cash payments.  Pet. App. 2a;  Gov't C.A. Br.
1-2.

   Pursuant to plea agreements with the government, the three
unindicted co-conspirators testified at trial about their respective
roles in the transactions.  On direct examination, the government
asked each of the three witnesses about his plea agreement, including
the provision requiring each to testify fully and truthfully at trials
in which his testimony was relevant.  Following the government's
examination of each witness, the government offered the plea
agreements into evidence.  The district court admitted the agreements
over petitioners' objections.  Petitioner's counsel cross-examined
each witness extensively about the posibility that the government
might treat him more favorably because he had agreed to cooperate.
Petitioner's primary defense at trial was that the Levees were merely
lending them sums to aid a failing business.  Pet. App. 2a;  C.A. App.
81.

                               ARGUMENT

   Petitioners contend (Pet. 3-4) that the government's introduction
of the "truthful testimony" provisions of the plea agreements
constituted improper vouching for the credibility of the three
cooperating witnesses.  The court of appeals correctly rejected
petitioners' claim, and further review by this Court is not warranted.

   1. The government engages in improper vouching when it places its
prestige behind a witness through personal assurances of the witness's
veracity, or when the government suggests that matters outside the
record support the witness's testimony.  See Lawn v. United States,
355 U.S. 339, 359-360 n.15 (1958).  Contrary to petitioners'
contention (Pet. 3), the government's introduction of a witness's
promise to tell the truth contained in a plea agreement does not
constitute improper vouching, because that promise is no different
from the promise made by any witness when he is sworn to testify at
trial.  The purpose of introducing the "truthful testimony" provision
of a plea agreement is not to vouch for the witness, but merely to
refute the appearance that the cooperating witness is biased in favor
of the government as a result of the benefits conferred in the plea
bargain.  For this reason, the courts of appeals uniformly agree that
the government may introduce the terms of a guilty plea or immunity
agreement, including the requirement that the witness testify
truthfully, for purposes of rehabilitation after the defense
challenges the credibility of a government witness who is testifying
pursuant to such an agreement.  /1/ As the court of appeals held, the
district court in this case properly admitted the truthful testimony
portion of the plea agreements on direct examination, because it was
"unmistakab(ly)" clear at that point that petitioners' counsel would
challenge the credibility of the witnesses on cross-examination.  See
Pet. App. 3a.

   2. Contrary to petitioners' claim, the decision in this case is not
in conflict with the decisions of other circuits.

   Petitioners first rely on two Ninth Circuit cases -- United States
v. Roberts, 618 F.2d 530 (9th Cir. 1980), cert. denied, 452 U.S. 942
(1981), and United States v. Brown, 720 F.2d 1059 (9th Cir. 1983) --
to support their claim that the decision in this case is in conflict
with the decisions of the Ninth Circuit.  In neither Roberts nor
Brown, however, did the Ninth Circuit rule that the truthful testimony
provision of a plea agreement is inadmissible on direct examination.
In Roberts, the Ninth Circuit overturned the conviction because the
prosecutor, in his closing argument, improperly vouched for a witness
by referring to facts outside the record.  See 618 F.2d at 533-534.
The court did not base its ruling on the government's introduction of
the plea agreement.  To be sure, the Roberts court suggested that the
introduction of a plea agreement might in some contexts constitute
improper vouching for the witness's credibility (see id. at 536), but
the court did not address the question whether the terms of a plea
agreement may be admitted to rebut arguments by the defense that the
benefits of a plea agreement are likely to have prompted the witness
to commit perjury.  In subsequent cases, the Ninth Circuit has
approved the practice of admitting a witness's plea agreement
containing a truthful testimony provision after defense counsel has
exploited the plea agreement to challenge the witness's credibility.
United States v. Rohrer, 708 F.2d 429, 433 (9th Cir. 1983);  United
States v. Tham, 665 F.2d 855, 861-862 (9th Cir. 1981), cert. denied,
456 U.S. 944 (1982).  From those decisions, it seems clear that the
Ninth Circuit would permit the introduction of the truthful testimony
provision of a plea agreement, even on direct examination, if, as in
this case, defense counsel had clearly signaled that he intended to
use the plea agreement to attack the witness's credibility.

   The Ninth Circuit's decision in United States v. Brown, 720 F.2d
1059 (1983), similarly does not support petitioners' claim of
conflict.  The plea agreements in Brown included, in addition to the
truthful testimony requirement, a provision whereby the cooperating
witnesses agreed to submit to polygraph tests to be administered by
the government.  The prosecutor emphasized the polygraph provision in
arguing that the jury should believe the testimony of the cooperating
witnesses, and the court faulted the prosecutor for that reason.  See
720 F.2d at 1072-1073.  The court expressly noted that it was not
addressing the issue, presented in this case, of the admissibility of
the truthful testimony requirement in the absence of the polygraph
provision (see id. at 1074).  /2/

   This case also is not in conflict with cases from the Second
Circuit.  That court, unlike most circuits, has held that the
government ordinarily may not introduce into evidence the entire plea
agreement during the government's direct examination of the
cooperating witness;  the court has adopted that rule because of its
view that until the credibility of the witness has been challenged,
the admission of the entire plea agreement "tends unduly to bolster a
witness's credibility." United States v. Smith, 778 F.2d 925, 928
(1986);  United States v. Arroyo-Angulo, 580 F.2d 1137, 1145-1147 (2d
Cir.), cert. denied, 439 U.S. 913 (1978).  The Second Circuit,
however, has permitted the government to introduce the witness's plea
agreement on direct examination when the defense attacks the
credibility of the witness in its opening statement, because in that
circumstance it is clear that the defense will use the plea agreement
in an effort to impeach the cooperating witness.  See United States v.
Smith, 778 F.2d at 928;  United States v. Jones, 763 F.2d 518, 522 (2d
Cir. 1985), cert. denied, No. 85-643 (Nov. 12, 1985);  United States
v. Maniego, 710 F.2d 24, 27 (2d Cir. 1983).  The Fourth Circuit in
this case expressly relied on the fact that petitioners' intention to
use the plea agreements to impeach the witnesses was already
"unmistakable" when the government conducted its direct examination of
the three cooperating witnesses (Pet. App. 3a).  Hence, the decision
in this case is not inconsistent with the analysis in the Second
Circuit cases.

   Moreover, as the court of appeals found (Pet. App. 3a), petitioners
in this case made "extensive" use of the plea agreements in
cross-examining the witnesses.  The Second Circuit has held that the
admission of the entire plea agreement on direct examination is not
reversible error where, as in this case, the defense subsequently
challenges the credibility of the witness based on the plea agreement
in cross-examination.  See United States v. Barnes, 604 F.2d 121,
150-151 (1979), cert. denied, 446 U.S. 907 (1980);  United States v.
Arroyo-Angulo, 580 F.2d at 1147.  Accordingly, while the Second
Circuit has adopted a somewhat more restrictive rule governing the
admissibility of plea agreements, that rule would not have resulted in
reversal in this case.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   JOSEPH C. WYDERKO

      Attorney

   JANUARY 1987

   /1/ See United States v. McNeill, 728 F.2d 5, 14 (1st Cir. 1984);
United States v. Smith, 778 F.2d 925, 928 (2d Cir. 1986);  United
States v. Oxman, 740 F.2d 1298, 1303 (1984), vacated on other grounds,
No. 84-1033 (July 2, 1985), aff'd in part, and rev'd in part on other
grounds, 774 F.2d 1224 (3d Cir. 1985), cert. denied, No. 85-994 (Mar.
3, 1986);  United States v. Henderson, 717 F.2d 135 (4th Cir. 1983),
cert. denied, 465 U.S. 1009 (1984);  United States v. Leslie, 759 F.2d
366, 378 (5th Cir. 1985), rev'd on reh'g en banc on other grounds, 783
F.2d 541, 542 n.1 (1986);  United States v. Townsend, 796 F.2d 158,
162-163 (6th Cir. 1986);  United States v. Hedman, 630 F.2d 1184,
1198-1199 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981);  United
States v. Rohrer, 708 F.2d 429, 432-433 (9th Cir. 1983);  United
States v. Dennis, 786 F.2d 1029, 1045-1046 (11th Cir. 1986).

   /2/ Petitioners are plainly wrong in suggesting (Pet. 5-6) that the
court of appeals' decision conflicts with decisions of the First and
Third Circuits.  Both the First and Third Circuits share the Fourth
Circuit's view that district courts may admit the truthful testimony
provision of a plea agreement on direct examination of a cooperating
witness, in anticipation of defense challenges to the witness's
credibility.  See United States v. McNeill, 728 F.2d at 14;  United
States v. Oxman, 740 F.2d at 1303.  The Fifth, Sixth, Seventh, and
Eleventh Circuits also share the Fourth Circuit's view.  See United
States v. Leslie, 759 F.2d at 378;  United States v. Townsend, 796
F.2d at 162-163;  United States v. Hedman, 630 F.2d at 1198-1199;
United States v. Dennis, 786 F.2d at 1045-1046.