THOMAS EDWARD NEVIS, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1011

   In The Supreme Court Of The United States

   October Term, 1990

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

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A17) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 21, 1990
(Pet. App. B1-B2).  A petitionfor rehearing was denied on October 19,
1990.  The petition for a writ of certiorari was filed on December 19,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the district court violated petitioner's rights under the
Confrontation Clause of the Sixth Amendment by prohibiting
cross-examination of a government witness regarding the legal
sufficiency of his guilty plea.

                               STATEMENT

   After a jury trial in the United States District Court for the
District of Oregon, petitioner was convicted of conspiring to defraud
the United States, in violation of 18 U.S.C. 371 (Count 1);  wire
fraud, in violation of 18 U.S.C. 1343 (Counts 2, 4, 14-19);  making
false statements, in violation of 18 U.S.C. 1014 (Counts 9, 21, 25);
misapplying bank funds, in violation of 18 U.S.C. 657 (Counts 10, 12,
28);  bank fraud, in violation of 18 U.S.C. 1344 (Counts 26, 27,
31-33);  and making false entries, in violation of 18 U.S.C. 1006
(Counts 29, 34-36).  He was sentenced to two years' imprisonment and
five years' probation, and he was ordered to pay restitution in the
amount of $2 million dollars.  The court of appeals affirmed.  Pet
App. A1-A17.

   1. The evidence is summarized in the companion case of United
States v. Brown, 912 F.2d 1040, 1041 (9th Cir. 1990).  Pet. App. A4.
When State Federal Savings & Loan Association in Corvallis, Oregon,
ran into financial difficulty, President Larry Waters and Vice
President Brian Olsvik began an aggressive loan campaign to generate
additional fee income for the bank.  Petitioner was a businessman and
a real estate developer who had a number of loans with State Federal
at the time.  Waters and Olsvik decided that their loan program would
be enhanced by making additional loans to petitioner.  However, State
Federal was subject to a "loans to one borrower" regulation that
limited the amount that could be loaned to any one person.  /1/
Petitioner had reached that limit.

   From early 1984 through early 1985, Waters, Olsvik, and petitioner
engaged in a series of maneuvers designed to conceal the fact that
petitioner was the actual borrower of certain funds.  This concealment
was accomplished by the use of various nominees, and through schemes
that directed the loan proceeds from one person to another.  As a
result of those maneuvers, the records of State Federal concealed the
actual facts from State Federal itself, its regulators, and the
Federal Savings and Loan Insurance Corporation.  See United States v.
Brown, 912 F.2d at 1041.

   2. Indicted co-conspirator Jack Franks, who assisted petitioner in
obtaining loans from State Federal, testified for the government at
petitioner's trial.  Counsel for petitioner sought to impeach Franks
by attacking his motives and by attempting to demonstrate bias.
Counsel explored the terms of Franks' plea agreement, which itself was
introduced into evidence.  Counsel elicited that Franks had pleaded
guilty to devising a scheme to defraud State Federal and to obtain
money by means of false representations.  Counsel further elicited
Franks' acknowledgement that, in return for the plea, the government
agreed to dismiss 13 other counts in which Franks was charged, to
dismiss the two counts of the indictment that had been brought against
Franks' wife, to advise the sentencing court of Franks' cooperation,
and to take no position on sentencing.  Franks testified that, as part
of the plea agreement, the government also allowed him to plead guilty
in the District of Oregon to a bank fraud charge brought in the
Northern District of Texas.  Tr. 633-636, 642.  Defense counsel
further elicited that, before Franks was indicted, he did not think
that he was committing any crimes, and that he did not intend to
defraud State Federal.  Tr. 636-637.  /2/

   In addition to eliciting the benefits Franks had obtained as a
result of his guilty plea, defense counsel attempted to establish that
Franks was not actually guilty of the offense to which he had pleaded
guilty.  Defense counsel elicited from Franks that Franks had pleaded
guilty because he thought that the violation of the "loans to one
borrower" rule was a criminal offense.  When defense counsel stated
that a violation of that rule is not a criminal offense, Franks
responded:  "Well, I feel maybe I shouldn't be here." Tr. 633.  Franks
further admitted that in a statement he had made in conjunction with
his guilty plea, he had declared that "(i)t is my understanding that
because (petitioner and his wife) were at their limit in borrowing
capacity at (State Federal), that this is a violation of the law, and
I have pleaded guilty to that offense." Tr. 634-635.  In response to
that testimony, defense counsel remarked:  "Well, again, what you
pleaded guilty to, Mr. Franks, is not a crime." Tr. 635.

   On re-cross examination of Franks, defense counsel continued to
suggest to Franks and to the jury that Franks' guilty plea to the
State Federal charge was legally invalid.  Tr. 655.  The government
objected on the ground that defense counsel was misleading the jury by
"not referring to the entire record made at the time (Franks') plea
was entered." Ibid.  The trial court sustained that objection,
stating:  "I think it's not relevant to this case in any event as to
what he pleaded to.  I took the plea.  It was a valid plea, and that's
the end of that.  Now let's go on." Ibid.

   Shortly thereafter, defense counsel moved for a mistrial on the
ground that petitioner had been denied his right to confront witnesses
against him.  The court denied the motion, stating (Tr. 674-677):

      I permitted counsel to go into that very extensively until I
      felt it had gone too far.  I felt that counsel unintentionally
      was misrepresenting a little bit the nature of the plea.  The
      complications of this case don't allow a simple statement of
      what the nature of the plea was.  I think, also, it was entirely
      appropriate for me to say that the plea was appropriate and
      that's particularly true after I had listened to this defendant
      describe the gyrations that went on. * * * I'm not going to
      preclude you from arguing that within reasonable limits, but I
      will stop you if there is an indication that the plea was
      improper or that the man was not guilty when he entered the
      plea.  I did not permit that.

                      *  *  *  *  *

         * * * The only time I stopped you was after you began to
      suggest that the plea was an invalid plea and the man should not
      have pleaded guilty.  I'm not going to permit that.  I will
      permit you to you to put the plea agreements in evidence, I will
      permit you to argue as to their conduct, but when you suggest
      that the plea was inappropriate and this man shouldn't be here *
      * * (a)nd when you made the statements about such as, for
      example, "Well, maybe you shouldn't be here," those kind (sic)
      of comments are inappropriate.

   3. The court of appeals affirmed petitioner's convictions.  Pet.
App. A1-A17.  The court rejected petitioner's contention that the
restriction on petitioner's cross-examination of Franks denied
petitioner his Sixth Amendment right to confront the witnesses against
him.  The court found that the district court had given petitioner
free rein to attack Franks' motives and to attempt to demonstrate
bias, and that it had not attempted to shield Franks from examination
or to bolster his credibility.  Pet. App. A11, A13.  All the district
court had done was to preclude petitioner "from raising before the
jury the purely legal issue of whether Franks' actual guilty plea was
valid." Id. at A13.  The court of appeals upheld this "narrow
restriction" (id. at A12) on petitioner's right of cross-examination,
explaining:

      The fact that a witness should or should not have pled guilty is
      outside the point, and certainly did not tend to impeach that
      witness' testimony at trial.  Even if one can spin some gossamer
      net that will pull the issue into focus, it would be so
      marginally relevant as to be properly excluded.

Id. at A13-A14.

   The court also rejected petitioner's claim that he suffered
substantial prejudice when the district court judge commented that he
had taken Franks' plea and that it was a valid plea:

      The validity of the plea itself was outside the point in this
      case, and if counsel was insistent on going into its validity,
      that was a legal matter and he got a ruling on the law.  Beyond
      that, the comment was fleeting, unemphasized, and unrepeated.

Pet. App. A14-A15.

                               ARGUMENT

   Petitioner renews his contention (Pet. 9-27) that the district
court violated the Sixth Amendment by refusing to permit
cross-examination of Franks regarding the validity of his guilty plea.
 The court of appeals properly rejected that contention.

   1. The Confrontation Clause of the Sixth Amendment guarantees a
defendant in a criminal case the right "to be confronted with the
witnesses against him." That right entitles a defendant on
cross-examination to probe the witness's motivation for testifying
against the defendant.  Davis v. Alaska, 415 U.S. 308, 316-317 (1974).
 But it does not entitle a defendant to conduct unlimited
cross-examination.  Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);
 Delaware v. Fensterer, 474 U.S. 15, 20 (1985).  Instead, "trial
judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based
on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679.

   Here, the district court acted well within its discretion.  The
court imposed only a minor limitation on petitioner's ability to
impeach Franks through inquiry into collateral matters.  As the court
of appeals noted (Pet. App. A11), the district court gave petitioner
free rein to impeach Franks by attacking his motives and by attempting
to demonstrate bias.  That cross-examination and other evidence at
trial fully illuminated Franks' motivation for testifying against
petitioner.  In addition, counsel for petitioner established that
Franks believed that it was a crime to violate the federal lending
limit regulation.  The court stopped petitioner's counsel only when he
sought to go even further afield by attempting to suggest that Franks'
guilty plea was invalid.  Id. at A12-A13.  The purely legal issue of
the validity of Franks' guilty plea was irrelevant to petitioner's
culpability.  See, e.g., Bridge v. Lynaugh, 838 F.2d 770, 773 (5th
Cir. 1988) (a co-defendant's conviction and sentence for an offense
arising out of the same course of events is irrelevant to the question
of the defendant's guilt).

   Further cross-examination of Franks on that question would have
accomplished nothing other than to mislead and confuse the jury.
Despite defense counsel's attempts to suggest otherwise, Franks'
guilty plea was legally valid.  Franks pleaded guilty to Count 32 of
the indictment, which charged that he and others "did devise a Scheme
to defraud State Federal, examiners of the FHLB, and the FSLIC, and to
obtain money, in the custody and control of State Federal, by means of
false and fraudulent pretenses, representations, and promises." C.A.
Excerpt of Record 35.  That count alleged that petitioner and others
had caused State Federal to make a $2 million loan for the purported
purpose of enabling petitioner's wife to buy an apartment complex.
Ibid.  The count further alleged that petitioner and others made the
following misrepresentations to State Federal to secure the loan:

         a. that (the corporation formed to secure the loan), with
      (petitioner's wife) as authorized signator, was the true
      borrower, well knowing that (the corporation and petitioner's
      wife) were acting as a nominee for (petitioner) and Franks.

         b. that the loan proceeds were for acquisition of an
      apartment complex, well knowing that approximately $400,000 from
      the loan proceeds were diverted to Nevis Industries and to pay
      other (of petitioner's) loans.

C.A. Excerpt of Record 35-36.

   On redirect examination, Franks testified that, when the proposal
for the apartment complex loan was presented to State Federal, he knew
that State Federal records would reflect petitioner's wife to be the
owner of the complex.  Tr. 653.  Franks also knew the proposal was
false in that respect, since petitioner in fact owned 75% of the
complex.  Tr. 653.  Franks knew, as well, that the records would be
false or incomplete in failing to reflect that a portion of the loan
proceeds were to be used for purchase of a different property and for
petitioner's personal use.  Tr. 653.  Finally, Franks admitted that
his knowledge of the falsity of the representations made to State
Federal formed the basis for his guilty plea.  Tr. 654.

   As the district court explained when defense counsel argued that
Franks' plea was invalid because Franks did not intend to defraud the
United States (Tr. 855):

      (I)t's also a crime to attempt to execute or to execute a scheme
      or artifice to obtain any of the assets of the bank by means of
      a false or fraudulent pretense or statement. It is not necessary
      that * * * a person intend to cheat the United States government
      in order to be guilty of that offense, nor is it necessary that
      they intend a criminal act if they intend to devise a scheme to
      defraud a bank or to obtain any of the assets by false means.

   Finally, the narrow limitation on petitioner's right of
cross-examination did not prejudice petitioner.  The court made clear
to the jury that a violation of the lending limit regulation was not a
criminal offense (Tr. 2060-2061):

         During the trial you've heard testimony concerning the
      federal lending limits rule.  Whether or not defendants may have
      violated the federal lending rule is not sufficient to establish
      the crimes alleged in the indictment.

         The issue in this case is whether the defendants are guilty
      of violating certain federal criminal statutes.  The issue is
      not whether any federal civil laws, such as the federal lending
      limit, were violated, nor whether the defendants were involved
      in any such violations, if they occurred.  The testimony which
      you've heard about the federal lending limit rule may be
      considered only because it may be necessary to your
      understanding of the reasons or motives for the various loan
      transaction.

   2. Petitioner's contention (Pet. 9-13) that the decision below
conflicts with United States v. Mayer, 556 F.2d 245 (5th Cir. 1977),
and United States v. Marion, 477 F.2d 330 (6th Cir. 1973), is without
merit.  The facts of Mayer and Marion bear no resemblance to the facts
of the present case.  In Mayer, the trial court precluded
cross-examination into either the motives of government witnesses for
pleading guilty or the terms of their plea agreements.  The trial
court in Mayer instructed the jury that as a matter of law the pleas
of the government witnesses had been entered voluntarily and without
any expectation of judicial or prosecutorial lenience.  Similarly, in
Marion, the trial court curtailed questioning regarding any deals that
the witness might have made with the government.  In Marion, the trial
judge told the jury he credited the cooperating witness's statement
that no arrangement or deal with the government had induced him to
testify.  Here, by contrast, as the court of appeals properly found,
"(t)he district court did not attempt to shield a witness from
examination or try to bolster his credibility," but merely
"preclude(d) (petitioner) from raising before the jury the purely
legal issue of whether Franks' actual guilty plea was valid." Pet.
App. A13.

   Nor does the decision below conflict with this Court's decision in
Crane v. Kentucky, 476 U.S. 683 (1986), as petitioner claims (Pet.
14-18).  In Crane, the trial court denied the defendant's pretrial
motion to suppress his confession, finding that it was voluntary.  At
trial, the court excluded all testimony concerning the circumstances
of the defendant's confession on the ground that the testimony
pertained solely to the legal issue of voluntariness and was therefore
inadmissible.  This Court reversed, holding that the exclusion of the
testimony concerning the circumstances of the confession violated the
defendant's Sixth Amendment right to confront witnesses against him.
The Court concluded that, because evidence of the circumstances under
which a confession is made bears on its credibility and its
voluntariness, the defendant had been deprived of his right to show
that the confession was "insufficiently corroborated or otherwise . .
. unworthy of belief." 476 U.S. at 689 (quoting Lego v. Twomey, 404
U.S. 477, 485-486 (1972)).  Here, by contrast, the district court did
not foreclose inquiry into the details of Franks' plea agreement with
the government, or the circumstances surrounding his decision to plead
guilty.  The court merely, and properly, limited inquiry into the
legal sufficiency of Franks' plea.

                              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

   DEBORAH WATSON

      Attorney

   APRIL 1991

   /1/ 12 C.F.R. 563.9-3 (1985) (recodified at 12 C.F.R. 563.93
(1990)).

   /2/ Similarly, during cross-examination of government witnesses and
co-conspirators Ronald Koos and Ronald Campbell, defense counsel fully
explored the terms of their plea agreements with the government and
their reasons for testifying.  Tr. 258-264, 721-722, 724-725, 733-734.
 Defense counsel elicited from Koos that he had not believed at the
time in question that he was doing anything illegal, and that the
reason he had pleaded guilty was "to minimize (his) risk and get it
over with," and "(to) balanc(e) the risk involved in going ahead with
the case" (Tr. 253, 262, 264).  Defense counsel elicited from Campbell
that, at the time in question, he "(was not) intending to conspire
with people to commit crimes against State Federal or the FSLIC" (Tr.
732).