LILLIAN WIGGINS, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-312

   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 District of Columbia Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that a use immunity order entered under the
federal immunity statute, 18 U.S.C. 6002-6003, was inadequate to
displace her Fifth Amendment privilege against compulsory
self-incrimination.

   1. On October 30, 1984, petitioner was served with a subpoena duces
tecum to appear before the federal grand jury in the District of
Columbia.  The subpoena called for petitioner to produce
tape-recordings of conversations between herself and other persons
pertaining to the operations of the District of Columbia Lottery
Board.  Upon petitioner's motion, the district court quashed the
subpoena on the ground that her act of producing the tapes would be
incriminating because it would convey information not already known to
the government about the existence of the tapes (Pet. App. 11a-17a).

   On April 29, 1985, petitioner was again served with a grand jury
subpoena demanding production of the tapes.  When petitioner moved to
quash this second subpoena, the government moved under 18 U.S.C. 6003
for an order compelling her to produce the tape-recordings under a
grant of use immunity.  The district court again quashed the subpoena,
finding that the prospective grant of immunity would not protect
petitioner to the same extent as the privilege against compulsory
self-incrimination (Pet. App. 8a-10a).

   On May 20, 1986, the court of appeals reversed the order quashing
the subpoena (Pet. App. 1a-7a).  The court noted that "the scope of
immunity afforded by Section 6002 is, by definition, whatever is
necessary to protect the witness's privilege against
self-incrimination" (id. at 6a).  Therefore, the court held, Section
6003 "requires the order to testify to be issued without inquiry as to
what that scope might be, leaving that question for subsequent
suppression hearings" (Pet. App. 6a).  For that reason, the court
added, if petitioner's privilege in the act of production "cannot be
protected without excluding the contents of the tapes (a point on
which we express no opinion) the District Court has the authority to
prevent the government from referring to or introducing those
contents.  But it does not have authority to prevent the government
from gaining access to the tapes" (ibid.).  Accordingly, the court of
appeals instructed the district court to grant the government's motion
compelling petitioner to produce the tapes (id. at 7a).

   2. Petitioner contends (Pet. 5-9) that the immunity granted under
18 U.S.C. 6002 was not coextensive with her privilege against
compulsory self-incrimination, and that the court of appeals therefore
should not have ordered her to produce the tape-recordings.  This
Court, however, has repeatedly held that the immunity granted by the
federal use immunity statute is sufficient to displace the privilege
against compulsory self-incrimination and thus to justify an order
compelling the immunized witness to comply with a subpoena.  See
United States v. Doe, 465 U.S. 605, 617 n.17 (1984);  Pillsbury Co. v.
Conboy, 459 U.S. 248, 254-255 (1983);  United States v. Apfelbaum, 445
U.S. 115, 123 (1980);  Kastigar v. United States, 406 U.S. 441,
453-459 (1972).

   Although petitioner claims (Pet. 7) that the immunity confereed by
Section 6002 is not always coextensive with the witness's Fifth
Amendment privilege and that the courts are not restricted to a
ministerial role in the immunity process, this Court has held to the
contrary.  See United States v. Doe, 465 U.S. at 614-615, 616;
Pillsbury Co. v. Conboy, 459 U.S. at 254-255 & n.11;  Kastigar v.
United States, 406 U.S. at 453.  As the court of appeals correctly
noted, the use immunity statute grants whatever protection is
necessary to satisfy the constitutional requirements.  If the
government makes improper use of the immunized statements or conduct
of the witness, the subsequent proceedings against the witness may be
challenged on the ground that they are tainted by that improper use.
See Kastigar, 406 U.S. at 460-462.  We do not believe that the use of
the tape-recordings against petitioner will prove to be improper;
nonetheless, if petitioner is correct in her assertion that the
tape-recordings cannot constitutionally be used against her in any
way, she will be entitled to that relief after she produces them.  And
even if she is correct on that score, her concerns should not prohibit
the government from obtaining the recordings for other legitimate
purposes, such as using them against other persons.

   Petitioner contends that the decision of the court of appeals in
this case is inconsistent with the decision of the Seventh Circuit in
United States v. Porter, 711 F.2d 1397 (1983).  In that case, the
Seventh Circuit expressed concern that the federal immunity statute
might not grant sufficient protection against the incriminatory
effects of a witness's act of producing subpoenaed materials.  The
court therefore required the district court to formulate a protective
order that would ensure that the witness's Fifth Amendment privilege
would be fully secured.  The Porter case, however, was decided before
this Court's decision in United States v. Doe, supra.  In the Doe
case, this Court stated that the federal use immunity statute is fully
effective to protect against the direct or indirect use of any
incriminating feature of a witness's act of producing subpoenaed
materials.  See 465 U.S. at 614-615, 617 n.17.  That ruling put to
rest concerns of the sort expressed by the Seventh Circuit regarding
the scope of the federal immunity statute.

   Under the authority of the Doe case, there is no longer any
question that a federal immunity order is sufficient, without more, to
displace a witness's Fifth Amendment privilege.  The court of appeals
was therefore correct in directing that petitioner should be compelled
to produce the tape-recordings, and it is unlikely that any other
circuit would reach a contrary result.

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

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1986