JOSEPH E. LANDA, II, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1000

   In The Supreme Court Of The United States

   October Term, 1990

   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 opinion of the Air Force Court of Military Review (Pet. App.
1a-4a) is unreported.  The opinion of the Court of Military Appeals
(Pet. App. 5a) is not yet officially reported.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on
September 29, 1990.  The petition for a writ of certiorari was filed
on December 21, 1990.  The jurisdiction of this Court is invoked under
28 U.S.C. 1259(3).

                          QUESTION PRESENTED

   Whether petitioner was denied a fair trial because of actions taken
by the government toward a government witness in this case.

                               STATEMENT

   Following a general court-marital before a military judge at Norton
Air Force Base in California, petitioner, a member of the United
States Air Force, was convicted of the wrongful use of methamphetamine
and the wrongful distribution of methaphetamine, in violation of
Article 112a of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.
912a.  Petitioner was sentenced to confinement for 18 months, a bad
conduct discharge, forfeiture of all pay and allowances, and a
reduction to the lowest enlisted grade.  The convening authority
approved the findings and the sentence.  The Air Force Court of
Military Review affirmed the findings and the sentence.  On
discretionary review, the Court of Military Appeals affirmed.

   1. The evidence at trial showed that petitioner repeatedly used and
distributed methamphetamine.  Three witnesses testified against
petitioner.  Airman William Gibson testified in detail that he had
seen petitioner use methamphetamine on three occasions and that he had
twice bought methamphetamine from petitioner.  Tr. 72-85.  Airman
Flint Cox testified that he had seen petitioner twice inhale
methamphetamine and once inject it.  Tr. 125-130.  Cox also described
how he and another airman had distributed methamphetamine to still
another airman at petitioner's request, and how he had obtained
methamphetamine from petitioner on two occasions.  Tr. 131-133.
Finally, Airman Eddie Corne testified that he had provided
methamphetamine to petitioner on two occasions, and that he saw
petitioner inhale methamphetamine both times.  Tr. 108-112.

   2. Petitioner's claim in this Court stems from the trial testimony
of the government's three witnesses.  On cross-examination of those
witnesses, petitioner's counsel sought to prove that the witnesses
were biased against petitioner and that the government had engaged in
misconduct in the course of obtaining their testimony.  /1/

   3. In the court of military review, petitioner argued that the
government violated his due process rights by the manner in which it
obtained Airman Cox's testimony.  Petitioner claimed that OSI agents
had not read to Cox a statement that Cox later swore to be true, and
that Cox was warned that he would be court-martialed for perjury if
his trial testimony differed from the description of the events that
he gave to the OSI agents in a sworn statement.  Assignment of Errors
and Brief on Behalf of Accused 12-13 (Dec. 1, 1989).  Petitioner also
submitted an unsworn letter to the court from Airman Cox's father.
Cox's father, who did not testify at petitioner's court-martial,
indicated that his son had been threatened with an additional period
of confinement if he did not testify against others who were involved
in the use and distribution of methamphetamine.  /2/ Finally,
petitioner submitted the unsworn statements of several other
servicemen who had been convicted of drug offenses in unrelated
proceedings and who offered vague and unsubstantiated allegations that
the OSI had engaged in misconduct in connection with their own cases.

   The court of military review rejected petitioner's claim and upheld
his conviction.  Pet. App. 1a-4a.  The court explained that petitioner
had a full opportunity on cross-examination to show that the
government's witnesses should be discredited because of the OSI
agents' allegedly improper conduct.  Id. at 2a-3a.

   4. The Court of Military Appeals summarily affirmed, citing its
decision in United States v. McCoy, 31 M.J. 323 (C.M.A. 1990).  Pet.
App. 5a.  McCoy held that the defendant was not denied a fair trial
when investigating agents had improperly granted government witnesses
informal use immunity.  The court reasoned that the agents did not
violate the defendant's own rights, and the defendant was able to
reveal at trial that the witnesses may have been biased against him.
31 M.J. at 328-329.

                               ARGUMENT

   Petitioner's sole claim is that he was denied a fair trial because
of allegedly improper investigative techniques used by OSI agents.
Petitioner, however, does not maintain that the OSI agents used any
improper investigative technique against him.  Instead, petitioner
argues that OSI agents used improper investigative techniques to
coerce the three witnesses at his trial to testify against him.  That
claim does not warrant review by this Court.

   Petitioner has pointed to only two specific alleged improprieties
on the part of the OSI.  Petitioner says that Airman Cox testified
that the OSI agents did not properly administer the oath to Cox when
the agents took a sworn statement from him.  Pet. 3.  /3/ But Cox
testified at trial that he was not "twisting the truth" because of any
pressure from OSI agents.  Tr. 139.  Petitioner also claims that Cox
was told that he would be prosecuted for perjury if his testimony at
trial differed from his statement to the OSI agents.  Pet. 3.  /4/ But
since there is nothing improper about prosecuting a person for
committing perjury while testifying under a grant of use immunity, see
United States v. Apfelbaum, 445 U.S. 115 (1980), there also is nothing
improper about warning an immunized witness that he is still subject
to prosecution for perjury should he lie on the stand at trial.  In
any event, petitioner has presented his claims in the wrong forum.  It
is for the trier of fact, "not for appellate courts, to say that a
particular witness spoke the truth or fabricated a cock-and-bull
story." United States v. Bailey, 444 U.S. 394, 414-415 (1980).  See
also Hoffa v. United States, 385 U.S. 293, 311 (1966) (rejecting the
claim that the use of informants violates due process;  "(t)he
established safeguards of the Anglo-American legal system leave the
veracity of a witness to be tested by cross-examination, and the
credibility of his testimony to be determined by a properly instructed
jury.").

   Petitioner makes the general claim that the government's witnesses
were biased against him because they testified under a grant of use
immunity or because they had been coerced into testifying against him.
 Petitioner, however, was able to present that defense at trial by
attempting to persuade the trial judge, who was sitting as the trier
of fact, that the government's witnesses should not be believed, for a
variety of reasons.  As the court of military review pointed out,
petitioner had a full opportunity to present his defense of unfair
coercion and bias during cross-examination.  Pet. App. 3a.  Since
petitioner had that opportunity at trial, his claim reduces to the
argument that the government's witnesses should not have been
believed.  That claim does not warrant review by this Court.

   Petitioner argues that the military appellate courts erred in not
ordering a hearing on his general claim of government misconduct once
he submitted to the court of military review the unsworn statements of
several other alleged victims of misconduct.  Pet. 6.  None of those
four persons, however, testified at petitioner's trial.  Any
misconduct with regard to them (even assuming that their allegations
were true) therefore had no effect on petitioner's trial.  Moreover,
in light of the vague and unsubstantiated nature of the allegations
contained in those letters, the court of military review was entitled
to treat the declarants' claims with skepticism.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   WILLIAM R. DUGAN, JR.

      Col., OJAG, USAF

   BRENDA J. HOLLIS

      Maj., OJAG, USAF

   JAMES C. SINWELL

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

   JANUARY 1991

   /1/ For example, on cross-examination by defense counsel, Airman
Gibson said that agents of the Air Force Office of Special
Investigations (OSI) had told him that he would be in trouble if OSI
ever found out that he was withholding information about people that
he knew who were using drugs.  Tr. 94.  Gibson testified under a grant
of use immunity, but he admitted that he did not want to testify, and
he knew that if he did not, he would be violating an order to testify
pursuant to the grant of use immunity.  Tr. 95.  Gibson understood,
however, that his grant of immunity would not protect him against a
perjury charge if he lied while testifying.  Tr. 94.  Airman Cox also
testified under a grant of immunity after he had been convicted by a
court-martial for the use of methamphetamine.  Tr. 124.  Cox received
no reduction in his sentence as a result of his testimony in
petitioner's case, and he was aware that his testimony could only be
used against him if he lied while testifying.  Tr. 124-125.  On
cross-examination by defense counsel, Cox indicated that he did not
feel that OSI takes witness statements in a professional manner, but
that he was not "twisting the truth" because of any pressure from OSI
agents.  Tr. 135, 139.  Airman Corne also testified under a grant of
immunity and indicated that he knew that he was required to tell the
truth and that he would do so.  Tr. 106.

   /2/ Airman Cox said nothing about any such threat during
petitioner's court-martial.  Cox also acknowledged that he could be
court-martialed only if he lied while testifying under oath.  Tr.
124-125.

   /3/ Cox testified as follows, Tr. 135:

         Q. Do you feel that the OSI takes their statements in a
      professional manner?

         A. No, ma'am, I don't.

         Q. Is it a fact that on a statement you gave in January that
      when they swore you to it they just said, "raise your hand and,"
      just said "blah, blah, blah, blah?"

         A. That's fairly accurate.

   /4/ Cox testified as follows, Tr. 135:

         Q. And you were told that if you didn't back up the
      statements that you gave to the OSI that you could be
      court-martialled (sic)?

         A. Yes, ma'am.