BARTHOLOMEW RIVIECCIO, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1542

   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 Second Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A13) is reported
at 919 F.2d 812.  The memorandum and order of the district court (Pet.
App. A14-A61) are reported at 723 F. Supp. 867.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 2,
1990.  A petition for rehearing was denied on January 8, 1991.  The
petition for a writ of certiorari was filed on April 5, 1991.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a defendant may secure dismissal of an indictment on the
basis of a claim that the government made derivative use of immunized
testimony before the grand jury.

   2. Whether the government made any nonevidentiary use of
petitioner's immunized testimony at his trail.

                               STATEMENT

   After a jury trial in the United States District Court for the
Eastern District of New York, petitioner was convicted on one count of
conspiring to commit mail fraud, in violation of 18 U.S.C. 371;  ten
counts of mail fraud, in violation of 18 U.S.C. 1341;  nine counts of
bribery of bank officials, in violation of 18 U.S.C. 215;  one count
of misapplication of credit union funds, in violation of 18 U.S.C.
657;  and one count of bank fraud, in violation of 18 U.S.C. 1344.  He
was sentenced to concurrent five-year terms of imprisonment on each
count and was ordered to pay restitution.  The court of appeals
affirmed.  Pet. App. A1-A13.

   1. The evidence at trial established that, from 1981 to April 1986,
petitioner participated in a fraudulent scheme to induce the HYFIN
Credit Union and Chemical Bank to finance the purchase and
rehabilitation of buildings, most of which were located in Brooklyn.
In order to obtain loans from the credit union, petitioner bribed some
of its officers by giving them shares in corporations that owned
properties involved in the scheme.  The loans were improper for
several other reasons as well:  they were unsecured;  they were made
to petitioner's real estate corporations in violation of a New York
law barring corporations from obtaining loans from credit unions;
they exceeded the credit union's lending limits;  and they were
completed without the necessary paperwork.  After petitioner had
fallen so deeply in debt that the credit union would no longer make
loans to him, he applied for and received loans from Chemical Bank
without disclosing that he owed millions of dollars to the credit
union.  Pet. App. A3-A4.

   2. In April 1986, an employee of the credit union disclosed
petitioner's scheme to the government, and an investigation began.
State and federal agents searched petitioner's offices and the credit
union pursuant to search warrants and seized numerous documents.
Shortly thereafter, three of petitioner's accomplices in the scheme,
two employees of the credit union and its attorney, agreed to plead
guilty to various charges, to cooperate in the investigation, and to
testify at subsequent proceedings.  Pet. App. A4.  See Gov't C.A. Br.
11.

   In June 1987, petitioner's attorneys produced documents in response
to subpoenas issued by a federal grand jury investigating the
financial affairs of the credit union.  After receiving use immunity
under 18 U.S.C. 6002, petitioner testified before the grand jury on
July 2, July 9, and September 10, 1987.  Although the purpose of
petitioner's grand jury appearance was to authenticate the documents
produced in response to the grand jury subpoenas, the scope of the
questioning extended beyond the authentication of records.  In
particular, petitioner answered questions pertaining to, among other
things, the preparation of the documents, the ownership and operation
of the real estate corporations, and the identity of his associates in
the project, including his accountant, Ralph Strafaci.  Pet. App.
A4-A5.

   Petitioner was not indicted by the grand jury that heard his
testimony.  In February 1988, a new grand jury was impanelled, and, on
May 5, the second grand jury returned an indictment against
petitioner.  The same grand jury returned superseding indictments on
July 1 and November 3, 1988.  The government did not present the 1988
grand jury with any of the transcripts of petitioner's immunized
testimony before the 1987 grand jury.  Pet. App. A5.

   3. A week before jury selection was scheduled to begin, petitioner
moved to dismiss the superseding indictment on the ground that the
government had made improper use of his immunized testimony before the
grand jury.  The court deferred consideration of the motion until
after trial.  After the jury had returned its guilty verdicts, the
court conducted a hearing, in accordance with Kastigar v. United
States, 406 U.S. 441 (1972), to determine whether the government had
made any improper use of petitioner's immunized testimony before the
grand jury or at trial.  Based upon the record of the hearing and
affidavits submitted by the prosecutor who tried the case, the court
denied the motion to dismiss.  Pet. App. A14-A61.

   a. Petitioner conceded at the Kastigar hearing that "all the
evidence introduced at trial, with the exception of the testimony of
one witness, Ralph Strafaci, was derived from 'legitimate independent
sources.'" Pet. App. A19.  Petitioner argued, however, that the
prosecutor learned of Strafaci from petitioner's grand jury testimony
or, at a minimum, that petitioner's testimony "caused the prosecutor
to 'focus' on Strafaci." Id. at A20.  The district court rejected that
contention, concluding that the evidence "clearly demonstrate(d) that
Mr. Strafaci's identity, his role as (petitioner's) accountant, and
his usefulness as a witness, were known to the United States Attorney
prior to (petitioner's) appearance before the grand jury." Ibid.  The
court explained that an investigator on the staff of the U.S.
Attorney's Office, Anthony Valenti, met Strafaci during the search of
petitioner's offices and learned at that time that Strafaci was the
accountant for petitioner's corporations.  Id. at A20-A21.  The court
also found that "there was simply nothing in (petitioner's) testimony
before the grand jury * * * that would have caused the United States
Attorney to 'focus' on Strafaci." Id. at A23.

   Petitioner's only other claim of trial error, the court continued,
was that the government had made improper use of knowledge it had
gained regarding his demeanor.  Pet. App. A23.  The court noted that
Valenti had asked a prosecutor who had examined petitioner before the
1987 grand jury how petitioner reacted to questioning;  in response,
the prosecutor stated that petitioner came across as a "wise guy." Id.
at A23-A24;  see id. at A8 n.2.  (A different prosecutor tried the
case.) The district court found this claim to be precluded by United
States v. Mariani, 851 F.2d 595 (1988), cert. denied, 490 U.S. 1011
(1989), a case in which the Second Circuit stated that it would not
"foreclose the prosecution of an immunized witness where his immunized
testimony might have tangentially influenced the prosecutor's thought
processes in preparing the indictment and preparing for trial." Pet.
App. A24.  Moreover, the court continued, petitioner "did not take the
stand and any possible advantage derived from hearing about the kind
of witness he would make was not put to any use." Pet. App. A24-A25.

   b. The district court then turned to petitioner's contention that
the government had made improper use of his immunized testimony before
the grand jury.  "The essence of (that) claim," the court said, was
"that, even if his conviction is based on evidence that has an
independent source and even if a new indictment could be obtained on
the basis of the untainted trial record, the conviction must
nevertheless be set aside and the present indictment must be dismissed
because some of the evidence before the grand jury was tainted." Pet.
App. A25.  The court rejected that contention on three alternative
grounds.

   First, the district court noted, this Court has repeatedly held
"that an indictment returned by a properly constituted grand jury is
not subject to challenge on the ground that it was based on
unconstitutionally obtained evidence," Pet. App. A26-A27, quoting
United States v. Washington, 431 U.S. 181, 185 n.3 (1977), /1/ and
there was no indication that the statute authorizing grants of use
immunity, 18 U.S.C. 6002, was intended to alter that principle, Pet.
App. A33-A35.  The district court found that petitioner was not
entitled to invoke an exception to that general rule, recognized by
the Second Circuit as an exercise of its "supervisory power," which
requires dismissal of an indictment returned by the same grand jury
before which a defendant has given immunized testimony.  Pet. App.
A39-A41;  see United States v. Hinton, 543 F.2d 1002 (2d Cir.), cert.
denied, 429 U.S. 980 (1976).  Here, the district court noted,
petitioner did not testify before the grand jury that indicted him.
Pet. App. A41.

   Second, relying on United States v. Mechanik, 475 U.S. 66 (1986),
the district court found that petitioner's conviction rendered
harmless any error in the proceedings before the grand jury.  "Whether
evidence derived from the defendant's compelled testimony here
affected the grand jury's determination to indict," the court
explained, "it is clear that the petit jury's subsequent verdict was
based on evidence derived entirely from legitimate independent
sources." Pet. App. A44.  Thus, "(m)easured by the petit jury's
verdict . . . any error in the grand jury proceeding connected with
the charging decision was harmless beyond a reasonable doubt." Id. at
A44-A45 (quoting Mechanik).

   Finally, the district court concluded that even if Mechanik left
room for post-trial review of petitioner's claim, any alleged misuse
of petitioner's immunized testimony could not have affected the grand
jury's decision to indict.  Pet. App. A53.  "(T)aking at face value
the allegations regarding the misuse of (petitioner's) testimony," the
court explained, "all of the alleged misuse did no more than * * *
authenticate documents that were otherwise authenticated by other
witnesses or that a grand jury would have accepted as authentic in the
absence of any suggestion to the contrary." Ibid.  In fact, the court
continued, the fact that petitioner failed "to substantiate most of
his claims of misuse, combined with the compelling untainted evidence
before the grand jury, has forced him to argue that the indictment
must be dismissed if any tainted evidence was heard by the grand
jury." Id. at A55-A57.  /2/ The district court found that Second
Circuit cases foreclosed that contention, and it concluded that "(t)he
alleged misuse of (petitioner's) testimony * * * had no significant
effect on the course of events." Id. at A60.

   4. The court of appeals affirmed, addressing in turn petitioner's
claims that the government had misused his immunized testimony at
trial and before the grand jury.  Pet. App. A1-A13.

   With respect to the trial, the court of appeals upheld the district
court's finding that Strafaci's testimony "was derived from
independent legitimate sources." Pet. App. A7-A8.  The court found
that any contention that the government had made "indirect use" of
petitioner's testimony -- i.e., "to shape and focus the questioning of
witnesses and * * * to ascertain petitioner's demeanor" -- was
foreclosed by United States v. Mariani, supra.  Id. at A8-A9.  In any
event, the court added, petitioner's demeanor was never in issue since
he chose not to testify at trial.  Id. at A9.

   With respect to the grand jury proceedings, the court assumed, "for
the sake of argument, that the Government did misuse (petitioner's)
immunized testimony" before the grand jury.  It concluded, however,
that even in that event petitioner "would not be entitled to a
dismissal of the indictment." Pet. App. A10.  The court explained that
"an indictment returned by a properly constituted grand jury is not
subject to challenge on the ground that it was based on
unconstitutionally obtained evidence" and that neither Kastigar nor
the federal immunity statute, 18 U.S.C. 6002, "altered the effect of
this rule." Pet. App. A10.  Although the court recognized exceptions
for cases in which an individual has been indicted by a grand jury
that has heard his immunized testimony or in which the indictment
rests "almost exclusively on tainted evidence," it found that neither
exception applied to this case.  Id. at A11 n.4.  The court declined
to reach the question whether Mechanik independently foreclosed
petitioner's claim.  Id. at A12-A13 n.5.

                               ARGUMENT

   Petitioner contends that the court of appeals erred in its
determinations (1) that the government's alleged misuse of
petitioner's immunized grand jury testimony did not justify dismissal
of the indictment and (2) that the alleged non-evidentiary use of that
testimony at trial did not warrant reversal of his convictions.
Although the Second Circuit's reasoning on the first issue conflicts
with decisions of other courts of appeals, the conflict has no bearing
on the resolution of this case.  The second issue is a factual one on
which the courts below were manifestly correct and which would not be
decided differently by any other court of appeals.  Further review is
therefore not warranted.

   1. Petitioner's challenge to the validity of his indictment
presents only the question of what remedies are available for an
alleged misuse of immunized testimony before the grand jury.
Notwithstanding petitioner's attempts to cast the court's holding in
more pejorative terms (e.g., Pet. 1, 11), the court did not authorize
prosecutors to use immunized testimony to secure an indictment.
Rather, assuming for purposes of argument that such a violation has
occurred, it held that dismissal of the indictment was not an
available remedy under the circumstances of this case.

   Although the court of appeals assumed arguendo that petitioner's
immunized testimony was put to some use before the grand jury,
petitioner's showing of impropriety was in fact extremely weak.  After
having had a full opportunity to develop his claims in a Kastigar
hearing, petitioner was able to point to only three respects in which,
he asserted, the government had made improper evidentiary use of his
immunized testimony during the grand jury proceedings, and none of
those claims withstands analysis.

   First, he argued that, as a result of his testimony, the government
had identified, or focused upon, accountant Strafaci.  Pet. C.A. Br.
5, 8.  The district court, however, found that there was "simply
nothing" in petitioner's testimony that would have caused the
government to focus on Strafaci.  Pet. App. A7;  see id. at A20-A23.
Moreover, the record established that government investigator Valenti
met Strafaci while executing a search warrant at petitioner's offices,
long before petitioner testified.  Far from overlooking Strafaci's
significance, Valenti asked Strafaci to have a lawyer call him on
Strafaci's behalf, indicating that Valenti had an investigative
interest in Strafaci from the outset.

   Second, petitioner argued that the government was "apparently
(un)interested" in bookkeeper Cataldo until after she was identified
in petitioner's testimony.  Pet. C.A. Br. 7-8.  Here again, the
district court found that the government was aware of Cataldo's
identity from another source before petitioner testified;  that
Cataldo was never viewed as a potential prosecution witness;  and
that, when Cataldo was called to testify before the grand jury that
indicted petitioner, she merely authenticated documents that, with one
exception, had been authenticated by other witnesses.  /3/

   Third, petitioner complained that, in testimony before the grand
jury that returned the indictment, Valenti identified petitioner as
the source of certain records relevant to the case.  /4/ The district
court acknowledged that Valenti's testimony inaccurately characterized
petitioner as the source of the documents and was improper under
Braswell v. United States, 487 U.S. 99 (1988).  Pet. App. A57-A59
n.12.  But the district court found that "it is inconceivable that the
grand jury's action would have been any different if, instead of
referring to the defendant as the source of the documents, (the
investigator) had simply said he obtained them from various corporate
entities." Id. at A58-A59 n.12.

   On these findings, the district court set forth three reasons why
petitioner was not entitled to dismissal of the indictment.  It held,
in the alternative, (1) that an indictment returned by a grand jury
before which an immunized defendant has not testified is not subject
to challenge on the ground that it rested in part on incompetent
evidence, (2) that petitioner's conviction rendered any error in the
grand jury harmless, and (3) that there was abundant evidence,
untainted by his immunized testimony, to support the indictment.

   The court of appeals chose to rest its decision exclusively on the
first ground.  Accord United States v. Society of Independent Gasoline
Marketers, 624 F.2d 461, 473-474 (4th Cir. 1979), cert. denied, 449
U.S. 1078 (1981).  This Court's decisions fully support that
disposition.  As both of the courts below noted, this Court has
established that an otherwise valid indictment "is not subject to
challenge on the ground that it was based on unconstitutionally
obtained evidence." United States v. Washington, 431 U.S. at 185 n.3.
Accord United States v. Calandra, 414 U.S. 338 (1974);  United States
v. Blue, 384 U.S. 251 (1966);  Lawn v. United States, 355 U.S. 339
(1958).  Lawn is particularly instructive.  In that case, the
defendants argued that the Due Process Clause entitled them to a
hearing to determine whether an indictment had been based on documents
that they had been compelled to produce in violation of their
privilege against compelled self-incrimination.  This Court upheld the
trial court's refusal to hold such a hearing, explaining that the
defendants had not established a foundation for a hearing and that "an
indictment returned by a legally constituted nonbiased grand jury,
like an information drawn by a prosecutor, if valid on its face, is
enough to call for a trial of the charge on the merits." 355 U.S. at
349.

   It is true, as petitioner indicates, that other courts have held
that an indictment is subject to dismissal if the government fails to
establish an independent source for evidence submitted to the grand
jury.  United States v. North, 910 F.2d 843, 868-873, on rehearing,
920 F.2d 940, 947-949 (D.C. Cir. 1990), cert. denied, No. 90-1337 (May
28, 1991);  United States v. Palumbo, 897 F.2d 245, 251 (7th Cir.
1990);  United States v. Garrett, 797 F.2d 656, 659-665 (8th Cir.
1986);  United States v. Beery, 678 F.2d 856, 859-860, 863 (10th Cir.
1982);  United States v. Hampton, 775 F.2d 1479, 1485 & n.34, 1489
(11th Cir. 1985);  United States v. Gregory, 730 F.2d 692, 697-698
(11th Cir. 1984).  See also United States v. Zielezinski, 740 F.2d 727
(9th Cir. 1984).  Those courts have read Calandra, Lawn, and other
similar cases only to foreclose inquiry into whether the grand jury
was exposed to evidence that was previously obtained in violation of
the defendant's constitutional rights;  they have viewed reliance on a
defendant's immunized testimony in a grand jury investigation as a
violation that occurs in the grand jury itself.  E.g., United States
v. North, 910 F.2d at 868-869;  United States v. Garrett, 797 F.2d at
660-662;  United States v. Beery, 678 F.2d at 859-860.

   This distinction is elusive at best, and in any event, it is
inapplicable to this case.  This is not a case in which the grand jury
that returned the indictment violated petitioner's rights by
compelling him to testify and then relying on that testimony in its
charging decision.  /5/ Rather, petitioner claims that the grand jury
that returned his indictment was affected by the derivative use of
immunized testimony that was given before a different grand jury.
There is not difference in principle between that claim and an
argument that a grand jury has relied on a coerced confession (or
evidence derived from it) in returning an indictment.  Both should be
equally vulnerable to the principle that an otherwise valid indictment
is not subject to challenge on the ground that it was based on
evidence obtained in violation of a defendant's constitutional rights.

   In any event, the fact of this case do not require resolution of
this issue.  In accordance with Bank of Nova Scotia v. United States,
487 U.S. 250, 255-256 (1988), any claim that the government has made
improper use of immunized testimony in securing an indictment is, at a
minimum, subject to harmless error analysis.  United States v. North,
910 F.2d at 873;  United States v. Serrano, 870 F.2d 1, 16 (1st Cir.
1989);  United States v. Hampton, 775 F.2d at 1489 n.51;  United
States v. Byrd, 765 F.2d 1524, 1529 n.8 (11th Cir. 1985);  United
States v. Gregory, 730 F.2d at 698;  United States v. Beery, 678 F.2d
at 863.  After careful analysis of the particulars of petitioner's
claims, the district court found that the "only support" for his
contention was a single answer by a government investigator,
incorrectly identifying petitioner as the source of documents produced
in response to subpoena.  That answer, the court concluded, could not
conceivably have affected the grand jury's charging decision.  Pet.
App. A57-A59 n.12.  The government's "overwhelming and untainted
evidence at trial" established that "the United States Attorney would
have been able to provide ample evidence to warrant an indictment"
even without petitioner's testimony.  Id. at A60.  The facts of this
case therefore do not call for review of the question whether a
prejudicial misuse of immunized testimony may justify dismissal of an
indictment.  /6/

   2. Petitioner also contends (Pet. 27-29) that the court of appeals
erred in its disposition of his claim that the government made
indirect use of his immunized testimony at trial.  The district court
and the court of appeals correctly rejected that claim on these facts.

   The district court noted that, as far as the trial was concerned,
petitioner's only claim of nonevidentiary use was that the government
had capitalized on what it learned of his demeanor during his grand
jury appearances.  Pet. App. A23.  Valenti admitted that he asked one
of the prosecutors who examined petitioner how petitioner answered
questions, and was told that petitioner came across as a "wise guy."
Id. at A8 n.2, A23-A25.  The government could not possibly have made
any use of that observation at trial, however, since petitioner did
not testify.  Id. at A23-A25.

   The facts also contradict petitioner's unelaborated assertion that
his immunized testimony was used at trial "to shape and focus the
questioning of witnesses and in otherwise preparing for trial." Pet.
27.  See Pet. C.A. Br. 17.  The court of appeals sustained the
district court's finding that none of the evidence introduced during
the trial was derived from petitioner's testimony.  Pet. App. A6-A8.
The prosecutor who tried the case did not examine petitioner before
the grand jury.  Furthermore, in affidavits submitted in connection
with the Kastigar hearing, the trial prosecutor stated that although
he read one volume of petitioner's testimony and glanced at another,
he did not look at the volume containing the most substantial portion
of petitioner's testimony;  that the volumes he did examine involved
primarily the authentication of documents;  and that, by the time he
prepared for trial, he recalled only that petitioner authenticated
documents in the grand jury.  Gov't C.A. Br. 12-13.  It is impossible
to conceive how the prosecutor's recollection that petitioner had
authenticated documents could have assisted him in focusing and
shaping evidence that was derived entirely from legitimate sources.
/7/

   The cases on which petitioner relies, United States v. McDaniel,
482 F.2d 305 (8th Cir. 1973), and United States v. Semkiw, 712 F.2d
891 (3d Cir. 1983), involved far more substantial claims of
nonevidentiary use.  In McDaniel, the prosecutor read transcripts of
immunized grand jury testimony in which the defendant "fully confessed
his misdeeds." 482 F.2d at 311.  Moreover, at the time he read the
transcripts, the prosecutor was unaware that the testimony had been
obtained pursuant to a grant of immunity, and therefore "could have
perceived no reason to segregate (the) testimony from his other
sources of information." Ibid.  The court concluded that, "(u)nder
these circumstances," the government could not satisfy its burden of
showing that the testimony was not used "in some significant way short
of introducing tainted evidence," such as in "planning
cross-examination, and otherwise generally planning trial strategy."
Ibid.  Similarly, in Semkiw, the court of appeals remanded the case to
the district court for a hearing into the possibility that the trial
prosecutor had discovered the defendant's defense through his access
to the defendant's immunized testimony, and thus had derived an unfair
advantage in preparing his case.  712 F.2d at 893-895.  In the instant
case, the trial prosecutor's affidavits foreclosed a similar
contention.

   It does not appear that McDaniel, Semkiw, or any other court of
appeals decision would require reversal of a conviction in a case in
which the prosecution has made "merely tangential" nonevidentiary use
of immunized testimony.  /8/ But in any event, review of that question
should await a case in which there is a concrete indication that the
government has made some nonevidentiary use of immunized testimony.
See United States v. Serrano, 870 F.2d at 17 (declining to review
untimely claim of nonevidentiary use on the ground that the record on
appeal was "clearly inadequate to resolve this highly factual issue"
and "contain(ed) none of the findings relevant to this fact-intensive
issue").  Here, the prosecutor specifically denied any such use, and
petitioner's claim consists entirely of an unelaborated assertion that
the government nonetheless used his testimony to focus and shape
evidence that was derived entirely from legitimate sources.

                              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

   JOEL M. GERSHOWITZ

      Attorney

   JUNE 1991

   /1/ The district court cited and discussed Holt v. United States,
218 U.S. 245, 248 (1910), Lawn v. United States, 355 U.S. 339 (1958),
United States v. Blue, 384 U.S. 251 (1966), Gelbard v. United States,
408 U.S. 41, 60 (1972), and United States v. Calandra, 414 U.S. 338
(1974).

   /2/ The court rejected petitioner's claim that the government
learned of grand jury witness Elizabeth Cataldo from his testimony,
finding that the government had established "an independent untainted
source for the identity of Cataldo and for the decision to call her
before the grand jury." Pet. App. A56 n.11.  Similarly, the court
found that the grand jury that returned petitioner's indictment was
not exposed to the transcript of his testimony.  Id. at A56-A57 n.11.
The "only support for (petitioner's) claim of misuse" before the grand
jury, the court found, was a single answer by investigator Valenti, in
testimony before the second grand jury, which suggested, incorrectly,
that petitioner had produced certain documents.  Id. at A57-A58 n.12.
The court concluded, however, that it was "inconceivable that the
grand jury's action would have been different if, instead of referring
to (petitioner) as the source of the documents, (the investigator) had
simply said that he obtained them from the various corporate
entities." Id. at A58-A59 n.12.

   /3/ Pet. App. A56 n.11.  At trial, other witnesses authenticated
all of the documents Cataldo had identified.  Ibid.

   /4/ Pet. C.A. Br. 13-14.  Referring to false net worth statements
that petitioner submitted to Chemical Bank, the prosecutor elicited
the following testimony (id. at 14):

         (Q):  And have you examined then (sic) in light of the
      documents and papers you retrieved either from (petitioner)
      personally as a result of Grand Jury subpoena, or other means,
      and the documents that were seized with search warrants at the
      Hyfin Credit Union?

         (A):  Yes, I have.

   /5/ The court of appeals acknowledged that its prior cases require
dismissal of an indictment in that situation.  See, e.g., United
States v. Hinton, supra.

   /6/ This Court declined to review this question in United States v.
North, No. 90-1337 (May 28, 1991).

   /7/ Petitioner does not seek review of the contention, which he
advanced in the court of appeals, that the government made improper
nonevidentiary use of his testimony before the grand jury.  See Pet.
i.  In any event, the record establishes that, a year before
petitioner testified before the grand jury, three of his accomplices
in the scheme to defraud the credit union agreed to plead guilty and
cooperate with the government.  All three were fully debriefed before
petitioner gave his immunized testimony.  Petitioner was not indicted
by the grand jury that heard his testimony, nor was that testimony
presented to the grand jury which returned the indictment.  Gov't C.A.
Br. 10-13;  Pet. App. A56-A57 n.11.  Further, the district court
rejected all of petitioner's claims of derivative use before the grand
jury (except for the investigator's reference to petitioner as the
source of corporate documents, which the court determined to be
harmless), and it concluded that there was abundant evidence to
sustain the indictment.  Pet. App. A55-A61 & nn.11-12.  Under the
standard applied in Bank of Nova Scotia, those facts leave no room for
a determination that any nonevidentiary use of petitioner's testimony
during the proceedings culminating in his indictment had any effect on
the charging decision.

   /8/ See United States v. Serrano, 870 F.2d at 17-18 ("a prosecution
is not foreclosed merely because 'the immunized testimony might have
tangentially influenced the prosecutor's thought processes in
preparing the indictment and preparing for trial'");  United States v.
Pantone, 634 F.2d 716 (3d Cir. 1980) (mere exposure of prosecutor to
immunized testimony does not require reversal of conviction);  United
States v. Crowson, 828 F.2d 1427, 1431 (9th Cir. 1987) (assuming
arguendo that nonevidentiary use was prohibited, but finding that the
government carried its burden of showing that no such use was made);
United States v. Byrd, 765 F.2d at 1532 (a violation of the privilege
against compelled self-incrimination ordinarily does not occur "unless
(the) use of the immunized testimony resulted in the introduction of
evidence not obtained wholly from independent sources").  The D.C.
Circuit reserved judgment on whether the Fifth Amendment prohibits
nonevidentiary use in United States v. North, 910 F.2d at 856-860.