UNITED STATES OF AMERICA, PETITIONER V. HANA KOECHER

   No. 84-1922

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Motion of the United States to Vacate as Moot

   In November 1984 a grand jury investigating espionage sought to
question respondent concerning her activities on behalf of the
Czechoslovak Intelligence Service.  Respondent refused to answer.  She
claimed that the answers would be adverse to the interests of her
husband and that the marital testimonial privilege exempted her from
testifying.  The United States District Court for the Southern
District of New York held her in civil contempt pursuant to 28 U.S.C.
1826(a), concluding that the marital testimonial privilege does not
stand as a bar to testimony concerning a joint criminal enterprise in
which a husband and wife are both engaged.  The Second Circuit
subsequently issued an order vacating the order of civil contempt
because it concluded that respondent could not be compelled to testify
against her husband.  On October 7, 1985, this Court granted our
petition for a writ of certiorari to review the Second Circuit's
judgment;  oral argument was held on January 15, 1986.

   On February 3, 1986, respondent's husband pleaded guilty to one
count of conspiracy to commit espionage;  thereafter, respondent and
her husband left the United States and were repatriated to
Czechoslovakia on February 11 as part of a "spy swap." The grand jury
therefore will not have further occasion to seek to question
respondent.  These developments have rendered the case moot.

   We accordingly request that the judgment of the court of appeals be
vacated.  "The established practice of the Court in dealing with a
civil case from a court in the federal system which has become moot *
* * pending our decision on the merits is to reverse or vacate the
judgment below the remand with a direction to dismiss." United States
v. Munsingwear, Inc., 340 U.S. 36, 39 (1950) (footnote omitted);  see
also County of Los Angeles v. Davis, 440 U.S. 625, 634 (1979);
Weinstein v. Bradford, 423 U.S. 147, 149 (1975);  Preiser v. Newkirk,
422 U.S. 395, 403-404 (1975);  Board of Schools Commissioners v.
Jacobs, 420 U.S. 128, 130 (1975).  That practice eliminates any
collateral consequences of the judgment below.  It also makes clear
that the decision below is not established precedent, a useful
practice with respect to a decision that this Court has chosen to
review when such "review * * * was prevented through happenstance."
Munsingwear, 340 U.S. at 40.

   We therefore move that the Court vacate the judgment below and
remand for such further proceedings as may be appropriate.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1986