DAVID MERVIN HOFFMAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1909

   In the Supreme Court of the United States

   October Term, 1987

   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
   Opinions below
   Jurisdiction
   Questions presented
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A) is unreported.
The order of the district court (Pet. App. B) is also unreported.

                             JURISDICTION

   The judgment of the court of appeals affirming the district court
order holding petitioner in civil contempt was entered on February 27,
1987.  The petition for a writ of certiorari was filed on May 1, 1987.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the terms of a pretrial agreement precluded the district
court from directing petitioner to testify before a grand jury.

   2. Whether petitioner may assert his Fifth Amendment privilege,
despite a grant of use immunity, and refuse to testify before a
federal grand jury on the theory that his testimony might eventually
be used in a foreign prosecution.

   3. Whether incarceration for civil contempt interrupts the running
of the term of imprisonment petitioner is serving.

                               STATEMENT

   On January 26, 1987, the United States District Court for the
District of Montana issued an order pursuant to 28 U.S.C. 1826,
holding petitioner in civil contempt for failing to testify before a
grand jury and directing that he be incarcerated until he did so (Pet.
App. B).  The court of appeals affirmed (Pet. App. A).

   1. On January 22, 1986, petitioner, a Canadian citizen, was
indicted in the United States District Court for the District of
Montana for possession of 8,500 pounds of marijuana with intent to
distribute it, in violation of 21 U.S.C. 831(a)(1) (Pet. App. C).  On
April 4, 1986, petitioner appeared before the district court to enter
a plea of guilty to the charge, pursuant to a pretrial agreement with
the prosecutor.  Addressing the plea agreement, the trial judge
conducted the following inquiry (Pet. App. G):

         The Court:  And has there been any plea bargaining in this
      case, Mr. Thimsen (the defense counsel), with the U.S.
      Attorney's Office?

         Mr. Thimsen:  Your Honor, the only plea bargain we have
      entered into is in exchange for the plea of guilty, the U.S.
      Attorney would not make any recommendation regarding sentencing,
      and that they will request a presentence report before
      (sentencing).

         The Court:  All right.  Is that your understanding, Mr.
      Seykora (the prosecutor)?

         Mr. Seykora:  That's correct.  I think one additional matter,
      perhaps in the event that (petitioner) were to make application,
      if he were sentenced to prison in this case to serve his time in
      a Canadian prison, the U.S. Attorney's office would not object
      to that, (petitioner) going back to Canada to serve that time,
      Your Honor, in addition to what Mr. Thimsen has already
      indicated to the Court.

         The Court:  Is that your understanding, as well, Mr. Thimsen?

         Mr. Thimsen:  Yes, Your Honor.  The understanding, or the
      hope is, that any time Canada would give would be concurrent
      with the sentence here.  Of course, that would be up to them.
      At least that recommendation would be put on the record, or a
      notation of it at least would be placed on the record.

   After accepting petitioner's guilty plea, the district court
sentenced petitioner to 15 years' imprisonment and to a three-year
special parole term.  The court also recommended that petitioner be
permitted to serve his sentence in a Canadian prison.  Pet. App. F.

   2. Thereafter, a grand jury in the District of Montana issued a
writ of habeas corpus ad testificandum requiring petitioner to appear
as a witness before it on June 16, 1986.  Petitioner refused to appear
on the ground that his testimony could incriminate him in a pending
Canadian prosecution.  The United States Attorney then contacted
Canadian authorities and, on November 18, 1986, a representative of
the Attorney General of Canada appeared before the district judge who
was supervising the grand jury investigation.  The Canadian official
presented a letter to the court stating that the Dominion of Canada
did not intend to use petitioner's testimony before the grand jury in
any prosecution of petitioner in Canada.  The Canadian official also
explained that the immunity letter was binding on all provinces of
Canada, because all narcotics violations in Canada fall within the
jurisdiction of federal prosecutors.  The district court thereupon
issued a compulsion order requiring petitioner to testify and granting
him immunity from the use in a criminal prosecution of matters
revealed in his testimony.  Pet. App. B.

   Despite the district court's immunity order, petitioner persisted
in his refusal to testify.  The government accordingly requested that
he be held in contempt.  During the proceedings on the motion to hold
petitioner in contempt, petitioner's counsel introduced a handwritten
note made by his former defense attorney during plea negotiations.
The note indicated that in exchange for a plea of guilty, the
prosecutor had offered to make no recommendation with respect to
sentence and to seek a term concurrent with any imposed for a then
pending Canadian prosecution for an unrelated offense;  it also
indicated that if, in addition, petitioner agreed to testify against
others, the government would recommend leniency in sentencing (Pet.
App. D).  Petitioner testified in the contempt hearing that he
understood that, under the plea agreement, he had an option:  " He
could testify against others and (his) sentence would be reduced.  If
(he) didn't want to testify against others, (he could) take (his)
chances in court.  <He+ chose the latter and received the maximum
sentence" (Pet. App. H).

   Following the hearing, the district court issued an order, pursuant
to 28 U.S.C. 1826, holding petitioner in civil contempt and directing
that he be incarcerated in the local jail until he testified or until
further order of the court (Pet. App. B.) The court noted that "the
plea bargain agreement of (petitioner was) set forth entirely upon the
record" and that there was no just cause shown why he should not
testify before the grand jury (ibid.).  The court further noted that
"(t)he government has advised the court that it will not use the grand
jury transcript for the purpose of providing it to Canadian
authorities for prosecution of (petitioner) in Canada" (ibid.).  /1/
The order left it to the Bureau of Prisons to determine how
incarceration pursuant to the contempt order would affect the term of
imprisonment petitioner was then serving (ibid.).

   3. On appeal, petitioner maintained that the order directing him to
testify was contrary to the terms of his plea bargain with the
government:  that the prospect of his being further prosecuted in
Canada for offenses relating to the subject matter of his grand jury
testimony precluded the court from ordering him to testify;  and that
his incarceration for civil contempt could not lawfully interrupt the
running of his criminal sentence which was imposed earlier.  The court
of appeals rejected each of those claims.  It held (Pet. App. A) that
the government never promised petitioner that he would not be
subpoenaed to testify;  that the possibility of the use of grand jury
testimony by a foreign jurisdiction does not justify a witness in
invoking his privilege against compulsory self-incrimination despite a
court order of use immunity;  /2/ and that a civil contempt sentence
imposed upon a person serving a term of imprisonment properly suspends
the sentence of the criminal sentence during the period of the
contemnor's confinement for the contempt.

                               ARGUMENT

   1. Petitioner contends (Pet. 10-16) that the order directing him to
appear and testify before the grand jury violated the terms of his
plea agreement.  This fact-specific claim was properly rejected by the
court below.  There is no need for further review by this Court.

   As this Court explained in Blackledge v. Allison, 431 U.S. 63,
73-74 (1977), "representations of the defendant (and) his lawyer * * *
at (a guilty plea) hearing * * * constitute a formidable barrier in
any subsequent collaterial proceedings.  Solemn declarations in open
court carry a strong presumption of verity." In this case, during the
Fed. R. Crim. P. 11 inquiry, petitioner's attorney represented to the
court that the only promise the government made in exchange for
petitioner's plea was its assurance that it would make no
recommendation as to sentence and that it would recommend that
petitioner be permitted to serve in Canada any sentence of confinement
(Pet. App. G).

   Representations made during the Rule 11 inquiry are "not invariably
insurmountable," and in some cases "specific factual allegations" may
entitle a defendant to an opportunity to show in a subsequent hearing
that there were unrevealed promises made by the government in exchange
for a plea of guilty.  See Blackledge, 431 U.S. at 74-76.  In this
case, however, petitioner plainly failed to make the showing necessary
to warrant an inquiry into the allegation that there was an unrevealed
promise.  /3/ Although there was evidence that, during the plea
bargaining process, the government had offered to seek leniency for
petitioner if he agreed voluntarily to present testimony against
others, it is undisputed that he elected not to do so.  And, as the
court of appeals recognized, nothing in the record suggests that,
during the bargaining process, the government either promised
petitioner that he would not be subpoenaed to testify in the event
that he entered a plea of guilty, or that it made representations that
could reasonably be understood as constituting such a promise.  See,
e.g., United States v. Kamer, 781 F.2d 1380, 1387-1389 (9th Cir.
1986), cert. denied, No. 85-1293 (Oct. 6, 1986).  Consequently, the
plea agreement did not preclude the government from subpoenaing
petitioner to testify during the grand jury proceeding.  /4/

   2. Petitioner also claims (Pet. 16-25) that, despite the grant of
use immunity, his compelled testimony before the grand jury would
violate his Fifth Amendment privilege against compulsory
self-incrimination because that testimony might be given to the
Canadian government for use against him in a criminal prosecution in
that country.  This claim was also properly rejected by the court
below.

   As this Court explained in Zicarelli v. New Jersey Investigation
Comm'n, 406 U.S. 472, 478 (1972), it is unnecessary to address the
question whether the Fifth Amendment protects against the risk of the
use of compelled testimony against the witness in a foreign
prosecution unless there is a "real and substantial fear" of such use
in a foreign prosecution.  This is because "(i)t is well established
that the privilege protects against real dangers, not remote and
speculative possibilities" (ibid.).  See, e.g., United States v.
(Under Seal), 794 F.2d 920, 923 (4th Cir. 1986), cert. denied sub nom.
Araneta v. United States, No. 86-172 (Oct. 16, 1986) (hereinafter
Araneta);  In re Grand Jury Proceedings, 748 F.2d 100, 103 (2d Cir.
1984).

   In this case, petitioner did not run a real and substantial risk of
a foreign prosecution in which his grand jury testimony would be used
against him.  In the first place, a representative of the Attorney
General of Canada furnished written assurance to the court that
petitioner's grand jury testimony would not be used in any prosecution
of petitioner anywhere in that country.  /5/ Beyond this, during the
contempt hearing the district court specifically directed that "no one
ever * * * release" petitioner's grand jury testimony "to anyone" and,
specifically, that the prosecutor not release it to the Canadian
government (C.A. Supp. E.R. 40-41).  These assurances minimized the
risk that, should petitioner decide to testify, his testimony would
later be used to incriminate him in a Canadian prosecution.  See,
e.g., In re Grand Jury Proceedings, 748 F.2d at 103 (protective order
issued by the district court sufficient to protect against foreign
prosecution);  In re Baird, 668 F.2d 432, 433 (8th Cir.), cert.
denied, 456 U.S. 982 (1982) (secrecy afforded grand jury proceedings
by Fed. R. Crim. P. 6(e) adequately assured that incriminating
testimony would not be furnished to foreign officials);  In re Federal
Grand Jury Witness (Lemieux), 597 F.2d 1166, 1167 (9th Cir. 1979)
(same).  /6/

   3. Finally, petitioner claims (Pet. 26-29) that the district court
erred in directing that any incarceration resulting from his contempt
citation would suspend service of the sentence on his earlier criminal
conviction.  More specifically, he maintains that such a suspension of
the running of his term of confinement would contravene 18 U.S.C.
3568.  That statute provides in pertinent part that

         (t)he sentence of imprisonment of any person shall commence
      to run from the date on which such person is received at the
      penitentiary * * * for service of such sentence.  The Attorney
      General shall give any such person credit toward service of his
      sentence for any days spent in custody in connection with the
      offense or acts for which sentence was imposed.  As used in this
      section, the term 'offense' means any criminal offense * * * .

                      *   *   *   *   *

         No sentence shall prescribe any other method of computing the
      term

   The district court did not, itself, direct that the contempt
incarceration would toll the running of the sentence imposed on the
earlier criminal conviction.  Instead, it merely stated that the
effect upon the sentence of the time spent in custody pursuant to the
contempt order "shall be comput(ed) by the Bureau of Prisons" (Pet.
App. B).  Bureau of Prisons regulations provide that "(i)f an inmate
is serving a federal criminal sentence when a civil contempt sentence
is ordered, the criminal sentence is suspended for the duration of the
civil contempt sentence and time spent serving the contempt sentence
is inoperative on any sentence being served" (28 C.F.R. 522.11(d);
Bureau of Prisons Program Statement No. 5140.11 (1979)).

   The Bureau of Prisons' policy does not conflict with 18 U.S.C.
3568.  As the court explained in Martin v. United States, 517 F.2d
906, 909 (8th Cir.), cert. denied, 423 U.S. 856 (1975) (quoting Anglin
v. Johnson, 504 F.2d 1165, 1167 (7th Cir. 1974), cert. denied, 420
U.S. 962 (1975)):

         "(t)he language of section 3568 is unambiguous.  Credit shall
      be given for time spent 'in connection with the offense or acts
      for which sentence was imposed' and 'offense' is defined as a
      'criminal offense.' The confinement for which petitioner seeks
      credit was imposed in connection with a civil contempt (refusal
      to testify) and not in connection with the criminal offense 'for
      which sentence was imposed.'" * * *

         (Accordingly,) interruption of the criminal sentence by a
      civil confinement pursuant to  28 U.S.C.  Section 1826(a) is not
      in derogation of 18 U.S.C. Section 3568 but arises from the
      clear and unambiguous provisions of that statute.

   Adopting reasoning similar to that in Martin, supra, and Anglin,
supra, six other courts of appeals have likewise held that a period of
incarceration for civil contempt interrupts a criminal sentence
currently being served, and no circuit has held otherwise.  See, e.g.,
In re Application of the United States Sen. Permanent Subcomm. on
Investigations, 655 F.2d 1232, 1239 & n. 33 (D.C. Cir.) (collecting
cases), cert. denied, 454 U.S. 1084 (1981);  United States v. Dien,
598 F.2d 743, 744-745 & n.1 (2d Cir. 1979);  In re Garmon, 572 F.2d
1373, 1375-1376 (9th Cir. 1978);  In re Grand Jury Investigation
(Appeal of Hartzell), 542 F.2d 166, 168-169 (3d Cir. 1976), cert.
denied, 429 U.S. 1047 (1977);  In re Grand Jury Proceedings, 532 F.2d
410, 411-412 (5th Cir.), cert. denied, 429 U.S. 924 (1976);
Williamson v. Saxbe, 513 F.2d 1309 (6th Cir. 1975).  That uniform rule
is entirely consistent with the policy underlying civil contempt
proceedings against recalcitrant witnesses.  If a civil contempt order
did not interrupt a criminal sentence, it would have no coercive
effect against a witness who was already serving a sentence on other
charges.  Review by this Court is therefore unwarranted.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   JOHN F. DE PUE

      Attorney

   AUGUST 1987

   /1/ At the hearing the court had directed that, in the event
petitioner elected to testify, "(the) grand jury testimony is to be
sealed.  If it's transcribed, it's not to be released by  the
prosecutor  to the Canadian government" (C.A. Supp. E.R. 40-41).

   /2/ In reaching this conclusion, the court relied on circuit
precedent (In re Federal Grand Jury Witness (Lemieux), 597 F.2d 1166,
1167 (9th Cir. 1979);  In re Weir, 495 F.2d 879, 881 (9th Cir.), cert.
denied, 419 U.S. 1038 (1974)), holding that in light of the district
court's power to preserve the secrecy of grand jury testimony, there
was no "real and substantial" danger of the foreign use of immunized
grand jury testimony.  See Zicarelli v. New Jersey State Investigation
Comm'n, 406 U.S. 473, 478 (1972).

   /3/ Petitioner was, of course, given the opportunity to establish
his claims regarding the plea agreement at the contempt hearing.

   /4/ Santobello v. New York, 404 U.S. 257 (1971), upon which
petitioner relies is, therefore, inapposite.  In that case it was
undisputed that the defendant and the prosecutor had struck a bargain
involving the entry of a plea of guilty to a lesser offense in
exchange for the prosecutor's promise not to make any recommendation
on sentence.  In this case, no agreement was ever struck whereby, in
exchange for petitioner's plea and promise to testify, the government
agreed not to subpoena him to testify before the grand jury.  At most,
the government merely offered to make such an agreement.

   /5/ In light of that letter, petitioner's apparent concerns about
the district court's interference with Canadian sovereignty (Pet.
21-23) are without foundation.

   /6/ The decision of the court below and its earlier decision in
Lemieux, supra, do not conflict with Araneta, supra, as petitioner
maintains (Pet. 20).  Both Lemieux, 597 F.2d at 1167, and Araneta, 794
F.2d at 923, hold that the proper framework for resolving the secrecy
issue is the test articulated in Zicarelli, supra, i.e., whether the
witness confronts a real and substantial risk of foreign prosecution
based on his immunized testimony.  Although the court in Araneta
concluded that the district court's protective order, issued pursuant
to Fed. R. Crim. P. 6(e), was inadequate to obviate the risk of
self-incrimination in a trial by a foreign state, it did so because of
the unique circumstances of the case, which involved the former
president of the Philippines, who was alleged to have illicitly
obtained billions of dollars as a result of his activities in that
country.  The instant case does not possess the same notoriety.
Moreover, by contrast with Araneta, petitioner was afforded written
assurances by the foreign sovereign that his grand jury testimony
would not be used against him in any foreign prosecution.

   Although three Justices would have granted certiorari in Araneta,
the court of appeals there concluded that there was a real and
substantial risk of foreign prosecution and accordingly reached the
question reserved in Zicarelli, supra.  The court below, in contrast,
concluded that there was no such risk (see note 2, supra);  it
accordingly did not consider the scope of the Fifth Amendment
privilege in this context.  For that reason, this case is a less
attractive candidate for certiorari than Araneta.