DONALD EUGENE RYANS, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-233

   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 Tenth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing a
pretrial order suppressing evidence.

   On January 19, 1989, a grand jury sitting in the Western District
of Oklahoma indicted petitioner on one count of conspiring to restrain
and suppress competition in the provision of moving services from Fort
Sill, Oklahoma, in violation of Section 1 of the Sherman Act, 15
U.S.C. 1.  Prior to trial, petitioner moved to suppress two recordings
of conversations between petitioner and a government informant.  The
conversations took place in June 1986, long before petitioner was
indicted.

   The district court granted petitioner's motion to suppress the
recordings.  The court found that at the time recordings were made the
government knew petitioner to be represented by counsel.  Therefore,
the court held, by contacting petitioner through an informant without
the consent of petitioner's counsel, the government violated
Disciplinary Rule 7-104(A)(1) of the American Bar Association's Model
Code of Professional Responsibility, which was incorporated by
reference in the local rules of the district court.  Pet. App.
28a-31a.  The court also found that the government had failed to
establish that petitioner had "waived any rights he possessed" by
revealing information to the informant.  Id. at 31a.

   The government appealed, and the court of appeals reversed.  Pet.
App. 1a-21a.  The court held that Disciplinary Rule 7-104(A)(1) does
not apply to contacts with represented defendants during the
investigative phase of a case.  Because the contacts in this case took
place before the initiation of criminal proceedings, the court held
that there was no violation of the Disciplinary Rule.  Pet. App. 18a.
The court also found that the recordings were not protected by the
attorney-client privilege, because petitioner had waived that
privilege by willingly disclosing information to the informant.  Id.
at 20a n.13.

   Petitioner contends that the Disciplinary Rule had attached at the
time of the June 1986 recordings.  He argues that he and the
government had reached an adversarial posture by then, even though no
criminal proceedings had been initiated against him and his Sixth
Amendment rights had not yet attached.  Pet. 14-15.  Petitioner also
contends that he did not waive his attorney-client privilege by
disclosing information to the informant, because he believed, albeit
incorrectly, that the informant shared his plight and concerns.  Pet.
20.

   Whatever the merits of petitioner's contentions, they are not ripe
for review by this Court.  The decision of the court of appeals places
petitioner in precisely the same position he would have occupied if
the district court had denied his motion to suppress the recordings
and found that he had waived the attorney-client privilege.  If
petitioner is acquitted following a trial on the merits, his
contentions will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will be able to
present his contentions to this Court, together with any other claims
he may have, in a petition for a writ of certiorari seeking review of
a final judgment against him.  Accordingly, review by this Court of
the decision of the court of appeals would be premature at this time.
/1/

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

   KENNETH W. STARR

      Solicitor General

   AUGUST 1990

   /1/ Because this case is interlocutory, we are not responding on
the merits to the questions presented by the petition.  We will file a
response on the merits if the Court requests.