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.