TRUMAN LEWIS BALL, PETITIONER V. UNITED STATES OF AMERICA No. 84-5004 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit Brief for the United States TABLE OF CONTENTS Opinion below Jurisdiction Statement Summary of argument Argument I. Petitioner's challenge to his two convictions is not properly before this Court because he did not raise this issue in the courts below II. The imposition of separate concurrent sentences upon petitioner for unlawful receipt of a firearm and unlawful possession of the same firearm does not violate the relevant statutes or the Double Jeopardy Clause A. The government may prosecute a defendant for both unlawful receipt of a firearm and unlawful possession of the same firearm B. In the absence of cumulative punishment, petitioner's two convictions violate no constitutional or statutory right Conclusion OPINION BELOW The opinion of the court of appeals (J.A. 37-38) is reported at 734 F.2d 965. JURISDICTION The judgment of the court of appeals was entered on May 8, 1984. The petition for a writ of certiorari was filed on July 6, 1984 and was granted on October 1, 1984 (J.A. 41). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner may be convicted and concurrently sentenced under 18 U.S.C. 922(h)(1) for unlawful receipt of a firearm and under 18 U.S.C. App. 1202(a)(1) for unlawful possession of the same firearm. STATEMENT Following a jury trial in the United States District Court for the Western District of Virginia, petitioner, a previously convicted felon, was found guilty of receipt of a firearm, in violation of 18 U.S.C. 922(h)(1), and possession of the same firearm in violation of 18 U.S.C. App. 1202(a)(1). Petitioner was sentened to consecutive terms of three years' imprinsonment on the receipt count and two years' imprisonment on the possession count, suspended in favor of two years' probation. J.A. 34. On appeal, the sentences were ordered to be made concurrent, and the government has not sought review of that decision. 1. The evidence adduced at trial showed that in October 1981, Elliot Brothers of South Carolina shipped a .32 caliber Rossi revolver to McGlothlin's Store in Honaker, Virginia (J.A. 4-5). On February 22, 1982, McGlothlin sold the revolver to Hubert Romans (J.A. 6-7). Sometime during the late spring of 1982, petitioner was a passenger in Roman's car. The morning after petitioner had been in the car, Romans noticed that the revolver, which had been lying on the back seat of the car, was missing. Romans reported the incident to the local police (J.A. 8-9). Within a few days thereafter, petitioner pointed a gun at Clarence Muzic that fit the description of Roman's revolver (J.A. 14-15). Muzic notified the police of this incident (J.A. 15-16). When petitioner later reappeared at Muzic's residence, Muzic summoned the police (ibid.). The police located petitioner as he was leaving the house of Gary Muzic, to whom he had attempted unsuccessfully to sell the gun. When the police told petitioner that they had a warrant for his arrest, he turned and ran into the bedroom of Muzic's house. J.A. 22-24. One of the police officers noticed a gun in petitioner's back pocket (J.A. 23). Romans' gun was found in the bedroom into which petitioner had fled (J.A. 24). The parties stipulated that petitioner previously had been convicted of the state felony of threatening a dwelling house (J.A. 2-3). 2. Following sentencing, petitioner filed with the district court a motion for reduction of sentence contending that the Double Jeopardy Clause "do(es) not permit cumulative sentences" for the two offenses of which petitioner was convicted (Motion for Reduction of Sentence at 1). The district court denied the motion; petitioner thereafter moved for reconsideration, specifically requesting that his sentences "run concurrently" (Motion for Reconsideration at 5). This motion also was denied. The government conceded in the court of appeals that under the Fourth Circuit's decision in United States v. Burton, 629 F.2d 975 (1980), cert. denied, 450 U.S. 968 (1981), consecutive sentences could not be imposed for unlawful receipt and unlawful possession of the same firearm, where the unlawful possession of the firearm was incident to its unlawful receipt. The court of appeals remanded the case to the district court with instructions to modify the sentences by making them concurrent (J.A. 38), a remedy requested by petitioner. /1/ On October 1, 1984, this Court granted the petition for a writ of certiorari (J.A. 41). SUMMARY OF ARGUMENT 1. Petitioner received consecutive sentences of three years' imprisonment for unlawful receipt of a firearm and two years' probation for unlawful possession of a firearm. In the district court and the court of appeals petitioner claimed that this cumulative punishment was improper, and sought either the vacation of one of the sentences or an order directing that the sentences run concurrently. Petitioner obtained the latter remedy in the court of appeals, but now seeks the vacation of one of his convictions. Since petitioner challenged only the cumulative punishments in the courts below and did not previously present the arguments upon which he now relies, the issue should not be considered by this Court. 2. Petitioner appears to make two alternative arguments in support of his contention that one of the convictions should be vacated. He first asserts that Congress did not intend to permit a defendant to be prosecuted simultaneously for both receipt and possession of the same firearm, and that the government therefore may charge a defendant with only one of the two offenses. Second, he argues that his two convictions and concurrent sentences amount to multiple punishment prohibited by the Double Jeopardy Clause. Both of these contentions are incorrect. a. In United States v. Batchelder, 442 U.S. 114 (1979), this Court concluded that Congress intended to create two overlapping offenses in enacting these statutes. Since a prosecutor typically may proceed against a defendant under several statutes, there can be no bar against simultaneous prosecutions under these provisions. Moreover, the rule proposed by petitioner apparently would force the government to elect before trial whether to prosecute only for possession or only for receipt, even though different penalties apply to the offenses and different proof may often be adduced as to each. Such a requirement of pre-verdict election would unjustifiably handicap enforcement of the firearms laws without affording any proper benefit to a defendant. Even after verdicts have been returned, and granting a congressional intent to foreclose cumulative punishment for receipt and possession of the same firearm, nothing in the language or history of the statutes suggests a bar against entry of convictions and concurrent sentences. b. Petitioner's double jeopardy claim is meritless. Since the receipt and possession charges were tried in a single proceeding, the protection against successive prosecutions is not implicated, only that against multiple punishments. However, a second conviction for which only a concurrent sentence has been imposed does not constitute punishment in circumstances where, as here, the additional convinction will not increase the defendant's prison term and will not impose any other adverse consequences upon the defendant. ARGUMENT This case concerns two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 et seq., which prohibit convicted felons such as petitioner from engaging in a variety of conduct relating to firearms. The first, 18 U.S.C. 922(h), prohibits the receipt of a firearm by such persons, and carries a penalty of up to five years' imprisonment (see 18 U.S.C. 924(a)). The second, 18 U.S.C. App. 1202(a), bars not only receipt but also trasportation or possession of a firearm, but imposes a lighter penalty -- a maximum of only two years' imprisonment. Petitioner was found guilty at trial of unlawful receipt of a firearm, in violation of Section 922(h)(1), and unlawful possession of a firearm, in violation of Section 1202(a)(1). He received consecutive sentences on these two convictions of three years' imprisonment and two years' probation, respectively. In both the district court and the court of appeals petitioner's sole complaint related to the fact that consecutive sentences had been imposed. The government conceded in the court of appeals that the cumulative sentences were improper because both convictions were based upon the same facts. The court of appeals concurred with the parties that cumulative punishment was improper and, as petitioner requested, ordered that the two sentences be made to run concurrently. /2/ Petitioner now contends that the court of appeals' remedy was improper because that court should have ordered the district court to vacate one of his two convictions and sentences. Thus, the narrow question presented by this case is whether a defendant who has received concurrent sentences for convictions under Section 922(h) and Section 1202(a), and will not suffer any adverse consequences as a result of being convicted for two offenses rather than one, is entitled nontheless to the vacation of his conviction under Section 1202(a). Since petitioner did not seek the vacation of one of his convictions in the court of appeals and did not previously raise any claim directed against his multiple convictions (as opposed to cumulative punishment), he has failed to preserve this issue for review by this Court. The rationale underlying petitioner's assertion that he is entitled to this relief is not entirely clear, but he appears to make two basic arguments. First, he asserts that a defendant cannot be prosecuted simultaneously under these two statutes for receipt and possession, and that the government may charge under only one of the provisions. This contention is incorrect. There is no constitutional or statutory bar to prosecution under the two statutes. Petitioner's second claim seems to be that his two convictions and concurrent sentences constitute multiple punishment prohibited by the Double Jeopardy Clause, even though the additional conviction has no identifiable collateral consequences. Although this issue has little practical significance, we believe that petitioner is incorrect and that, moreover, adoption of petitioner's argument might call into question the validity of the concurrent sentence doctrine. /3/ I. PETITIONER'S CHALLENGE TO HIS TWO CONVICTIONS IS NOT PROPERLY BEFORE THIS COURT BECAUSE HE DID NOT RAISE THIS ISSUE IN THE COURTS BELOW A petitioner may not ordinarily raise an issue in this Court that he failed to present to the lower courts. United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970); Lawn v. United States, 355 U.S. 339, 362 n.16 (1958). Petitioner's motion under Fed. R. Crim. P. 35 in the district court challenged only the consecutive sentences imposed by the district court. It did not raise any objection to petitioner's convictions under the two statutes. In his motion for reconsideration filed after the district court's denial of this motion, petitioner requested only that the district court make his two sentences "run concurrently" (Motion for Reconsideration at 5) -- the very relief ordered by the court of appeals. Petitioner's argument in the court of appeals was similarly narrow. As that court observed, petitioner challenged "only the validity of the sentence imposed" (J.A. 37). He requested that the court of appeals either vacate one of the two sentences or order that the sentences run concurrently (C.A. Br. 14). Petitioner again did not seek the vacation of one of his convictions. In fact, one of the Fourth Circuit's decisions that petitioner relied upon in the court of appeals (id. at 10) specifically notes that the vacation of a sentence does not disturb the underlying conviction. Goodson v. United States, 564 F.2d 1071, 1073 & n.2 (4th Cir. 1977). Moreover, petitioner did not previously make the substantive arguments upon which he now relies. He raised no objection in the district court to his simultaneous prosecution under Sections 922(h) and 1202(a). In the court of appeals, petitioner argued only that the sentences imposed by the district court resulted in improper cumulative punishment. He did not challenge his prosecution under the two provisions and did not even cite United States v. Batchelder, 442 U.S. 114 (1979), or the decisions of the courts of appeals that are the basis of his argument before this Court. Although petitioner relied upon the Double Jeopardy Clause in the courts below, he never contended that his two convictions constituted impermissible multiple punishment apart from the consecutive sentences or argued that less than complete relief would be provided by an order making his sentences concurrent. Thus, petitioner seeks a remedy from this Court that he did not request in the court of appeals or the district court on the basis of legal theories that were not presented to those courts. Since petitioner failed to raise these issues in the courts below, they should not be considered by this Court. II. THE IMPOSITION OF SEPARATE CONCURRENT SENTENCES UPON PETITIONER FOR UNLAWFUL RECEIPT OF A FIREARM AND UNLAWFUL POSSESSION OF THE SAME FIREARM DOES NOT VIOLATE THE RELEVANT STATUTES OR THE DOUBLE JEOPARDY CLAUSE A. The Government May Prosecute A Defendant For Both Unlawful Receipt Of A Firearm And Unlawful Possession Of The Same Firearm This Court has long acknowledged the government's broad discretion regarding the conduct of criminal prosecutions, including its power to select the charges to be brought in a particular case. See United States v. Goodwin, 457 U.S. 368, 382 (1982); United States v. Batchelder, 442 U.S. at 124; Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Nixon, 418 U.S. 683, 694 (1974); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457-459 (1868). This settled rule is dispositive of petitioner's claim (Br. 5-10) that the government cannot proceed simultaneously under the two gun control statutes at issue in this case. At the outset, it is clear that petitioner's reliance (Br. 5) upon the Double Jeopardy Clause and this Court's decision in Blockburger v. United States, 284 U.S. 299 (1932), is completely misplaced with respect to this point. In Ohio v. Johnson, No. 83-904 (June 11, 1984), this Court held that even where the Double Jeopardy Clause bars cumulative punishment for a group of offenses, "the Clause does not prohibit the State from prosecuting (the defendant) for such multiple offenses in a single prosecution" (slip op. 7). Neither the interest in finality nor that in avoiding repetitive litigation is implicated when all related charges growing out of one incident are combined in a single proceeding, even if the charges are overlapping or mutually exclusive. See United States v. McDaniel, 538 F.2d 408, 414 (D.C. Cir. 1976). The Clause therefore presents no barrier to simultaneous prosecution under Sections 922(h) and 1202(a). Similarly, there is no statutory bar to charging a defendant under these two provisions. In United States v. Batchelder, 442 U.S. 114, 118 (1979), the Court recognized the "partial redundancy" of Sections 922(h) and 1202(a), but it concluded that "each substantive statute, in conjunction with its own sentencing provision, operates independently of the other." The question before the Court in Batchelder was whether Section 1202(a) impliedly repealed Section 922(h) with respect to acts covered by both provisions. This Court found no such implied repeal, noting that both the statutory language and the legislative history clearly showed that both provisions were to be applied independently (442 U.S. at 118-121). The Court also rejected contentions that the Constitution would be violated if the two statutes were interpreted to encompass the same conduct (id. at 122-126). Despite this Court's recognition of the independence of the two statutes, several courts of appeals have interpreted Batchelder to forbid the government from proceeding against a defendant, even in a single prosecution, under both Sections 922(h) and 1202(a). See United States v. Girst, 645 F.2d 1014, 1016-1017 (D.C. Cir. 1979); United States v. Larson, 625 F.2d 67, 69 (5th Cir. 1980); United States v. Conn, 716 F.2d 550, 552 (9th Cir. 1983). /4/ These courts have seized upon the observation in Batchelder that "when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants" (442 U.S. at 123-124), interpreting the reference to "either" statute to embody a requirement that the government elect to proceed under only one of the two provisions. This interpretation is incorrect. The passage was a response to the claim that the two statutes permitted excessive prosecutorial discretion because the government could select which of the two penalties would apply in a given case by proceeding under one statute or the other (442 U.S. at 122, 124). Thus, the reference to "either" statute was an affirmation of the government's discretion to charge under one statute rather than the other. It plainly was not intended to restrict the government to prosecuting for only a single offense -- a question not present in the case -- especially in view of Batchelder's conclusion that the two statutes are "each fully enforceable on (their) own terms" (442 U.S. at 119). The government typically is permitted to prosecute a defendant under several related provisions at the same time. For example, in United States v. Gaddis, 424 U.S. 544, 550 (1976), this Court held that "there can be no impropriety for a grand jury to return an indictment or for a prosecutor to file an information containing counts charging violations of" several different provisions of the federal bank robbery statute where there is evidence to support the charges, even though the defendant could not in the end stand convicted of both offenses. Since Batchelder held that the decision whether to proceed under Section 922(h) or Section 1202(a) is no different from other charging decisions (442 U.S. at 125), the same rule must apply to prosecutions involving these provisions. /5/ The difference in the elements of and potential punishments for the two offenses provides a practical justification for permitting simultaneous prosecutions. The Section 922 receipt offense authorizes punishment of up to five years' imprisonment, while the maximum sentence for unlawful possession is two years. The point of Batchelder is that Congress has afforded the prosecutor the option to elect to prosecute for the more severe offense. But while it is true that a defendant could not actually possess a firearm without having at some time received it (unless he manufactured it himself), it does not follow that the ability to prove unlawful possession automatically ensures that unlawful receipt can also be proven. A defendant may be found in possession of a firearm, yet the circumstances surrounding his receipt of the firearm may be disputed. Thus, he may seek to raise a reasonable doubt as to whether, for example, the receipt offense occurred in a different venue or outside the period of the statute of limitations. In light of these possibilities, a prosecutor may reasonably conclude that he must safeguard his case by charging both offenses, so that if the proof fails on the more serious receipt offense, a conviction on the possession charge may still be obtained. /6/ No legitimate interest of the defendant has been identified that would justify impaling the prosecutor on the horns of the dilemma created by a requirement of pretrial election. B. In The Absence Of Cumulative Punishment, Petitioner's Two Convictions Violate No Constitutional Or Statutory Right The government conceded and the court below found that the consecutive sentences imposed upon petitioner by the district court were not authorized by Congress. Under its power to issue a remedial order "just under the circumstances" (28 U.S.C. 2106), the court of appeals directed that the sentences be modified to run concurrently (J.A. 37-38). Petitioner now asserts (Br. 10-13) that the court of appeals was required in addition to order the district court to vacate one of his two convictions. The basis for this claim appears to be petitioner's belief that his two concurrent sentences constitute multiple punishment prohibited by the Double Jeopardy Clause. Although vacation of a sentence and the underlying conviction is one method by which cumulative punishment can be eliminated, it is not the only permissible remedy. The court of appeals' action was wholly appropriate in the circumstances of this case. The Double Jeopardy Clause contains three basic protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). See also Ohio v. Johnson, slip op. 5; Brown v. Ohio, 432 U.S. 161, 165 (1977). Since petitioner has been subjected to only one prosecution, the only arguably relevant aspect of the Clause is its protection against multiple punishments for the same offense. This Court has held that "(w)ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983). See also Ohio v. Johnson, slip op. 6; Albernaz v. United States, 450 U.S. 333, 343-344 (1981). Here, by creating two offenses (see page 11, supra), Congress authorized the imposition of multiple convictions. /7/ Moreover, petitioner's second conviction and concurrent sentence will not result in any additional "punishment." This Court has held that fines and imprisonment are the types of punishment limited by the Double Jeopardy Clause. Thus, in North Carolina v. Pearce, 395 U.S. at 718, the Court found that a prison term longer than the statutory maximum or a fine greater than the maximum authorized by the statute would violate the guarantee against multiple punishment. More recently, in Ohio v. Johnson, supra, the Court stated that the protection against multiple punishment "is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature" (slip op. 6). See also Missouri v. Hunter, 459 U.S. at 366. The consistent emphasis in this Court's decisions upon "sentencing" and the actual punishment received by a defendant mandates the conclusion that the Clause is not violated by an additional conviction for which a court imposes a concurrent sentence, where there will be no effect upon the defendant's term of imprisonment. In Jeffers v. United States, 432 U.S. 137 (1977), the Court recognized that a second conviction and concurrent sentence need not be vacated in order to eliminate cumulative punishment for two offenses. The petitioner in that case had been convicted of conspiracy to distribute drugs, in violation of 21 U.S.C. 846, and conducting a continuing criminal enterprise to violate the drug laws, in violation of 21 U.S.C. 848. He was sentenced to the maximum punishment under each statute: 15 years in prison, a $25,000 fine, and a 3 year special parole term for the first offense, and life imprisonment and a $100,000 fine for the second offense. The convictions were upheld despite the fact that they resulted from separate trials because the petitioner had waived the Double Jeopardy Clause's protection against successive prosecutions by requesting separate trials on the two charges. Turning to the sentences imposed, this Court found that Congress did not intend the two violations to be cumulatively punished and ordered that the $125,000 in fines imposed for the two offenses be "reduced so that the two fines together do not exceed $100,000," the maximum under the more severe statute (432 U.S. at 158) (plurality opinion). Significant for present purposes is the fact that this Court did not require that one of Jeffers' concurrent terms of imprisonment be vacated or that one of his two convictions be vacated; indeed, by stating that "the two fines together" could not exceed $100,000, the plurality made clear that vacation of one of the convictions was not required to eliminate the multiple punishment. See also United States v. Rone, 598 F.2d 564, 572 (9th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United States v. Ackerson, 502 F.2d 300, 305-306 (8th Cir. 1974), vacated on other grounds, 419 U.S. 1099 (1975); United States v. Jones, 487 F.2d 676, 679 & n.1 (9th Cir. 1973); cf. United States v. Nichols, 731 F.2d 545, 547 (8th Cir. 1984), cert. denied, No. 83-6908 (Dec. 8, 1984); United States v. Kaplan, 588 F.2d 71, 75 (1978), modified on other grounds, 620 F.2d 1006 (4th Cir. 1980); United States v. Tankersley, 492 F.2d 962, 969 (7th Cir. 1974). Some courts of appeals have required the vacation of multiple convictions in these circumstances, citing the possible adverse consequences of an additional conviction. E.g., United States v. Buckley, 586 F.2d 498, 504-505 (5th Cir. 1978), cert. denied, 440 U.S. 982 (1979); United States v. York, 578 F.2d 1036, 1040 (5th Cir.), cert. denied, 439 U.S. 1005 (1978); United States v. Slutsky, 487 F.2d 832, 845 n.18 (2d Cir. 1973), cert. denied, 416 U.S. 937 (1974). These collateral consequences can include delay in the defendant's eligibility for parole, /8/ an increased sentence under a recidivist statute for a future offense, the availability of the conviction to impeach the defendant's character or credibility in future proceedings, and the societal stigma resulting from the additional conviction. Benton v. Maryland, 395 U.S. 784, 790-791 (1969); Sibron v. New York, 392 U.S. 40, 54-56 (1968). Petitioner does not even claim, however, that he will suffer any consequences from his second conviction and concurrent sentence, and it in fact seems certain that no such adverse effects will occur. The Parole Commission advises us that petitioner's prospects for parole will not be affected by an additional conviction because only a single firearm was involved and its unlawful possession was incident to its unlawful receipt. The record indicates that petitioner previously has been convicted of 58 offenses, of which at least one was a felony (Tr. 86). Whether one or two convictions exist for receipt and possession cannot reasonably be expected to affect petitioner's status under an habitual offender statute (see United States v. Ramos Algarin, 584 F.2d 562, 568 (1st Cir. 1978) ). Finally, a conviction for possession of a firearm based on the same facts as his conviction for receipt of the firearm is not likely to impose any additional stigma upon petitioner or provide additional grounds for impeachment, because of the close similarity between the offenses. See United States v. Alessi, 638 F.2d 466, 468-469 (2d Cir. 1980); United States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980); United States v. Lampley, 573 F.2d 783, 788 (3d Cir. 1978). Since the additional conviction and concurrent sentence will not adversely affect petitioner, they cannot constitute punishment within the meaning of the Double Jeopardy Clause, /9/ and the court of appeals was not required to vacate one of petitioner's convictions. While we believe, for the reasons discussed above, that a rule barring the entry of two convictions for these offenses is not required, we have no fundamental objection to such a rule because it will have no practical effect on the interests of the government or those of the defendant. However, we are concerned that a decision by this Court that such a rule is required in order to eliminate multiple punishment might unwisely burden the courts with difficult inquiries into the permissibility of cumulative punishment in cases in which only concurrent sentences have been imposed and might even more generally call into question the validity of the concurrent sentence doctrine. The doctrine, which has long been recognized by this Court, holds that if a defendant receives concurrent sentences for two convictions and one of the convictions is upheld, there is "no occasion to review the conviction on the (other) count since * * * conviction on (one count) is sufficient to sustain the sentence." Hirabayashi v. United States, 320 U.S. 81, 105 (1943). See also United States v. Romano, 382 U.S. 136, 138 (1965); Lawn v. United States, 355 U.S. 339, 359 (1958); Locke v. United States, 11 U.S. (7 Cranch) 339, 344 (1813). /10/ This Court indicated in Benton v. Maryland, 395 U.S. at 790-792, that the propriety of applying the concurrent sentence doctrine was affected by whether the defendant would suffer adverse collateral effects as a result of the challenged but unreviewed conviction. The doctrine subsequently has been applied both in this Court (Barnes v. United States, 412 U.S. 837, 848 n.16 (1973)) and in the courts of appeals, which have generally concluded that the concurrent sentence doctrine may be utilized if the defendant will not suffer adverse collateral consequences as a result of the affirmance of an additional conviction. /11/ The doctrine therefore rests on the premise that a second conviction and concurrent sentence can, in some situations, have no adverse consequences for a defendant. A decision by this Court that petitioner's second conviction must be vacated even though the conviction carries no adverse effects could be viewed as a determination that an additional conviction by itself is improper. That conclusion arguably conflicts with the justification for the concurrent sentence doctrine, because it indicates that an additional conviction is improper without regard to its collateral consequences. The ends that the doctrine serves -- the promotion of judicial efficiency and the conservation of scarce judicial resources -- continue to be important in light of the heavy workload of the courts of appeals. This Court therefore should not adopt a rule in this case that might undercut the validity of the concurrent sentence doctrine. Since the court of appeals' remedy provided petitioner with all of the relief to which he is entitled under the relevant statutes or the Double Jeopardy Clause, this Court should not order the vaction of one of petitioner's convictions. /12/ CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General ROBERT J. ERICKSON THOMAS E. BOOTH Attorneys DECEMBER 1984 /1/ On remand, the district court issued an order stating that the sentences "shall run concurrently" (J.A. 39). /2/ Since the government conceded below that cumulative punishment is improper under the facts of this case and we have not sought review of the court of appeals' decision implementing the concession, this case provides no occasion for this Court to address the question whether cumulative punishment for convictions under these two statutes is appropriate under these or other circumstances. We note that cumulative punishment would surely be appropriate if the defendant had possession of the firearm on one occasion and, after giving up possession, later reacquired the firearm (see United States v. Robbins, 579 F.2d 1151 (9th Cir. 1978)), and may also be proper if there is some other significant distinction between the facts relied upon to prove the two offenses. Such punishment also may be appropriate where the charges are based upon the receipt of different weapons at different times (see United States v. Filipponio, 702 F.2d 664 (7th Cir. 1983)) or the possession of different weapons in different places (see United States v. Vance, 724 F.2d 517 (6th Cir. 1983), cert. denied, No. 83-6316 (Apr. 16, 1984)). /3/ Petitioner erroneously asserts (Br. 13) that these issues were decided in Taylor v. United States, 449 U.S. 895 (1980). In Taylor, the defendant's consecutive sentences had been upheld by the court of appeals; the government conceded only that "it is unlikely that Congress intended to permit consecutive punishment in the circumstances" of that case and requested that "the case (be) remanded for further proceedings in light of (that) position" (80-5187 U.S. Memo. 3). Neither we nor this Court suggested that the government lacked the power to prosecute simultaneously under both statutes and obtain convictions and concurrent sentences for the two offenses. /4/ Because these conclusions were reached in post-trial appeals in which the only remedy afforded was vacation of one of the convictions, they are no more than dictum as applied to the propriety of charging and trying a defendant for both receipt and possession. The Seventh Circuit's decision cited by petitioner (Br. 9), United States v. Martin, 732 F.2d 591 (1984), does not adopt the reasoning of these courts. The government conceded in Martin that cumulative punishment was not appropriate under the facts of the case, and the court did not indicate that there is any bar against simultaneous prosecution under the two statutes. /5/ The Gaddis Court's observation that convictions could not be obtained for both bank robbery and receipt of the proceeds of a bank robbery (424 U.S. at 550) does not support petitioner's argument that his convictions under Sections 922(h) and 1202(a) are improper. The conclusion in Gaddis was based upon the intent of Congress to reach different and mutually exclusive groups of wrongdoers under the two statutes. 424 U.S. at 547; see also Heflin v. United States, 358 U.S. 415, 420 (1959). Here, Congress recognized that the two provisions could apply to the same defendant. United States v. Batchelder, 442 U.S. at 119-122. /6/ A later prosecution for possession following acquittal of receipt could often raise serious double jeopardy concerns. /7/ Thus, this is not a situation in which multiple convictions are improper because there is a "merger" of two offenses, as is the case for entering a bank with intent to rob and bank robbery under 18 U.S.C. 2113(a) (see Prince v. United States, 352 U.S. 322 (1957)), or because Congress intended to reach different and mutually exclusive groups of wrongdoers under the two statutes (see note 5, supra). Here, Congress intended to create two offenses and recognized that the two provisions could apply to the same defendant. United States v. Batchelder, 442 U.S. at 119-122. /8/ This factor will be eliminated after the implementation of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. 2 (Oct. 12, 1984), because that statute provides for determinate sentencing and eliminates the federal parole system. /9/ In fact, only additional imprisonment or fine would constitute punishment cognizable under the Double Jeopardy Clause. See United States v. Johnson, 709 F.2d 639, 642 (11th Cir. 1983), cert. denied, No. 83-5413 (Dec. 5, 1983). In Gryger v. Burke, 334 U.S. 728 (1948), this Court rejected the claim that a statute providing enhanced sentencing for habitual criminals subjected defendants to double jeopardy. It held that the "(t)he sentence as a * * * habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime" (id. at 732 (emphasis added)). Thus, any additional penalty imposed upon a defendant when he is convicted of a future offense and any use of the conviction to impeach a defendant in a future proceeding would not constitute a second punishment for the present offense. /10/ The doctrine is a rule of judicial efficiency that permits a court to avoid deciding an issue when its decision will have no practical impact on the rights of the parties. The decision whether to utilize the doctrine is within the court's discretion. Andresen v. Maryland, 427 U.S. 463, 469 n.4 (1976); Barnes v. United States, 412 U.S. 837, 848 n.16 (1973). /11/ United States v. Gordon, 634 F.2d 639, 543 (1st Cir. 1980); United States v. Lampley, 573 F.2d 783, 788 (3d Cir. 1978); United States v. Truong Dinh Hung, 629 F.2d 908, 931 (4th Cir. 1980) (Russell & Hall, JJ., concurring and dissenting), cert. denied, 454 U.S. 1144 (1982); United States v. Mullens, 583 F.2d 134, 142 (5th Cir. 1978); United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.), cert. denied, 434 U.S. 872 (1977); United States v. Smith, 601 F.2d 972, 973 (8th Cir.), cert. denied, 444 U.S. 879 (1979); United States v. Hopkins, 716 F.2d 739, 749 (10th Cir. 1982); United States v. Johnson, 700 F.2d 699, 701 (11th Cir. 1983). The Second Circuit has placed the burden on the government to show the absence of adverse collateral consequences. United States v. Vargas, 615 F.2d 952, 960 (2d Cir. 1980). Under the Seventh Circuit's rule, the absence of collateral consequences will be found only in rare situations. United States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980); United States v. Tanner, 471 F.2d 128, 140 (7th Cir. 1972). The Ninth Circuit, the District of Columbia Circuit, and some panels of the Fifth Circuit have refused to apply this rule to affirm convictions because of their view that the task of determining whether a defendant will suffer adverse consequences is too difficult and time consuming to result in any gain in judicial efficiency. United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984); United States v. Hooper, 432 F.2d 604 (D.C. Cir. 1970); United States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984). The Ninth Circuit has held that the merits of a defendant's claim must be decided in every case; the District of Columbia Circuit has adopted the practice of vacating unreviewed convictions. /12/ If this Court determines that vacation of one of the convictions is required, the choice should be left to the prosecution, which was initially free under Batchelder to elect which charge to press. We discuss the justifications for this remedy in another statutory context in our petition (at 20-24) in United States v. Woodward, No. 83-1947 (filed May 29, 1984). We have sent a copy of that petition to counsel for petitioner in this case.