JUAN E. SEGARRA-PALMER, PETITIONER V. UNITED STATES OF AMERICA No. 90-7227 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 Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 2a-52a) is reported at 922 F.2d 934. JURISDICTION The judgment of the court of appeals was entered on December 12, 1990. A petition for rehearing was denied on February 4, 1991. The petition for a writ of certiorari was filed on February 27, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the imposition of consecutive sentences for petitioner's bank robbery and substantive Hobbs Act convictions violated the Double Jeopardy Clause. 2. Whether the imposition of consecutive sentences for petitioner's conspiracy convictions under 18 U.S.C. 371 and the Hobbs Act violated the Double Jeopardy Clause. STATEMENT 1. Following a jury trial in the United States District Court for the District of Connecticut, petitioner was convicted on 11 counts arising out of the September 1983 robbery of more than $7 million from a Wells Fargo depot in West Hartford, Connecticut. The Wells Fargo robbery was planned and carried out by members of Los Macheteros, a Puerto Rican terrorist organization, to obtain money to fund the group's activities. The evidence at trial showed that petitioner planned the robbery, recruited other participants, and assisted in transporting the stolen money out of the mainland United States. Pet. App. 4a-7a; Gov't C.A. Br. 8-44. 2. The sentence imposed on petitioners divides the charges into five groups. The sentences for each group are to be served consecutively to the sentences for each other group, but the sentences for each offense within each group are to be served concurrently. Thus, petitioner was sentenced to (1) terms of 20 years' imprisonment on each of four counts of aiding and abetting the robbery of a federally insured bank, in violation of 18 U.S.C. 2113(a); (2) a term of 10 years' imprisonment for aiding and abetting a theft from an interstate shipment, in violation of 18 U.S.C. 659; (3) terms of 10 years' imprisonment on each of three counts of transporting stolen money in interstate and foreign commerce, in violation of 18 U.S.C. 2314; (4) terms of 20 years' imprisonment for conspiring to obstruct interstate commerce through robbery, in violation of the Hobbs Act, 18 U.S.C. 1951, and obstructing interstate commerce through robbery, also in violation of 18 U.S.C. 1951; and (5) a term of 5 years' imprisonment for conspiring to commit bank robbery and to transport the proceeds of the robbery in interstate and foreign commerce, in violation of 18 U.S.C. 371. Petitioner was also fined $500,000. The court of appeals vacated petitioner's conviction and sentence for violating 18 U.S.C. 659, but affirmed his other convictions and sentences. Pet. App. 2a-52a; see note 3, infra. 3. On appeal, petitioner contended that by imposing consecutive sentences for his bank robbery conviction under 18 U.S.C. 2113 /1/ and substantive Hobbs Act conviction under 18 U.S.C. 1951, /2/ the district court violated his right to be free from multiple punishments for the same offense. The court of appeals concluded that because 18 U.S.C. 2113 and 1951 define separate offenses, the imposition of consecutive sentences for violations of those provisions did not violate the Double Jeopardy Clause. The court rested its conclusion both on the Blockburger test, see Blockburger v. United States, 284 U.S. 299, 304 (1932), and on an examination of the legislative history of the two statutes. With respect to Blockburger, the court observed that Section 2113 requires proof that property was stolen from a federally insured bank, while Section 1951 requires proof of a robbery (of any entity or person) that affects interstate commerce. Pet. App. 50a. Since each statute requires proof of an element not required by the other, the court found that the two statutes satisfied the Blockburger test. Moreover, the court found, "the legislative history of the two sections indicates that Congress was focusing on two distinct problems," confirming "the presumption that Congress intended multiple punishments under these two sections." Pet. App. 50a-51a. Petitioner raised a similar double jeopardy challenge to the consecutive sentences imposed on his conspiracy convictions. The court of appeals rejected that claim as well, noting that Sections 371 and 1951 satisfied the Blockburger test and finding "no indication in the legislative history that Congress did not intend the imposition of multiple punishments for violations of these two conspiracy statutes." Pet. App. 51a-52a. /3/ ARGUMENT 1. The court of appeals correctly rejected petitioner's contention (Pet. 5, 7-12) that his consecutive sentences for bank robbery in violation of 18 U.S.C. 2113 and obstructing commerce by robbery under the Hobbs Act, 18 U.S.C. 1951(a), were invalid. The court's result follows directly from this Court's analysis in Albernaz v. United States, 450 U.S. 333 (1981). a. In Albernaz, the defendant was charged with a "single conspiracy with multiple objectives." 450 U.S. at 336-337. The objectives were to import marijuana, in violation of 21 U.S.C. 963, and to distribute marijuana, in violation of 21 U.S.C. 846. He claimed that imposing consecutive sentences for violating the two statutes was unconstitutional. The Court rejected the defendant's claim, holding that "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." 450 U.S. at 344. Legislative intent was to be determined by applying the traditional Blockburger test, see 450 U.S. at 340, and then examine the structure and legislative history of the statutory provisions for any further indication of congressional purpose, see 450 U.S. at 340-342. As to the Blockburger inquiry, the Court held that "Sections 846 and 963 specify different ends as the proscribed object of the conspiracy -- distribution as opposed to importation -- and it is beyond peradventure that 'each provision requires proof of a fact (that) the other does not.'" 450 U.S. at 339. The Court's conclusion was reinforced by the absence of any indication that Congress intended to prohibit multiple punishments, see 450 U.S. at 342-343, as well as the differing evils -- importation, as opposed to distribution -- at which the two statutes are directed, see 450 U.S. at 343. As in Albernaz, a straightforward application of the Blockburger test in this case establishes that multiple punishments are permissible. As the court of appeals held, to establish a violation of the bank robbery statute, the government must prove that property was stolen from a federally insured bank; the Hobbs Act does not require proof that the property was stolen from a bank at all. On the other hand, to establish a substantive violation of the Hobbs Act, the government must prove that the robbery affected interstate commerce. No effect on interstate commerce need be proved to establish a violation of Section 2113. Thus, as in Albernaz, each statute requires proof of a fact not required by the other; Congress is therefore presumed to have intended to permit multiple punishments for a single transaction that violates both. As in Albernaz, the structure and legislative history of the statutes reinforces the conclusion that Congress did not intend to preclude multiple punishment for a single transaction that violates both statutes. Sections 1951 and 2113 are found in separate chapters of Title 18. In enacting Section 2113, Congress's principal concern was the protection of financial institutions in which the federal government has an interest. See H.R. Rep. No. 1461, 73d Cong., 2d Sess. 2 (1934); United States v. Marrale, 695 F.2d 658, 664 (2d Cir. 1982), cert. denied, 460 U.S. 1041 (1983). The purpose of the Hobbs Act, on the other hand, was to protect the flow of interstate commerce from obstruction by robbery or extortion. /4/ See H.R. Rep. No. 238, 79th Cong., 1st Sess. 9 (1945). The difference in the evils Congress addressed in Section 2113 and Section 1951 supports the conclusion that Congress intended to authorize cumulative penalties for an act that violates both sections. /5/ See Albernaz, 450 U.S. at 343. b. Petitioner asserts (Pet. 5, 9) that because proof of a violation of Section 2113 will also prove a violation of Section 1951, there is no "meaningful" difference between the two statutes. The fact that the same evidence may be offered at trial to prove both offenses, however, does not alter the conclusion that the crimes are sufficiently different under Blockburger to support cumulative punishments. In Albernaz itself, the fact that a conspiracy to import marijuana generally can be expected to be accompanied by a conspiracy to distribute it when it reaches this country did not alter the Court's conclusion that separate punishments for conspiracy to import and conspiracy to distribute were permissible. /6/ The Court has made clear that the Blockburger test focuses on the statutory elements of the offenses, not on the evidence introduced at trial. See Grady v. Corbin, 110 S. Ct. 2084, 2093 n.12 (1990); Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975). Consequently, the fact that robbery of a federally insured bank will often constitute obstruction of commerce by robbery does not alter the fact that, under Blockburger, each offense requires proof of a fact not required by the other. c. Petitioner asserts (Pet. 9-11) that the decision of the Second Circuit in this case conflicts with the decisions of the Eighth Circuit in United States v. Golay, 560 F.2d 866, 869-870 (8th Cir. 1977), and the Sixth Circuit in United States v. Beck, 511 F.2d 997, 1000 (6th Cir.), cert. denied, 423 U.S. 836 (1975), in which consecutive sentences for violations of Sections 2113 and 1951 were held impermissible. /7/ Both Golay and Beck were decided before Albernaz. The courts in those cases therefore did not have the benefit of this Court's refinement in that case of the test for permitting multiple punishments under separate statutes for a single criminal act. The approach employed in Golay and Beck is contrary to this Court's analysis in Albernaz and almost certainly does not survive that decision. /8/ In any event, any conflict between the decision in this case and the decisions in Golay and Beck would be of little continuing importance, either to petitioner or to other defendants. If the Court ruled that petitioner's consecutive sentences were invalid, the government would be entitled to elect that petitioner's sentence for the substantive Hobbs Act offense be vacated. See Pet. App. 50a. Petitioner's sentence for that offense, however, is concurrent to his sentence for the Hobbs Act conspiracy, and the district court imposed no fine or special assessment for the substantive offense. Thus, even if petitioner's claim were accepted, his total sentence would not be affected. Moreover, in light of the fact that petitioner has been validly convicted on nine other counts, it seems unlikely that the marginal effect of his substantive Hobbs Act conviction could have any adverse collateral consequences for him. More generally, the question whether a defendant in petitioner's situation can receive multiple punishments is not one of continuing importance. The Sentencing Guidelines, which govern all sentences for federal crimes committed after November 1, 1987, provide that "(a)ll counts involving substantially the same harm shall be grouped together into a single Group" for purposes of sentencing. Counts involve substantially the same harm within the meaning of the Guidelines when they "involve the same victim and the same act or transaction." Sentencing Guidelines Section 3D1.2(a). In the future, bank robbery defendants convicted under both Sections 1951 and 2113 can thus be expected to receive only a single sentence for the two counts of multiple conviction. /9/ 2. Petitioner also contends (Pet. 6, 12-18) that because a single conspiracy was alleged and proved at his trial, the district court erred in imposing consecutive sentences for his two conspiracy convictions. a. As we have noted, Albernaz held that the Double Jeopardy Clause does not prohibit the imposition of cumulative punishments under two conspiracy statutes for a single conspiratorial agreement, so long as each statute requires proof of an element not required by the other. /10/ 450 U.S. at 344 n.3. Although Albernaz involved two specific conspiracy statutes, courts have applied it to situations, like that presented here, in which a defendant is charged under the general conspiracy statute, 18 U.S.C. 371, and a specific conspiracy statute. See United States v. Lanier, 920 F.2d 887, 895 (11th Cir. 1991); United States v. Marren, 890 F.2d 924, 936-937 (7th Cir. 1989); United States v. Nakashian, 820 F.2d 549 (2d Cir.), cert. denied, 484 U.S. 963 (1987); Timberlake v. United States, 767 F.2d 1479, 1481-1482 (10th Cir. 1985), cert. denied, 474 U.S. 1101 (1986). Thus, if Section 371 and Section 1951 satisfy the Blockburger test, petitioner could properly be sentenced under both statutes. Section 1951 requires proof that an objective of the conspiracy was obstruction of the flow of interstate commerce; Section 371 does not. To establish a violation of Section 371, on the other hand, the government must prove the commission by one of the conspirators of "any act to effect the object of the conspiracy." See Timberlake v. United States, 767 F.2d at 1482. The government need not prove an overt act to establish a Hobbs Act conspiracy. See Singer v. United States, 323 U.S. 338, 340-342 (1945) (no proof of overt act required when statutory language does not mention overt act). Because petitioner's violations of the two conspiracy statutes were separate offenses under the Blockburger test, he could properly receive consecutive sentences for violation of each statute. Moreover, the Section 371 conspiracy of which petitioner was convicted was considerably broader than the Hobbs Act conspiracy. Count 14 of the indictment, which charged the Hobbs Act conspiracy, alleged that petitioner conspired, along with 18 co-defendants, to "obstruct, delay and affect commerce * * * by robbery." C.A. App. 29-42. Count 16, which charged the Section 371 conspiracy, alleged that the defendants conspired both to commit bank robbery and to transport the proceeds in interstate and foreign commerce. C.A. App. 48-64. Thus, in this case, as in Albernaz, the single conspiratorial agreement encompassed multiple objectives that gave rise to distinct offenses under separate conspiracy statutes. See Albernaz, 450 U.S. at 339. Finally, as the court of appeals pointed out, "the very existence of specific conspiracy statutes may evince a legislative intent to authorize multiple punishments, since it indicates some legislative dissatisfaction with the punishment provided for in 18 U.S.C. 371." Pet. App. 52a (quoting Nakashian, 820 F.2d at 553). Far from supporting petitioner's contention that Congress did not intend to permit multiple punishments for a conspiracy prosecuted under both Section 371 and 1951, the existence of both the specific and general conspiracy statutes suggests instead that Congress intended to permit multiple punishments for a single conspiracy that violates both statutes. b. In any event, petitioner's claim that his consecutive conspiracy sentences are invalid, like his claim that his consecutive sentences for bank robbery and obstructing interstate commerce through robbery are invalid, has little continuing significance. Under the Guidelines, counts are to be grouped when they "involve the same victim and the same act or transaction," Guidelines Section 3D1.2(a), or when they "involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan," Guidelines Section 3D1.2(b). In the case of crimes committed after the effective date of the Guidelines, those provisions will govern whether cumulative sentences are permissible, and consecutive sentences under the Guidelines would be unlikely for a single conspiracy that violates two statutes. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney MAY 1991 /1/ 18 U.S.C. 2113 provides in pertinent part: Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association * * * (s)hall be fined not more than $5,000 or imprisoned not more than twenty years, or both. /2/ The Hobbs Act, 18 U.S.C. 1951, provides in pertinent part: Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery * * * or conspires so to do * * * shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. /3/ The government conceded on appeal that the district court had erred in imposing consecutive sentences for petitioner's conviction for violation of 18 U.S.C. 659 and his substantive Hobbs Act conviction. The court of appeals "accept(ed) the government's election * * * that the conviction under Section 659 be the one to be vacated" and vacated petitioner's conviction and sentence on that count. Pet. App. 49a-50a. /4/ The Hobbs Act had its origin in the Anti-Racketeering Act of 1934, 48 Stat. 979, which prohibited, inter alia, the use of "force, violence, or coercion" to obtain "the payment of money" "in connection with or in relation to any act in any way or in any degree affecting trade or commerce." See United States v. Culbert, 435 U.S. 371, 374-376 & n.6 (1978). /5/ Thus, this case is unlike United States v. Gibson, 820 F.2d 692 (5th Cir. 1987), on which petitioner relies. In Gibson, the court held that a defendant could not be convicted both for robbery within the territorial jurisdiction of the United States and for robbery of a lawful custodian of mail or other property of the United States. The court concluded that the differences between the two statutory provisions did not reflect a congressional intent to combat separate evils. Id. at 697-698. /6/ Compare United States v. Woodward, 469 U.S. 105 (1985) (per curiam) (multiple punishment permissible for concealing material fact by trick, scheme, or device and violating currency transaction reporting requirement); United States v. Gore, 357 U.S. 386 (1958) (multiple punishment permissible for selling drugs not in or from original package, selling drugs not in pursuance of a written order of the person to whom the drug is sold, and facilitating concealment and sale of the drugs); Blockburger, 284 U.S. at 303-304 (multiple punishment permissible for selling drugs not in or from original package and selling drugs not in pursuance of a written order of the person to whom the drug is sold); Albrecht v. United States, 273 U.S. 1, 11-12 (1927) (multiple punishment permissible for illegal possession of liquor and illegal sale of liquor). /7/ Petitioner also cites United States v. Cataldo, 832 F.2d 869, 873 (5th Cir. 1987), cert. denied, 485 U.S. 1022 (1988). As framed by the court in Cataldo, however, that case concerned the appropriate remedy when consecutive sentences are found to have violated the proscription against multiple punishments. The court in Cataldo simply accepted without discussion the district court's ruling that consecutive sentences for a robbery of a single bank under Sections 2113 and 1951 would violate the Double Jeopardy Clause. /8/ Even aside from Albernaz, it is not clear that the Sixth Circuit would today adhere to its decision in Beck. The Beck court prefaced its discussion of the permissibility of multiple punishments with the statement that it "remain(s) unpersuaded that the Hobbs Act was designed to reach, or reaches, the extortion of bank assets." 511 F.2d at 1000. This Court has since held that the Hobbs Act does reach such cases. See United States v. Culbert, 435 U.S. 371 (1978). In light of Culbert, the Sixth Circuit may well decide to reconsider its ruling in Beck that multiple punishments for violation of Section 1953 and Section 2113 are impermissible. /9/ See Sentencing Guidelines Ch. 3, Pt. D, Introductory Commentary (Nov. 1, 1990) ("In essence, counts that are grouped together are treated as constituting a single offense for purposes of the guidelines."). /10/ The petitioners in Albernaz had argued that a single conspiracy could not give rise to distinct offenses under separate conspiracy statutes, citing Braverman v. United States, 317 U.S. 49 (1942). The Court rejected that argument and distinguished Braverman, observing that "the conspiratorial agreement in Braverman, although it had many objectives, violated but a single statute." Albernaz, 450 U.S. at 339. Three of the cases on which petitioner relies (Pet. 14-18) were decided before Albernaz and adopt the view of Braverman that was specifically rejected in Albernaz. See Natarelli v. United States, 516 F.2d 149, 152 (2d Cir. 1975); United States v. Honneus, 508 F.2d 566, 569 (1st Cir. 1974), cert. denied, 421 U.S. 948 (1975); United States v. Mori, 444 F.2d 240, 244 (5th Cir.), cert. denied, 404 U.S. 913 (1971). The other case petitioner cites, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987), is inapposite. In Kragness, the court held that a RICO conspiracy and conspiracies to commit the underlying predicate crimes were not separate offenses under the Blockburger test, but that Congress nonetheless intended to allow cumulative punishments for those offenses. Id. at 863-864.