UNITED STATES OF AMERICA, PETITIONER V. FRANK DENNIS FELIX No. 90-1599 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, On Behalf Of The United States, Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Tenth Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Constitutional provision involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The decision of the court of appeals (App., infra, 1a-40a) is reported at 926 F.2d 1522. The decision of the district court (App., infra, 41a-50a) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 28, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION INVOLVED The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." QUESTIONS PRESENTED 1. Whether a defendant may be prosecuted for conspiracy to violate several narcotics statutes after previously having been prosecuted for conduct alleged in some of the overt acts of the conspiracy charge. 2. Whether prosecution of respondent for narcotics offenses in connection with the operation of a narcotics laboratory in Oklahoma is barred because he was previously prosecuted for attempting to set up a narcotics laboratory in Missouri, where evidence of his conduct with respect to the Oklahoma laboratory had been introduced in the Missouri prosecution as evidence of his intent to commit the Missouri offense. STATEMENT 1. On September 15, 1987, respondent was indicted in the Western District of Missouri for attempting to manufacture methamphetamine from on or about August 26, 1987, to on or about August 31, 1987, in violation of 21 U.S.C. 846. App., infra, 62a-63a. He was convicted and his conviction was affirmed by the Eighth Circuit. United States v. Felix, 867 F.2d 1068 (1989). At respondent's trial on the Missouri indictment, the government introduced evidence that on August 26, 1987, respondent had met with George Dwinnells, who was employed by a supplier of scientific equipment and, unbeknownst to respondent, was a DEA informant. Dwinnells testified that respondent sought to purchase chemicals and equipment needed to make methamphetamine. Respondent made a down payment of $7,500 toward the purchase and gave Dwinnells instructions for securing a trailer to transport the merchandise. In later telephone conversations, respondent increased his order for chemicals and equipment and instructed Dwinnells to deliver the items to a Joplin, Missouri, hotel, on August 31, 1987. Dwinnells met respondent at the hotel on the designated date. Respondent was arrested after inspecting the chemicals and equipment and hitching the trailer in which Dwinnells had transported them to his own car. 867 F.2d at 1070-1071. At trial in the Missouri case, the government introduced evidence that respondent had been involved earlier in 1987 in manufacturing methamphetamine in Oklahoma. See 867 F.2d at 1072-1073. That evidence showed that during the Spring of 1987 respondent had furnished government witness Paul Roach with chemicals and materials for making methamphetamine in exchange for lessons on how to "cook" -- i.e., produce -- the drug. Roach testified that he and respondent had used the chemicals and equipment to manufacture methamphetamine in a trailer near Beggs, Oklahoma. On July 13, 1987, law enforcement agents seized the unattended trailer, but they did not arrest respondent at that time. 867 F.2d at 1070-1071. The trial court instructed the jury that the evidence of the Oklahoma transactions could not be used "to decide whether (respondent) carried out the physical acts involved in the crime charged here." See 867 F.2d at 1075. Instead, it was admitted to show respondent's state of mind with respect to the chemicals he arranged to have delivered in Missouri. Respondent's defense had been that "he never had criminal intent, but had been acting under the mistaken belief that he was working in a covert DEA operation." 867 F.2d at 1074. In that context, the Eighth Circuit found the evidence concerning the methamphetamine laboratory in Oklahoma to be "highly probative of (respondent's) knowledge and intent," and thus admissible under Fed. R. Evid. 404(b). 867 F.2d at 1073. 2. On February 16, 1989, respondent was named in eight counts of an 11-count indictment filed in the Eastern District of Oklahoma. App., infra, 51a-61a. Count 1 charged that he conspired in the Eastern District of Oklahoma and elsewhere between May 1, 1987, and August 31, 1987, to manufacture, possess, and distribute methamphetamine, in violation of 21 U.S.C. 846. Respondent was named in nine of the 18 overt acts that the indictment charged had been committed "(t)o effect the objects of the conspiracy." Two of the nine overt acts in which respondent was named took place within the time period of the Missouri indictment. Overt act 17 charged that "(o)n August 26, 1987, (respondent), while in Tulsa Oklahoma, provided money for the purchase of chemicals and equipment necessary in the manufacture of methamphetamine." App., infra, 55a. Overt act 18 charged that "(o)n August 31, 1987, (respondent), while at a location in Missouri, possessed chemicals and equipment necessary in the manufacture of methamphetamine." Ibid. Respondent was also named in seven substantive counts. Counts 2 through 5 charged that, in violation of 21 U.S.C. 841(a)(1), respondent had on or about July 13, 1987, in the Easter District of Oklahoma, manufactured methamphetamine (Count 2), possessed methamphetamine with intent to distribute it (Count 3), possessed methamphetamine oil with intent to manufacture methamphetamine (Count 4), and manufactured phenylacetone (Count 5). App., infra, 55a-57a. Count 6 charged that, between June 1, 1987, and July 13, 1987, in the Eastern District of Oklahoma, respondent maintained a place and enclosure for manufacturing methamphetamine, in violation of 21 U.S.C. 856. App., infra, 57a. Counts 9 and 10 charged that, on or about June 21, 1987 (Count 9) and July 13, 1987 (Count 10), respondent traveled from Texas to the Eastern District of Oklahoma with intent to promote the manufacture of methamphetamine and thereafter attempted to promote such activity, in violation of 18 U.S.C. 1952. App., infra, 59a-60a. At trial, the government introduced much of the same evidence that had been introduced in the Missouri trial pursuant to Rule 404(b). Respondent was convicted on all counts and sentenced to serve concurrent 20-year terms of imprisonment on Counts 1 through 6 and five-year terms of imprisonment on Counts 9 and 10. The 20-year sentence imposed for the Oklahoma offenses was set to run consecutively to the sentence imposed for respondent's Missouri conviction. 3. A divided panel of the Tenth Circuit reversed respondent's convictions on Count 1 through 6 and affirmed his convictions on Counts 9 and 10. a. Writing for the majority, Chief Judge Holloway first addressed the relationship between this Court's recent decisions in Dowling v. United States, 110 S. Ct. 668 (1990), and Grady v. Corbin, 110 S. Ct. 2084 (1990). In Dowling, this Court held that the Double Jeopardy Clause did not bar the government from introducing relevant evidence in a bank robbery prosecution even though that evidence had been the subject of a previous prosecution for burglary, assault, and related offenses in which the defendant had been acquitted. In Grady, this Court held that a second prosecution was barred where "the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant had already been prosecuted." 110 S. Ct. at 2093. Noting that Dowling "concerned * * * the admissibility of evidence in conformity with the collateral estoppel principle of Ashe (v. Swenson, 397 U.S. 436 (1970))," while "Grady concerned the protection afforded by the Double Jeopardy Clause from successive prosecutions for the same conduct," Chief Judge Holloway held that "(i)t is this latter protection * * * which is implicated here and this causes us to focus mainly on the teaching of Grady." App., infra, 14a. As to the conspiracy count in the current indictment, the court followed the Second Circuit's recent holding in United States v. Calderone, 917 F.2d 717 (1990), petition for cert. pending, No. 90-1527, that, for purposes of applying Grady to a conspiracy charge, it is the conduct from which the jury is asked to infer a conspiratorial agreement -- rather than the agreement itself -- that is considered to be the conduct for which the defendant is prosecuted. App., infra, 13a. The court then summarized the proof presented in the Missouri trial, as recounted by the Eighth Circuit, and concluded that "(a)s to Count 1, the conspiracy charge, the duplication was extensive." Id. at 15a. Specifically, the court pointed out that in both trials the government proved respondent's course of conduct in learning to make methamphetamine and setting up the Oklahoma lab. Further, in both trials the government proved that, after the raid on the Oklahoma lab, respondent had purchased chemicals and equipment for setting up a new lab and had taken delivery of those materials in Joplin, Missouri. The court noted that respondent's conduct in arranging for the purchase of the chemicals and equipment and receiving delivery of them were listed as overt acts in the Oklahoma conspiracy count. App., infra, 15a-17a. The court also noted that both the Missouri indictment and the Oklahoma conspiracy count focused on the actions of respondent and Roach, and that both the Missouri and Oklahoma charges alleged conduct that took place outside their respective States. Finally, the court found that "the relevant time frames of the two indictments also overlap" (id. at 18a); the court stated that "(t)he Missouri prosecution was premised on conduct that occurred from the spring of 1987 to August 31, 1987," while the Oklahoma conspiracy count charged conduct that occurred from approximately May 1, 1987 to August 1, 1987. Ibid. Based on those facts, the court of appeals concluded that the Oklahoma conspiracy count charged "the same conduct for which (respondent) was previously convicted in Missouri" and that prosecution on the Oklahoma conspiracy charge was therefore barred by the Double Jeopardy Clause. Ibid. With respect to the substantive offenses charged in Counts 2 through 6, the court noted that in both trials the government proved that respondent had bought chemicals and equipment to manufacture methamphetamine, that he had used those chemicals to produce methamphetamine at the Beggs, Oklahoma, trailer, and that the trailer had subsequently been seized by law enforcement authorities. App., infra, 18a-19a. That evidence was used to show intent in the Missouri trial /1/ and as direct evidence of the Oklahoma charges. Because the government relied on the same evidence to establish critical elements in each case, the court of appeals concluded that respondent's convictions on Counts 2 through 6 had to be reversed. Id. at 18a-20a. Finally, the court affirmed respondent's convictions on Counts 9 and 10, charging travel on June 21 and July 13, 1987, respectively, from Texas to Oklahoma to promote the manufacture of methamphetamine. According to the court, the conduct alleged in those counts was not sufficiently closely related to the conduct proved in the Missouri trial to require that his convictions under those counts be reversed under the Double Jeopardy Clause. App., infra, 20a-21a. b. Judge Anderson dissented from the dismissal of the first 6 counts of the Oklahoma indictment. He stated that even after Grady, a mere overlap of proof in two prosecutions does not establish that the second prosecution is barred by the Double Jeopardy Clause. App., infra, 23a & n.1. According to Judge Anderson, Grady requires instead a showing that (1) the conduct sought to be proved in the second prosecution "constitutes an offense for which the defendant has already been prosecuted," and (2) the conduct is "being proven to establish an essential element" of the second prosecution. App., infra, 24a. In Judge Anderson's view, that test, if applied correctly, would not require reversal of any of respondent's convictions. The conduct charged in the conspiracy count, Judge Anderson argued, did not "constitute an offense for which the defendant has already been prosecuted." Judge Anderson noted that the Missouri indictment alleged conduct only "(f)rom on or about August 26, 1987, to on or about August 31, 1987." App., infra, 30a. Although the government had introduced evidence in the Missouri trial of respondent's conduct prior to August 26, 1987, that evidence had been introduced only pursuant to Rule 404(b). In Judge Anderson's view, respondent was not prosecuted for that conduct in the Missouri case. App., infra, 30a. Judge Anderson further argued that although the Oklahoma conspiracy count contained two overt acts that related directly to the Missouri offense, the inclusion of those overt acts did not convert the Oklahoma conspiracy into the "same offense" as the attempt for which respondent was prosecuted in Missouri. An attempt, he explained, consists of two elements -- intent and a substantial step toward commission of the offense -- and the proof that established the overt acts in the conspiracy indictment at most established the "substantial step" element of the attempt offense. App., infra, 31a. In this respect, Judge Anderson disagreed with Judge Newman's statement in Calderone that Grady bars a subsequent prosecution in which conduct constituting an element of a prior offense -- as opposed to the entirety of the prior offense -- must be proved. App., infra, 32a. With respect to the substantive counts, Judge Anderson noted that each of them "was based on (respondent's) conduct on or before July 13, 1987, in establishing and operating the methamphetamine lab in Beggs, Oklahoma." App., infra, 25a. In contrast, the Missouri count alleged conduct that took place more than a month later, on August 26-31, 1987. Although the government had introduced evidence in the Missouri trial concerning respondent's pre-August conduct, Judge Anderson stated that introducing evidence of a prior bad act under Rule 404(b) "is not prosecution for that act." App., infra, 26a. In Judge Anderson's view, the court of appeals' conclusion to the contrary conflicted with this Court's analysis in the Dowling case. App., infra, 28a. REASONS FOR GRANTING THE PETITION This case presents important issues that merit this Court's review. The Tenth Circuit in this case reached the remarkable conclusion that a prosecution of respondent for attempting to set up one methamphetamine lab barred his subsequent prosecution for a number of offenses relating to his operation of a separate methamphetamine lab. The court was able to reach that conclusion only by making serious errors in applying the principles of double jeopardy law. First, the court departed from the well-settled principle that the gravamen of a charge of criminal conspiracy is that the defendant entered into an agreement with others to accomplish criminal objectives. Instead of recognizing that the "conduct" at issue in a conspiracy prosecution is thus the agreement, the court held that the "conduct" at issue in such a case is the acts of the defendant from which the government intends to ask the jury to infer the conspiratorial agreement. The court's decision on that point is in direct conflict with a recent decision of the Fourth Circuit and is in tension with the reasoning of a recent Eleventh Circuit decision as well. Second, the court held that the introduction of "similar act" evidence to establish a defendant's intent bars a separate prosecution of the defendant for committing those similar acts. That holding departs substantially from well-established principles regarding the use of "similar act" evidence. Both holdings have the effect of upsetting settled doctrine that the government may, in a variety of settings, introduce evidence that a defendant has engaged in criminal conduct other than that which is specifically charged in the indictment without losing the opportunity to prosecute the defendant for that conduct separately. Further review is therefore warranted on both issues. 1. The court of appeals held that respondent's conspiracy conviction in Oklahoma was a "successive prosecution() for the same conduct for which (respondent) was previously convicted in Missouri," and was therefore barred by the Double Jeopardy Clause. App., infra, 18a. The Tenth Circuit did not bar the conspiracy charge on the ground that the agreement that formed the basis for the Oklahoma conspiracy charge was the same as an agreement alleged and proved in the Missouri case. Because the Missouri prosecution involved a charge of attempt, not conspiracy, no agreement was alleged or proved in the Missouri prosecution. Rather, the court's decision that the conspiracy count was jeopardy-barred rested on its holding that the offense being prosecuted under the conspiracy count consisted of conduct from which the government sought to have the jury infer the defendant's participation in the conspiracy. Since that conduct consisted in part of conduct that had previously been proved in the course of the Missouri case, the court of appeals concluded that the Oklahoma and Missouri offenses were "the same offense" for double jeopardy purposes. The court of appeals' analysis is at odds with the law of conspiracy. "The gist of the crime of conspiracy * * * is the agreement or confederation of the conspirators to commit one or more unlawful acts." United States v. Braverman, 317 U.S. 49, 53 (1942). Accord United States v. Broce, 488 U.S. 563, 570 (1989) (agreement "is all but synonymous" with conspiracy); Iannelli v. United States, 420 U.S. 770, 777 (1975). Because a criminal conspiracy poses special dangers to society," independently of any other evil it seeks to accomplish," Dennis v. United States, 341 U.S. 494, 573 (1951) (Jackson, J., concurring), an individual who joins a conspiracy is liable for his participation in the criminal agreement in addition to any liability he may have for committing the substantive crimes that are the objects of the conspiracy. In other words, a conspiracy is not "the same offense" as its object offenses. See Garrett v. United States, 471 U.S. 773, 778 (1985); Iannelli v. United States, 420 U.S. 770, 781-782 (1975); United States v. Feola, 420 U.S. 671, 693 (1975); Callanan v. United States, 364 U.S. 587 (1961); Pinkerton v. United States, 328 U.S. 640, 643-644 (1946). Accordingly, the government may prosecute a defendant separately for a substantive offense and for conspiracy to commit that offense. See, e.g., United States v. Bayer, 331 U.S. 532, 542-543 (1947); United States v. Guthrie, 789 F.2d 356, 358 (5th Cir. 1986); United States v. Hines, 713 F.2d 584, 586 (10th Cir. 1983); United States v. Snell, 627 F.2d 186, 188 (9th Cir. 1980), cert. denied, 450 U.S. 957 (1981); United States v. Brown, 604 F.2d 557, 559 (8th Cir. 1979); United States v. Bosch, 584 F.2d 1113, 1118-1119 (1st Cir. 1978); United States v. Shelton, 573 F.2d 917, 919 (6th Cir.), cert. denied, 439 U.S. 827 (1978); United States v. Ricco, 549 F.2d 264, 273 (2d Cir.), cert. denied, 431 U.S. 905 (1977). Contrary to settled precedent, the court of appeals' decision in this case would require the government to prosecute a conspiracy and all substantive offenses that come within it in the same prosecution. If any substantive offense committed in furtherance of the conspiracy were prosecuted separately -- even a substantive offense that included no element of agreement and required the government to prove only the conduct of a single individual -- the government would lose the opportunity to prosecute the conspiracy later, or at least to introduce evidence concerning the previously prosecuted substantive offense. Presumably, the same result would follow if the order of prosecutions were reversed; prosecution for the conspiracy would immunize the defendant from later prosecution for any substantive offense evidence of which was introduced to help prove the conspiratorial agreement. The court of appeals' ruling on that issue squarely conflicts with the decision of the Fourth Circuit in United States v. Clark, No. 90-5771 (Mar. 20, 1991). In Clark, the defendant was found in constructive possession of a suitcase containing cocaine and heroin. He was first tried and convicted for the substantive offenses of possessing cocaine and heroin with intent to distribute them. Seven months after his conviction on those counts, he was indicted for conspiring to possess and distribute cocaine and heroin, in violation of 21 U.S.C. 846. The Fourth Circuit noted that "(the defendant's) possession of drugs at the airport, the same conduct for which he had been convicted earlier, was alleged as overt act number 18 in the conspiracy indictment and evidence about the airport incident was introduced at (the conspiracy) trial." Slip op. at 3. Nonetheless, the Fourth Circuit upheld the defendant's conviction over his objection that the conspiracy charge was barred under Grady v. Corbin, because the offenses for which he was convicted in his first trial were alleged and proved as an overt act in his subsequent conspiracy prosecution. The analysis and result in Clark cannot be squared with the analysis and result in this case. Other circuits as well have had difficulty in discerning the effect of this Court's decision in Grady v. Corbin on the law of conspiracy. The Second Circuit has taken the same position as does the Tenth Circuit in this case -- that the "conduct" at issue in a conspiracy prosecution is not the agreement itself, but is the conduct from which the government asks the jury to infer the existence of an agreement. See United States v. Calderone, 917 F.2d 717 (2d Cir. 1990), petition for cert. pending, No. 90-1527; United States v. Gambino, 920 F.2d 1108, 1112 (2d Cir. 1990). The Eleventh Circuit, on the other hand, has disagreed with the position adopted by the courts of appeals in this case and in Calderone. In United States v. Gonzalez, 921 F.2d 1530, 1538 (11th Cir. 1991), the court distinguished Calderone in a RICO conspiracy case, holding that the "conduct" in a RICO conspiracy case was the defendant's agreement, while the "conduct" charged in a previous prosecution for substantive narcotics offenses was the "criminal activity of the importation and distribution of contraband substances." /2/ As the Eleventh Circuit noted, "(t)he mere fact that (the agreement and the substantive conduct) are part of the same 'transaction' or can be proven by the same 'evidence' is not sufficient to bar successive prosecutions under the language in Grady." Ibid. See also United States v. Esposito, 912 F.2d 60, 65 (3d Cir. 1990). The courts of appeals are thus in disagreement over the effect of Grady on longstanding principles of conspiracy law and the well-settled legal doctrine permitting the successive prosecution of a conspiracy and the substantive offenses committed pursuant to that conspiracy. Review by this Court is warranted to resolve that conflict. 2. In addition to reversing respondent's conspiracy conviction, the court of appeals also reversed his convictions on five of the substantive counts. None of those counts charge respondent with a conspiracy, and the court's decision with respect to those counts thus does not depend on its holding concerning the "conduct" at issue in a conspiracy prosecution. Rather, the court based its holding on the fact that the conduct charged in those substantive counts had been the subject of evidence introduced against respondent under Rule 404(b) in the Missouri prosecution. In Dowling v. United States, 110 S. Ct. 668 (1990), this Court held that evidence of a crime of which a defendant has been acquitted may be introduced against the defendant in a later prosecution for another offense. That principle dictates the result here: that two crimes do not become the "same offense" for double jeopardy purposes merely because the evidence that establishes the first crime is also relevant to prove the second. To be sure, there are two possible distinctions between Dowling and this case. First, Dowling involved a prior acquittal, while this case involves a prior conviction. Yet, that distinction suggests that the result in this case should follow a fortiori from the result in Dowling. Dowling held that the government may use evidence that was introduced in a prior prosecution of the same defendant, in which the defendant had been acquitted; surely it follows that the government may use evidence that was introduced in a prior prosecution in which the same defendant had been convicted. Second, in Dowling the defendant was first prosecuted for the prior act of misconduct and then prosecuted for the other conduct of which the prior misconduct was merely relevant evidence. In this case, the order of the prosecutions was reversed. Yet that distinction, too, does not suggest any real difference between this case and Dowling. If, as in Dowling, evidence of conduct for which a defendant has already been prosecuted may be introduced at a later trial on another charge, then evidence of conduct for which the defendant has never been prosecuted, but which has been introduced in a prior trial of the same defendant, is surely admissible in a later trial for the conduct. The underlying principle in both cases is that the introduction of relevant evidence of particular misconduct is not the same thing as prosecution for that conduct. As Judge Anderson explained (App., infra, 29a n.6), any suggestion to the contrary is inconsistent with this Court's holding in Huddleston v. United States, 485 U.S. 681, 689 (1988), that a jury may accept similar act evidence if it "can reasonably conclude that the act occurred and that the defendant was an actor" -- a standard substantially lower than the "beyond a reasonable doubt" standard that governs the jury's findings that a defendant committed the acts charged in a criminal indictment. The decision in this case is therefore inconsistent with Dowling, as well as with the numerous pre-Dowling appellate decisions that reached the same result as Dowling, /3/ and it is erroneous unless Grady v. Corbin has effectively overruled Dowling. We agree with Judge Anderson that Grady has had no such effect. If Grady is interpreted to foreclose prosecution for an offense simply because evidence of the commission of that offense was relevant to a prosecution for a different crime, the double jeopardy rule of Grady will have been converted into a version of the "same evidence" test: to avoid the bar of double jeopardy, the government will have to avoid any reference in one prosecution to acts of misconduct that might ultimately be charged as criminal offenses in a second prosecution. That is a result that the Court in Grady appears to have disclaimed. See 110 S. Ct. at 2093 & n.12 ("(T)he presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding."). Nonetheless, the breadth of that disclaimer is subject to debate, as the conflicting opinions in this case indicate. Review by this Court is needed to resolve this important issue of double jeopardy law. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General APRIL 1991 /1/ The court of appeals was mistaken in stating that evidence of respondent's conduct in connection with the Beggs lab was used in the Missouri prosecution to "establish()" the "substantial step" element of the attempt offense. App., infra, 17a; see also id. at 20a. Compare 867 F.2d at 1071. As Judge Anderson noted, the Missouri jury was specifically instructed that the Rule 404(b) evidence relating to the Beggs lab could be used only "on the question of motive, opportunity, preparation, plan, knowledge, identity or absence of mistake." App., infra, 26a. /2/ Because Gonzalez was a RICO conspiracy case, and Calderone involved a drug conspiracy, the Eleventh Circuit merely "distinguish(ed) the dicta underlying Calderone" (921 F.2d at 1539) and found it unnecessary to decide whether it disagreed with the result in Calderone. The Eleventh Circuit noted, however, that "the Second Circuit would appear to disagree with part of our holding above * * * that the conspiratorial agreement and any actions in furtherance of it, are in fact distinguishable conduct." 921 F.2d at 1538 n.12. /3/ See, e.g., Flittie v. Solem, 775 F.2d 933, 942 (8th Cir. 1985) (en banc), cert. denied, 475 U.S. 1025 (1986); United States v. Castro-Castro, 464 F.2d 336 (9th Cir. 1972), cert. denied, 410 U.S. 916 (1973); United States v. Van Cleave, 599 F.2d 954, 957 (10th Cir. 1979). APPENDIX