BRUNO MANCARI, PETITIONER V. UNITED STATES OF AMERICA No. 90-6672 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 Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1014-1022) is reported at 914 F.2d 1014. The prior opinion of the court of appeals is reported at 875 F.2d 103. JURISDICTION The judgment of the court of appeals was entered on October 4, 1990. The petition for a writ of certiorari was filed on December 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's due process rights were violated when, following the reversal of one of his four convictions, the district court on remand resentenced him to the same aggregate sentence on his remaining convictions. STATEMENT 1. After a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted on one count of conspiring to distribute cocaine, in violation of 21 U.S.C. 846, and on three counts of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner was tried with co-defendant Robert DelPercio, who was indicted on the conspiracy count and one distribution count but was acquitted on both. The government's theory was that DelPercio sold cocaine to petitioner for resale to the ultimate consumer. The evidence showed that petitioner sold cocaine to an undercover police officer on three separate occasions. Pet. App. 1014-1015; 875 F.2d at 105-106. The court sentenced petitioner to four years' imprisonment on the conspiracy count and suspended sentence and imposed concurrent five-year terms of probation on the distribution counts, to run consecutively to the prison term. Pet. App. 1015. /1/ The court explained that petitioner was "guilty of multiple sales," was "a very, very willing and eager participant," and, as one who sold drugs to users, was "a very important cog in the distribution system." Tr. 578, 580. 2. Less than four months after the sentencing in this case, petitioner was sentenced by Judge Nordberg to three years' imprisonment on a separate conviction, for mail fraud, arising from a scheme to steal and rebuild cars for resale. That sentence was to run consecutively to petitioner's four-year term of imprisonment in the instant case, followed by five years' probation. Pet. App. 1015 n.2. 3. The court of appeals affirmed petitioner's distribution convictions but reversed his conspiracy conviction. 875 F.2d 103. The court felt constrained to find insufficient evidence of conspiracy because (1) the government had made an "improvident concession" that DelPercio's acquittal on the conspiracy count required reversal of petitioner's conviction on that count unless there was evidence that petitioner had conspired with others, and (2) evidence concerning additional sales that established a conspiracy with others had improvidently been admitted only as "other crimes" evidence, rather than substantive evidence. /2/ The court therefore remanded with directions to acquit petitioner on the conspiracy count and to resentence him on the distribution counts. Pet. App. 1016-1017; 875 F.2d at 104-107. 4. The district court resentenced petitioner to four years' imprisonment on one of the distribution counts and retained the suspended sentence and concurrent five-year terms of probation on the other two counts. Pet. App. 1017. The court explained (7/20/89 Tr. 30-32): . . . (The) conviction on conspiracy was in fact vacated and made null and void. Nevertheless, the court (of appeals) indicated . . . that to a certain extent the reason that it was being vacated was because of an improvident concession on the prosecution's part. So, it was not a case where necessarily, that the facts were . . . that (petitioner) was . . . innocent. . . . The court felt that there was adequate evidence and rejected all other bases for reversal of the substantive counts, which involve the distribution and sale of what I consider to be a very dangerous narcotic drug, cocaine. . . . (O)ne of the reasons that a judge sentences a person (to the penitentiary) is because he thinks he needs punishment . . . * * * * . . . (T)he most serious problem facing society today is drug use. The reason drug use is as rampant as it is is because of its easy availability. I think I pointed out over a year ago that (petitioner) was not the source of the cocaine but he was a very integral part of the distribution system. He was the one that made it possible for the user to obtain cocaine. This is a very serious offense. . . . (B)y leaving probation as the sole sentence for this crime or by, in effect, giving him a three-year concurrent sentence . . . to the one Judge Nordberg gave him . . . would deprecate the seriousness of the offense and send out the wrong message. /(3)/ What I am going to do, though, is . . . designate . . . that the (Parole) Commission may release (petitioner) on parole at such time as the Commission may determine. 5. The court of appeals affirmed, rejecting petitioner's contention that his resentencing violated the Due Process Clause under North Carolina v. Pearce, 395 U.S. 711 (1969). Pet. App. 1014-1022. The court explained that "(t)he question in applying Pearce is whether the sentence (petitioner) received upon remand should be considered an 'increase' from the sentence previously imposed." Pet. App. 1019. If so, there is a presumption of vindictiveness. The court found no such increase here, since "the total period of confinement at resentencing did not exceed the time (petitioner) received as a result of his earlier conviction." Id. at 1020. By contrast, the court reasoned, petitioner's position -- that an "increase" is to be determined by comparing the first and second sentences "after disregarding the sentence on the count which had dropped from the sentencing equation" -- overlooked the general rule that "when an appellate court affirms some counts and reverses others, it is open to the district court to resentence in order to effectuate the original sentencing intent." Id. at 1018-1019 & n.3. The court of appeals also noted that the district court found when it first sentenced petitioner that the "totality of his criminal conduct . . . merited imprisonment for the purposes of penalizing (petitioner) for his criminal activity and also as a deterrent," and it "could have chosen to impose confinement on any or all of the convictions." Pet. App. 1019. Thus, the reversal of the conspiracy conviction -- the only one on which petitioner received a sentence of imprisonment -- "disrupted the district court's intent in the imposition of sentence" and required it to "redesign a sentencing package to fit the punishment to the criminal as well as the crime." Ibid. At resentencing, the district court "was confronted with the same drug activity as it considered at . . . the original sentence. The valid drug delivery convictions and sentences and the overturned conspiracy conviction (reversed for technical reasons) were part and parcel of the same underlying unlawful conduct." Ibid. The court concluded (id. at 1021-1022): The aggregate sentence . . . upon remand amounted to the same period of incarceration and probation and did not increase (petitioner's) sentence. In resentencing (petitioner) the judge specifically emphasized his deep concern with the deterrence factors mentioned previously at the original sentencing. Based upon the foregoing considerations, it is clear that the court resentenced (petitioner) according to its original intention after its previous sentencing was dismantled . . . . ARGUMENT Petitioner contends that due process principles preclude a district court from resentencing a defendant to the same aggregate sentence after the defendant has successfully challenged one or more, but not all, of his convictions on appeal. The court of appeals' rejection of that contention is consistent with decisions of this Court and presents no circuit conflict warranting review. 1.a. In Pearce, this Court reviewed the actions of state trial judges who had significantly enhanced sentences after the defendants obtained reversals of their convictions. In one of the cases before the Court, the conclusion was "inescapable" that the trial judge was "punishing (the defendant) for his having exercised his post-conviction right of review," and in the other case, no "reason or justification" was suggested for the increased sentence "beyond the naked power to impose it." 395 U.S. at 726. The Court held that it would violate the Due Process Clause for a court to impose a more severe sentence "for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside." Id. at 723-724. The Court noted, however, that the "existence of a retaliatory motivation" would be "difficult to prove in any individual case." Id. at 725 n.20. Accordingly, the Court adopted a special prophylactic rule, under which the reasons for a more severe sentence after a new trial must "affirmatively appear" in the record and "must be based upon objective information concerning identifiable conduct after the time of the original sentencing proceeding." Id. at 726. A similar prophylactic rule was fashioned in Blackledge v. Perry, 417 U.S. 21 (1974), where the defendant sought a trial de novo following his initial misdemeanor conviction, and the prosecutor responded by obtaining a felony indictment and conviction. The Court found "a rule analogous to that of the Pearce case" appropriate in that context because the prosecutor "has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo." Id. at 27. The Court has declined, however, to apply the presumption of vindictiveness articulated in Pearce and Perry outside the special contexts in which it was developed. For example, in Colten v. Kentucky, 407 U.S. 104 (1972), the Court found no occasion for such a presumption where a defendant receives a greater sentence after invoking his right to a trial de novo in a court of superior jurisdiction. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Court held that there is no due process violation where a prosecutor threatens to (and later does) seek conviction for a greater offense if the defendant does not plead guilty. And in United States v. Goodwin, 457 U.S. 368 (1982), the Court found a presumption of vindictiveness unwarranted where the prosecutor adds a felony charge after the defendant demands a jury trial on a misdemeanor charge. See also Alabama v. Smith, 490 U.S. 794 (1989) (Pearce inapplicable where defendant withdraws his guilty plea and then receives a harsher sentence). These cases establish that "the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.'" Perry, 417 U.S. at 27. Accord, United States v. Goodwin, 457 U.S. at 375. "Because the Pearce presumption 'may operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct,'" the Court has "limited its application, like that of 'other "judicially created means of effectuating the rights secured by the (Constitution),"' to circumstances 'where its "objectives are thought most efficaciously served."'" Alabama v. Smith, 490 U.S. at 798-799 (citations omitted). "Such circumstances are those in which there is a 'reasonable likelihood' . . . that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." Id. at 799. b. Applying these principles, the court of appeals correctly held that no presumption of vindictiveness is warranted in this case. Unlike in Pearce, the district court here did not increase petitioner's aggregate sentence. Although petitioner received a greater sentence on one of the distribution counts, his aggregate sentence remained four years. /4/ The Pearce presumption was fashioned in cases of substantial sentence increases, in order to protect against the possibility that the trial court would be influenced at resentencing by a new and impermissible factor: vindictiveness. This Court has never suggested that the Pearce presumption is applicable in the quite different situation presented here, where the trial court imposed the same overall sentence in order to effectuate its original sentencing intent. In such a case, there is simply no basis for presuming that the district court was motivated by vindictiveness at resentencing. Furthermore, whereas the defendants in Pearce and Perry secured reversals of their convictions that necessitated entirely new trials, the reversal of petitioner's conspiracy conviction required nothing more than entry of a judgment of acquittal on that count and resentencing on the remaining counts. This Court explained in Goodwin that the presumption articulated in Pearce and Perry "reflect(s) a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided." 457 U.S. at 376. That bias, the Court believed, might "subconsciously motivate a vindictive prosecutorial or judicial response to a defendant's exercise of his right to obtain retrial of a decided question." Id. at 377. By contrast, where, as here, the reversal does not require a new trial, but only resentencing, the basis for the "subconscious() motivat(ion)" described in Goodwin is not present. That is especially so here, since petitioner's conviction was reversed "for technical reasons," Pet. App. 1021, that were attributable to the government's, not the court's, handling of the case. Compare Texas v. McCullough, 475 U.S. 134, 138-139 (1986) (vindictiveness not presumed where trial judge ordered retrial because of prosecutorial misconduct). c. Even if the Pearce presumption were applicable in this setting, it was fully rebutted by the district court's statements at resentencing. As the Court has since emphasized, the record in Pearce was "barren of any evidence to rebut the presumption of vindictiveness and support the increased sentences in either of the two cases." Wasman v. United States, 468 U.S. 559, 565 (1984). "In sharp contrast," the trial judge in Wasman, like the judge here, "carefully explained his reasons," id. at 569, "amply rebut(ting) any presumption of vindictiveness." Id. at 570. Petitioner argues (Pet. 4, 5) that the explanation for his resentencing was insufficient because it was not justified by identifiable conduct in which he engaged after the first sentencing hearing. Although petitioner cites Texas v. McCullough, supra, for this proposition, the Court in that case rejected just such an argument. There, in sentencing the defendant to a much longer term of imprisonment after a retrial, the trial court relied in part on testimony, not presented at the first trial, showing that the defendant, rather than his accomplices, had slashed the throat of the victim. The Court held that the trial court's findings overcame any presumption of vindictiveness under Pearce. The Court acknowledged the language in Pearce stating that the presumption may be rebutted by "conduct or events that occurred subsequent to the original sentencing proceedings," but it explained that "(t)his language . . . was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified." 475 U.S. at 142. Instead, the Court stated, the Pearce presumption may be overcome by any "'objective information . . . justifying the increased sentence.'" Ibid. (quoting United States v. Goodwin, 457 U.S. at 374); accord, Alabama v. Smith, 490 U.S. at 799. Here, too, the trial court provided "objective information . . . justifying the increased sentence." The court explained that it had made "a very strong point" at the original sentencing "that deterrence is a very important feature of sentencing" and that petitioner was "a very integral part of the distribution system. He was the one that made it possible for the user to obtain cocaine." 7/20/89 Tr. 31-32. The court further explained that to resentence petitioner to fewer than four years would "deprecate the seriousness of the offense," id. at 32, and ignore the fact that the conspiracy conviction had been overturned because of "peculiar circumstances" rather than because of any facts consistent with innocence. Id. at 30-31. Because the district court "was confronted with the same drug activity as it considered at . . . the original sentence," Pet. App. 1021, it was entirely appropriate for the court to impose the same sentence on one of the distribution counts that it had on the conspiracy count, in order to effectuate its original intent at sentencing. The district court also properly considered petitioner's intervening conviction and sentence for mail fraud. See Wasman v. United States, supra. d. A number of other courts of appeals have also held that a presumption of vindictiveness should not be applied in circumstances such as those presented by this case. United States v. Pimienta-Redondo, 874 F.2d 9, 12-16 (1st Cir.) (en banc), cert. denied, 110 S. Ct. 233 (1989); United States v. Diaz, 834 F.2d 287, 289-290 (2d Cir. 1987), cert. denied, 488 U.S. 818 (1988); Kelly v. Neubert, 898 F.2d 15, 16-18 (3d Cir. 1990); United States v. Busic, 639 F.2d 940, 951 n.12 (3d Cir.), cert. denied, 452 U.S. 918 (1981); United States v. Gray, 852 F.2d 136, 138 (4th Cir. 1988); United States v. Vontsteen, 910 F.2d 187, 191-194 (5th Cir.), rehearing en banc granted, No. 89-2745 (Dec. 11, 1990), and cert. denied, No. 90-6265 (Jan. 22, 1991); United States v. Forester, 874 F.2d 983, 984 (5th Cir.), cert. denied, 110 S. Ct. 284 (1989); United States v. Cataldo, 832 F.2d 869, 874-875 (5th Cir. 1987), cert. denied, 485 U.S. 1022 (1988); United States v. Bay, 820 F.2d 1511, 1513 (9th Cir. 1987); United States v. Hagler, 709 F.2d 578 (9th Cir.), cert. denied, 464 U.S. 917 (1983). Petitioner contends (Pet. 6-7) that the above cases conflict with the Second Circuit's decision in United States v. Markus, 603 F.2d 409 (2d Cir. 1979), and that review is necessary to resolve that conflict. In Markus, the Second Circuit stated that, for purposes of determining whether the sentence imposed on remand is more severe than the original sentence (and thus whether the Pearce presumption of vindictiveness applies), "the proper procedure is first to disregard the sentence originally imposed (on the reversed or dismissed count) . . . and then compare the total remaining sentence . . . with the petitioner's present position." 603 F.2d at 413. However, Markus's approach to another variation of the Pearce issue was expressly disapproved in United States v. Wasman, 468 U.S. at 563, 572, and the Second Circuit itself has not followed Markus on the precise Pearce issue petitioner raises. In fact, in United States v. Diaz, 834 F.2d 287 (1987), cert. denied, 488 U.S. 818 (1988), the Second Circuit -- without mentioning Markus -- approved the imposition of increased sentences on unreversed counts because they would effectuate the district court's original sentencing intent and were "presumably no higher than the aggregate of the sentence originally imposed." 843 F.2d at 289, 290. The Eleventh Circuit followed Markus in United States v. Monaco, 702 F.2d 860, 884-885 (11th Cir. 1983), also cited by petitioner (Pet. 6-7). However, we have not found any subsequent decision in which the Eleventh Circuit has again followed Markus in this setting. In the absence of any evidence that the Eleventh Circuit is committed to the Markus approach despite the Second Circuit's apparent abandonment of that approach, there is no live circuit conflict warranting review by this Court. Review of this case is unwarranted for the additional reason that since Markus and Monaco were decided, this Court -- in United States v. Wasman, supra, Texas v. McCullough, supra, and Alabama v. Smith, supra -- has clarified the application of Pearce to establish that any presumption that does arise under Pearce in a particular case may be rebutted by objective information justifying the increased sentence. Thus, even if the Pearce presumption does apply in this setting, the trial court's explanation on resentencing in this case -- that it sought to effectuate its original sentencing intent with respect to the defendant's overall criminal conduct -- would justify a new aggregate sentence that falls within the original limits of the original aggregate sentence. 2. Petitioner also suggests (Pet. 7-8) that this Court should require the courts of appeals to follow a uniform remand procedure "when some counts are reversed and others affirmed on appeal." He contends that, unlike the First Circuit in Pimienta-Redondo, the Third Circuit in Busic, and the Seventh Circuit in the instant case, other circuits "have not followed (the) practice" of allowing the district court to resentence on affirmed counts. As examples of the latter group he cites the Ninth Circuit in United States v. Lewis, 862 F.2d 748 (9th Cir.), cert. denied, 489 U.S. 1032 (1989), and United States v. Minor, 846 F.2d 1184 (9th Cir. 1988), and the Fifth Circuit in United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc). Contrary to petitioner's contention (Pet. 8), however, there is no "clear split in the circuits regarding the procedure to be followed when an appeal generates mixed results." The Ninth Circuit does not doubt its authority to permit district courts to resentence on affirmed counts in appropriate cases -- as both Lewis, 862 F.2d at 750, and Minor, 846 F.2d at 1187, make clear. Indeed, the Ninth Circuit has explicitly authorized such resentencing in United States v. Bordallo, 872 F.2d 334 (9th Cir. 1989), and United States v. Hagler, 709 F.2d at 579 (citing 28 U.S.C. 2106, which, in pertinent part, permits appellate courts to "remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances"). As for Henry, the Fifth Circuit has since held that the splintered nature of that decision limits its precedential authority concerning the refashioning of sentences on remand to a narrow class of cases. See United States v. Cataldo, 832 F.2d at 872-873. In any event, since this is a pre-Sentencing Guidelines case, it is a particularly inappropriate vehicle for resolving any differences among the courts of appeals regarding remand procedure following partially successful appeals. The Guidelines limit judicial discretion in sentencing and provide rules for calculating sentences for multiple counts. See United States Sentencing Commission, Guidelines Manual, Chap. 3, Part D (Nov. 1990). Accordingly, any review by this Court of remand procedures and resentencing on remand in federal prosecutions should await presentation of the relevant issues in the context of the Guidelines, which further diminish the concerns on which the Pearce presumption was originally based. 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 VICKI S. MARANI Attorney FEBRUARY 1991 /1/ Petitioner's offense was committed before the November 1, 1987, effective date of the Sentencing Guidelines, and therefore was not covered by the Guidelines. /2/ The court of appeals also found "considerable evidence" that petitioner had suppliers other than DelPercio, but it found no evidence that those suppliers knew that petitioner was buying cocaine for resale rather than for his personal use, and therefore no evidence that he had conspired with them to distribute drugs. 875 F.2d at 105. /3/ The court stated that it did not know to what extent Judge Nordberg "had taken into account the fact that (petitioner) would normally serve a substantial portion of that four years prior to commencing the service of his three-year imposed sentence (for mail fraud). . . . Judge Nordberg may very well have felt that (petitioner) needed more than three years . . . ." 7/20/89 Tr. 30. /4/ Petitioner's sentence on remand was arguably less than it was originally, inasmuch as the district court made him eligible for early parole under 18 U.S.C. 4205(b)(2) (repealed) (see page 4, supra), which rendered petitioner eligible for parole in three or four months, rather than 28 months. 7/26/89 Tr. 2-5.