GERALD VONTSTEEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6265 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 Fifth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A) is reported at 910 F.2d 187. The earlier opinion of the court of appeals reversing petitioner's conviction on 21 counts and remanding for resentencing on the surviving count is reported at 872 F.2d 626. JURISDICTION The judgment of the court of appeals was entered on August 17, 1990. The petition for a writ of certiorari was filed on November 15, 1990. On December 11, 1990, the court of appeals granted petitioner's petition for rehearing and suggestion for rehearing en banc. This Court has jurisdiction under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's resentencing on the sole surviving counts following reversal on direct appeal of all other counts of conviction violated due process. STATEMENT 1. Petitioner was indicted by a federal grand jury sitting in the United States District Court for the Southern District of Texas. He was charged with 21 counts of mail fraud, in violation of 18 U.S.C. 1341 (Counts 1-21), and one count of interstate transportation of stolen property, in violation of 18 U.S.C. 2314 (Count 22). The evidence at trial, which is not in dispute, showed that in 1982 and 1983, petitioner and his associates purchased approximately $1.2 million worth of oil field pipe on credit and then sold it at a discounted price. They kept the proceeds of the sale of the pipe without paying their suppliers. Gov't C.A. Br. 4, 12. Those transactions formed the basis for the mail fraud charges in Counts 1 through 21 of the indictment. On June 2, 1983, petitioner shipped three truckloads of stolen pipe worth $33,828.40 from Houston to Oil City, Louisiana. That transaction formed the basis for the stolen property charge in Count 22. Gov't C.A. Br. 15. 2. Petitioner was convicted on all 22 counts. The district court sentenced petitioner to a total of 10 years' imprisonment on the mail fraud counts. The court also imposed a 10-year sentence on the stolen property count, but suspended execution of that sentence in favor of five years' probation. The court of appeals thereafter reversed the mail fraud counts, holding that the mailings that provided the jurisdictional basis for those counts (invoices from the suppliers to petitioner and his associates) did not serve to execute the scheme to defraud and therefore failed to establish the offense of mail fraud. 872 F.2d 626. The court affirmed petitioner's conviction on the stolen property count, however, and remanded for resentencing on that count, 872 F.2d at 632: (Petitioner) was convicted on 22 counts and received a complicated sentence allocated among these counts. Now that we have reversed the convictions on all but one count, we think it appropriate that he be resentenced on this count (count 22), as the original sentencing decision obviously was based upon an overview of the case that has changed dramatically. In remanding, we express no view as to whether (petitioner) should receive, on count 22, the same or a lesser or greater sentence than he received originally. As always, that decision rests within the discretion of the district court. 3. On remand, the district court sentenced petitioner to 10 years' imprisonment on the stolen property count, so that his total prison term remained the same, but he was no longer required to serve five years' probation in addition to the prison term. The court did not state a reason for its sentence. 4. The court of appeals affirmed in a divided opinion. Pet. App. A. The court rejected petitioner's argument that the change in his sentence on Count 22 violated due process and that a presumption of vindictiveness should attach because the district court received no information regarding misconduct on the part of petitioner after the time of the original sentencing. Pet. App. A22-A25. The court held that there was no presumption of vindictiveness in this case, because there was no net increase in petitioner's sentence, and because his resentencing did not follow a new trial. Id. at A23. Moreover, the court held, petitioner failed to show either actual or apparent vindictiveness by the trial judge. Id. at A24-A25. Judge Rubin dissented. In his view, a presumption of vindictiveness should arise when the sentence on one count is increased, even if the total sentence for all the counts charged against the defendant has not been increased. Pet. App. A26. To rebut the presumption, the sentencing judge must explain the reason for the increase. Because no reasons were offered here, Judge Rubin stated, he would have remanded the case once again for resentencing and required the district court, before imposing the same sentence, to explain why that sentence "is appropriate and not retaliatory." Id. at A29. 5. On December 11, 1990, the court of appeals ordered that the case be reheard en banc. ARGUMENT Petitioner contends that his resentencing on Count 22 violated the Due Process Clause. Whatever the merits of petitioner's contention, it is not ripe for review by this Court. The court of appeals has granted his petition for rehearing and will reconsider the case en banc. If the en banc court vacates his sentence, petitioner will have obtained complete relief, and there will be no need for the Court to review the claim petitioner is now raising. If the court of appeals affirms his sentence on rehearing, petitioner will then be able to seek review of that judgment in this Court. In either event, there is no reason for this Court to review petitioner's challenge to the judgment entered by the panel, since that judgment will be replaced by a new judgment to be entered by the en banc court. 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 PATTY MERKAMP STEMLER Attorney DECEMBER 1990