LEO F. DERMOTA, PETITIONER V. UNITED STATES OF AMERICA No. 89-7717 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 895 F.2d 1324. JURISDICTION The judgment of the court of appeals was entered on March 8, 1990. Pet. App. A, 1324. The petition for a writ of certiorari was filed on June 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's rights under the Double Jeopardy Clause were violated when he pleaded guilty to two counts of a ten-count indictment pursuant to a plea agreement. STATEMENT Petitioner pleaded guilty in the United States District Court for the Middle District of Florida to one count of transporting or causing the transportation of unregistered firearms in interstate commerce (Count Five), in violation of 26 U.S.C. 5861(j), and one count of possessing unregistered firearms (Count Six), in violation of 26 U.S.C. 5861(d). /1/ He was sentenced to consecutive terms of five years' imprisonment on Count Five and two years' imprisonment on Count Six. 1. A ten-count indictment returned in February 1986 charged petitioner and three co-defendants with conspiracy and various firearms offenses. The indictment alleged that the defendants had conspired to transport unregistered firearms, including hand grenades, from Pennsylvania to Florida, where the grenades were sold to an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms. Pet. App. B, 1-11. In May 1986, petitioner entered into a plea agreement with the United States, under which he agreed to plead guilty to Counts Five and Six of the indictment in exchange for the government's agreement to dismiss the remaining eight counts. Pet. App. C. Count Five charged that "(o)n or about November 2-November 3, 1985," petitioner and his co-defendants did knowingly transport and deliver and cause to be transported and delivered in interstate commerce firearms which had not been registered as required by * * * the National Firearms Act, in that defendants did transport and deliver and cause to be transported and delivered from White Oak, Pennsylvania, to Jacksonville, Florida, and Jacksonville Beach, Florida, ten grenades which had not been registered to any of them in the National Firearms Registration and Transfer Record, in violation of Title 26, United States Code, Section() 5861(j) * * *. Pet. App. B, 7-8. Count Six charged that "(o)n or about November 3, 1985," the defendants did knowingly possess and cause to be possessed firearms, more fully described as ten grenades, not registered to any of them in the National Firearms and Transfer Record; in violation of Title 26, United States Code, Section() 5861(d) * * * . Pet. App. B, 8. The district court accepted petitioner's guilty plea and sentenced him to consecutive terms of imprisonment on the two counts. Pet. App. A, 1325. In September 1987, more than 15 months after the entry of his guilty plea, petitioner filed a motion under 28 U.S.C. 2255 to vacate or correct his sentence. Petitioner argued that because the offenses charged in Counts Five and Six arose out of the same transaction, the imposition of consecutive sentences on those counts violated his rights under the Double Jeopardy Clause. The district court denied the motion. Pet. App. A. The district court adopted the report and recommendation of the magistrate, who concluded that there was no double jeopardy violation because petitioner's sentence on both counts did not exceed the maximum term of ten years' imprisonment authorized for a single violation of Section 5861. Pet. App. A. 2. The court of appeals affirmed. Pet. App. A, 1324-1326. Relying on this Court's decision in United States v. Broce, 109 S. Ct. 757 (1989), the court of appeals held that petitioner, by pleading guilty to "two counts of an indictment that, on its face, described separate offenses," had waived his right to assert that the imposition of consecutive sentences subjected him to multiple punishments for the same offense in violation of the Double Jeopardy Clause. Pet. App. A, 1325-1326. ARGUMENT Petitioner renews his contention that the violations charged in Counts Five and Six of the indictment "merged into one continuous transaction" (Pet. 3), and that the imposition of consecutive sentences on those counts was barred by the Double Jeopardy Clause. Petitioner waived his double jeopardy claim by pleading guilty to two counts in return for dismissal of the remaining eight counts of the indictment. And on the merits, the result in this case is not contrary to the decisions of other courts of appeals. 1. In United States v. Broce, supra, defendants pleaded guilty to two indictments that charged separate conspiracies, but later asserted, in a collateral attack on their convictions, that only one conspiracy existed and that double jeopardy principles required that the conviction and sentence on the second indictment be set aside. 109 S. Ct. at 760. The Court held that the defendants' double jeopardy challenge was foreclosed by their guilty pleas, explaining that (b)y entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime. * * * Just as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede that he has committed two separate crimes. Id. at 762-763. Accordingly, the Court applied the general rule that "a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked," and concluded that the defendants were not entitled to collateral relief. Id. at 765 (quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)). The Court noted that an exception to this rule had been established by the decisions in Blackledge v. Petty, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975), which held that a guilty plea does not waive the right to assert the facial invalidity of the charge to which the defendant pleads. /2/ 109 S. Ct. at 765. The Court concluded, however, that the defendants in Broce "pleaded guilty to indictments that on their face described separate conspiracies," and, accordingly, the exception recognized in Blackledge and Menna was inapplicable. Id. at 765-766. The court of appeals correctly applied the principles announced in Broce to this case. Petitioner does not claim that his guilty plea was not voluntary and intelligent, or that he did not receive the advice of competent counsel in entering the plea. /3/ The counts of the indictment to which petitioner pleaded guilty on their face alleged two distinct offenses. Count Five charged that on November 2 and 3, 1985, petitioner caused the unlawful transportation of ten grenades from Pennsylvania to Florida; Count Six charged that on November 3, 1985, petitioner caused the unlawful possession of ten grenades in Florida. Because the two counts described separate offenses, petitioner's claim (Pet. 3) that "(b)oth acts arose out of one conspiracy and merged into one continuous transaction in time, purpose and subject matter" is foreclosed by his guilty plea. /4/ 2. The government's agreement to dismiss eight additional counts of the indictment in reliance on petitioner's guilty plea to Counts Five and Six provides an independent basis for rejecting petitioner's collateral attack on his conviction. Having voluntarily entered into a binding agreement with the government and received the benefits of that agreement, petitioner should not be allowed to repudiate his half of the bargain. See Ricketts v. Adamson, 483 U.S. 1 (1987); cf. Broce, 109 S. Ct. at 766 ("We * * * need not consider the degree to which the decision by an accused to enter into a plea bargain which incorporates concessions by the Government * * * heightens the already substantial interest the Government has in the finality of the plea.") In a different context, the Court has said that the Blackledge analysis does not apply "to the give-and-take negotiation common in plea bargaining between the prosecution and defense." Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978). Petitioner obtained substantial benefits from his plea bargain, including the dismissal of eight counts of the indictment. Accordingly, he should not be permitted to attack his guilty plea conviction on grounds that were fully available to him when he struck his plea bargain with the government. 3. Finally, there is no merit to petitioner's contention (Pet. 8-11) that the court of appeals' decision in this case conflicts with United States v. Buchanan, 830 F.2d 146 (10th Cir. 1987); United States v. McDaniel, 550 F.2d 214 (5th Cir. 1977); and United States v. Clements, 471 F.2d 1253 (9th Cir. 1972). First, the defendants in those cases were convicted after a trial rather than on a plea of guilty. See Buchanan, 830 F.2d at 147; McDaniel, 550 F.2d at 215; Clements, 471 F.2d at 1254. Those defendants, unlike petitioner, did not waive their double jeopardy claim by pleading guilty pursuant to a plea agreement. In addition, the issue in Buchanan and Clements was whether cumulative sentences could be imposed on a defendant convicted of manufacturing and possessing the same firearm. See Buchanan, 830 F.2d at 148 ("the manufacture of an explosive device necessarily includes possession of it"); Clements, 471 F.2d at 1254 ("(p)roof of making necessarily proves possession"). In McDaniel, the court considered the provisions of Section 5861 at issue here, and expressly acknowledged that "(c)ertainly it is possible to possess (a firearm) without transporting (it)." 550 F.2d at 219. The court held, however, on the facts presented in that case -- where the defendant personally transported the firearm -- that the defendant could not have committed the transportation offense without also committing the possession offense. McDaniel is not inconsistent with cumulative sentences where, as here, the defendant arranges for someone else to transport the firearms. /5/ Indeed, another court of appeals cited McDaniel as support for precisely that result in United States v. Santiesteban, 825 F.2d 779, 782 (4th Cir. 1987). Consequently, even if petitioner had not waived his double jeopardy claim by entering a guilty plea pursuant to a plea agreement, that claim would not warrant the attention of this Court. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General NINA GOODMAN Attorney AUGUST 1990 /1/ Section 5861(d) of Title 26 provides that "(i)t shall be unlawful for any person * * * to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record * * *." Section 5861(j) of Title 26 provides that "(i)t shall be unlawful * * * to transport, deliver, or receive any firearm in interstate commerce which has not been registered as required by this chapter * * *." /2/ The Court said in Menna that "(w)here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty." 423 U.S. at 62. The Court added, however, that (w)e do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that -- judged on its face -- the charge is one which the State may not constitutionally prosecute. Id. at 63 n.2; see Broce, 109 S. Ct. at 765. /3/ Petitioner incorrectly asserts (Pet. 7) that a guilty plea does not relinquish double jeopardy rights absent a "specific waiver." On the contrary, "(r)elinquishment derives not from any inquiry into a defendant's subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty." Broce, 109 S. Ct. at 764. /4/ Petitioner also asserts (Pet. 3-4, 7) that the "Personalization of Elements" section of the plea agreement supports his claim that Counts Five and Six charged the same offense. In fact, the questions set forth under Count Five in that section of the agreement asked petitioner to admit that he caused two named individuals "to transport and deliver 10 grenades in interstate commerce," while the questions under Count Six asked him to admit that he caused the same individuals "to possess 10 grenades in Jacksonville Beach, Florida." Pet. App. C. /5/ The court of appeals' opinion observes that the firearms were transported by two of petitioner's confederates, and that there is no indication that petitioner was even in Florida when the confederates sold the grenades to federal agents. Pet. App. A, 1325.