UNITED STATES OF AMERICA, PETITIONER V. CLAUDIO CALDERONE AND DOMENICO CATALANO No. 90-1527 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 Second Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second 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-28a) is reported at 917 F.2d 717. JURISDICTION The judgment of the court of appeals was entered on October 24, 1990. A petition for rehearing was denied on January 3, 1991. App., infra, 29a-30a. 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 who has obtained a judgment of acquittal on a broad conspiracy charge may be tried on a separate and narrower conspiracy charge, where the overt acts charged against the defendant in the first indictment are also charged in the second indictment. 2. Whether a defendant who has obtained a judgment of acquittal on a broad conspiracy charge may, consistent with the Double Jeopardy Clause, be tried on substantive counts based on overt acts charged in the earlier indictment. STATEMENT 1. On June 30, 1988, respondents were charged, together with 26 co-defendants, in a multi-count indictment filed in the United States District Court for the Southern District of New York. United States v. Adamita, No. SS 88 Cr. 217 (JES). All defendants, including respondents, were named in Count 1 of the indictment, which charged that, between approximately January 1, 1985, and June 30, 1988, the defendants conspired "to enrich themselves by illegally trafficking in narcotics." Count 1 alleged that it was part of the conspiracy that the defendants imported heroin, sometimes in exchange for cocaine exported to Europe, and that the defendants distributed and possessed with intent to distribute heroin, cocaine, and marijuana. The indictment charged that "kilogram quantities" of heroin and cocaine and "multi-ton" quantities of marijuana were involved. Respondent Calderone was named in 3 of the 105 overt acts listed and respondent Catalano was named in 5. /1/ At the close of the government's case, District Judge Sprizzo entered judgments of acquittal for Calderone and Catalano. Although Judge Sprizzo had "no question in (his) mind" that the government had introduced sufficient evidence to send "a more narrowly charged conspiracy" to the jury, there was "no evidence in the record from which (he could) infer" that Calderone had been a member of the wide-ranging conspiracy charged in Count 1 or had any knowledge of the aspects of the conspiracy involving the trading of heroin for cocaine or dealing in large lots of marijuana. App., infra, 4a. Judge Sprizzo reached a similar conclusion as to Catalano. App., infra, 4a-5a. 2. On October 16, 1989, a 28-count indictment was returned against respondents in the present case. Count 1 charged that respondents had participated in a conspiracy between approximately January 1, 1987, and March 31, 1988, to distribute heroin, in violation of 21 U.S.C. 846. Twenty-one overt acts were listed, of which 18 named either Calderone or Catalano. Counts 2 through 25 charged respondents with using a telephone to facilitate narcotics crimes, in violation of 21 U.S.C. 843(b). Counts 26 through 28 charged them with possession of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A). On December 8, 1989, respondents moved to dismiss the indictment on double jeopardy grounds. Judge Ward, to whom the new case had been assigned, denied the motions, relying in part on Judge Sprizzo's determination that "there was no charge of a heroin conspiracy (in the Adamita case)." App., infra, 6a, 7a. Therefore, according to Judge Ward, the Adamita case did not place respondents in jeopardy with respect to the charges in the 1988 indictment. For that reason, Judge Ward concluded, "the present prosecution alleging a heroin conspiracy does not constitute 'double jeopardy.'" App., infra, 7a. 3. Defendants took an interlocutory appeal to the Second Circuit pursuant to Abney v. United States, 431 U.S. 651, 662 (1977), and the case was fully briefed and argued when this Court decided Grady v. Corbin, 110 S. Ct. 2084 (1990). After considering supplemental briefs addressing the effect of the Grady decision on this case, a divided panel of the Second Circuit held that the 1989 indictment was jeopardy-barred. App., infra, 7a. a. Writing for the court, Judge Pratt noted that Grady requires a two-step analysis: First, the court must apply the "Blockburger test," i.e., it must determine whether each charge requires proof of a fact that the other does not. Second, the court must ask whether the government, "to establish an essential element of an offense charged in (a second prosecution, would) * * * prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 110 S. Ct. at 2087. App., infra, 8a. Judge Pratt assumed, arguendo, that the first step of the analysis, applying the traditional Blockburger test, was satisfied. App., infra, 7a-8a. As to the second step of the analysis, Judge Pratt first discussed the effect of Grady on United States v. Korfant, 771 F.2d 660 (2d Cir. 1985). Korfant had held that, because Blockburger cannot sensibly be applied in the context of successive conspiracy prosecutions (the statutory elements of the two prosecutions will always be identical), the test for whether two conspiracies are "the same offence" for double jeopardy purposes was a multi-factor test designed to determine whether the second agreement was the same as the first. Judge Pratt concluded that Grady, not Korfant, now governs the permissibility of successive conspiracy prosecutions. App., infra, 9a-10a. Judge Pratt then held that the "conduct" charged in a conspiracy is not the agreement itself, but rather "what (the conspirators) said and did," from which the jury is asked to infer the agreement. App., infra, 10a. According to Judge Pratt, the "conduct" -- in this sense -- charged in the Adamita indictment bars proof of the same "conduct" that was charged in the conspiracy count of the 1989 indictment. App., infra, 11a. Moreover, in Judge Pratt's view, the substantive offenses charged in the 1989 indictment are barred under Grady, because they were based on the same "conduct" that was charged in Adamita. App., infra, 12a. b. Judge Newman concurred in a separate opinion. App., infra, 12a-22a. He proposed a complex test for applying Grady to conspiracy cases. Because Grady did not purport to adopt a "same evidence" test, Judge Newman concluded that Grady does not preclude introducing proof of conduct that was merely evidence of an element of the prior offense. App., infra, 16a-18a. A different conclusion followed, in his view, where the government intended to introduce proof of conduct that constituted an element of the prior offense. App., infra, 19a. He derived the following test from these propositions: Thus, I read Grady to bar a second prosecution whenever the defendant is at risk that the entirety of an element of an offense in a pending prosecution might be established by conduct constituting the entirety of a previously prosecuted offense (as in Grady), or the entirety of an element of such an offense, or the entirety of a distinct component of such an offense (as in (United States v.) Russo(, 906 F.2d 77 (2d Cir. 1990))). Ibid. Applying his test to this case, Judge Newman noted that the government is not required to charge overt acts in a conspiracy case brought under 21 U.S.C. 846. Nonetheless, if -- as here -- the government does charge such overt acts, Judge Newman concluded (as did Judge Pratt) that the legal effect of the government's action is to render the conspiracy prosecution a prosecution for the conduct set forth in the overt act allegations. App., infra, 19a-20a. The effect of that analysis is that the government may not prove the conspiracy charged in the 1989 indictment by asserting that the conspiracy is different from the Adamita conspiracy, but then proving the narrower conspiracy by relying on the same overt acts that were charged in the Adamita indictment. Moreover, he concluded, regardless of the overt acts actually charged in Adamita, proof of membership in the Adamita conspiracy would show membership in the conspiracy charged in the 1989 indictment, and the latter charge would thus be barred: (T)he conduct alleged to show the existence of the big conspiracy in Adamita * * * would suffice to establish the element of the smaller conspiracy in Calderone. Evidence that defendants have agreed to sell heroin and other drugs over a long period of time will surely establish the element of an agreement to sell only heroin during an interval within that longer period. App., infra, 21a. Judge Newman finally concluded that Grady left the government with only one option: to "package in one indictment all of the offenses (to be) charged." App., infra, 21a-22a. c. Judge Miner dissented. Charging the panel with adopting in essence a "same evidence" test -- a test that the Grady Court expressly disclaimed, see 110 S. Ct. at 2093 & n.12 -- Judge Miner argued that "(s)imply stated, the various items of conduct to be proved by the government, whether constituting offenses or not, have not been the subject of previous prosecution." App., infra, 23a. Because overt acts are not required in a prosecution under 21 U.S.C. 846, Judge Miner concluded that overt acts named in an indictment are not "elements" of such a prosecution, and certainly do not -- in Grady's terms -- "constitut(e)" an "offense" for which the defendant has already been prosecuted. App., infra, 25a-26a. Rather than focusing on the evidence the government relies on to prove the existence of a conspiracy, Judge Miner maintained that "(t)he agreement between the parties is * * * the 'gist' of a narcotics conspiracy." App., infra, 25a. Accordingly, in Judge Miner's view, the question whether successive conspiracy prosecutions charge the same offense must be decided by comparing the agreements charged in those prosecutions under a totality-of-the-circumstances analysis. App., infra, 26a-27a. Applying that analysis, Judge Miner concluded that the earlier and later prosecutions charged different conspiracies, and hence different offenses. With respect to the substantive offenses charged in the current indictment, Judge Miner stated that the conclusion that they are not jeopardy-barred follows a fortiori from the conclusion that the conspiracy count is not barred. Although evidence relating to respondents' use of the telephone and possession of heroin was introduced in Adamita, respondents were prosecuted in Adamita for the agreement alleged in that case, not for use of the telephone to facilitate heroin distribution or possession of heroin. Thus, according to Judge Miner, "no conduct for which they have been prosecuted constitutes an 'element' of the offenses charged in" the "telephone" or possession counts in the 1989 indictment. App., infra, 27a-28a. REASONS FOR GRANTING THE PETITION The Second Circuit in this case held that the "conduct" charged in a conspiracy prosecution is not the agreement among the conspirators, but rather the evidence of the defendants' actions from which the government asks the jury to infer that agreement. The court then found that the government had previously prosecuted respondents for the "conduct" now charged against them -- both in the conspiracy and the substantive counts of the 1989 indictment -- since the government had introduced evidence of that conduct in the Adamita case for the purpose of inferring respondents' membership in the conspiracy charged there. The rule of law that emerges is that prosecution of a defendant for a conspiracy bars all future prosecutions of that defendant for any crime that includes as an element any conduct from which the government had sought to have the jury infer the conspiratorial agreement. 1. The Second Circuit's rule is inconsistent with established authority concerning the law of conspiracy and the application of the Double Jeopardy Clause to cases involving separate prosecutions for conspiracy and substantive offenses. "The gist of the crime of conspiracy * * * is the agreement or confederation of the conspirators to commit one or more unlawful acts," and "the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects." Braverman v. United States, 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). Indeed, "(t)he basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish." Dennis v. United States, 341 U.S. 494, 573 (1951) (Jackson, J., concurring); see also Callanan v. United States, 364 U.S. 587, 593 (1961). Consequently, distinct agreements constitute distinct violations of the law and may be the subject of distinct prosecutions. Regardless whether the government proves those agreements by direct evidence of written agreements, by statements made by the parties, or by inference from the actions of the defendants, the "conduct" prosecuted in a conspiracy prosecution is the agreement -- and not any particular actions taken by the defendants. The Second Circuit's decision in this case is contrary to this basic principle. One effect of the Second Circuit's failure to acknowledge the essential role of the agreement in a conspiracy prosecution is to disregard the established principle that a conspiracy is not "the same offence" as substantive offenses whose commission may be among the objects of the conspiracy or otherwise within the scope of the conspiracy. 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). The government frequently asks a jury to infer a conspiratorial agreement from the collective activity of the defendants in committing substantive offenses. That activity is often set out as "overt acts" in a conspiracy indictment. Under the Second Circuit's holding in this case, the "conduct" being prosecuted in such a conspiracy case becomes the conduct constituting the substantive offense. In that setting, contrary to settled principles, prosecution for the conspiracy would bar prosecution for the substantive offense. 2. The Second Circuit's decision also expressly disregarded past precedent concerning the application of the Double Jeopardy Clause to successive conspiracy prosecutions. In United States v. Korfant, 771 F.2d 660 (1985), the Second Circuit adopted a multifactor test to determine whether a successive conspiracy prosecution is barred by the Double Jeopardy Clause. /2/ Cf. United States v. Broce, 488 U.S. 563, 585 n.2 (1989) (Blackmun, J., dissenting). Every circuit that has considered the issue has employed a generally similar analysis. /3/ Yet, believing itself compelled by Grady v. Corbin, the Second Circuit in this case departed from the totality-of-the-circumstances test previously used to determine whether a particular course of conduct constituted two conspiracy offenses or one. Grady, however, lends no support to the Second Circuit's approach. First, Grady did not involve a conspiracy or similar complex criminal offense, and the Court's opinion did not purport to address the nature of double jeopardy protection against future prosecutions that follow upon a conspiracy prosecution. The holding of Grady cannot simply be transferred "from the classically simple situation" presented in a single-event offense such as the one at issue in Grady to "the multilayered conduct, both as to time and to place, involved in this case." Garrett v. United States, 471 U.S. 773, 789 (1985). Second, Grady addressed the question whether a single act that violates different statutes constitutes separate offenses for double jeopardy purposes. This case, by contrast, involves a "unit of prosecution" issue; i.e., it raises the question whether a particular course of conduct constitutes discrete violations of the same statute that appropriately are characterized as separate offenses for purposes of double jeopardy analysis. While Grady is instructive in determining when a single act can be made the subject of multiple prosecutions for violations of different statutes, it is of no help in determining whether a course of conduct can constitutionally be treated as multiple violations of the same statute. By seeking to apply Grady in the latter setting -- and displacing the traditional totality-of-the-circumstances approach -- the Second Circuit erred. 3. Although the Second Circuit's broad holding raises issues of substantial importance, the disposition of this case depends on the meaning and legal effect of Judge Sprizzo's ruling in respondents' earlier trial that the government had proved respondents' membership in the instant conspiracy, but that respondents nonetheless were entitled to be acquitted of the broader conspiracy charged in that case. Had Judge Sprizzo found that respondents were in jeopardy in Adamita for the narrower conspiracy, he would have required respondents to go to verdict in that case, albeit perhaps with instructions striking portions of the indictment that he believed had not been proved against respondents. But, as Judge Ward recognized in denying respondents' motion to dismiss the current indictment, "since (Judge Sprizzo) determined there was no charge of a heroin conspiracy (in Adamita), the defendants were not placed in jeopardy and therefore the present prosecution alleging a heroin conspiracy does not constitute double jeopardy." App., infra, 7a. In short, Judge Sprizzo's acquittal of respondents, in light of his supplemental findings, amounted to a dispositive finding that the conspiracy now charged is not "the same offence" as the conspiracy for which they were earlier tried. To be sure, the government in Adamita argued that Judge Sprizzo's ruling was mistaken, and that proof even of respondents' membership in a heroin-only conspiracy should have been sufficient to submit the conspiracy count to the jury. /4/ But Judge Sprizzo rejected that argument, at respondents' behest. Respondents' argument in this case therefore depends on the premise that Judge Sprizzo -- and respondents themselves -- were mistaken in Adamita, and that respondents are entitled to urge that position now, even though they took the opposite position in Adamita. For that reason, the resolution of this case necessarily turns on whether Judge Sprizzo was correct in ruling as he did in respondents' first trial and whether, if he was not, his ruling nevertheless should be given legal effect in this proceeding. Those are unusual procedural questions that are not likely to arise frequently in future prosecutions. We will shortly be filing a petition for a writ of certiorari in United States v. Felix, No. 89-7058 (10th Cir. Feb. 28, 1991). Felix raises many of the same issues as does Calderone, but its resolution does not depend on an analysis of the legal effect of an unusual district court determination in the earlier prosecution. We therefore believe that Felix provides a more suitable vehicle for resolving the issues raised by both cases, and will ask that the Court grant the petition in Felix and set that case for briefing and argument. If the Court grants the petition in Felix, we believe it would be appropriate for the Court to hold this petition pending its disposition of that case. CONCLUSION The petition for a writ of certiorari should be disposed of as appropriate in light of this Court's disposition of the government's petition for a writ of certiorari in United States v. Felix. 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/ In addition, Catalano was charged with one count of using and carrying firearms in connection with a drug trafficking crime, in violation of 18 U.S.C. 924(c). Judge Sprizzo granted Catalano a pretrial severance on that count, and the count was subsequently dismissed on the government's motion. /2/ The factors were "(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7 common objectives; and (8) the degree of interdependence between alleged distinct conspiracies." Korfant, 771 F.2d at 662. /3/ See, e.g., United States v. Garcia-Rosa, 876 F.2d 209, 228 (1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990); United States v. Liotard, 817 F.2d 1074, 1077-1078 (3d Cir. 1987); United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir. 1988); United States v. Phillips, 664 F.2d 971, 1006 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978); United States v. Benton, 852 F.2d 1456, 1462 (6th Cir.), cert. denied, 488 U.S. 993 (1988); United States v. Castro, 629 F.2d 456, 461 (7th Cir. 1980); United States v. Kienzle, 896 F.2d 326, 328 (8th Cir. 1990); United States v. Bendis, 681 F.2d 561, 564-565 (9th Cir. 1981), cert. denied, 459 U.S. 973 (1982); United States v. Sturman, 679 F.2d 840, 843 (11th Cir. 1982), cert. denied, 459 U.S. 1171 (1983). For the Tenth Circuit's views, compare Wilkett v. United States, 655 F.2d 1007, 1014 (1981) (applying multi-factor analysis), cert. denied, 454 U.S. 1142 (1982) with United States v. Puckett, 692 F.2d 663, 668 (reserving question whether to apply multi-factor analysis), cert. denied, 459 U.S. 1091 (1982) and United States v. Felix, No. 89-7058 (Feb. 28, 1991) (adopting Second Circuit's analysis in Calderone). /4/ See, e.g., United States v. Miller, 471 U.S. 130, 136 (1985) (citing cases); United States v. Johnson, 713 F.2d 633, 646 (11th Cir. 1983), cert. denied, 465 U.S. 1081 (1984); United States v. Wedelstedt, 589 F.2d 339, 342 (8th Cir. 1978), cert. denied, 442 U.S. 916 (1979); United States v. Moten, 564 F.2d 620, 625 (2d Cir. 1977), cert. denied, 434 U.S. 942 (1977); United States v. Mackey, 571 F.2d 376, 387 n.14 (7th Cir. 1978); United States v. Dixon, 536 F.2d 1388, 1401-1402 (2d Cir. 1976); United States v. Papadakis, 510 F.2d 287, 297 (2d Cir.), cert. denied, 421 U.S. 950 (1975). APPENDIX