CARLOS EDUARDO FERNANDEZ, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7210

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari For The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A44-A48) is reported
at 916 F.2d 125.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 18,
1990.  On January 14, 1991, Justice Souter extended the time for
filing a petition for a writ of certiorari to February 15, 1990.  The
petition for a writ of certiorari was filed on February 14, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner's drug conspiracy convictions must be vacated on
double jeopardy grounds because he was also convicted of engaging in a
continuing criminal enterprise.

                               STATEMENT

   1. After a jury trial in the United States District Court for the
District of New Jersey, petitioner was convicted on one count of
conspiring to distribute and possess cocaine, in violation of 21
U.S.C. 841(a)(1) (Count 1);  one count of conspiring to import
cocaine, in violation of 21 U.S.C. 952(a) (Count 2);  one count of
engaging in a continuing criminal enterprise (CCE), in violation of 21
U.S.C. 848 (Count 3);  and five counts of using a telephone to
facilitate a drug offense, in violation of 21 U.S.C. 843(b) (Counts
10, 11, 12, 19, and 27).  He was sentenced to 40 years' imprisonment
on the CCE count;  20 years' imprisonment on the distribution
conspiracy count, to run concurrently with the sentence on the CCE
count;  20 years' imprisonment on the importation conspiracy count, to
run consecutively to the sentence on the distribution conspiracy count
and concurrently with the sentence on the CCE count;  and four years'
imprisonment on each of the telephone counts, to run consecutively to
each other but concurrently with the other sentences.  In addition, he
was fined $100,000 on the CCE count and on each of the conspiracy
counts.  Thus, he originally "received a term of imprisonment of 40
years and a $300,000 fine." Pet. App. A44.  The district court also
imposed a $50 assessment under 18 U.S.C. 3013 "on each of the eight
counts, for a special assessment total of $400.00." Id. at B1.

   The court of appeals affirmed.  United States v. Fernandez, 822
F.2d 382 (3d Cir.), cert. denied, 484 U.S. 963 (1987) (reprinted at
Pet. App. A38-A43).  However, it indicated that "there may be problems
with the formal terms of the sentence," and it invited petitioner to
present the matter to the district court by way of a motion under Fed.
R. Crim. P. 35.  822 F.2d at 383 n.2 (Pet. App. A39 n.2).

   Petitioner then filed a Rule 35 motion asking the district court to
strike the convictions and sentences imposed on the two drug
conspiracy counts.  The district court denied the motion.  However, it
amended the sentence by imposing a "general sentence" of 40 years'
imprisonment and a single $100,000 fine on counts 1, 2, and 3.  Pet.
App. B2.  It also reimposed the sentences previously imposed on the
telephone counts, so that those sentences would run concurrently with
the general sentence.  The court did not impose an assessment pursuant
to Section 3013.  The court of appeals affirmed.  Pet. App. A44-A47.

   2. On his second appeal, petitioner contended that the district
court had erred by declining to vacate the convictions on the drug
conspiracy counts.  In petitioner's view, the existence of those
convictions constitutes cumulative punishment in violation of the
Double Jeopardy Clause, even though he did not receive consecutive
sentences.  The court of appeals noted that, despite his claim that he
was being subjected to cumulative punishment in violation of the
Constitution, petitioner had suggested that, as a practical matter,
"the convictions on counts 1 and 2 now are meaningless." Pet. App.
A46.  After wondering why, if that were so, petitioner was "wasting
his time" seeking to have the drug conspiracy convictions vacated, the
court noted that the drug conspiracy convictions might become
significant if the CCE count were ever overturned on collateral
review.  Id. at A46-A47.

   In support of his contention that the drug conspiracy counts had to
be vacated, petitioner relied primarily on Ball v. United States, 470
U.S. 856 (1985), in which this Court held that separate convictions
for receiving and possessing the same firearm could not stand.  The
court of appeals did not believe that Ball controlled:  "Unlike the
situation in Ball in which discrete statutes were not directed to
separate evils, the narcotics conspiracy statutes of which Fernandez
was convicted and the continuing criminal enterprise statute have
different purposes.  While the conspiracy statutes punish illegal
agreements to import and to distribute and possess cocaine with intent
to distribute, the continuing criminal enterprise statute provides for
punishment of persons 'trafficking in prohibited drugs on a
continuing, widespread, substantial and supervisory basis.'" Pet. App.
A46, quoting United States v. Fernandez, 822 F.2d at 384 (Pet. App.
A41).  The court recognized that petitioner could not receive
consecutive sentences on the drug conspiracy and CCE counts and that
petitioner might suffer adverse collateral consequences as a result of
the conspiracy convictions.  But it held that "the double jeopardy
clause is not violated if (adverse collateral) consequences follow
from a conviction for a predicate or lesser offense which, though
combined with a greater offense for sentencing, is permitted to
stand." Pet. App. A47.

   The court acknowledged that the Ninth Circuit had held in United
States v. Hernandez-Escarsega, 886 F.2d 1560, 1582, cert. denied, 110
S. Ct. 3237 (1990), that "'(i)t is clear from Jeffers (v. United
States, 432 U.S. 137 (1977),) that Congress did not intend to allow
cumulative punishment for violations of section 846 conspiracies and
the greater offense of a section 848 CCE violation,'" Pet. App. A47,
and therefore had vacated the defendant's drug conspiracy conviction.
However, the court below did "not understand why" the conclusion that
a court may not impose consecutive punishments for a drug conspiracy
offense and a CCE offense makes it necessary to vacate a drug
conspiracy conviction when a defendant is also convicted under Section
848.  Id. at A47-A48.

                               ARGUMENT

   As the court of appeals recognized, Congress did not intend to
permit cumulative punishment for participating in a drug conspiracy
and engaging in a continuing criminal enterprise, at least where the
evidence supporting the "in concert" element of the CCE offense is
essentially indistinguishable from the evidence supporting the drug
conspiracy charge.  This Court stated in Garrett v. United States, 471
U.S. 773, 794 (1985), that "(t)he focus of the analysis in Jeffers was
the permissibility of cumulative punishments for conspiracy under
Section 846 and for CCE under Section 848, and the plurality
reasonably concluded that the dangers posed by a conspiracy and a CCE
were similar and thus there would be little purpose in cumulating the
penalties" in such circumstances.  See Jeffers v. United States, 432
U.S. at 155 ("the first issue to be considered is whether Congress
intended to allow cumulative punishment for violations of Sections 846
and 848.  We conclude that it did not") (plurality opinion).

   The court of appeals also correctly recognized that it does not
follow that a conviction on a drug conspiracy count must be vacated
when a defendant is also convicted on a CCE count, even though a
number of courts of appeals have held that a drug conspiracy
conviction should be vacated in such a case.  United States v. Rivera,
900 F.2d 1462, 1478 (10th Cir. 1990);  United States v. Butler, 885
F.2d 195, 201-202 (4th Cir. 1989);  United States v. Maull, 806 F.2d
1340, 1346-1347 (8th Cir. 1986), cert. denied, 480 U.S. 907 (1987);
United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986), cert.
denied, 481 U.S. 1006 (1987);  United States v. Schuster, 769 F.2d
337, 344-346 (6th Cir. 1985), cert. denied, 475 U.S. 1021 (1986);
United States v. Dickey, 736 F.2d 571, 596-597 (10th Cir. 1984), cert.
denied, 469 U.S. 1188 (1985);  United States v. Jefferson, 714 F.2d
689, 703 & n.28 (7th Cir. 1983);  United States v. Smith, 703 F.2d
627, 628 (D.C. Cir. 1983);  United States v. Webster, 639 F.2d 174,
182 (4th Cir.), cert. denied, 454 U.S. 857 (1981).

   This Court provided no such relief in Jeffers v. United States, see
432 U.S. at 157-158, and this Court's decision in Ball v. United
States should not be construed to require such a result.  The question
in Ball v. United States was whether a previously convicted felon
could be convicted for receiving a firearm, in violation of 18 U.S.C.
922(h)(1), and possessing the same weapon, in violation of 18 U.S.C.
App. 1202(a)(1) (1982).  The Court held that "Congress did not intend
(the defendant's) conduct to be punishable under both Sections 922(h)
and 1202(a)," even though he had not been sentenced consecutively.
470 U.S. at 864.  The Court explained that "(t)he separate conviction,
apart from the concurrent sentence, has potential adverse collateral
consequences that may not be ignored." Id. at 865.

   The holding in Ball v. United States need not be extended from the
simple factual context of receipt and possession of a gun to the very
different context of a complex CCE case.  Proof of receipt of a gun
will always show possession of the gun, and possession will always
show receipt except in the unusual circumstance where the defendant
manufactured the gun.  470 U.S. at 862 & n.9.  In the context of two
such "overlapping provisions," id. at 859, it is reasonable to
conclude that Congress did not intend to authorize double convictions.
 But as the Seventh Circuit stated in reaching the same conclusion as
the court below, "(i)t is not illogical to convict a person of both
agreeing to do something (Section 846) and succeeding on a grand scale
(Section 848)." United States v. Bond, 847 F.2d 1233, 1238 (1988).

   This Court's holding in Ball v. United States was based on the
concern that the presence of an additional conviction on a defendant's
record might be significant, even in the absence of a consecutive
sentence, because "the presence of two convictions on the record may
delay the defendant's eligibility for parole or result in an increased
sentence under a recidivist statute for a future offense(,) * * * may
be used to impeach the defendant's credibility and certainly carries
the societal stigma accompanying any criminal conviction." 470 U.S. at
865.  This case is clearly distinguishable from United States v. Ball
in terms of its effects.  Petitioner has been convicted under the
"drug kingpin" provision, as the CCE statute is popularly known.  He
therefore is ineligible for parole, since Section 848 makes parole
unavailable.  It is hard to believe that a conviction on any lesser
included offense could increase the stigma he bears in light of his
CCE conviction or further undermine his credibility.  And there is no
reasonable likelihood that petitioner's conspiracy convictions could
result in an increased sentence under a recidivist statute, since
petitioner will be in prison until around 2025 and he has been validly
convicted on six other counts.

   Nor does the special assessment statute, 18 U.S.C. 3013, require a
different result.  That statute imposes a $50 special assessment for
each felony count on which a defendant is convicted.  But the district
court did not order a special assessment in this case, so petitioner
has suffered no injury on that account.  More generally, we believe
that in light of Jeffers v. United States, supra, it would be error
for a court to impose more than a single special assessment for
conviction on a CCE count and coterminous conspiracy counts, so the
special assessment statute, if properly applied, should never result
in increased penalties for multiple convictions in this setting.

   Petitioner's reasons for seeking to have his drug conspiracy
convictions vacated demonstrate why he is not entitled to that relief.
 As the court of appeals recognized, petitioner presumably desires to
have the convictions vacated in the hope that he may obtain release
from prison if in the future his CCE conviction is undermined "on
grounds that might not now even be contemplated," Pet. App. A47, but
that do not affect the validity of the drug conspiracy convictions.
Yet petitioner would not be entitled to release in that event.  In
United States v. Bond, the Seventh Circuit stated that "in the event a
collateral attack affects the validity of the CCE conviction * * * the
sentence under Section 846 lawfully could become the basis of
punishment." 847 F.2d at 1238.  "That would happen automatically if
the Section 846 sentences remain in force, served concurrently with
the CCE sentence," the court added, but "would require extra motion if
the Section 846 sentences had to be vacated now and resurrected at
some future time." Id. at 1238-1239.

   Based on the same assumption -- that the conspiracy convictions
should be preserved for use in the event the CCE conviction is at some
point set aside -- the Second Circuit held in a case like this one
that "convictions on the lesser offenses should be combined with the
conviction on the greater offense." United States v. Osorio Estrada,
751 F.2d 128, 135 (1984), modified on reh'g on other grounds, 757 F.2d
27 (1985);  see also United States v. Aiello, 771 F.2d 621, 632-635
(2d Cir. 1985).  "Under this method, the convictions on the lesser
counts become combined with that of the compound offense and would not
be merged out of existence.  This leaves the part of the conviction on
the lesser offense unaffected should the compound offense be
invalidated as a matter of law.  The convictions on the lesser
offenses would not exist as separate convictions so long as the
Section 848 conviction remained in place." 751 F.2d at 135.  A
concurring judge, who "did not know what this means ontologically,"
thought that it would be "appropriate to vacate the convictions on the
two (conspiracy) offenses, on the condition that the convictions on
those offenses would be reinstated in the event that the conviction on
the (CCE) offense * * * were ever overturned for reasons not affecting
the validity of the convictions" on the conspiracy offenses.  Ibid.
(Kearse, J., concurring).  We are aware of no court of appeals that
has ruled or suggested to the contrary.  Thus, even in those courts
where conspiracy convictions are vacated in the presence of
coterminous CCE convictions, the courts would apparently reinstate the
conspiracy convictions in the event that the CCE conviction is
invalidated.

   There is, in sum, no disagreement among the courts with the
proposition that the conspiracy counts should be available to serve as
the basis for punishment in the event that a defendant's CCE
conviction is overturned on collateral review.  The only dispute
relates to the proper method for ensuring that such a defendant does
not go free if his CCE conviction is reversed.  That dispute, however,
amounts to nothing more than an issue of bookkeeping, which has no
real effect on the parties.  While the courts of appeals have settled
on different methods to resolve that bookkeeping issue, the issue is
not one of any substantial significance to the parties or to the
administration of justice.  For that reason, the question presented in
this case does not warrant review by this 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

   JOEL M. GERSHOWITZ

      Attorney

   APRIL 1991