LIWY QUINONES V. UNITED STATES OF AMERICA No. 90-5758 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 Second Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A11) is reported at 906 F.2d 924. The opinion of the district court (Pet. App. A12-A17) is not reported. JURISDICTION The judgment of the court of appeals was entered on June 27, 1990. The petition for a writ of certiorari was filed on September 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Double Jeopardy Clause requires the setting aside of petitioner's guilty plea to carrying a firearm during the commission of a narcotics offense where petitioner previously had pleaded guilty, over government objection and in an attempt to preempt further prosecution, to the underlying narcotics offenses. STATEMENT Following a guilty plea in the United States District Court for the Southern District of New York, petitioner was convicted of using and carrying a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. 924(c). He previously had pleaded guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to the mandatory five-year minimum term of imprisonment for the firearms offense, consecutive to the concurrent five-year sentences imposed for the drug offenses. The court of appeals affirmed. Petitioner was arrested, together with two co-defendants who subsequently absconded, as he was preparing to sell four kilograms of cocaine to a confidential DEA informant. Petitioner was carrying a .32 caliber revolver during this drug transaction. Gov't C.A. Br. 2-6. Petitioner and his co-defendants were indicted on April 13, 1989, on two counts charging them with conspiring to possess, and actually possessing, cocaine with intent to distribute it. Less than two weeks later, the government informed defense counsel of its intention to seek a superseding indictment charging petitioner with an additional count of carrying a firearm during the drug trafficking offense, in violation of 18 U.S.C. 924(c). Pet. App. A4. On June 8, 1989, during what was to have been a bail application hearing, petitioner announced his intention to plead guilty to the two drug offenses charged in the original indictment. The prosecutor objected to the plea because the hearing was supposedly limited to consideration of petitioner's bail application and defense counsel was aware that the government was planning to seek a superseding indictment charging a firearms offense. Defense counsel later acknowledged that he "purposefully did not tell" the prosecutor about his intention to have his client plead guilty at the purported bail application hearing because counsel "was desirous of having the plea entered prior to the return of any superseding indictment." Pet. App. A4. Over the government's objection, the district court accepted petitioner's plea to the drug offenses, but expressly warned him that he could still face an additional firearms charge. Id. at A5. A superseding indictment was returned a week later charging petitioner with the firearms offense. The district court subsequently denied petitioner's motion to dismiss this superseding indictment on double jeopardy grounds. Pet. App. A12-A17. On July 18, 1989, the day set for trial, petitioner pleaded guilty to the firearms offense. Petitioner later moved to withdraw that plea and his prior pleas on the grounds that the pleas were the product of coercion by his co-defendants and his attorney had a conflict of interest because his fees came through another co-defendant. Following a hearing, the district court rejected those claims and denied petitioner's motion to withdraw his guilty pleas. The district court then sentenced petitioner to a total of ten years' imprisonment on the three counts. Id. at A5-A7. The court of appeals affirmed. Pet. App. A1-A11. The court rejected petitioner's claim, which he does not renew here, that the district court abused its discretion by denying his motion to withdraw his guilty pleas. Id. at A10-A11. The court also rejected petitioner's claim that the filing of the superseding indictment violated his double jeopardy rights. With respect to that issue, the court first noted the government's argument that petitioner waived any double jeopardy claim by pleading guilty to the superseding indictment, but did not decide that issue. Id. at A7-A8. The court then held that this Court's decisions make clear that a defendant may not use the Double Jeopardy Clause offensively and petitioner "was nonetheless trying to use the Double Jeopardy Clause as a sword by insisting on a right to plead guilty to the conspiracy and possession counts in the face of government objection and government notice of its intent to indict (him) on the gun count." Id. at A9-A10. The court rejected petitioner's contention that Grady v. Corbin, 110 S. Ct. 2084 (1990), was controlling, explaining that the opinion in Grady v. Corbin "does not even discuss the 'sword exception' to double jeopardy" and that the Court expressly declined to decide whether a different result would be warranted in the event of affirmative misrepresentations by the defense. Pet. App. A10 (citing 110 S. Ct. at 2088 n.4). ARGUMENT The court of appeals correctly held that, under the facts of this case, petitioner's double jeopardy rights were not violated. The court's holding simply applies the well-established principle that the Double Jeopardy Clause may not be used offensively. Since this holding is consistent with this Court's decisions, and does not conflict with the holding of any other court, further review is not warranted. /1/ As an initial matter, there is no question that a defendant may be separately convicted of both the underlying drug offenses and of violating 18 U.S.C. 924(c) by carrying a firearm during the commission of those offenses. Indeed, Congress not only authorized separate punishment for the drug and firearms offenses, it expressly mandated in Section 924(c) that the five-year minimum sentence prescribed therein be imposed consecutively "in addition to the punishment provided for (the underlying) crime." While petitioner cannot dispute that Congress intended that drug traffickers using firearms be punished separately for their drug and firearms offenses, he claims (Pet. 7) that the constitutional defect here was that punishment for these separate offenses resulted from successive prosecutions. As he states, this Court's decision in Grady v. Corbin, 110 S. Ct. 2084 (1990), establishes that, in some circumstances, the Double Jeopardy Clause precludes a successive prosecution for a crime that would not be considered the "same offense" if charged together with another crime. The test formulated in Grady v. Corbin is that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 2087, 2093. The Court's holding in Grady v. Corbin that the Double Jeopardy Clause protects a defendant from the "harassment and expense" of defending criminal charges in successive prosecutions rather than in a single proceeding (see 110 S. Ct. at 2093) did not alter the rule that a defendant "should not be entitled to use the Double Jeopardy Clause as a sword." Ohio v. Johnson, 467 U.S. 493, 502 (1984). Indeed, the Court emphasized in Grady v. Corbin that the prosecutors had not attempted to prevent the defendant from pleading guilty to the original charge (see 110 S. Ct. at 2088 n.3) and also explained that it was not deciding whether the "double jeopardy analysis would be any different if affirmative misrepresentations of fact by a defendant or his counsel were to mislead a court into accepting a guilty plea it would not otherwise accept" (id. at 2088 n.4). While petitioner's trial counsel concededly misled the prosecutor (Pet. App. A4), petitioner claims (Pet. 9) that the court itself was never misled. The critical fact, however, is that it was petitioner's counsel who embarked on a strategy, initially through deception of the prosecutor and later over the prosecutor's objection, aimed at thwarting the government from combining all its charges in a single proceeding. Where the defendant himself is responsible for the fact that the charges were not joined together in a single proceeding, the defendant should not be allowed to complain that he was a victim of government "harassment" in violation of the Double Jeopardy Clause. Thus, as the court of appeals held, this case is governed by the principles set out in Ohio v. Johnson and by Jeffers v. United States, 432 U.S. 137 (1977). In both of those cases, this Court recognized that a defendant may not use the Double Jeopardy Clause as a "sword" and concluded there is no double jeopardy violation where the successive prosecutions are the result of the defendant's own actions. In Ohio v. Johnson, the Court held (467 U.S. at 501-502) that the Double Jeopardy Clause does not prevent prosecution for a greater offense where the defendant was allowed, over government objection, to plead guilty to a lesser-included offense. In Jeffers v. United States, a defendant who previously had opposed the government's effort to consolidate two separate indictments did not prevail in arguing that his double jeopardy rights were violated when the government went forward in prosecuting the second indictment after obtaining a conviction on the first indictment. Petitioner seeks to distinguish Ohio v. Johnson and Jeffers v. United States by claiming (Pet. 8) that he is not attempting to use double jeopardy as a "sword," but instead is simply "avail(ing) himself of a circumstance that was entirely the product of the Government's neglect." Petitioner thus contends that a different result is warranted here because, although he was aware that the government intended to seek a superseding indictment combining all charges in a single proceeding, the government had not yet obtained that indictment when petitioner attempted to short-circuit the process by pleading guilty to the more limited pending charges. While it is true that the charges in Ohio v. Johnson were in fact brought together in a single indictment, Jeffers v. United States involved two separate indictments and the defendant there (by opposing consolidation) arguably was simply "availing" himself of an opportunity supplied by the charging process. Nevertheless, the plurality in Jeffers v. United States was "unwilling to attach any significance" to the fact that the charges the prosecution sought to have tried together stemmed from separate indictments; the plurality did not question whether this initial charging decision was the product of government neglect, but instead simply satisfied itself that no "improper motive" and "no sinister purpose was behind the formal method of proceeding." 432 U.S. at 152-153 n.20. Although the superseding indictment that would have allowed all the charges against petitioner to be tried in a single proceeding had not been issued at the time of petitioner's first plea, petitioner had notice (from both the prosecutor and the district court) that he would be subject to additional charges and he attempted to thwart a single prosecution by pleading guilty to the original indictment. The teaching of Ohio v. Johnson and Jeffers v. United States is the common-sense one that a defendant may not avail himself of the protection of the Double Jeopardy Clause when his own actions brought about the successive prosecutions. Where it is established that a defendant intentionally sought to prevent all the charges from being brought together in a single proceeding and the government was acting in good faith, the second prosecution should not be barred by the Double Jeopardy Clause. /2/ 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 SEAN CONNELLY Attorney DECEMBER 1990 /1/ Notwithstanding the second question framed in the petition for a writ of certiorari, this case does not raise the issue whether a defendant has the right to plead guilty to the full charges in an indictment at any time prior to trial. Petitioner was allowed to plead guilty to both the original and the superseding indictments. The only issue is whether, by pleading guilty to the original indictment, he unilaterally forestalled prosecution on the additional charge. /2/ In addition, as the court of appeals recognized (Pet. App. A7-A8), there is a serious question of waiver in light of petitioner's plea of guilty to the firearms offense he now claims is barred by double jeopardy. This Court has held that "(j)ust 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." United States v. Broce, 488 U.S. 563, 570 (1989). In our view, petitioner waived his double jeopardy argument by pleading guilty to the firearms charge.