John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections

KENNEDY, Circuit Judge,

dissenting:

I concur in general in the dissent by Judge Brunetti and find compelling his demonstration that this defendant so well understood the mechanics of the plea bargain and the risks consequent from breach that the majority’s requirement of double jeopardy waiver is pointless. With all respect, I submit the majority’s analysis rests on other explicit and implicit assumptions that are quite contrary to settled principles of double jeopardy law. I dissent separately to make clear the full extent of my disagreement with the analysis apparently adopted by a majority of the court.

As I explain further below, the principal error of the majority is its assumption that a conviction resting on a plea agreement protects the defendant against trial for a higher offense if the plea or the conviction on which it stands is properly set aside. I submit this is incorrect. The extent of double jeopardy protection when a guilty plea and conviction are set aside requires an inquiry into the grounds upon which they were set aside. If the conviction here could not stand by reason of a breach of the plea agreement, the defendant could be tried on the same charge or on a higher one, for the conviction rested on the plea alone, not a trial, and the plea was set aside by reason of the defendant’s own default, not by the mere fiat of the state. The majority’s first false premise is that there was a double jeopardy right to be waived; there was not. The second false premise is that express waiver was required; it was not. The third false premise is that the contract was not a waiver in itself; it was. I turn to a more detailed discussion of these matters.

To begin with, jeopardy may attach upon the entry of a guilty plea. “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709, 1711-12 , 23 L.Ed.2d 274 (1969). Guilty pleas are entered under such a variety of circumstances that a general rule is not easily stated, but I should think that when a plea of guilty is accepted on the record and nothing remains but to pass sentence and enter the conviction, jeopardy attaches upon entry of the plea. United States v. Cruz, 709 F.2d 111, 112, 115 (1st Cir.1983) (holding jeopardy attached upon acceptance of the plea). Despite the majority’s statement to the contrary, there were no conditions attendant upon acceptance of this plea, other than the terms of the written plea bargain itself. I would conclude that jeopardy attached upon entry of the plea. With this principle in mind, a major defect of the majority opinion becomes apparent. By the majority’s reasoning, Adamson could have renounced the agreement a week after it was made and, as it holds double jeopardy had not been waived, he would have the same incredible immunity from the agreement’s enforcement mechanism as the majority grants him because the conviction and sentence were entered.

The question becomes what jeopardy protection remained after the plea and conviction were set aside. The quality and degree of jeopardy protection derived from a *748 conviction based on a voluntary plea must be confronted by the majority. When the plea or conviction based upon it is set aside and further proceedings commence, the authorities do not support the premise that prosecution for a greater offense is necessarily prohibited. Where a conviction is set aside, the protections of the double jeopardy clause are only in proportion to, not greater than, the risks assumed by the defendant in the former proceeding. As the plea does not put a defendant at risk of a determination of guilt for a higher offense, a charge for the higher offense may be reinstated when and if the plea or its consequent conviction are set aside, absent, say, a circumstance in which the state somehow is entitled to set aside the plea but acts unilaterally and without cause to impose greater burdens on the defendant.

In United States v. Barker, 681 F.2d 589 (9th Cir.1982), the defendant agreed to plead guilty to second degree murder. She successfully had the conviction set aside on a section 2255 motion, on the ground that she had not been adequately informed of the nature of the second degree murder charge. Id. at 590 . Her retrial for first degree murder was held not barred by double jeopardy, because the court’s acceptance of the plea to second degree murder did not constitute an implied acquittal of first degree murder. Id. at 590-92 . As Judge Hug noted in his opinion for the court in Barker , the precedents are in full accord. Klobuchir v. Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031 , 102 S.Ct. 566 , 70 L.Ed.2d 474 (1981) (where conviction of third degree murder set aside, double jeopardy did not bar trial for murder in the first degree, as the prior conviction rested on a plea, not a trial); Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979) (after guilty plea and conviction of murder and dismissal of aggravated murder charge in state court, defendant’s appeal in effect withdrew the plea and the original, more serious charge can be reinstated). The rule of Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), is simply not controlling, though the majority assumes its applicability without discussion. That case discusses double jeopardy protections which stem from a plea and a conviction that remain in force, not a plea and conviction that are set aside. Here the state ordered the conviction vacated under terms agreed upon by the defendant, and so acted on a clean slate. In Brown the prosecution attempted to proceed when the conviction on a lesser charge remained in force and unimpeached. Though I reject the fanciful notion that the rule of double jeopardy gives any help at all to the defendant in the face of the express terms of this plea bargain, even if those rules do apply, they do not support the result the majority reaches. The plain fact is there was no double jeopardy protection to waive if the plea and conviction were to be set aside by the defendant’s own acts of default. Adamson not having undergone a trial on the merits and not having established innocence to the charge of murder in the first degree, the trial could and did proceed on the greater charges without offending constitutional principles.

We may turn next to examination of the waiver rules the majority applies to the case. Here too the court departs from controlling authority. Jeopardy is waived in a number of instances by the defendant’s own actions, and no express waiver or admonition is required before the court finds the waiver to have taken place. If a defendant moves for mistrial and obtains it, jeopardy is waived though he was not forewarned of such a consequence. United States v. Dinitz, 424 U.S. 600 , 609 n. 11, 96 S.Ct. 1075 , 1080-81 n. 11, 47 L.Ed.2d 267 (1976). This same result occurs where a guilty plea is withdrawn or the conviction based upon it is set aside by reason of the defendant’s action. See United States v. Barker, 681 F.2d 589 (9th Cir.1982) (defendant appeals plea-based conviction). The state can retry the defendant, and the authorities contain no requirement that he be forewarned of such a result. See, e.g., United States v. Jerry, 487 F.2d 600, 606 (3d Cir.1973) (“where a defendant by his own motion causes the withdrawal of his *749 guilty plea, he has waived his right not to be put in jeopardy a second time”). In the case before us, of course, the defendant was forewarned of the consequences attendant upon breach of the plea agreement. The agreement specifically set forth that the defendant could be retried for murder in the first degree if a breach of the agreement caused the conviction to be set aside, which, as I have demonstrated, is the law in any event.

The majority seems to proceed on the assumption that jeopardy did not attach until the sentencing hearing, and on the further assumption that the record was somehow confused by the colloquy respecting defendant’s obligation to give further testimony. As I have indicated, jeopardy attached much earlier, upon acceptance of the plea; and, in any event, the protections of the double jeopardy clause do not extend where the defendant did not face a trial and a plea-based conviction is properly set aside. Beyond this, waiver is not required in any event. Prosecutors do not have to explain the mysteries of double jeopardy before entering into an enforceable plea agreement. The whole purpose of such agreements, as in this case, is to permit the defendant to plead to lesser charges subject to the risk of facing more serious ones if he does not keep his end of the deal. For the court, deus ex machina, to drop the idea of double jeopardy and waiver into the plea bargain context is inconsistent with any reasonable interpretation of the contract made between the defendant and the state. The contract makes no sense if by some legal theory it is contended defendant did not accept it with full knowledge and understanding of its enforcement terms. The defendant well knew that he could not be required to accept the enforcement terms of the plea agreement, and in this context the failure to advise him of his double jeopardy rights is quite beside the point. Indeed, if the phrase “double jeopardy” had been added to the litany of rights the defendant was asked to waive in the plea agreement, competent defense counsel most surely would have objected to it. For in truth the defendant was not waiving double jeopardy. Its protections would not apply in the event of the breach; and if the second degree conviction remained in force, the defendant was entitled to the protections of the double jeopardy clause. Had the conviction remained in force, there could have been no trial for newly discovered evidence, no new sentencing procedure, or no further trial to impose heavier burdens upon him. Any general waiver of double jeopardy simply would have confused the record.

I recognize that the state has raised certain questions by having entered the second degree conviction before the terms of the bargain were fulfilled, but whether that was in violation of the agreement or somehow excused the defendant’s further performance is simply a state law issue, not a double jeopardy question. The critical issue in the case becomes whether the defendant’s acts were in breach of the agreement. That issue is one of state law, nothing more. Its outcome depends on primary and historical facts, which we have no authority to determine. See Cuyler v. Sullivan, 446 U.S. 335, 341-42 , 100 S.Ct. 1708, 1714-15 , 64 L.Ed.2d 333 (1980). Even if we did have authority to scan the state’s finding that there was a breach of the agreement, there is ample support for it. The defendant agreed that the first degree charges could be reinstated for a breach, and nothing in the later proceedings changed that compact. When the defendant first gave the state notice of his refusal to cooperate further, his own attorneys specifically noted the possibility that the state would interpret noncooperation as a breach. The defendant took a risk not without some attractions for him. He was serving a twenty-year sentence. If the state elected to try him for first degree murder, conceivably he might have won an acquittal. It is hardly surprising that one as depraved as Adamson would shrink from a breach of contract and a gamble on the results. The court errs in not recognizing his defiance for what it is.

Finally, the court papers over the consequences of its ruling by telling Arizona it *750 need not set Adamson free if it can find some way to reinstate the second degree murder conviction. We cannot, of course, by our own authority order that conviction reinstated. The matter has not been argued to us, but it may be that under Arizona law reinstatement is not permitted. Given our erroneous double jeopardy ruling, there can be no retrial for first degree murder; given the Arizona court’s final determination that the plea bargain was breached and its ruling that the second degree murder conviction should be vacated, it is not clear to me that as a matter of state law it can turn around and change its decision to accommodate our error. Though I intimate no views as to the outcome under Arizona law, it is not beyond possibility that as a result of our decision the defendant will walk free.

In the context of the plea bargain before us, the double jeopardy analysis of the court is artificial. It gives the defendant a windfall of the kind that results when a court imposes a constitutional interpretation of new dimensions in what should have been a simple case of the making of a bargain and the failure to keep it. I dissent.