Petition for Writ of Certiorari — Jeffrey Benton, Petitioner v. United States

No. ___________

________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

October Term, 2019

________________________________________________________

JEFFREY BENTON,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

________________________________________________________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

________________________________________________________

________________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________________

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

i

Issues

Issues/Questions Presented

1. Whether in light of Class v. United States, 138 S.Ct. 798 (2018), a

defendant who enters an unconditional guilty plea and waives appeal,

appeal,

yet wishes to raise a double jeopardy argument on direct appeal, is still

prohibited from doing so unless the two indictments at issue are facially

duplicative.

2. In determining whether or not a defendant who has pled guilty can

raise a double jeopardy challenge on direct appeal,

appeal, does “face of the

record,” as that phrase is used in United States v. Broce, 488 U.S. 563

(1989),

(1989), refer only to the indictments?

indictments?

ii

Table of Contents

Page

Issues/Questions Presented

ii

Table of Contents

iii-iv

Table of Authorities

v

Citation to Opinion Below

1

Jurisdiction

1

Constitutional Provision

2

Statement of the Case

3-18

First Reason for Granting the Writ: The Second Circuit’s

18-21

holding that when a defendant waives appeal, a reviewing

court cannot look past the face of the indictment in addressing

a double jeopardy challenge, appears to be at odds with Class

v. United States, 138 S.Ct. 798 (2018).

Second Reason for Granting the Writ: This Court needs to

specifically address whether United States v. Broce, 488

U.S. 563 (1989) stands for the proposition that when a

defendant enters an unconditional guilty plea and then

raises a double jeopardy challenge, the indictments alone

constitute “the face of the record” for determining the

merits of such a challenge.

21-28

Conclusion

28

Certificate of Service

29

iii

Appendix A: Opinion of Second Circuit Court of Appeals

iv

Table of Authorities

Page(s)

Cases

Menna v. New York,

423 U.S. 61 (1975) ................................................................................. 9

United States v. Broce,

488 U.S. 563, 109 S. Ct. 757 (1989) .................................. 23, 24, 26, 27

United States v. Broce,

781 F.2d 792 (10th Cir. 1986) ....................................................... 24, 26

United States v. Broce Constr. Co.,

1983 U.S. Dist. LEXIS 11536 (D. Kan. 1983) .................................... 25

United States v. Korfant,

771 F.2d 660 (2d Cir. 1985) ................................................................ 10

United States v. Mallah,

503 F.2d 971 (2d Cir. 1974) ................................................................ 12

United States v. Olmeda,

461 F.3d 271 (2d Cir. 2006) ................................................................ 10

Class v. United States,

138 S.Ct. 798 (2018) .......................................................... 18, 19, 20, 21

Other Authorities

Sup. Ct. R. 10(c) ....................................................................................... 19

U.S. Const. Amendment V. cl. 2................................................................ 3

v

PETITION FOR WRIT OF CERTIORARI

Petitioner Jeffrey Benton (“Benton”) respectfully petitions for a writ

of certiorari to review the judgment of the United States Court of Appeals

for the Second Circuit.

Citation to Opinion Below

The opinion of the United States Court of Appeals for the Second

Circuit, affirming Benton’s convictions and sentences is styled: United

States v. Jeffrey Benton, ___ Fed. Appx. ___, 2019 U.S. App. LEXIS 6909

(2d Cir. March 8, 2019).

Jurisdiction

The opinion of the United States Court of Appeals for the Second

Circuit, affirming the Petitioner’s conviction and sentence was

announced on March 8, 2019 and is attached hereto as Appendix A.

Pursuant to Supreme Court Rule 13.1, this petition has been filed within

90 days of the date of the judgment. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

1

Constitutional Provision

U.S. Const. amend. V. cl. 2

“[N]or shall any person be subject for the same offence to be

twice put in jeopardy of life or limb[.]”

2

Statement of the Case

Benton argued on appeal, inter alia, that his Count One conviction

in Case No. 3:16-cr-171 (which began in Maine and was transferred to

Connecticut) was jeopardy barred in that it charged the same conspiracy

for which Benton was previously convicted and sentenced in Case No.

3:12-cr-104 in the U.S. District Court for the District of Connecticut.

First Connecticut case (No. 3:12-cr-104)

Benton was arrested pursuant to a federal arrest warrant on May

17, 2012. No. 1:15-cr-40, Doc. #249-1, pgs. 8-9, #249-3, pg. 30; No. 3:15cr-174, Doc. #344, pg. 24. Items recovered from the apartment in which

he was staying at the time included: a digital scale, one gram of crack

cocaine, 100 grams of powder cocaine, four handguns, and ammunition.

No. 1:15-cr-40, Doc. #249-1, pg. 11, #249-4, pgs. 28-29, #249-7, pgs. 3-5,

8-10.

Benton was indicted on May 15, 2012, in Case No. 3:12-cr-104 in

the District of Connecticut and charged, along with forty-three other

individuals, with conspiring to possess with intent to distribute heroin,

cocaine, and cocaine base “from approximately January 2011 through

3

approximately January 2012.” App. 37-47. On August 30, 2013, Benton

plead guilty, pursuant to a plea agreement, to Count One only of a

superseding indictment (filed July 17, 2013), which also alleged a drug

conspiracy, but only specifically named Benton in connection with heroin.

App. 48-59.

It should be noted as to the counts of the superseding

indictment, the Government agreed to dismiss as part of the agreement,

Count Six which charged Benton with possession with intent to

distribute cocaine and cocaine base (which the district court noted on the

record at Benton’s change of plea hearing1), Counts Seven and Eight

charged him with being a felon in possession of a firearm2 (alleging four

specific firearms) and ammunition, and Count Nine charged him with

possession of firearms in furtherance of a drug-trafficking crime. App.

48-59. The plea agreement also provided:

The defendant’s guilty plea, if accepted by the Court, will

satisfy the federal liability of the defendant in the District of

Connecticut as a result of his participation in the offense

charged in the Indictment and the Superseding Indictment.

1

Case No. 3:15-cr-174, Doc. #262-1, pgs. 4-5.

The plea agreement included a stipulation that Benton had a firearm in connection with the

offense. Case No. 3:15-cr-174, Doc. #243-6.

2

4

No. 3:15-cr-174, Doc. #243-5, pg. 7.

The factual basis proffered by the Government in support of

Benton’s plea made specific reference to “firearms, drugs, drug

paraphernalia that were seized at the time of his arrest or . . . purchased

or seized during the course of the underlying investigation[.]”

The

Government also proffered: “Through all that evidence, the government

would prove that within the time period of approximately January 2011

to approximately January of 2012, the defendant . . . participated in a

conspiracy to distribute and to possess with intent to distribute controlled

substances.” App. 60-63.

On November 21, 2014, the district court sentenced Benton to 108

months in prison in Case No. 3:12-cr-104. No. 1:15-cr-40, Doc. #249-9,

pg. 1, #249-10, pg. 39.

Maine case (1:15-cr-40) – transferred to Connecticut (3:16-cr-71)

Benton was indicted on February 20, 2015, in the United States

Court for the District of Maine in Case No. 1:15-cr-40, and charged with

participating in a cocaine base distribution conspiracy, in violation of 21

5

U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (Count One), and a conspiracy

to obtain firearms by making false statements and representations, in

violation of 18 U.S.C. § 922(a)(5) (Count Three). App. 28-36. On March

23, 2016, Benton requested that the Maine case be transferred to the

District of Connecticut, arguing (among other things) that “the District

of Connecticut will present the same evidence [in the second Connecticut

case] that would be required of the Government in the District of Maine.”

Case No. 1:15-cr-40, Doc. #403. On March 24, 2016, the motion was

granted and the case was transferred and given a Connecticut case

number of 3:16-cr-71. No. 3:16-cr-71, Doc. #1-2.

Second Connecticut case (3:15-cr-174)

On September 30, 2015, Benton was indicted in Case No. 3:15-cr174 in the United States Court for the District of Connecticut and

charged with engaging in a pattern of racketeering activity, in violation

of 18 U.S.C. § 1962(c) (Count One), as well as various substantive

racketeering violations that included conspiracy (Count Two), money

laundering (Counts 13-22), and murder (Counts Three, Four, Five,

6

Seven, Ten). Benton was also charged with using a firearm in relation to

a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 924(j)(1) (Count

Twenty-Three). No. 3:15-cr-174, Doc. #1.

On March 17, 2017, Benton plead guilty, pursuant to a plea

agreement, to three counts: Counts One and Thirteen in Case No. 3:15cr-174, and Count One in Case No. 3:16-cr-71. No. 3:16-cr-71, Doc #40,

pgs. 1-3.

The agreement called for the Government to dismiss the

remaining counts in both cases at sentencing “because the conduct

underlying those counts has been considered as relevant conduct in

determining the guideline range in this plea agreement.” No. 3:16-cr-71,

Doc #40, pg. 11. The plea agreement also included the following waiver

of appeal provision:

The defendant agrees not to appeal or collaterally attack in

any proceeding, including but not limited to a motion under

28 U,S,C. § 2255 and/or§ 2241, the conviction or sentence

imposed by the Court if that sentence does not exceed 480

months' imprisonment, a five-year term of supervised release,

and a fine of $250,000, even if the Court imposes such a

sentence based on an analysis different from that specified

above. . . . The Government and the defendant agree not to

appeal or collaterally attack the Court's imposition of a

sentence of imprisonment concurrently or consecutively, in

whole or in part, with any other sentence, The defendant also

agrees not to appeal or collaterally attack the Court's decision

7

on whether he should receive credit toward this sentence back

to the date of his arrest in the 3:12cr104 . . . case.

No. 3:16-cr-71, Doc #40, pg. 8.

On October 4, 2017, the district court imposed 480 month sentences

in 3:16-cr-71 (Count One) and 3:15-cr-174 (Count One), and a 240-month

sentence in 3:15-cr-174 (Count Thirteen), to be served concurrently, but

the court ordered these three sentences to be consecutive to Benton’s 108month sentence in 3:12-cr-104. App. 115-16, 121-22; No. 3:16-cr-71, Doc.

60.

Benton also argued on appeal that his waiver of appeal did not

prevent him from raising a double jeopardy challenge, citing (among

other authorities) Menna v. New York, 423 U.S. 61, 62 (1975), as well as

the Advisory Committee notes to Rule 12.3

In the context of successive conspiracy prosecutions, the Second

Circuit applies the following factors to determine whether the

The Advisory Committee notes to Rule 12 of the Federal Rules of Criminal

Procedure state that a defendant does not waive a former jeopardy argument by

failing to raise the issue in a pretrial motion. Fed. R. Crim. P. 12 Advisory Committee

Note (1944 Adoption) (Note to Subdivision (b)(1) and (2)).

3

8

conspiracies are distinct: (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. United States v. Korfant, 771 F.2d

660, 662 (2d Cir. 1985). In analyzing the relevant considerations, a

reviewing court may review “the entire record of the proceedings.”

United States v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006). Benton’s

analysis of these factors was as follows.

The criminal offenses charged in successive indictments

Benton’s initial indictment in Case No. 3:12-cr-104 in the District

of Connecticut alleged a conspiracy to possess with intent to distribute

heroin, cocaine, and cocaine base.

App. 39-40.

The superseding

indictment in that cause alleged the same substances. App. 49-52. Cause

No. 1:15-cr-40 in the District of Maine alleged a conspiracy to possess

with intent to distribute cocaine base.

App. 29-31.

Thus, both

indictments alleged cocaine base.

9

Benton’s plea agreement in 3:12-cr-104 stated: “Jeffrey Benton

agrees to plead guilty to Count One of the Superseding Indictment.” No.

3:15-cr-174, Doc. #243-5, pg. 1. Although this count specifically connects

Benton with only heroin, the count also alleges that members of the

conspiracy knew or reasonably should have foreseen cocaine and cocaine

base conduct. App. 49-52. Additionally, the Government proffered a

factual basis in 3:12-cr-104 that specifically mentioned not just heroin

but also cocaine and firearms, to-wit:

Had this case proceeded to trial, the government would prove

. . . such as firearms, drugs, drug paraphernalia that were

seized at the time of his arrest or during purchased or seized

during the course of the underlying investigation[.]Through

all that evidence, the government would prove that within the

time period of approximately January 2011 to approximately

January of 2012, the defendant . . . participated in a

conspiracy to distribute and to possess with intent to

distribute controlled substances. Specifically, that he entered

into an agreement with Kevin Wilson and others to distribute

and to possess with intent to distribute heroin. Moreover, that

during the course of his drug trafficking offenses, the

defendant possessed a dangerous weapon, that is, a firearm.

As this Court is aware for the suppression hearing that was

held in this matter, at the time of the defendant's arrest, law

enforcement officers recovered four firearms, just over 100

grams of cocaine, about one gram of cocaine base, one digital

scale, several sandwich bags, and approximately $5,536 in

United States currency from the bedroom, and the bedroom

10

closet in which the defendant was located at the time of his

apprehension.

App. 35-43.

The overlap of participants

Benton is the only named individual common to the conspiracy

counts in No. 3:12-cr-104 and No. 1:15-cr-40.

App. 29-30, 38-39.

However, both counts also include the phrase “conspired with each other

and others known and unknown.” The decision as to which individuals

to name in a conspiracy count is simply a product of prosecutorial

discretion and may not in any way be dispositive as to the identities of

all the actual participants. See United States v. Mallah, 503 F.2d 971,

982-83 (2d Cir. 1974). The PSR describes some of the participants thusly:

Keith Young and Anthony Hartsell brought RSGB from New

York to New Haven after the two men had been fellow gang

members in a different Bloods set. Young recruited a number

of individuals into the gang, including Robert Short and

Trevor Murphy. Jeffrey Benton recruited Luis Padilla and

Torrence Benton[.]

PSR ¶ 16.

Following the Lee murder, [Rodrigo] Ramirez went to Maine

as directed by Jeffrey Benton and began working with

[Jermaine] Mitchell. Ramirez would obtain crack from

11

Mitchell (that Mitchell had obtained from Benton), and he

would distribute it through his dealers in the Bangor area,

including Christie Thetonia, Akeen Ocean, Jeremy Ingersoll,

Jeremy Hunter, and others.

PSR ¶ 22.

Jeffrey Benton sent other RSGB members to Maine to sell

drugs with Mitchell, including Willie Garvin, Kavon Rogers,

Torrence Benton, Luis Padilla and Christian Turner[.]

PSR ¶ 22.

During the investigation Kevin Wilson was identified as a

principal source of narcotics for the Bloods[.]

PSR ¶ 146. Jermaine Mitchell, Akeen Ocean, Jeremy Ingersoll, Willie

Garvin, Torrence Benton, Christian Turner were all named coconspirators in No. 1:15-cr-40. Kevin Wilson was a named co-conspirator

in No. 3:12-cr-104. Short, Murphy, Ramirez, Hunter, Rogers and Padilla

were not named in either of these indictments. And yet, the PSR makes

it clear that all of these individuals were participants in the same

overarching operation.

The overlap of time

12

Benton’s initial indictment in Case No. 3:12-cr-104 in the District

of Connecticut alleged a conspiracy with a time frame of “from

approximately January 2011 through approximately January 2012.”

App. 39. The superseding indictment alleged the same time frame. App.

49. Count One of the indictment in Case No. 1:15-cr-40 (later 3:16-cr-71

in the District of Connecticut) in the District of Maine alleged a time

frame “not later than January 1, 2010, and continuing until a date

unknown, but no earlier than August 30, 2013.” App. 29-30. However,

the PSR mentions Benton’s first involvement as being in late 2010. PSR

¶ 16. And Benton has remained in custody since the date of his arrest,

May, 17, 2012. PSR ¶ 146. Therefore, as to Benton, the time frames in

3:12-cr-104 and 1:15-cr-40 were nearly identical.

The similarity of operation/ degree of interdependence

between alleged distinct conspiracies/ Common objectives

The “operations” as to 3:12-cr-104 and 1:15-cr-40 were not merely

similar; they were essentially the same operation. In fact, the PSR is

13

replete with evidence of the intertwined nature of the operations in

Maine and Connecticut. For example:

The RSGB [Red Side Guerilla Brims] became powerful in New

Haven in and around 2011, when several members and

associates, who were led by Jeffrey Benton, began traveling to

Bangor, Maine and its surrounding communities. Soon after

arriving in Bangor, members discovered that there was a

significant profit margin on narcotics sales. They decided to

bring narcotics up from New Haven. They began selling crack

cocaine and heroin, and would often trade narcotics for

firearms. The members would then bring those firearms back

to New Haven and distribute them to members of the gang,

resulting in a well-funded and well-armed organization.

PSR ¶ 19.

Jeffrey Benton and Mitchell had a thriving drug business in

the Bangor area. Mr. Benton supplied the drugs from New

Haven, and Mitchell coordinated their sale in the Bangor

area. After taking their respective shares of the profits,

Jeffrey Benton and Mitchell used the drug proceeds to

replenish the gang's "kitty" - which was a cash fund used to

purchase drugs and guns and to bail RSGB members out of

jail.

PSR ¶ 21.

Following the Lee murder, Ramirez went to Maine as directed

by Jeffrey Benton and began working with Mitchell. Ramirez

would obtain crack from Mitchell (that Mitchell had obtained

from Benton), and he would distribute it through his dealers

in the Bangor area, including Christie Thetonia, Akeen

Ocean, Jeremy Ingersoll, Jeremy Hunter, and others. He was

responsible for collecting proceeds from his dealers and

paying the money to Mitchell, who would then pay the money

14

to Jeffrey Benton. Mr. Benton obtained his cocaine in powder

form in New Haven and converted it into crack cocaine

himself. Though he did sell crack cocaine to associates and

fellow gang members in New Haven, he transported most of

it to Bangor for sale at a huge profit.

PSR ¶ 22.

The following statements appear under the “Manner and Means of

the Conspiracy” alleged in No. 1:15-cr-40:

It was part of the conspiracy that certain of the defendants

caused other conspirators (hereinafter collectively referred to

as “straw purchasers”) to obtain firearms at pawnshops in

Brewer and Bangor operating with federal firearms licenses.

. . . [T]he straw purchasers were compensated with currency

and controlled substances for engaging in the transaction. . . .

[D]efendants Turner and Garvin and the other coconspirators

transported the firearms so obtained from the State of Maine

to the State of Connecticut where they would be provided to

defendant Jeffrey Benton and others.

App. 32-33.

The geographic scope of the alleged conspiracies

Case No. 3:12-cr-104 alleges “in the District of Connecticut and

elsewhere.” App. 39. Case No. 1:15-cr-40 alleges “in the District of Maine

and elsewhere.”

App. 29.

Benton’s plea agreement states:

“The

15

government also agrees that the defendant’s conduct underlying the

charges in the Connecticut and Maine indictments ended with his federal

arrest on May 17, 2012[.]” No. 3:16-cr-71, Doc #40. Additionally, the

following exchange from a March 8, 2017 pre-trial hearing makes it clear

that the Government’s theory of prosecution involved only events in

Maine and Connecticut:

District Court: I’m only asking you about the conspiracy to distribute

drugs. In the original indictment in 2012, it says from approximately

January to approximately January 12 . . . in the District of Connecticut

and elsewhere. So why isn’t that the same conspiracy as in the current

indictment alleged as a racketeering act but also alleged as a

conspiracy in the District of Connecticut and the District of Maine and

elsewhere. Where I think the District of Maine is elsewhere. These

two defendants along with others, intentionally and knowingly

combined and conspired to distribute drugs.

AUSA: The 2012 indictment[,] the conspiracy charges involve Benton,

a number of other individuals not part of Redside, who are distributing

crack and other drugs in New Haven. I know it says elsewhere, but

the conspiracy that the Government charges in this current case

involves gang activity, it’s conspiracy to distribute drugs and

conspiracy to commit money laundering so it’s tied to the money

laundering of the drug profits from Maine back to Connecticut.

App. 128.

Benton’s argument to the Second Circuit obviously relied not only

on the indictments but also on (1) other documents filed of record, (2)

open court exchanges, and (3) the PSR. However, the Second Circuit held

16

that because Benton waived appeal, the Court could not look beyond the

face of the indictments in addressing his double jeopardy argument:

Benton first argues that the drug conspiracy charge to which

he pled guilty is jeopardy-barred as it punishes the same

conduct to which he previously pled guilty in 2012. . . .

Although a "double jeopardy claim may be asserted on appeal

notwithstanding the plea of guilty," United States v. Sykes,

697 F.2d 87, 89 (2d Cir. 1983) (citing Menna v. New York, 423

U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975)), we have

determined that this exception to the waiver rule applies only

"when a double jeopardy claim is so apparent either on the

face of the indictment or on the record existing at the time of

the plea that the presiding judge should have noticed it and

rejected the defendant's offer to plead guilty to both charges."

United States v. Kurti, 427 F.3d 159, 162 (2d Cir. 2005); see

also United States v. Broce, 488 U.S. 563, 574-75, 109 S. Ct.

757, 102 L. Ed. 2d 927 (1989). (emphasis added)

Even assuming arguendo that Benton's appeal waiver does

not foreclose him from pressing the instant claim on appeal,

we agree with the government that Benton's case does not fall

within either of the exceptions to the rule that "a defendant

who pleads guilty to two counts with facial allegations of

distinct offenses concede[s] that he has committed two

separate crimes." Broce, 488 U.S. at 570. The indictments are

far from facially duplicative: the indictment for the 2012 case

described Benton as a participant in a heroin conspiracy in

New Haven, while the more recent indictment described

Benton's part in a conspiracy distributing cocaine base and

gun-running between Maine and Connecticut. The only

overlap between the 2012 case and the instant case is

temporal. When entering his guilty plea, Benton was advised

that all his pending motions—including his double jeopardy

motion—would be denied as moot. Benton responded that he

17

understood that his pending motions would be denied as moot

and that he would not receive a ruling. We thus conclude that

"the narrow exception to the waiver rule does not apply in this

case" and that the judgment of conviction should be affirmed.

Kurti, 427 F.3d at 162. (emphasis added)

Benton, 2019 U.S. App. LEXIS 6909, at *2-4.

First Reason for Granting the Writ: The Second Circuit’s holding

that when

when a defendant waives appeal, a reviewing court cannot look past

the face of the indictment in addressing a double jeopardy challenge,

appears to be at odds with Class v. United States, 138 S.Ct. 798 (2018).

A Supreme Court consideration in granting a petition for writ of

certiorari includes when “a United States court of appeals has . . . decided

an important federal question that conflicts with relevant decisions of

[the Supreme] Court.” Sup. Ct. R. 10(c). In United States v. Class,

wherein the defendant pled guilty to possession of a firearm on Capitol

grounds, his plea agreement “included an explicit waiver of appeal rights

as to sentencing errors and collateral attacks on the conviction[.]” 2016

U.S. App. LEXIS 12620, at *4 (D.C. Cir. 2016). He appealed nonetheless,

raising three constitutional arguments. The D.C. Circuit dismissed the

18

appeal on the basis that unconditional guilty pleas waived claims of error

on appeal, “even constitutional claims.” Id. at *3. The U.S. Supreme

Court granted cert., and while countenancing the waiver of appeal

language, noted “the agreement said nothing about the right to raise on

direct appeal a claim that the statute of conviction was unconstitutional.”

Class, 138 S. Ct. at 802. While the main holding in Class was that an

unconditional guilty plea does not waive the right to raise a

constitutional argument on appeal, the Court also addressed the waiver

of appeal language in the defendant’s plea agreement:

[T]he Government argues that Class “expressly waived” his

right to appeal his constitutional claim. . . . The Government

concedes that the written plea agreement, which sets forth the

“Complete Agreement” between Class and the Government . .

. does not contain this waiver. . . Rather, the Government

relies on the fact that during the Rule 11 plea colloquy, the

District Court Judge stated that, under the written plea

agreement, Class was “giving up [his] right to appeal [his]

conviction.” . . . And Class agreed. We do not see why the

District Court Judge’s statement should bar Class’

constitutional claims. It was made to ensure Class understood

“the terms of any plea-agreement provision waiving the right

to appeal or to collaterally attack the sentence.” . . . It does not

expressly refer to a waiver of the appeal right here at issue.

And if it is interpreted as expressly including that appeal

right, it was wrong, as the Government acknowledged at oral

argument. . . . these circumstances, Class’ acquiescence

19

neither expressly nor implicitly waived his right to appeal his

constitutional claims. (emphasis added)

Id. at 806-07.

Petitioner Benton, unlike the defendant in Class, did not challenge

the constitutionality of the statutes under which he was convicted. But

Class specifically mentions double jeopardy challenges and language

from the opinion appears to suggest, not only that these challenges may

be raised on appeal notwithstanding a waiver of appeal, but also that the

entire record may be consulted in determining whether a double jeopardy

violation has taken place:

[A] defendant’s (internal quotation marks and brackets

omitted) plea of guilty did not . . . waive his previous

constitutional claim.

Class 138 S. Ct. at 804.

[T]he claims at issue here . . . call into question the

Government’s power to “constitutionally prosecute” him. . . .

A guilty plea does not bar a direct appeal in these

circumstances.

Class 138 S. Ct. at 805.

Class’ challenge does not in any way deny that he engaged in

the conduct to which he admitted.

Instead, like the

defendants in Blackledge and Menna, he seeks to raise a

20

claim which, “judged on its face” based on the existing record,

would extinguish the government’s power to “constitutionally

prosecute” the defendant if the claim were successful.

(emphasis added)

Class 138 S. Ct. at 805-06.

Benton’s situation appears to come within the purview of these

statements. His double jeopardy claim is a challenge to the Government’s

power to constitutionally prosecute him.

And based on the existing

record – assuming the existing record includes filed pleadings, open court

proceedings and the PSR – Benton has established, using the five Second

Circuit factors, that his Count One conviction in Case No. 3:16-cr-171 was

based on the same conspiratorial agreement for which he was previously

convicted and sentenced in Case No. 3:12-cr-104.

Second Reason for Granting the Writ:

This Court needs to

specifically address whether United States v. Broce, 488 U.S. 563 (1989)

stands for the proposition that when a defendant enters an unconditional

guilty plea and then raises a double jeopardy challenge, the indictments

alone constitute “the face of the record”

record” for determining the merits of such

a challenge.

21

The Second Circuit’s opinion in the instant case relies heavily on

Broce in declining to look past the indictments in determining whether

the face of the record established a double jeopardy violation:

"[A] defendant who pleads guilty to two counts with facial

allegations of distinct offenses concede[s] that he has

committed two separate crimes." Broce, 488 U.S. at 570. The

indictments are far from facially duplicative: the indictment

for the 2012 case described Benton as a participant in a heroin

conspiracy in New Haven, while the more recent indictment

described Benton's part in a conspiracy distributing cocaine

base and gun-running between Maine and Connecticut. The

only overlap between the 2012 case and the instant case is

temporal.

Benton, 2019 U.S. App. LEXIS 6909, at *3.

The defendants in Broce were charged in separate indictments with

bid rigging on separate highway projects. Broce, 488 U.S. at 565. They

pled guilty to both indictments at the same time, acknowledging in their

plea agreements “that they were subject to separate sentences on each

conspiracy charged.” Id. at 565-66. Neither defendant appealed. Id. at

566. However, after noting that another contractor (“Beachner”) had

gone to trial and been acquitted on the same sort of charge, and then

obtained a dismissal of a subsequent indictment on double jeopardy

grounds, the Broce defendants decided to try the same argument by way

22

of collateral attack, a Rule 35(a) motion to vacate, filed in the district

court. The parties stipulated that the transcript from the evidentiary

hearing in Beachner was to be incorporated into the record,4 a fact of

paramount importance. The district court denied the motion to vacate,

distinguishing the cases as follows:

Judge Saffels' finding of a single conspiracy in Beachner . . .

was a factual determination made in light of the

evidence produced at an evidentiary hearing in that particular

case. It is well settled that the question whether a single

conspiracy or multiple conspiracies exist is a question of fact. .

. . Accordingly, we do not believe that at this late date the

defendants should be permitted to take advantage of a factual

determination that is inconsistent with the facts the

defendants admitted in pleading guilty to the indictments

alleging two separate conspiracies. (emphasis added)

United States v. Broce Constr. Co., 1983 U.S. Dist. LEXIS 11536, at *1617 (D. Kan. 1983). The Tenth Circuit, sitting en banc, reversed, but in so

doing, relied heavily on the Beachner evidentiary hearing transcript:

[T]he stipulation to include consideration of the Beachner

transcript presents a unique case and permits inquiry behind

the indictment. Having conceded the applicability of the facts

developed in that hearing, the government is not in the

position to argue our examination of the issue must be

confined to the pleadings.

...

4

United States v. Broce, 781 F.2d 792, 797 (10th Cir. 1986).

23

We now have before us a case which is factually linked to

another in which we have already found testimony that

established a "continuous, cooperative effort among Kansas

asphalt contractors to rig bids" for "more than twenty-five

years." . . . Moreover, that testimony established the existence

of a "common method" of bid-rigging that was "well-known"

and open among all the contractors. . . . We found evidence

that "mutual and interdependent obligations were created

between participating contractors" and that "the bid-rigging

scheme was self-perpetuating in nature." . . . We then added:

"The evidence showed that asphalt contractors in Kansas

understood for over twenty-five years that the ability to rig

bids was available using the aforementioned method. There

was, therefore, no lack of conspiratorial agreement in this

case." []

When the two indictments are viewed in this factual matrix,

a significant question arises whether, under the unique

circumstances of this case, the defendants stood charged with

participation in only one long-standing conspiracy.

United States v. Broce, 781 F.2d 792, 797 (10th Cir. 1986). The Tenth

Circuit held that a guilty plea did not bar a double jeopardy challenge

and remanded the case back to the district court “for a factual

determination on only the evidence originally presented upon the filing

of the defendants’ motions, including the stipulation between the

parties.” Id. at 798.

24

The Government’s cert. petition to the Supreme Court did not seek

review of the determination that the bid-rigging in the two indictments

was part of one overall conspiracy.

Broce, 488 U.S. at 569.

The

Government instead challenged the Tenth Court’s holding that the

defendants were entitled to a factual determination of their oneconspiracy claim, given that they had entered guilty pleas. Id. The

Supreme Court held the defendants were not entitled to draw on factual

evidence outside the original record in order to collaterally attack their

convictions. The following quotes are instructive.

When respondents pleaded guilty to two charges of conspiracy

on the explicit premise of two agreements which started at

different times and embraced separate objectives, they

conceded guilt to two separate offenses. (emphasis added)

Broce, 488 U.S. at 571.

Respondents had the opportunity, instead of entering their

guilty pleas, to challenge the theory of the indictments and to

attempt to show the existence of only one conspiracy in a trialtype proceeding. They chose not to, and hence relinquished

that entitlement.

Id.

An exception to the rule barring collateral attack on a guilty

plea was established by our decisions in Blackledge v. Perry,

25

417 U.S. 21 (1974), and Menna v. New York[.] . . . In neither

Blackledge nor Menna did the defendants seek further

proceedings at which to expand the record with new evidence.

In those cases, the determination that the second indictment

could not go forward should have been made by the presiding

judge at the time the plea was entered on the basis of the

existing record. Both Blackledge and Menna could be (and

ultimately were) resolved without any need to venture beyond

that record. (emphasis added)

Id. at 574-75.

Respondents here, in contrast, pleaded guilty to indictments

that on their face described separate conspiracies. They

cannot prove their claim by relying on those indictments and

the existing record. Indeed, as noted earlier, they cannot

prove their claim without contradicting those indictments,

and that opportunity is foreclosed by the admissions inherent

in their guilty pleas.

Id. at 576.

Petitioner Benton’s situation is inapposite to the Broce defendants

in at least four ways. First, Benton, unlike the Broce defendants, is not

making his double jeopardy argument by way of a collateral attack. He

is not seeking an evidentiary hearing to expand the record to make his

argument. He is simply asking the Second Circuit to look not only at the

allegations in the indictments, but to also look at the rest of the existing

record. Second, unlike the Broce defendants, Benton raised the double

26

jeopardy issue in the district court in No. 1:15-cr-40, alleging that he had

already been convicted of the same conduct in 3:12-cr-104:

Defendant Benton is currently in custody serving a sentence

[in] docket [3:12-cr-104] from the United States District Court

in the District of Connecticut[.] . . . [T]he Connecticut case is

subsumed by the instant indictment and relates to the same

evidence and drug dealing activity. It is part and parcel of the

same criminal enterprise and as such to subject Defendant to

the instant indictment is to place him twice in jeopardy for the

same conduct.

No. 1:15-cr-40, Doc. #195. This motion was pending at the time Benton

requested that the case be transferred from Maine to Connecticut. No.

1:15-cr-40, Doc. #395, Doc. #403. It does not appear that the Connecticut

district court ever actually ruled on this specific Maine motion.5 Third,

and unlike the Broce defendants, the indictments in Case Nos. 3:12-cr104 and 3:16-cr-71 allege the same controlled substances and allege

overlapping time frames, the latter fact conceded by the Second Circuit

(“The only overlap between the 2012 case and the instant appeal is

temporal.”). Fourth, Benton is not seeking to contradict the allegations

5 Benton’s trial counsel in 3:15-cr-174 were also appointed to represent him in 3:16-

cr-71. No. 3:16-cr-71, Doc. #4-5. Trial counsel filed a motion to withdraw pending

motions (without prejudice to refile). No. 3:16-cr-71, Doc. #10. The record does not

indicate that the district court ruled on the motion to withdraw pending motions.

27

in either of the counts at issue.

He has never, unlike the Broce

defendants, stipulated that the offense conduct in Case No. 3:12-cr-104

is different conduct than the offense conduct in Case No. 3:16-cr-71. He

is simply arguing that they embrace the same agreement.

Conclusion

For the foregoing reasons, Petitioner Benton respectfully urges this

Court to grant a writ of certiorari to review the opinion of the United

States Court of Appeals for the Second Circuit.

Respectfully submitted,

/s/ John A. Kuchera

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN. 00792137

Attorney for Petitioner

28

Certificate of Service

This is to certify that a true and correct copy of the above and

foregoing petition for writ of certiorari has this day been mailed by the

U.S. Postal Service, First Class Mail, to the Solicitor General of the

United States, Room 5614, Department of Justice, 10th Street and

Constitution Avenue, N.W. Washington, D.C. 20530.

SIGNED this 5th day of June, 2019.

/s/ John A. Kuchera

John A. Kuchera, Attorney for

Petitioner Jeffrey Benton

29