Respondents Brief — Albernaz v. United States

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No. 79-1709

Ju the Supreme Court of the United States

OCTOBER TERM, 1980

THOMAS J. ALBERNAZ AND EDWARD RODRIGUEZ,

PETITIONERS

Vv. |

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

MARK I. LEVY

Assistant to the Solicitor General

MERVYN HAMBURG

Attorney

Department of Justice

Washington, D.C. 20530

(202) 683-2217

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-1709

THOMAS J. ALBERNAZ AND EDWARD RODRIGUEZ,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

QUESTION PRESENTED

Whether consecutive sentences may be imposed for

conspiracy to import marijuana, in violation of 21

U.S.C. 963, and conspiracy to distribute marijuana,

in violation of 21 U.S.C. 846.

(1)

TABLE OF CONTENTS

Page

Opinions below .......-----------------s---s-s-sssesserseenererecsceneneneneaenes 1

Jurisdiction ...............---------------sec--eceeeseeeeesesenennnnneesnseeeenenes 1

Constitutional and statutory provisions involved .........- 1

Statement. .........-------------------cceceeccssesnnccesnsneeessnscnssnnecesnnneneees 2

Summary of argument .............-.-------------<-------eeeeeeenene 6

Argument .............-----ceessc-ceeeeesseceeeseseeneensnennnesnsaenenseeesenesns 9

I. Sections 846 and 963 authorize the imposition of

consecutive sentences for conspiracy to import

and to distribute marijuana ..................---------------- 10

II. The Double Jeopardy Clause does not bar the im-

position of consecutive sentences that Congress

has authorized for conspiracy to import and dis-

tribute marijuana .............-------------1----e-e-eeeeeeeeeeeeee 34

COMENIBTOM «...<.o<cceesee-<eonsecevesssennenscscossssionansseansenstonsenenoonseaes 41

TABLE OF AUTHORITIES

Cases:

Abbate v. United States, 359 U.S. 187 .......-...-.-..---- 39

Albrecht v. United States, 273 U.S. 1 ...........--.-------- 37

American Tobacco Co. Vv. United States, 147 F.2d

98, aff’d, 828 U.S. 781 ..........-------------------eeeeeeeeeees passim

Bifulco v. United States, No. 79-5010 (June 16,

TODD oases ce nese 2, 26, 30, 33, 34

Blockburger V. United States, 284 U.S. 299 ..........-. passim

Bouie v. City of Columbia, 378 U.S. 347 ..........-.---- 23

Braverman V. United States, 317 U.S. 49 ..7, 17, 18, 22, 38

Brown V. Ohio, 482 U.S. 161 ................-.-------------- 12, 28, 39

Busic v. United States, No. 78-6020 (May 19,

TODO) aac n vena ee enpesssestirnnnqenenensnrmnrsnstanonecincnant 24, 34, 40

Callanan v. United States, 364 U.S. 587 .......... 7, 25, 30, 35

Cannon V. University of Chicago, 441 U.S. 677........ 25

Carter v. McClaughry, 188 U.S. 366 -...............-.------ 35

Consumer Product Safety Commission v. GTE

Sylvania, Inc., No. 79-521 (June 9, 1980) ........ 10

Gavieres Vv. United States, 220 U.S. 338 .............-.- 37, 39

(mI)

PREVIOUS PAGE WAS BLANK |

Cases—Continued Page

Gore v. United States, 357 U.S. 386 ....8, 12, 31, 32, 34, 36,

37, 39

Harris v. Oklahoma, 488 U.S. 682 .............--------------- 39

Harris v. United States, 359 U.S. 19 .............- 12, 31, 37, 39

Huddleston v. United States, 415 U.S. 814 ............-. 30

Iannelli v. United States, 420 U.S. 770 ....10, 12, 23, 24, 31

Illinois v. Vitale, No. 78-1845 (June 19, 1980) ...... 12, 39

Jeffers Vv. United States, 432 U.S. 187 ................------ 28, 24

Lewis Vv. United States, 445 U.S. 565 -................-..---. 10

McKethan v. United States and Garner v. United

States, 480 U.S. 986 ...............---..-...-0-----..-00--------+--- 22

Pereira Vv. United States, 347 US. 1 .................------- 37

Pinkerton v. United States, 328 U.S. 640 ............-..- 18

Reiter v. Sonotone Corp., 442 U.S. 330 ...............---.- 11

Rees ¥. Lecke, 428 U.S. 46 ........-....-...-...----------.-------- 23

Sanabria v. United States, 487 U.S. 54 ...............----- 14,18

Simpson Vv. United States, 435 U.S. 6 -...........-- 9, 23, 24, 37

Southeastern Community College v. Davis, 442 U.S.

Nee sc epeentoenmenvotconccncanse 10

Touche Ross & Co. V. Redington, 442 U.S. 560........ 10

United States v. Adcock, 487 F.2d 687 .......... 10, 22, 23, 40

United States v. Bass, 404 U.S. 336 ............-..-----.----- 30

United States v. Batchelder, 442 U.S. 114 ...............- 23, 31

United States v. Brown, 333 U.S. 18 ...............--------- 80

United States v. Burkett, 612 F.2d 449, cert. de-

nied, No. 79-1400 (June 9, 1980) .............--.-------- 21

United States v. Cadena, 585 F.2d 1252 ................-. 5,17

United States v. Culbert, 485 U.S. 371 .............----- 31

United States v. DiFrancesco, No. 79-567 (Dec. 9,

TE ss tsnsennrgusescnovenenenmnsescacneccoce 40

United States v. Dyar, 574 F.2d 1885, cert. denied,

i ciinsentienenincesiuenboorte 21

United States v. Fisher, 6 U.S. (2 Cranch) 358...... 30

United States v. Fruit, 507 F.2d 194 ..................-.-- 40

United States v. Garner, 574 F.2d 1141, cert. de-

I ioc sccnaocnsinidnssoonensciosevennceres 21, 22, 23

United States v. Hodges, No. 79-4057 (5th Cir.

i aicntnbntencenmsiapeemmenerennnene 40

United States v. Honneus, 508 F.2d 566, cert. de-

IE I, I pcan cee cssnisensasscecencocerenosenase 10, 22, 23, 40

Cases—Continued Page

United States v. Houltin, 525 F.2d 948, vacated in

part on other grounds, 429 U.S. 1034, on remand,

553 F.2d 991, subsequent opinion, 566 F.2d 1027,

cert. denied, 489 U.S. 826 ...........----------------+-00----- 21, 23

United States v. James, 494 F.2d 1007, cert. denied,

BOM UE FO a sa sstcicisitecsatavendnndiacentnincancitnnnisactnenes 29

United States v. Marotta, 518 F.2d 681 ........ 16, 21, 22, 23

United States v. McGowan, 385 F. Supp. 956 .......... 21

United States v. Moore, 423 U.S. 122 ............ 26, 30, 32, 33

United States v. Murray, 618 F.2d 892 ................---- 21

United States v. Powell, 423 U.S. 87 ............------------ 23

United States v. Rivera Diaz, 588 F.2d 461 ............ 22, 40

United States v. Williams, 548 F.2d 228 ..............-- 21

United States v. Wiltberger, 18 U.S. (5 Wheat.)

Oe no a eetseion inbiappeeinnrnapeenianeonannbitneaiies 11

United States Railroad Retirement Board v. Fritz,

No. 79-870 (Dec. 9, 1980) ...........----.---------+--ece0+20 8, 30

Wainwright v. Stone, 414 U.S. 21 -.......----------------+--- 23

Whalen v. United States, 445 U.S. 684 .............------- passim

Constitution, statutes and rule:

United States Constitution, Fifth Amendment........ 1, 8, 34

Comprehensive Drug Abuse Prevention and Con-

trol Act of 1970, 21 U.S.C. 801 ef seq. .............--- 5

91 U.S.C. 841 (a) (2) --..---...-.-.--00.--seeeneconsseceeees 11

Fe ocnccaiinsirinsntcncscndapentevetcernsohocsenbecionss passim

A TET, FRC ancnncnscnsccevnnicccencnniiesconesennencnence 29

7 ee Sa |) aE eee enna 29

i ih Ce f+) ee nennrene nono 29

21 U.S.C. 958(a), (d), (f) -.-.----------- er Aah La 29

94. U.S.C. GOO(O) (1) _ -...-...-2.-...-20.0-.0scr20s---2+---- 11

ee oR” || RR ereoeeenremenennnerenn nen 11

1 U.B.C. B6O(€) «....--0:...2-----.00ceccneseereesanvoeqeeess 11

ee Ca Es ) Reeneenereeernon on 29

21 U.S.C. SEB(D); (€) - ..<.-~----<-.--cceees--ecese-ennee 29

WO ETC GO nih incceesesndccweceatsctestentinenninonnmnasereees passim

Oe I aa init nec dntncecrsntnnctcsedecdsinaensbvnsinentons 29

Sherman Act, 15 U.S.C. 1 et seq.:

Section 1, 15 U.S.C. 1 ...22....----sceneeee---eeeeeeeeees 18, 15, 16

Section 2, 15 U.S.C. 2 .......------------00-----20-000-+++ 13, 15, 16

Constitution, statutes and rule—Continued Page

OT a. ccicninicmtbonbedmwenninens 7,17, 32

ot U.S.C. (1006 of.) 176 ~~~... 29

21 U.S.C. (1964 ed.) 176a ...................-.........----.---- 29

21 U.S.C. (1964 ed.) 176b ..........-........-.-..,------------- 29

26 U.S.C... (1964 ed.) 4742 ............-..--.--.-..---0-0-0---- 29

26 U.S.C. (1964 ed.) 7287 (a) ........-....------.---------+- 29

26 U.S.C. (1964 ed.) 7287(b) ..—-......-...-...-.-....---- 29

I ads sesseirscibiedaninnincenidta 40

ee Tr ns ieicinineniaiineeindeenicbonsialinanon 2

Miscellaneous:

Annot., Several Conspiracies as Predicable Upon

Single Agreement to Commit Several Offenses,

88 @ 2 19

115 Cong. Rec. 39253 (1969) ..................-------------0-++ 26

116 Cong. Rec. (1970):

Wr, ID ann cen nina cnncs-nascerennnngseecerenvssecserennccnssesenacs 33

BD, 1GGE an--.-.--- 22 nonnesconernnessecrnececencnonnononcnes 33

i BT anaes nns naan nn nnccnnsnnncnnnneresenenecosnncnnsancts 26

Wp, SEG cin nennnsnnsnsecernewenonenenenene 33

PP. 88608-38604 .................-.-----.-----i-ececeeceeeseceeees 27

PP. 88605-88608 ...............-.------------nsceeceeeseesceneenes 27

DP. 88618-88620 .................--.-..----c-c--o-leeqeneenseeeess 27

PD. 88624-S862G ...............-.----------c-eeceeececeessenseee 27

PP. 88685-S8ES9 ..................------.--c-ceeeeeeeneneeeneaenee 27

, PP. 83662-33665 nesses reese 27

We | GI cs ssciesscajeessinsiomnanoceceinnvoresnnsosniaceerecasensinte 28

Si, TIE Gascni.sencqnisienininshinerscynbectioahantocteninnnerinehaceapetiia 28

i TI aac caicsenccnncntninin shcnasiniersnanonactysareonennencenensses 28

1, TIN ci niessnnsdsicsisnnsinevsinbutanaensepeeesesamnseteneestiinninen 28, 29

i, TI nannies nctenn nnn cececemsececntnenctnnsengnonston wens 28

i, RT incase nnn eecisnsnecersncndpeeenerctconsnoee 28

Developments in the Law—Criminal Conspiracy,

72 Harv. L. Rev. 920 (1969) ................----.------+--+- 21, 39

Hearings on Controlled Dangerous Substances,

Narcotics and Drug Control Laws Before the

House Comm. on Ways and Means, 91st Cong.,

Sh th. | CRITI inisnccncccicecitnsec cette ceccnnsnintegtncinnnnone 26, 27

Miscellaneous—Continued Page

Hearings on Drug Abuse Control Am ents of

1970 Before the Subcomm. on Public Health

and Welfare of the House Comm. on Interstate

and Foreign Commerce, 91st Cong., 2d Sess.

2 IS Ce eee Oe ane ee a OR 26-27, 33

Hearings on Narcotics Legislation Before the Sub-

comm. to Investigate Juvenile Delinquency of

the Senate Comm. on the Judiciary, 91st Cong.,

aad east acclimate 26, 33

H.R. 13742, 91st Cong., Ist Sess. (1969) -................ 26, 27

| ERE ree Fee a 27

H.R. 13748, 91st Cong., Ist Sess. (1969) —.............. 26, 27

Oe ccncepnciinniitts 27

H.R. 17463, 91st Cong., 2d Sess. (1970) —.............. 26

H.R. 18583, 91st Cong., 2d Sess. (1970) -............... 27

H.R. Conf. Rep. No. 91-1603, 91st Cong., 2d Sess.

aa lai sclarinnisibisceaeiesodindaianndon 28

H.R. Rep. No. 91-1444 (Pt. 1), 91st Cong., 2d

Nc nails nnininedioeiannaiinat 25, 28, 33

H.R. Rep. No. 91-907, 91st Cong., 2d Sess. (1970)... 7, 25

S. 3246, 91st Cong., Ist Sess. (1969) —.................... 26

S. 36387, 91st Cong., Ist Sess. § 504 (1969) -............ 26

S. Rep. No. 91-618, 91st Cong., 1st Sess. (1969) .... 26, 33

Staff of House Comm. on Ways and Means, 91st

Cong., 2d Sess., Comparison of Bills to Regulate

Controlled Dangerous Substances and to Amend

the Narcotic and Drug Laws (Comm. Print

, RETA i LN NOH Ue es WOOD OE ee 25-26

United States Attorneys’ Manual (Jan. 10, 1977).. 32

Westen & Drubel, Toward a General Theory of

Double Jeopardy, 1978 Sup. Ct. Rev. 81 (1979).. 35, 36

OPINIONS BELOW

The opinion of the court of appeals on rehearing

en bane (Pet. App. 26a-55a) is reported at 612 F.2d

906. The panel opinion of the court of appeals (Pet.

App. la-21la) is reported at 585 F.2d 1234.

JURISDICTION

The judgment of the court of appeals was entered

on February 27, 1980. On March 19, 1980, Justice

Powell extended the time for filing a petition for a

writ of certiorari to April 27, 1980. The petition

was filed on Monday, April 28, 1980, and was grant-

ed on October 6, 1980. The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

1. The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

* * * [TN]or shall any person be subject for the

same offence to be twice put in jeopardy of life

or limb * * *.

2. 21 U.S.C. 846 provides:

Any person who attempts or conspires to

commit any offense defined in this subchapter is

punishable by imprisonment or fine or both

which may not exceed the maximum punishment

prescribed for the offense, the commission of

which was the object of the attempt or conspir-

acy.

(1)

8. 21 U.S.C. 963 provides:

Any person who attempts or conspires to com-

mit any offense defined in this subchapter is pun-

ishabie by imprisonment or fine or both which

may not exceed the maximum punishment pre-

scribed for the offense, the commission of which

was the object of the attempt or conspiracy.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Southern District of Florida, pe-

titioners were convicted of conspiracy to import

marijuana (Count 1), in violation of 21 U.S.C. 963,

and conspiracy to distribute marijuana (Count 2),

in violation of 21 U.S.C. 846. Petitioner Rodriguez

received consecutive sentences on each count of four

and one-half years’ imprisonment and a two-year

term of special parole; petitioner Albernaz received

consecutive sentences of three and one-half years’ im-

prisonment and a two-year term of special parole on

each count (Pet. App. 7a n.4).’ A panel of the court

of appeals affirmed (id. at la-21a). On rehearing

en bane, limited to the issue of cumulative punish-

ment for conviction on the two conspiracy counts

(id. at 22a-28a), the Fifth Circuit affirmed petition-

ers’ consecutive sentences, with one judge dissenting

(id. at 26a-55a).

1 The petition for a writ of certiorari did not challenge the

propriety of imposing a special parole term as part of peti-

tioners’ sentences for the drug conspiracy offenses. In Bifulco

v. United States, No. 79-5010 (June 16, 1980), this Court held

that a special parole term may not be imposed upon a defend-

ant convicted of a drug conspiracy. In light of the decision in

Bifulco, petitioners may move the district court for correction

of their sentences under Fed. R. Crim. P. 35.

1. The evidence at trial showed that in late De-

cember 1976, undercover Drug Enforcement Admin-

istration (DEA) Agent Theodore Weed was intro-

duced to petitioner Albernaz, who was seeking boats

that could be used for unloading large quantities of

marijuana from a freighter at sea and transporting

the marijuana to the Florida coast. Weed stated that

he had such a vessel. Albernaz offered to pay Weed

$200,000 or 10 percent of the value of the marijuana,

which was variously estimated to weigh between

15,000 and 40,000 pounds. Petitioners told Weed

that his 10 percent share would probably be worth

$1 million (Tr. 69-71, 83-86, 120-121, 134).°

During the next several weeks Albernaz and Weed

held numerous meetings at which Weed met other

individuals involved in the scheme, including peti-

tioner Rodriguez. In turn, Weed introduced the con-

spirators to several undercover DEA agents, includ-

ing John McCutcheon. Weed said that these individ-

uals were assisting him to prepare his vessel for the

operation (Tr. 97-108, 184-135, 164-167). In addi-

tion, petitioners and Weed inspected a marina near

Fort Lauderdale, Florida, for possible use as a land-

ing site for Weed’s boat. While there, Rodriguez

remarked that the marijuana could be rapidly re-

moved from Weed’s vessel because Rodriguez’ trucks

hag rollers and his accomplices were “professionals”

(Tr. 103-104).

By late January 1977 the parties were prepared

to carry out the scheme. Plans were made by the

agents to use a vessel known as the Catchalot II,

whose captain was cooperating with the agents. Pe-

titioners selected Bahia Honda Island, in the Florida

Keys, as the landing site (Tr. 169-179). Albernaz

2“Ty ” refers to the transcript of the trial.

gave agent McCutcheon and the captain of the Catch-

alot II their final instructions, including the coordi-

nates for the rendezvous with the freighter and codes

for use in communicating between the ships (Tr. 180,

346-349).

The Catchalot IJ, with its crew of DEA agents,

Customs officers, and civilians, left West Palm Beach

on the evening of January 27. After being notified

of the departure, Albernaz explained that the Catch-

alot II would approach the shore upon its return and

transfer the marijuana to life rafts, which would be

towed to waiting Winnebago vehicles that had been

refitted with heavy springs and shock absorbers to

avoid an outward appearance of carrying a heavy

load (Tr. 178-182, 285, 373-374, 383).

For the next two days the Catchalot II unsuccess-

fully attempted to contact the freighter. When made

aware of the difficulty, petitioners, together with co-

defendant William Martins, chartered a plane and

. flew over the freighter and the Catchalot II; mes-

sages were dropped to each ship indicating the loca-

tion of the other craft (Tr. 351-354, 427-437). That

afternoon the vessels established contact, and 150

bales of marijuana were transferred from the freight-

er to the Catchalot II (Tr. 359).

Purportedly in order to allow this marijuana to

be moved to a lower deck, the transfer of additional

bales was postponed. The Catchalot II then moved

a short distance away from the freighter and await-

ed the arrival of the Coast Guard, which had been

notified of the transaction. Several hours later a

Coast Guard vessel arrived, seized the freighter, and

arrested the crew (Tr. 360-362, 389-393). At about

the same time petitioners were arrested by DEA

agents in Miami (Tr. 67, 387, 450-451, 9517, 533,

736).

2. In affirming petitioners’ sentences, the en banc

court of appeals held (Pet. App. 30a-42a) that the

Comprehensive Drug Abuse Prevention and Control

Act of 1970 (21 U.S.C. 801 et seg.) authorized the

imposition of consecutive sentences upon defendants

convicted of both conspiracy to import marijuana, in

violation of 21 U.S.C. 963, and conspiracy to dis-

tribute marijuana, in violation of 21 U.S.C. 846. The

court also held (Pet. App. 42a-48a) that the Double

Jeopardy Clause does not bar cumulative penalties,

imposed in a single sentencing proceeding following

a single trial, that Congress has authorized for vio-

lations of separate statutory provisions.°

3 In the original panel opinion, the court of appeals reversed

the convictions of co-defendants Martins and Peter Smigowski

for conspiracy under 21 U.S.C. 846, finding that the evidence

was insufficient to show their involvement in a conspiracy to

distribute the marijuana once it reached the United States

(Pet. App. 16a-17a). As to petitioners, however, the panel

found sufficient evidence that they had arranged to transport

and distribute the marijuana in this country (id. at 15a-16a).

The en banc court reaffirmed the panel’s disposition (Pet. App.

28a-29a nn. 1-3, 48a-49a). Petitioners, together with Martins

and Smigowski, filed a separate petition (No. 79-1930) seeking

review of their convictions with regard to issues other than

the sentencing issue involved in the present case. This Court

denied that petition on October 6, 1980.

In addition, the 13 members of the freighter’s crew were

charged as co-conspirators and convicted in a separate trial.

On appeal, the same panel that decided petitioners’ appeal

affirmed the crew members’ convictions for conspiracy to im-

port marijuana, but reversed the conviction for conspiracy to

distribute as to the one individual among the 13 whose sentence

on the two counts had not been ordered to run concurrently.

United States v. Cadena, 585 F.2d 1252, 1266 & n.32 (5th

Cir. 1978).

SUMMARY OF ARGUMENT

The language and structure of the Comprehensive

Drug Abuse Prevention and Control Act of 1970

clearly indicate that a conspiratorial agreement en-

compassing both illegal importation and illegal dis-

tribution of marijuana constitutes two separate of-

fenses subject to cumulative punishments. Such a

conspiracy violates the prohibitions of two different

subchapters of the Act, each of which authorizes a

sentence measured by the sentence for the underly-

ing substantive offense. Given the existence of dis-

tinct subchapters with distinct offense and penalty

provisions, the Act on its face should be read to per-

mit consecutive sentences to be imposed for conspir-

acy to import marijuana, in violation of 21 U.S.C.

963, and conspiracy to distribute marijuana, in vio-

lation of 21 U.S.C. 846.

Moreover, this interpretation is supported by the

“rule of statutory construction stated by this Court

in Blockburger v. United States, 284 U.S. 299, and

consistently relied on ever since to determine wheth-

er Congress has in a given situation provided that

two statutory offenses may be punished cumulatively.”

Whalen v. United States, 445 U.S. 684, 691 (1980).

“In the Blockburger case the Court held that ‘[t]he

applicable rule is that where the same act or trans-

action constitutes a violation of two distinct statutory

provisions, the test to be applied to determine wheth-

er there are two offenses or only one, is whether each

provision requires proof of a fact [that] the other does

not’” (id. at 692, quoting 284 U.S. at 304). With-

out question, Sections 846 and 963 each require proof

of a different element. Thus, like American Tobacco

Co. v. United States, 328 U.S. 781, 788 (1946), in

which the Court applied the Blockburger test to up-

hold consecutive sentences for a conspiracy encom-

passing two Sherman Act offenses, Sections 846 and

963 prescribe “separate statutory offenses” subject

to consecutive sentences.

Nor is a different result suggested by Braverman

v. United States, 317 U.S. 49 (1942). In that case,

the Court construed the general conspiracy statute

(18 U.S.C. 371) not to authorize multiple convictions

for a single agreement to commit several unlawful

acts. In contrast to Braverman, in which the con-

spiratorial agreement “violate[d] but a single stat-

ute * * * [and hence] only tlie single penalty pre-

seribed by the statute can be imposed” (317 U.S. at

54), petitioners’ conspiracy violated two specific stat-

utory provisions. As in American Tobacco, “we have

here separate statutory offenses, one * * * made crim-

inal by [Section 846] and the other by [Section 963]”’

(328 U.S. at 788). In these circumstances, Braver-

man does not preclude the imposition of consecutive

sentences.

In addition, petitioners have failed to rebut the pre-

sumption under Blockburger that Sections 846 and

963 authorize cumulative penalties for conspiracy to

import and to distribute drugs. As petitioners rec-

ognize, the legislative history is silent on this issue.

But “Congress in enacting legislation rarely specifies

its intent on this matter [of consecutive sentences].”

Whalen v. United States, supra, 445 U.S. at 692,

quoting H.R. Rep. No. 91-907, 91st Cong., 2d Sess.

114 (1970). Since Congress is “predominately a law-

yers’ body” rather than “a body of laymen unfa-

miliar with the commonplaces of our law” (Callanan

v. United States, 364 U.S. 587, 594 (1961)), it is

appropriate to assume that Congress was aware of

the settled Blockburger doctrine and legislated

against that background. Likewise, although the ex-

istence of separate conspiracy provisions in the Drug

Control Act originally arose from the fact that two

Committees considered the legislation in the House,

Congress was fully cognizant of Sections 846 and

963 when it adopted the Act, and there is no reason

to believe that “Congress was unaware of what it

accomplished * * *.” United States Railroad Retire-

ment Board v. Fritz, No. 79-870 (Dec. 9, 1980), slip

op. 12. Finally, the rule of lenity does not compel a

contrary conclusion, since application of the Block-

burger doctrine resolves any purported ambiguity that

might otherwise serve as the premise for lenity, and

“Congress has manifested an attitude not of lenity

but of severity toward violation of the narcotics laws.”

Gore v. United States, 357 U.S. 386, 391 (1958).

II.

If Sections 846 and 963 are construed to authorize

consecutive sentences for conspiravy to import and

to distribute drugs, the imposition of such sentences

does not violate petitioners’ Fifth Amendment right

against being placed twice in jeopardy for the same

offense. As the Court recognized in Whalen v. United

States, supra, the Double Jeopardy Clause does not

“restrict the legislative power * * * to define criminal

offenses and to prescribe the punishments to be im-

posed upon those found guilty of them * * *” (445

U.S. at 689). Here, as in Whalen, “|t]he dispositive

question * * * is whether Congress did * * * provide

[for cumulative punishments]” (ibid.). Since Con-

gress authorized consecutive sentences under Sections

846 and 963, the Double Jeopardy Clause is no more

offended here than if Congress had enacted an equiva-

lent statute—which incontrovertibly would be con-

stitutional—expressly providing a maximum term

of imprisonment of 10 years for conspiracy to both

import and distribute marijuana and five years for

conspiracy to commit only one of the proscribed ob-

jectives.

Even if it were assumed that there may be some

circumstances in which multiple punishments au-

thorized by Congress could be unconstitutional under

the Double Jeopardy Clause, petitioners’ sentences in

this case would nonetheless be valid. To the extent

that the Clause limits the authority of the legisla-

ture to define criminal offenses and to fix criminal

penalties, [t]he Blockburger test * * * is a guide

for determining when two separately defined crimes

constitute the ‘same offense’ for double jeopardy

purposes.” Simpson v. United States, 485 U.S. 6, 11

(1978). Conspiracy to import marijuana, in viola-

tion of 21 U.S.C. 968, and conspiracy to distribute

marijuana, in violation of 21 U.S.C. 846, plainly

satisfy the Blockburger standard. As the Court held

in American Tobacco Co. v. United States, supra,

328 U.S. at 788, nothing in the Double Jeopardy

Clause forbids Congress to conclude that such an

agreement to commit two offenses is more pernicious

and should be more severely punished than an agree-

ment to commit one offense.

ARGUMENT

Petitioners do not dispute that their conspiracy to

import and distribute marijuana violated both 21

U.S.C. 846 and 21 U.S.C. 968. Notwithstanding the

existence of these distinct provisions, however, peti-

tioners contend that Sections 846 and 963 do not

authorize the imposition of consecutive sentences be-

cause this criminal enterprise involved only a single

agreement encompassing the dual objectives of im-

portation and distribution.* They further contend

that, regardless of statutory authorization, such sen-

tences are barred by the Double Jeopardy Clause.

Contrary to these arguments, consecutive sentences

were properly imposed upon petitioners’ convictions

for conspiracy to import and distribute marijuana, in

violation of 21 U.S.C. 846 and 963.°

I. SECTIONS 846 AND 963 AUTHORIZE THE IMPO-

SITION OF CONSECUTIVE SENTENCES FOR

- CONSPIRACY TO IMPORT AND TO DISTRIBUTE

MARIJUANA

This Court has repeatedly emphasized that “the

starting point for interpreting a statute is the lan-

guage of the statute itself. Absent a clearly expressed

legislative intention to the contrary, that language

must ordinarily be regarded as conclusive.” Con-

sumer Product Safety Commission v. GTE Sylvania,

Inc., No. 79-521 (June 9, 1980), slip op. 9. See also,

e.g., Lewis v. United States, 445 U.S. 59, 60 (1980) ;

Touche Ross & Co. v. Redington, 442 U.S. 560, 568

(1979), and cases cited therein; Southeastern Com-

munity College v. Davis, 442 U.S. 397, 406 (1979),

4The length of the combined sentences imposed on each

petitioner exceeds the maximum five-year sentence permissible

under either Section 846 or Section 963 for marijuana offenses

(see Pet. App. 29a n.4).

5 Petitioners contest only the imposition of cumulative pun-

ishments under Sections 846 and 963; they do not challenge

the propriety of either the indictment or the jury’s verdict

upon separate counts. See United States Vv. Honneus, 508 F.2d

566, 570 (1st Cir. 1974), cert. denied, 421 U.S. 948 (1975) ;

United States v. Adcock, 487 F.2d 687, 640 (6th Cir. 1973) ;

see also Jannelli v. United States, 420 U.S. 770, 786 n.18

(1975).

and cases cited therein; Reiter v. Sonotone Corp., 442

U.S. 330, 337 (1979); United States v. Wiltberger,

18 U.S. (5 Wheat.) 76, 95-96 (1820).

Here, the language of the statutes clearly indicates

that 21 U.S.C. 846 and 21 U.S.C. 963 establish sep-

arate offenses that are subject to cumulative penal-

ties. Section 846, which is contained in Subchapter I

of the Comprehensive Drug Abuse Prevention and

Control Act of 1970 (hereinafter “Drug Control

Act”), provides that “[a]ny person who * ** con-

spires to commit any offense defined in this subchap-

ter is punishable by imprisonment or fine or both

which may not exceed the maximum punishment pre-

scribed for the offense, the commission of which was

the object of the * * * conspiracy” (21 U.S.C. 846).

This provision unambiguously proscribes conspiracy

to commit any offense defined in Subchapter I, includ-

ing conspiracy to distribute marijuana (see 21 U.S.C.

841(a)(1)), and authorizes for such conspiracy a

sentence of imprisonment or a fine that does not ex-

ceed the penalty specified for the object offense. Like-

wise, Section 963, which is part of Subchapter II of

the Drug Control Act, contains an identical provision

for conspiracy to commit any offense defined in that

subchapter, including conspiracy to import marijuana

(see 21 U.S.C. 960(a)(1)). Thus, a conspiratorial

agreement having the objective both to import and to

distribute marijuana implicates both subchapters,

each of which authorizes a sentence based on the

punishment provided for the underlying substantive

offense. Given the existence of distinct subchapters

with distinct offense and penalty provisions, we sub-

mit that the Act permits separate sentences to be

imposed for conspiracy to import marijuana, in vio-

lation of 21 U.S.C. 968, and conspiracy to distribute

marijuana, in violation of 21 U.S.C. 846.

This interpretation—that Sections 846 and 963

authorize consecutive sentences for conspiracy to im-

port and distribute marijuana—is also supported by

the “rule of statutory construction stated by this

Court in Blockburger v. United States, 284 US.

299, and consistently relied on ever since to

determine whether Congress has in a given situation

provided that two statutory offenses may be punished

cumulatively.” Whalen v. United States, 445 U.S.

684, 691 (1980). “In the Blockburger case the Court

held that ‘[t]he applicable rule is that where the

same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one,

is whether each provision requires proof of a fact

that the other does not?” (id. at 692, quoting 284

U.S. at 304). See also, e.g., Harris v. United States,

359 U.S. 19 (1959) (consecutive sentences permitted

where single drug transaction violated distinct stat-

utes); Gore v. United States, 357 U.S. 386 (1958)

(same). Blockburger “focuses on the statutory ele-

ments of the offense. If each requires proof of a fact

that the other does not, the Blockburger test is satis-

fied, notwithstanding a substantial overlap in the

proof offered to establish the crimes.” Tannelli v.

United States, 420 U.S. 770, 785 n.17 (1975). See

also Illinois v. Vitale, No. 78-1845 (June 19, 1980),

slip op. 6 & n.6; Brown v. Ohio, 432 U.S. 161, 166

(1977).°

6 There is no merit to petitioners’ contention (Br. 22) that

this Court’s recent decision in Whalen v. United States, supra,

has modified the Blockburger test. Nothing in the opinion in-

dicates that the Court intended to abandon or alter the

The Court has previously applied the Blockburger

standard in the context of cumulative penalties for

an unlawful agreement to commit two distinct of-

fenses. In American Tobacco Co. v. United States,

328 U.S. 781 (1946), defendants were convicted of

conspiracy in restraint of trade, in violation of Sec-

tion 1 of the Sherman Act (15 U.S.C. 1), and con-

spiracy to monopolize, in violation of Section 2 of the

Sherman Act (15 U.S.C. 2). The defendants con-

tended that consecutive sentences for these offenses

were impermissible because there was “but one con-

spiracy, namely, a conspiracy to fix prices” (328 U.S.

at 788). In rejecting this claim, the Court first ob-

served that “we have here separate statutory of-

fenses, one a conspiracy in restraint of trade * * *

and the other a conspiracy to monopolize * * *. One

is made criminal by § 1 and the other by § 2 of the

Sherman Act” (ibid.). Relying on Blockburger, the

Court then upheld the consecutive sentences on the

ground that “§§ 1 and 2 of the Sherman Act require

proof of conspiracies which are reciprocally distin-

guishable from and independent of each other although

settled doctrine of Blockburger. To the contrary, Whalen

expressly relied on the rationale of Blockburger in analyzing

the District of Columbia felony-murder statute (445 U.S. at

691-694), and the Court specifically denied that it had “ap-

pl{ied] the Blockburger rule to the facts alleged in a particu-

lar indictment” (id. at 694 n.8). In any event, it is immaterial

here whether Blockburger is applied to the elements of the

statute or the charges in the particular case since, under either

standard, petitioners’ involvement in the planned importation

of marijuana was distinct from their role in the contemplated

distribution of the marijuana. See page 16 and note 8, infra.

the objects of the conspiracies may partially overlap”

(328 U.S. at 788).

7 Contrary to the possible suggestion in Sanabria v. United

States, 4837 U.S. 54, 74 n.33 (1978), there can be no doubt that

American Tobacco involved a single agreement to violate

two separate statutes; indeed, if two separate agreements

had been present, consecutive sentences would have been

clearly permissible and resort to the Blockburger test would

have been unnecessary. As noted on page 13, supra, the de-

fendants argued, and the Court understood, “that there is but

one conspiracy, namely, a conspiracy to fix prices” (328 U.S.

at 788). Later in the opinion, the Court noted that “the jury

found that the [defendants] conspired to fix prices and to

exclude undesired competition against them in the purchase

of * * * tobacco” (id. at 798) and that the “evidence con-

vinced the jury of the existence of a combination or con-

spiracy to fix and control prices and practices as to domestic

leaf tobacco, both in restraint of trade as such, and to es-

tablish a substantially impregnable defense against any at-

tempted intrusion by potential competitors into these mar-

kets” (id. at 890; emphasis added). The Court further noted

that “[tl]he verdicts show also that the jury found that the

[defendants] conspired to fix prices and to exclude unde-

sired competition in the distribution and sale of their prin-

cipal products” (id. at 804). On this basis, the Court con-

cluded that “the jury could have found from the actual op-

eration of the [defendants] that there existed a combination

or conspiracy among them not only in restraint of trade, but

to monopolize a part of the tobacco industry” (id. at 79T-

798; emphasis added).

The same analysis was advanced by the lower court and

the parties in American Tobacco. The court of appeals noted

that “[t]he allegations of fact are the same for each count on

which the parties were convicted” (147 F.2d 93, 99 (6th Cir.

1944) ), and it concluded (7d. at 115, 116-117) :

[T]he jury did find [defendants] guilty of conspiracy

to restrain trade by price-fixing, as well as of conspiracy

to monopolize by the same means * * *.

* * + * «

Sections 1 and 2 of the Sherman Act * * * cover dif-

ferent matters. The crime defined by Section 1 is legally

In our view, American Tobacco is controlling here.

Sections 846 and 963 are unquestionably “two dis-

distinct from the crime defined by Section 2. Offenses

under these sections are not identical even though all

the evidence is applicable to a count under Section 1, as

well as to a count under Section 2.. Congress may pro-

vide that separate steps in a single transaction shall con-

stitute separate offenses. If offenses are distinct in law

they are not identical, regardless of how closely they are

connected in point of fact. A single act may be an offense

against two statutes. The test laid down by the ad-

judicated cases as to the identity of offenses under sepa-

rate statutory provisions, is, whether each statutory

provision requires proof of a fact which the other does

not. A conspiracy in restraint of trade, violative of the

first section, is not identical with a conspiracy to monopo-

lize trade, violative of the second.

Similarly, the parties consistently argued in this Court that

there was only one agreement to violate Sections 1 and 2

of the Sherman Act. The government stated that “[e]ach of

the counts alleges that the crime was committed by the same

methods, means, and practices” and that “[t]he evidence

upon which the jury found the [defendants] guilty, when

viewed as a whole, shows a single panorama of monopoly

secured and maintained through combination and conspiracy”

(U.S. Br. 7, 8). Defendant American Tobacco repeatedly

asserted that “price fixing is the gist of all * * * offenses

charged in the information” (American Tobacco Br. 49-50),

that “[t]he conspiracy [to monopolize] as described in the

information was identical with the price-fixing conspiracy in

restraint of trade charged in the first count” (id. at 51), that

“(p]rice-fixing was the only conspiracy charged or attempted

te be proved” (id. at 93), and that “there was but one con-

spiracy * * * the continuing conspiracy to fix prices” (id. at

149). See also id. at 55, 89, 152, 156. The other defendants

took a like position. See Liggett & Myers Br. 4-5 (“there is no

factual difference between the price-fixing charge and the

monopoly charges, and there is no difference in the proofs”) ;

R. J. Reynolds Br. 95 (“all acts and intents alleged were

charged to have been done and entertained in formulation and

tinct statutory provisions” (Blockburger v. United

States, swpra, 284 U.S. at 304). Moreover, since Sec-

tion 846 and Section 963 specify different ends as

the proscribed object of the conspiracy—distribution

and importation, respectively—it is manifest that

“each provision requires proof of a fact [that] the

other does not” (ibid.). Thus, like Sections 1 and 2

of the Sherman Act, Sections 846 and 963 prescribe

“separate statutory offenses” subject to consecutive

sentences (American Tobacco Co. v. United States,

supra, 328 U.S. at 788).

This analysis under Blockburger and American

Tobacco is reinforced by the fact that Section 846

and Section 963 are directed to separate evils pre-

sented by drug trafficking. Criminal efforts relating

to importation and to distribution of marijuana pose

diverse societal harms, and, as the court of appeals

observed, “Congress has in effect determined that

a conspiracy to import drugs [and to distribute them ]

is twice as serious as a conspiracy [to do either ob-

ject singly]” (Pet. App. 40a, quoting United States

vy. Marotta, 518 F.2d 681, 685 (9th Cir. 1975)). Al-

though in this case the distinct objectives were joined

in a’ single agreement and the conspirators were

apprehended before their objectives could be achieved,

these circumstances do not in any way obscure the

conclusion that Sections 846 and 963 serve to protect

against different social dangers and therefore that a

separate penalty for the violation of each statute is

justified.*

execution of a single conspiracy * * *[,] and * * * the evi-

dence offered to support each of the counts was the same”’).

8 In addition to the separate interests protected by Section

846 and Section 963, different (albeit overlapping) evidence

was introduced to establish petitioners’ roles in each aspect

Petitioners seek to answer the foregoing analysis

by contending (Br. 21-28) that Blockburger is simply

inapplicable where conspiracy offenses rather than

substantive erimes are charged. Quoting Braverman

v. United States, 317 U.S. 49, 53 (1942), they argue

(Br. 22-23) that “[w]hether the object of a single

agreement is to commit one or many crimes, it is in

either case that agreement which constitutes the con-

spiracy which the statute punishes. The one agree-

ment cannot be taken to be several agreements and

hence several conspiracies because it envisages the

violation of several statutes rather than one.”

As already discussed, petitioners’ contention is fore-

closed by American Tobacco, in which the Court ap-

plied the Blockburger test to conspiracy offenses.

Nor does Braverman support petitioners’ position. In

that case, the Court construed the predecessor to

the general conspiracy statute (18 U.S.C. 371) not

to authorize multiple convictions for a single agree-

ment to commit several unlawful acts. Unlike Amer-

ican Tobacco or the instant case, the conspiratorial

agreement in Braverman “violate[d] but a single

statute,” and the Court concluded that “[f]or such

a violation, only the single penalty prescribed by the

statute can be imposed” (317 U.S. at 54). As the

of the conspiracy to import and distribute marijuana. See

Pet. App. 15a-16a, 29a nn.2-3. Indeed, the court of appeals

in this case (Pet. App. 14a-17a, 28a-29a nn.1-3) and in a

companion case involving 13 co-conspirators (United States

v. Cadena, 585 F.2d 1252, 1266 & n.32 (5th Cir. 1978))

sustained the convictions of certain defendants for conspiracy

to import but reversed for insufficient evidence with respect

to the charge of conspiracy to distribute. See note 3,

supra. Thus, the record clearly establishes the existence of

two distinct plans as part of the drug conspiracy in this case,

making it in this respect a stronger case than American

Tobacco for allowing cumulative punishments.

Court subsequently emphasized, Braverman ‘held that

a single conspiracy, charged under the general con-

spiracy statute, however diverse its objects may be,

violates but a single statute and no penalty greater

than the maximum provided for one conspiracy may

be imposed” (Pinkerton v. United States, 328 U.S.

640, 643 (1946)). And the Court in American To-

bacco distinguished Braverman on the ground that

“Tijn contrast to the single conspiracy described

in that case in separate counts, all charged under

the general conspiracy statute, * * * we have here

separate statutory offenses, one * * * made criminal

by §1 and the other by §2 of the Sherman Act”

(328 U.S. at 788). Thus, as the Court expressly

noted in Braverman itself, a single agreement in

violation of the general conspiracy statute “differs

from * * * a single act which violates two statutes”

(317 U.S. at 54; emphasis added).*

Petitioners’ reading of Braverman has also been

rejected by legal commentators. At the time it was

decided, Braverman was understood to be “appli-

® Although petitioners correctly point out (Br. 23) that

the Blockburger test did not bear on the question presented

in Braverman, the inapplicability of Blockburger did not re-

sult, as they assert, from the unique nature of the crime of

conspiracy. In Braverman, the defendant was charged with

an unlawful agreement to violate several substantive statutes.

Although “[t]he one agreement * * * envisage[d] the viola-

tion of several statutes rather than one” (317 U.S. at 53),

the agreement itself was proscribed by only the general con-

spiracy statute. In contrast to the Braverman issue concerning

multiple violations of the same statute, Blockburger was for-

mulated to determine whether cumulative punishments are

permissible for offenses defined in “two distinct statutory pro-

visions” (284 U.S. at 804). See also Sanabria Vv. United States,

487 U.S. 54, 70 n.24 (1978). As demonstrated by American

Tobacco, the Blockburger test does apply to conspiracy

offenses.

cable in a situation in which, although the several

substantive offenses contemplated in the agreement

would violate several statutes, the agreement itself

is a criminal conspiracy in violation of only one stat-

ute directed against conspiracies.” Annot., Several

Conspiracies as Predicable Upon Single Agreement

to Commit Several Offenses, 87 L.Ed. 29, 37 (1948).

However,

in a situation in which an agreement contem-

plating manifold criminal purposes is in viola-

tion of two or more separate statutes penalizing

criminal conspiracies of different kinds * * *[,]

it is believed that * * * [Braverman] is not

applicable * * *, at least, where one statute

necessitates proof of a circumstance or element

different from that which the other requires.

* * * * *

From these premises it seems to follow that a

single agreement to commit several offenses may

be prosecuted and penalized as constituting sev-

eral conspiracies where it violates two or more

conspiracy statutes, even though, where the

agreement is in violation of but one conspiracy

statute, it is not proper to predicate thereon

several conspiracies on the ground that the sub-

stantive offenses contemplated in the agreement

violate more than one statute.

For this reason, it is believed that the value,

as precedents, of the cases which have predi-

cated several conspiracies upon a single agree-

ment to commit several offenses where such

agreement was in violation of more than one con-

spiracy statute is not affected by the decision

in [Braverman].

Id. at 37-88 (emphasis in original). This view was

later confirmed by the Court’s decision in American

Tobacco (see pages 18-17, supra). As one subse-

quent commentary has explained:

Under a conspiracy statute construed as aimed

at least in part at dangers connected with the

specific object, it seems that cumulative punish-

ment should be imposed for such a combination

to the same extent as would be authorized for

the substantive offenses, since the agreement in-

creases the likelihood of commission and the po-

tential harmful effects of each contemplated

offense. In Braverman v. United States, the

Supreme Court held that under the general fed-

eral conspiracy statute a single agreement is

only one conspiracy no matter how diverse its

objects. This case seems to indicate that the

increased specific dangers attributable to the

contemplation of additional objects are not suf-

ficient to warrant separate punishment under

the general statute, and that a separate general

danger is indispensable to each offense.

* * * * *

It has been held that cumulative punishment

may be imposed for a single conspiracy which

violates more than one statutory provision. * * *

[T]his result is not inconsistent with Braver-

man, since that case involved the construction of

a single provision. American Tobacco Co. v.

United States, a leading conspiracy case, can be

interpreted as holding that a legislative intent

that punishment should be cumulative can be

inferred from the mere existence of more than

one statutory provision applicable to a single set

of facts. However, in recent decisions in other

areas the Court has investigated legislative pur-

pose more carefully * * *. * * * In examining

legislative intent it seems that the courts should

ask whether the two prohibitions are aimed at

either the protection of different interests or the

prevention of different evils. Thus cumulative

punishment is not warranted under two or more

statutes which are all directed primarily against

the general danger created by a conspiracy or

all directed against the same specific evil. On

the other hand, if the two statutes are aimed at

different specific evils, cumulative sentences seem

warranted.

Developments in the Law—Criminal Conspiracy, 72

Harv. L. Rev. 920, 964-966 (1969) (footnotes

omitted).

In accordance with our analysis, two courts of

appeals, in addition to the en banc Fifth Circuit

in the instant case, have held that Sections 846 and

963 authorize the imposition of consecutive sentences

for conspiracy to import and also to distribute drugs.

See United States v. Garner, 574 F.2d 1141, 1146-

1147 (4th Cir.), cert. denied, 439 U.S. 936 (1978) ;

United States v. Marotta, 518 F.2d 681, 684-685

(9th Cir. 1975). See also United States v. Burkett,

612 F.2d 449, 452 (9th Cir. 1979), cert. denied, No.

79-1400 (June 9, 1980) ; United States v. Dyar, 574

F.2d 1385, 1389-1390 (5th Cir.), cert. denied, 439

U.S. 982 (1978); United States v. Houltin, 525 F.2d

948, 950-951 (5th Cir. 1976), vacated in part on

other grounds, 429 U.S. 1034 (1977), on remand,

553 F.2d 991 (5th Cir. 1977), subsequent opinion,

566 F.2d 1027 (5th Cir.), cert. denied, 489 U.S. 826

(1978); United States v. McGowan, 385 F. Supp.

956, 959 n.5 (D.N.J. 1974); cf. United States v.

Murray, 618 F.2d 892, 896-899 (2d Cir. 1980);

United States v. Williams, 548 F.2d 228, 232-233

(8th Cir. 1977). The court in Marotta, emphasizing

that “the Congressional intent is unmistakable in

that there are two separate and distinct offenses de-

fined” (518 F.2d at 684), concluded that “Congress

fully intended to permit punishing such conspiracies

[to import and distribute drugs] twice as severely

as those which embraced only one of the specified

criminal objects” (518 F.2d at 685). Similarly, in

Garner, the court found that “Congress regarded con-

spiracy to import [drugs] and conspiracy to distri-

bute [drugs] in the United States no. “'y as separate

offenses but as offenses so compounduig each other

that a conspiracy embracing each should be treated

as two separate conspiracies, warranting the imposi-

tion of successive sentences for violations of the two

separate conspiracy statutes” (574 F.2d at 1147).

Moreover, two Justices of this Court have indicated

their agreement with the holding in Garner that Sec-

tions 846 and 963 authorize cumulative penalties for

conspiracy to import and distribute drugs. See Mc-

Kethan v. United States and Garner v. United States,

439 U.S. 936, 936-937 n.1 (1978) (statement of Mr.

Justice Stewart, joined by Mr. Justice Marshall).

We recognize that two courts of appeals have

reached a contrary result. See United States v. Hon-

neus, 508 F.2d 566, 569-570 (1st Cir. 1974), cert.

denied, 421 U.S. 948 (1975); United States v. Ad-

cock, 487 F.2d 687 (6th Cir. 1973) ; see also United

States v. Rivera Diaz, 5388 F.2d 461, 466 (1st Cir.

1976). For the reasons discussed above, these deci-

sions rest upon a misinterpretation of this Court’s

precedents in Blockburger, Braverman, and Ameri-

can Tobacco. Moreover, as noted by the en banc court

below (Pet. App. 34a), the question of legislative in-

tent was not discussed at all by the Sixth Circuit in

Adcock and was only tangentially referred to by the

First Circuit in Honneus. Subsequent to the time that

Adcock and Honneus were decided, however, this

Court has made clear that the intent of Congress is

central to the issue of cumulative punishments. See

Whalen v. United States, supra, 445 U.S. at 688-689 ;

Simpson v. United States, 435 U.S. 6, 12 (1978) ;

Jeffers v. United States, 432 U.S. 187, 155 (1977)

(plurality opinion) ; Jannelli v. United States, supra,

420 U.S. at 785-786 & n.17. Accordingly, we submit

that the better view is expressed in the more recent

decisions in Marotta, Garner, and the present case,

which declined to follow Adcock and Honneus and

held instead that consecutive sentences are authorized

for conspiracy to both import and distribute drugs.”

The Blockburger test is “a rule of statutory con-

struction * * * to determine whether Congress has

in a given situation provided that two statutory of-

fenses may be punished cumulatively” (Whalen v.

United States, supra, 445 U.S. at 691). “The as-

sumption underlying the rule is that Congress ordi-

narily does not intend to punish the same offense

under two different statutes” (id. at 691-692).

10 Petitioners contend (Br. 24 n.*) that the Drug Control

Act failed to provide fair notice, in violation of the Due

Process Clause, that conspiracy to import and to distribute

marijuana could be punished by consecutive sentences. How-

ever, even assuming that the principle of fair notice applies

with full force to the penalty provisions of a statute (see

United States v. Batchelder, 442 U.S. 114, 123 (1979)), this

claim is insubstantial. In light of the language and structure

of the Act, the American Tobacco doctrine, and the decisions

in such cases as Marotta and Houltin, petitioners were fur-

nished with ample warning of the potential consequences of

their criminal venture. Thus, our construction of the Act does

not constitute a “retroactive[] * * * [and] ‘unforeseeable

judicial enlargement of a criminal statute’ * * * [that] vio-

late[s] due process.” Brown v. Ohio, 482°U.S. 161, 169 n.8

(1977), quoting Bouie v. City of Columbia, 378 U.S. 347, 353

(1964). See, e.g., United States Vv. Batchelder, supra, 442 U.S.

at 128; United States v. Powell, 428 U.S. 87, 92-94 (1975) ;

Rose v. Locke, 428 U.S. 48 (1975) ; Wainwright v. Stone, 414

U.S. 21 (1978).

Because it serves as a means of discerning con-

gressional purpose, the Blockburger rule is not con-

trolling where there is “a clear indication of contrary

legislative intent” (Whalen v. United States, supra,

445 U.S. at 692). Thus, “where the offenses are the

same under the [Blockburger] test, cumulative sen-

tences are not permitted, unless elsewhere specifically

authorized by Congress” (id. at 693). By the same

token, “[t]here may be instances in which Congress

has not intended cumulative punishments even for

offenses that are different under * * * [Blockburger]”

(id. at 693 n.7). See Busic v. United States, No. 78-

6020 (May 19, 1980); Simpson v. United States,

supra, 485 U.S. at 11-18; Jeffers v. United States,

supra, 432 U.S. at 155.

Accordingly, Blockburger is properly understood

to establish a presumption regarding Congressional

authorization for consecutive sentences in cases in

which the same criminal enterprise constitutes a vio-

lation of two statutory provisions. Where the Block-

burger test is satisfied, it can be inferred that the

statutes sanction aggregate punishments. “[A]bsent

legislative intent to the contrary, the [r]ule supports

a presumption that [consecutive sentences are per-

missible].” Jannelli v. United States, supra, 420 USS.

at 785-786.

With respect to Sections 846 and 963, petitioners

offer two arguments in an effort to rebut the Block-

burger presumption. They urge, first, that the leg-

islative history of the statutes does not disclose a

clear Congressional intent to impose multiple punish-

ment for a single conspiracy (Br. 15) and, second,

that the rule of lenity militates against a construc-

tion of the statutes to allow consecutive sentences

(Br. 12-15).. Both of these contentions are unavail-

ing.

1. We agree with petitioners (Br. 18-19) that the

legislative history of Sections 846 and 963 is silent

on the question of consecutive sentences for conspir-

acy to import and distribute drugs. However, it is

unrealistic to expect that Congress will specifically

address and expressly resolve all such issues of statu-

tory interpretation. As this Court has recently rec-

ognized, “Congress in enacting legisiation rarely spec-

ifies its intent on this matter [of consecutive sen-

tences].”” Whalen v. United States, supra, 445 U.S.

at 692, quoting H.R. Rep.. No. 91-907, 91st Cong.,

2d Sess. 114 (1970). Congress is “predominately a

lawyer’s body” rather than ‘a body of laymen un-

familiar with the commonplaces of our law’ (Calla-

nan v. United States, 364 U.S. 587, 594 (1961) ), and

“Ti]t is always appropriate to assume that our elect-

ed representatives * * * know the law * * *” (Can-

non v. University of Chicago, 441 U.S. 677, 696-697

(1979)). Therefore, Congress must be presumed to

have been aware of the settled Blockburger doctrine

and to have legislated against that background. See.

Whalen v. United States, supra, 445 U.S. at 692. In

these circumstances, Congressional silence cannot

properly be found to refute the Blockburger presump-

tion in favor of consecutive sentences in this case or

to signify a disapproval of cumulative penalties.

Petitioners also argue (Br. 17-19) that consecutive

sentences are not authorized because the existence of

separate conspiracy offenses in Sections 846 and 963

is merely attributable to the committee structure in

Congress and the fact that two different House com-

mittees considered this drug legislation. The relevant

history of the legislation is set out in H.R. Rep. No.

91-1444 (Pt. 1), 91st Cong., 2d Sess. 1-2 (1970),

and Staff of House Comm. on Ways and Means, 91st

Cong., 2d Sess., Comparison of Bills to Regulate Con-

trolled Dangerous Substances and to Amend the Nar-

cotic and Drug Laws 1-2 (Comm. Print 1970).”

As proposed by the administration, the bill initially

contained a single conspiracy provision. See S. 2637,

91st Cong., 1st Sess., § 504 (1969), reprinted in

Hearings on Narcotics Legislation Before the Sub-

comm. to Investigate Juvenile Delinquency of the

Senate Comm. on the Judiciary, 91st Cong., 1st

Sess. 114, 166 (1969). In the House, the bill was

originally referred to the Committee on Ways and

Means. However, since the legislation would have

affected existing drug control statutes under the ju-

risdiction of both that Committee and the Committee

on Interstate and Foreign Commerce, the adminis-

tration’s proposal was divided into two bills. See

H.R. 13742, 91st Cong., 1st Sess. (1969), reprinted

in Hearings on Controlled Dangerous Substances,

Narcotics and Drug Control Laws Before the House

Comm. on Ways and Means, 91st Cong., 2d Sess. 109

(1970); H.R. 18743, 91st Cong., Ist Sess. (1969),

reprinted in Hearings on Drug Abuse Control Amend-

ments of 1970 Before the Subcomm. on Public Health

11 See generally Bifulco v. United States, No. 79-5010 (June

16, 1980) ; United States v. Moore, 423 U.S. 122 (1975).

12 The bill ultimately passed by the Senate was generally

the same as the administration’s proposal but revised the

penalty provisions both of the proposed legislation and of

existing law. See S. 3246, 91st Cong., 1st Sess. (1969) ; S. Rep.

No. 91-618, 91st Cong., 1st Sess. 1-2, 97-136 (1969); 115

Cong. Rec. 39253 (1969) (remarks of Sen. Dodd) ; 116 Cong.

Rec. 1671 (1970). S. 3246 was introduced in the House, with

minor changes, as H.R. 17463, 91st Cong., 2d Sess. (1970),

reprinted in Hearings on Controlled Dangerous Substances,

Narcotics and Drug Control Laws Before the House Comm.

on Ways and Means, 91st Cong., 2d Sess. 3 (1970). See Staff

of House Comm. on Ways and Means (Comm. Print 1970),

supra, at 1-2.

and Welfare of the House Comm. on Interstate and

Foreign Commerce, 91st Cong., 2d Sess., Pt. 1, 7

(1970). The House bills were generally identical to

each other, with the exception that H.R. 13742 was

limited to narcotic drugs and marijuana, which had

been regulated by the Internak Revenue Code and

other Acts within the authority of the Committee on

- Ways and Means, while H.R. 13743 applied to de-

pressant and stimulant drugs that were regulated

under the Federal Food, Drug, and Cosmetic Act and

thus came within the jurisdiction of the Committee

on Interstate and Foreign Commerce. Each of the

House bills contained its own conspiracy provision.

See H.R. 13742, supra, § 504, and H.R. 137438, supra,

§ 504.

Following hearings (see Hearings on Controlled

Dangerous Substances, supra), the Committee on

Ways and Means altered this format both by confin-

ing its consideration to the importation and exporta-

tion of drugs and by expanding its review beyond

narcotics and marijuana to include stimulant and

depressant drugs. At the same time, the Committee

on Interstate and Foreign Commerce agreed to con-

sider the other provisions of the administration’s pro-

posal. Thereafter, a joint bill was reported. See

H.R. 18583, 91st Cong., 2d Sess. (1970); 116 Cong.

Rec. 33603-33604, 33605-33608, 33618-33620, 33624-

33626, 33635-33639, 33662-33665 (1970). Title II

of the bill (which is Subchapter I of the Drug Control

Act as passed and includes Section 846) was pre-

pared by the Committee on Interstate and Foreign

Commerce; Title III of the bill (which is Subchapter

II of the Act and includes Section 963) was recom-

mended by the Committee on Ways and Means. See

H.R. Rep. No. 91-1444 (Pt. 1), supra, at 2, 5, 71. It

was agreed in the House that the Commitee on Ways

and Means would retain jurisdiction over future

amendments relating to imports and exports of drugs

under Title III, and the form of the reported bill was

designed to preserve this authority (id. at 2-3). In

substantially that form, the House bill was enacted

into law. See 116 Cong. Rec. 33667, 35559, 36659,

36885, 37439 (1970); H.R. Conf. Rep. No. 91-1603,

9ist Cong., 2d Sess. (1970) ; see also 116 Cong. Rec.

36653 (1970) (remarks of Rep. Springer) (‘There

[was] some minor difference on which we receded [in

Conference], but nothing of any great importance.

Essentially this is the House bill’).

We do not believe that this legislative history, on

which petitioners place such heavy reliance, should

be taken to foreclose consecutive sentences pursuant

to Sections 846 and 963. Rather than confirming

petitioners’ interpretation, the history of this compre-

hensive revision of the drug laws is equally consistent

with the conclusion that the two House committees,

focusing on different facets of the drug problem, con-

sidered a conspiracy encompassing importation and

distribution to entail dual evils deserving of enhanced

penalties. Virtually from the outset, the legislation

in the House consisted of two bills, each containing

its own conspiracy provision. Nowhere did Congress

indicate an intent to disapprove the use of consecutive

sentences, and the most likely understanding, in view

of the well-established Blockburger rule, was that

these distinct offenses would be subject to cumulative

punishments.

Moreover, Congress was unquestionably aware of

the existence of the separate conspiracy provisions,

and, as the court of appeals observed (Pet. App. 39a),

“Tt]he enacted legislation evidences a great deal of

coordination between the two committees [in the

House}.” For example, Subchapter II of the Act

(Title III of the bill) incorporates the basic stand-

ards of Subchapter I and makes numerous express

references to the provisions of that subchapter. See

21 U.S.C. 951(b), 952(a), 957(C), 958(a), (d), (f),

961(1), 962(b), (c), 965. Likewise, the subchapters

“have parallel penalty structures, imposing similar

penalties on similar crimes” (Pet. App. 39a), and

these penalties represent a change from both the ad-

ministration’s proposal and prior law. Finally, Con-

gressman Boggs, the sponsor of the bill, introduced on

behalf of the Ways and Means Committee a floor

amendment to Title III to provide “that section 1013

—relating to attempts and conspiracies—* * * will

take effect at the same time as the comparable provi-

sion[] of title II.” 116 Cong. Rec. 33665 (1970).*

18 We also note that existing law, which was superseded

by the Drug Control Act, contained multiple conspiracy pro-

visions. See 21 U.S.C. (1964 ed.) 174, 176a, 176b; 26 U.S.C.

(1964 ed.) 7237(a) and (b). Thus, for example, a conspiracy

to import marijuana and to transfer marijuana without an

order form issued by the Secretary of the Treasury (see 26

U.S.C. (1964 ed.) 4742) constituted a violation of both 21

U.S.C. (1964 ed.) 176a and 26 U.S.C. (1964 ed.) 7287(b). In

United States v. James, 494 F.2d 1007, 1025-1026 (D.C. Cir.),

cert. denied, 419 U.S. 1020 (1974), the court of appeals held

that consecutive sentences could be imposed for a single agree-

ment that violated two specific conspiracy provisions of the

prior statutes.

In light of this legislative record, the Court should

not presume that “Congress was unaware of what it

accomplished * * *.” United States Railroad Retire-

ment Board v. Fritz, No. 79-870 (Dec. 9, 1980), slip

op. 12. Rather, Congress’s adoption of separate con-

spiracy provisions in Sections 846 and 963 was clearly

deliberate and knowing, and this Court has “his-

torically assumed that Congress intended what it en-

acted” (ibid.). See also Bifulco v. United States, No.

79-5010 (June 16, 1980), slip op. 18-19.

2. Petitioners also invoke the rule of lenity to

support their contention that consecutive sentences

are not authorized for conspiracy both to import and

to distribute marijuana. However, the rule is not

applicable unless there is a “grievous ambiguity or

uncertainty in the language and structure of the Act”

(Huddleston v. United States, 415 U.S. 814, 831

(1974)) such that even “[a]fter [a court has]

‘seize[d] everything from which aid can be derived

* * * Tit is still] left with an ambiguous statute.”

United States v. Bass, 404 U.S. 336, 347 (1971),

quoting United States v. Fisher, 6 U.S. (2 Cranch)

358, 386 (1805). Lenity “only serves as an aid for

resolving an ambiguity; it is not to be used to beget

one. * * * The rule comes into operation at the end

of the process of construing what Congress has ex-

pressed, not at the beginning as an overriding con-

sideration of being lenient to wrongdoers.” Callanan

v. United States, supra, 364 U.S. at 596. And, as

the Court explained in interpreting the Drug Control

Act in United States v. Moore, 423 U.S. 122, 145

(1975), quoting United States v. Brown, 333 U.S.

18, 25-26 (1948):

The canon in favor of strict construction [of

criminal statutes] is not an inexorable command

to override common sense and evident statutory

purpose * * *. Nor does it demand that a statute :

be given the “narrowest meaning”’; it is satisfied

if the words are given their fair meaning in

accord with the manifest intent of the law-

makers.

See also, e.g., Jannelli v. United States, supra, 420

U.S. at 789; id. at 795 (Douglas, J., dissenting) ; 7d.

at 798 (Brennan, J., dissenting).

In light of these principles, the rule of lenity does

not apply in this case. Where, as here, two distinct

statutory provisions satisfy the Blockburger test, it

is to be presumed that offenses thereunder “may be

punished cumulatively * * * in the absence of a clear

indication of contrary legislative intent.” Whalen v.

United States, supra, 445 U.S. at 691-692. In this

way, Blockburger resolves any purported ambiguity

that might otherwise serve as the premise for lenity.

See, e.g., Harris v. United States, supra; Gore v.

United States, supra; Blockburger v. United States,

supra. The rule of lenity cannot, by itself, be used

to defeat the Blockburger doctrine or “to manufac-

ture ambiguity where none exists.” United States v.

Batchelder, 442 U.S. 114, 122 (1979), quoting United

States v. Culbert, 485 U.S. 371, 379 (1978).”

14 Petitioners contend (Br. 24-25) that the existence of

ambiguity is demonstrated by the fact that the government

has charged conspiracy to import and distribute drugs in a

single count in some cases and in two counts in other cases.

However, in 1977, the Criminal Division of the Department

of Justice advised United States Attorneys that conspiracy

In addition, this Court has consistently refused to

extend the rule of lenity to offenses under the federal

drug laws. Recognizing that drugs present “a social

evil as deleterious as it is difficult to combat” (Gore

v. United States, supra, 357 U.S. at 389), the Court

has concluded that

the various enactments by Congress extending

over nearly half a century constitute a network

of provisions, steadily tightened and enlarged,

for grappling with a powerful, subtle and elusive

enemy. If the legislation reveals anything, it

reveals the determination of Congress to turn

the screw of the criminal machinery—detec-

tion, prosecution and punishment—tighter and

tighter. * * *

* * * Congress has manifested an attitude not

of lenity but of severity toward violation of the

narcotics laws.

Id. at 390, 391. See also United States v. Moore,

supra, 423 U.S. at 131-133, 145. Petitioners have

cited nothing to suggest that Congress intended

to follow a different course in enacting the Drug

to import and distribute should be charged as separate counts

(see United States Attorneys’ Manual § 9-100.260, at 36

(Jan. 10, 1977)), and the previous one-count indictments

cited by petitioners probably reflect no more than federal

prosecutors’ extensive experience under the general conspiracy

statute (18 U.S.C. 871) in charging a conspiratorial agree-

ment with multiple objectives as a single offense. Moreover,

defendants had little reason to challenge the possible duplicity

that petitioners point out, since a successful motion would

expose them to the prospect of two sentences under a two-

count indictment. The issue of multiple offenses was not raised

or decided in the cases upon which petitioners rely.

Control Act of 1970,% and their argument for lenity

is unfounded.”

18 We recognize that the Act eliminated most mandatory

minimum sentences and revised the penalty structure to

establish a consistent system of punishments of drug offenses

in line with the penalties provided by law for other offenses.

See H.R. Rep. No. 91-1444 (Pt. 1), supra, at 4, 11, 71; S. Rep.

No. 91-613, 91st Cong., 1st Sess. 1-2, 7-8 (1969). This modifica-

tion was based on Congress’s determination that “[{t]he

severity of existing penalties, involving in many instances

minimum mandatory sentences, ha[s] led in many instances

to reluctance on the part of prosecutors to prosecute some

violations, where the penalties seem to be out of line with

the seriousness of the offense. In addition, severe penalties,

which do not take into account individual circumstances, and

which treat casual violators as severely as they treat hardened

criminals, tend to make convictions somewhat more difficult

to obtain” (H.R. Rep. No. 91-1444 (Pt. 1), supra, at 11). The

penalty structure of the Act was therefore designed “to have a

more deterrent effect than existing penalties, through elimi-

nating some of the difficulties prosecutors and courts have had

in the past” and providing “a more realistic, more flexible, and

thus more effective system of punishment and deterrence”

(id. at 11, 71). See also 116 Cong. Rec. 996 (1970) (remarks

of Sen. Dodd) ; id. at 1664 (remarks of Sen. Hruska) ; id. at

83317 (remarks of Rep. Mills); House Hearings on Drug

Abuse Control Amendments, supra, at 81-82 (statement of

Attorney General Mitchell) ; Senate Hearings on Narcotics

Legislation, supra, at 212-218 (statement of Attorney General

Mitchell). As this Court has recognized, “the Act was intended

to ‘strengthen,’ rather than to weaken, ‘existing law enforce-

ment authority in the field of drug abuse.’” United States V.

Moore, supra, 423 U.S. at 182, quoting 84 Stat. 1236 (1970) ;

see also 428 U.S. at 139. Especially since the bill adopted by

Congress was “fully endorsed” by the administration (see 116

Cong. Rec. 33317 (1970) (remarks of Rep. Mills) ), this effort

to enhance the effectiveness of the drug laws should not be

viewed as a policy of leniency for large-scale drug offenders

like petitioners.

16 Bifulco v. United States, No. 79-5010 (June 16, 1980),

upon which petitioners rely (Br. 13, 27), is not inconsistent

Il. THE DOUBLE JEOPARDY CLAUSE DOES NOT

BAR THE IMPOSITION OF CONSECUTIVE SEN-

TENCES THAT CONGRESS HAS AUTHORIZED

FOR CONSPIRACY TO IMPORT AND DISTRIBUTE

MARIJUANA

Petitioners contend (Br. 27-30) that even if Con-

gress has authorized consecutive sentences for viola-

tions of Sections 846 and 963, the imposition of such

sentences contravenes their Fifth Amendment right

not to be placed twice in jeopardy for the same of-

fense.

Petitioners’ contention is directly foreclosed by the

recent decision in Whalen v. United States, 445 U.S.

684 (1980). In Whalen, this Court endorsed the

view that the Double Jeopardy Clause does not re-

strict “the legislative power * * * to define criminal

offenses and to prescribe the punishments to be im-

posed upon those found guilty of them * * *” (dd.

at 689). See also id. at 696 (White, J., concurring) ;

id. at 697-698 (Blackmun, J., concurring) ; id. at

701-702, 705-706 (Rehnquist, J., joined by the Chief

Justice, dissenting) ; Busic v. United States, No. 78-

6020 (May 19, 1980), slip op. 2 (Blackmun, J., joined

by the Chief Justice, concurring), id. at 2 (Rehn-

quist, J., dissenting). Here, as in Whalen, “[t]he

dispositive question * * * is whether Congress did

with this analysis of the rule of lenity. In Bifulco, the lan-

guage, structure, and history of the Act were found to dis-

close the Congressional intent not to authorize a special

parole term for conspiracy under Section 846, and the Court

relied on the rule of lenity only insofar as “doubts remain[ed]”’

after these sources were examined (slip op. 19). Bifulco did

not abandon the longstanding principle that, absent an ex-

press indication of a contrary legislative intent, Congress is

understood to have “an attitude not of lenity but of severity

toward violation of the narcotics laws” (Gore V. United States,

supra, 357 U.S. at 391). |

* * * provide [for cumulative punishments]” (445

U.S. at 689). And, as discussed above, we believe

that Sections 846 and 963, considered in light of the

Blockburger rule, do authorize consecutive sentences

for conspiracy to import and distribute marijuana.”

Notwithstanding Whalen, petitioners urge (Br. 28)

this Court to determine whether violations of Sec-

tions 846 and 963, “in fact, constitute a single of-

fense.” However, they have conspicuously failed to

provide any standards for making this determination,

and their argument fundamentally ignores the fact

that the question of multiple punishments “cannot

be resolved without determining what punishments

the Legislative Branch has authorized” (Whalen v.

United States, supra, 445 U.S. at 688). As this

Court has long recognized, “[c]umulative sentences

* * * sre not cumulative punishments, and a single

sentence for several offences, in excess of that pre-

seribed for one offence, may be authorized by stat-

ute.” Callanan v. United States, supra, 364 U.S. at

598, quoting Carter v. McClaughry, 183 U.S. 365,

394 (1902). See also Westen & Drubel, Toward a

General Theory of Double Jeopardy, 1978 Sup. Ct.

Rev. 81, 113-114 (1979) (footnotes omitted) :

[I]t can be argued that the Double Jeopardy

Clause contains an independent standard of its

own for defining whether offenses are the same.

Insofar as this thesis assumes that “same of-

17 ven apart from the decision in Whalen, we submit that,

as a matter of first principles, the Double Jeopardy Clause

does not bar consecutive sentences that are authorized by

Congress and imposed at a single sentencing proceeding fol-

lowing a single trial. This position is fully set out in our brief

in Whalen, a copy of which is being sent to counsel for peti-

tioners, and we rely on that presentation here.

fense” has substantive content that is independ-

ent of domestic law as defined by the legislature,

it demands more of the Double Jeopardy Clause

than it is capable of supplying.

* * * (T]he argument assumes that the Double

Jeopardy Clause is capable of reducing the con-

cept of a criminal offense to its smallest rational

unit, or atom, beyond which further fragmenta-

tion cannot occur without creating a “doubling

effect.” The difficulty with this assumption is

that the size of any unit of prosecution depends

on the legislature’s purpose in making it an of-

fense, and purposes of punishment are notori-

ously diverse.

oa * * * *

The flaw * * * is to assume that there is an

objective basis for determining the maximum

number of statutory offenses implicit in a single

course of conduct. There is simply no way to

make sense out of the notion that a course of

conduct is “really” only one act, rather than two

or three, or, indeed, as many as one likes.

Contrary to petitioners’ assumption, the “legislative

intent must ultimately control” the question whether

consecutive sentences are proper. Jd. at 122; see also

id. at 157, 159.

The unsoundness of petitioners’ argument is illus-

trated by the following example. If Congress enacted

a statute expressly providing that conspiracy to im-

port and distribute marijuana shall be subject to a

maximum of 10 years’ imprisonment and that con-

spiracy either to import or to distribute marijuana

shall be punished by not more than five years’ im-

prisonment, there can be no doubt that this statute

would not offend the Double Jeopardy Clause. Cf.

Gore v. United States, supra, 357 U.S. at 392-393.

Yet, as previously discussed, Sections 846 and 963

are not meaningfully different from the hypothetical

statute. The fact that Congress sought to accomplish

the same purpose through a different form of statute

surely cannot be thought to violate double jeopardy.

But even if it be assumed that there may be cir-

cumstances in which multiple punishments authorized

by Congress could be unconstitutional under the

Double Jeopardy Clause, petitioners’ sentences in this

case would nonetheless be valid. To the extent that

the Clause limits the authority of the legislature to

define criminal offenses and to fix criminal penalties,

“It]he Blockburger test * * * is a guide for deter-

mining when two separately defined crimes constitute

the ‘same offense’ for double jeopardy purposes.”

Simpson v. United States, supra, 485 U.S. at 11. As

discussed above (see pages 12-16, supra), conspiracy

to import marijuana, in violation of 21 U.S.C. 963,

and conspiracy to distribute marijuana, in violation

of 21 U.S.C. 846, plainly meet the Blockburger stand-

ard. And where, as here, the statutory provisions

satisfy Blockburger, they do not prescribe the “same

offense,” and consecutive sentences are not barred.

See Harris v. United States, 359 U.S. 19, 21-24

(1959); Pereira v. United States, 347 U.S. 1, 9

(1954); Gore v. United States, supra, 357 U.S. at

392-393; Albrecht v. United States, 273 U.S. 1, 11-12

(1927); Gavieres v. United States, 220 U.S. 3838,

342-344 (1911).

Petitioners argue that Blockburger is inapplicable

to conspiracy offenses. In their view, because con-

18 Moreover, as discussed at pages 16-17 note 8, supra,

this is not a case “where the government relied on the

same proofs to support the convictions under both stat-

utes.” (Simpson v. United States, supra, 435 U.S. at 12).

spiracy is an inchoate crime that consists of the

agreement itself irrespective of the number of illegal

objectives it encompasses (see Br. 22-25, 28), only

a single offense has occurred in this case regardless

of Blockburger.

However, nothing in the Double Jeopardy Clause

requires Congress to define the crime of conspiracy

in terms of a single, indivisible element—the agree-

ment. As discussed above, the Clause provides no

measure for determining in some abstract sense

whether, as petitioners put it (Br. 29), there were

multiple conspiracies or only one conspiracy with

multiple objectives. The number of punishable of-

fenses depends on the statute adopted by Congress.

Even assuming that the Double Jeopardy Clause im-

poses some constraints on this Congressional deci-

sion, it is nowhere written in constitutional stone that

conspiracy must be defined by reference to the under-

lying agreement without regard to the number or

nature of the illegal objectives. And, in American

Tobacco Co. v. United States, supra, 328 U.S. at 788,

this Court held, contrary to petitioners’ contention

here, that Blockburger applied to conspiracy offenses

and that Congress could authorize cumulative punish-

ments for a single agreement to violate two substan-

tive statutes.”

19 For the reasons discussed at pages 17-18, supra, Braver-

man Vv. United States is not to the contrary. Rather

than establishing a constitutional principle that an agree-

ment to commit diverse crimes necessarily comprises only a

single conspiracy, the Court in Braverman merely construed

the general conspiracy statute to hold, as a matter of Con-

gressional intent, that “[t]he gist of the crime of conspiracy

as defined by the statute is the agreement * * *” (317 USS.

at 53; emphasis added).

It is well settled that, consistent with the Double

Jeopardy Clause, a single transaction can give rise

to distinct offenses under separate statutes. See, ¢.g.,

Harris v. United States, supra; Gore v. United States,

supra; Blockburger v. United States, supra. Indeed,

a single act can be punished as violative of several

statutes without running afoul of the Clause—for

example, one who threatens or attacks another in

public may be guilty of both assault and disturbing

the peace (cf. Gavieres v. United States, supra), and

one who sells liquor to a minor on Sunday may be

convicted under both a Blue-Law statute and a child-

liquor statute (see Developments in the Law—Crimi-

nal Conspiracy, supra, 72 Harv. L. Rev. at 966

n.335). In the same way, the Double Jeopardy Clause

does not forbid Congress to conclude that an agree-

ment to commit two offenses is more pernicious and

should be more severely penalized than an agreement

to commit one offense.”

2 This conclusion is entirely consistent with the cases cited

by petitioners to support their claim that Blockburger is not

appropriate to determine the validity of cumulative punish-

ments for conspiracy. First, those cases concerned multiple

conspiracies charged under the same statutory provision; as

previously discussed (see page 18 note 9, supra), Blockburger

is applicable in cases, like the instant one, in which two distinct

statutory provisions are at issue. Second, the cases relied on

by petitioners involved successive prosecutions rather than, as

here, consecutive sentences imposed after a single trial; as the

Court has recognized, different considerations pertain to the

questions of multiple prosecutions and multiple punishments.

See Whalen v. United States, supra, 445 U.S. at 700-701

(Rehnquist, J., dissenting) ; Brown v. Ohio, 432 U.S. 161, 165-

166, 166-167 n.6 (1977) ; Abbate v. United States, 859 U.S.

187, 198-201 (1959) (opinion of Brennan, J.) ; see also Illinois

v. Vitale, supra, slip op. 9-11; Harris v. Oklahoma, 433 U.S.

682 (1977).

Accordingly, if, as we contend, Sections 846 and

963 are construed to authorize consecutive sentences

for conspiracy to import and distribute marijuana,

the imposition of such sentences on petitioners would

not violate the Double Jeopardy Clause.”

21 Although the total sentence of each petitioner exceeded the

maximum for either count alone (see page 10 note 4, supra),

the sentence imposed on each count was less than the statutory

maximum for that count. In the event the Court concludes,

on either statutory or constitutional grounds, that petitioners’

consecutive sentences are improper, we submit that the dis-

position of the case that would be “just under the circum-

stances” (28 U.S.C. 2106) would be to remand for re-

sentencing on one of the counts, subject to the restrictions

that the re-sentence cannot exceed either the maximum

sentence provided by statute for that count or the total sen-

tence petitioners originally received on both counts. This

course will enable the district court to impose the sentence

it thinks most suitable in light of the Court’s decision that

cumulative punishments are impermissible for conspiracy to

import and distribute marijuana. This issue is discussed in

our brief in Busic v. United States, swpra, a copy of which

is being sent to counsel for petitioners; as in Busic (slip op.

14 n.19), the Court may wish to allow the court of appeals

to consider this question in the first instance. See also United

States v. Hodges, No. 79-4057 (5th Cir. Oct. 14, 1980), slip

op. 318-819; cf. United States v. DiF rancesco, No. 79-567

(Dec. 9, 1980). We ulso note that in those cases holding that

Sections 846 and 968 do not authorize cumulative punishments,

the courts of appeals vacated the sentences on all affected

counts and remanded for resentencing on one count. See

United States v. Honneus, supra, 508 F.2d at 570, 577; United

States v. Adcock, supra, 487 F.2d at 640; see also United

States v. Rivera Diaz, supra, 588 F.2d at 466; United States

v. Fruit, 507 F.2d 194, 195 (6th Cir. 1974).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.