Appendix — Ricketts v. Adamson

——— ———7

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

———

STATE OF AR‘ZONA,

Petitioner,

JOHN HARVEY ADAMSON,

Respondent,

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

JACK ROBERTS

Assistant Attorney General

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)255-4686

Attorneys for PETITIONER

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Opinion of the Ninth Circuit Court of Appeals

John Harvey ADAMSON,

Petitioner-Appellant,

James G. RICKETTS, Director, Arizona

Department of Corrections, et al.

Respondents-Appellees.

No. 84-2069.

United States Court of Appeals,

Ninth Circuit.

Argued En Banc and Submitted

Sept. 17, 1985.

Decided May 9, 1986.

OPINION

Habeas corpus petition was filed. The

United States District Court for the

District of Arizona, C.A. Muecke, J.,

dismissed petition, and petitioner

appealed. The Court of Appeals, 758 F.2d

441, affirmed. That decision was vacated

when majority of circuit judges voted to

have appeal determined by en banc panel.

The Court of Appeals, Ferguson, Circuit

Judge, held that: (1) second-degree

murder was lesser included offense of

first-degree murder, so that, under

double jeopardy clause, defendant who

pled guilty to second-degree murder could

not be reprosecuted for first-degree

murder, and (2) defendant did not waive

his double jeopardy rights by entering

into plea agreement which provided that

agreement would become void if defendant

ah=ale

refused to testify in subsequent criminal

prosecutions.

Reversed and remanded.

Brunetti, Circuit Judge, filed

dissenting opinion in which Kennedy,

Alarcon and Beezer, Circuit Judges,

5;oined.

Kennedy, Circuit Judge, filed

dissenting opinion.

Timothy J. Foley, San Francisco, Cal.,

Timothy K. Ford, Seattle, Wash., for

petitioner-appellant.

Robert K. Corbin, Atty. Gen., William

J. Schafer, III, Chief Counsel, Jack

Roberts, Asst. Atty. Gen., Phoenix,

Ariz., for respondents-appellees.

ahotea

Appeal from the United States District

Court for the District of Arizona.

Before KENNEDY, HUG, SCHROEDER,

PREGERSON, ALARCON, FERGUSON, NELSON,

BOOCHEVER, NORRIS, BEEZER, and BRUNETTI,

Circuit Judges.

FERGUSON, Circuit Judge:

Petitioner filed a petition for a writ

of habeas corpus in the District Court of

Arizona after exhausting all his state

remedies. He contends that his

conviction for first degree murder and

death sentence violated various

provisions of the federal Constitution.

The district court denied his petition,

and a panel of this court affirmed that

denial, Adamson v. Ricketts, 758 F.2d 441

(9th Cir. 1985). That decision was

vacated when the majority of the judges

hata

of the circuit voted to have the appeal

determined by an en banc parel. We

reverse the district court and direct the

issuance of a writ of habeas corpus.

Be

Petitioner Adamson was arrested and

charged with the 1976 car bombing murder

of Don Bolles, an investigative reporter

in Arizona. In January 1977 Adamson and

the state entered into a plea

agreement '* under which Adamson would

testify against two other individuals and

plead guilty to second degree murder. In

exchange, Adamson would receive a

sentence of 48-49 years imprisonment,

with actual incarceration time to be 20

years, 2 months.

On January 15, 1977, Superior Court

Judge Ben Birdsall reviewed the plea

*Footnotes are set out in full at the

conclusion of the text.

aiaG in

agreement, but conditioned his acceptance

of its provisions until he determined the

appropriateness of the sentence. Four

days later, Judge Birdsall found the

sentence appropriate and accepted the

guilty plea and plea agreement provisions.

After the court's acceptance of the

plea agreement, for the next three years

Adamson cooperated with authorities. On

the basis of Adamson's testimony, Max

Dunlap and James Robison were convicted

of the first degree murder of Bolles.

‘While the Dunlap and Robison convictions

were pending on appeal, the state moved

to have Adamson's sentence imposed.

Judge Birdsall sentenced Adamson to the

agreed term of 48-49 years on December 7,

1978.

On February 25, 1980, the Arizona

Supreme Court reversed the’ convictions of

Max Dunlap and James Robison and remanded

-A-5-

the cases for new trials. State v.

Dunlap, 125 Ariz. 104, 608 P.2d 41

(1980); State v. Robison, 125 Ariz. 107,

608 P.2d 44 (1980). When the state

sought to secure Adamson's testimony in

the retrials, Adamson's lawyer stated

that his client believed that the plea

agreement terminated his obligations once

he was sentenced. He further stated that

Adamson requested additional

consideration, including release, in

exchance for his testimony at the

retrials.* The state, in a letter to

Adamson's attorneys dated April 9, 1980,

stated that it considered Adamson to have

breached the plea agreement by refusing

to testify and that Adamson would be

prosecuted for first degree murder.”

A few days later, the state called

Adamson as a witness at a pretrial

hearing in the Dunlap and Robison

retrials. Adamson reconfirmed his

«A-6<

previous testimony concerning the Bolles

killing but asserted a Fifth Amendment

privilege when questioned about another

erime. After examining the state's

letter of April 9, 1980, Superior Court

Judge Robert L. Myers denied the state's

motion to compel Adamson to testify.

Judge Myers concluded that Adamson could

legitimately assert his Fifth Admendment

[sic] rights unless the state granted him

immunity from prosecution. Although the

state sought review of Judge Myers’

denial of the motion to compel Adamson to

testify, the Arizona Supreme Court

declined to accept jurisdiction of the

Special Action Petition. Adamson v.

Superior Court, 125 Ariz. 579, 582, 611

P.2d 932, 935 (1980) (en banc).

The state filed a new information

charging Adamson with first degree

murder, id., which he challenged by a

Special Action in the Arizona Supreme

ahate

Court, id. at 579, 611 P.2d at 933. The

court held that Adamson, by refusing to

testify, breached the plea agreement and

that he waived the defense of double

jeopardy. Id. at 584, 611 P.2d at 937.

The court vacated Adamson's second degree

murder sentence, judgment of conviction,

and guilty plea, and reinstated the open

murder charge. Following that decision,

Adamson offered to accept the state's

interpretation of the agreement and to

testify against Dunlap and Robison. The

state refused Adamson's offer and

proceeded with the charge of first degree

murder.

Adamson unsucessfully sought federal

habeas corpus review pursuant to

28 U.S.C. § 2254, and this court affirmed

in an unpublished memorandum disposition

the district court's denial of the

petition. Adamson v. Hill, 667 F.2d 1030

(9th Cir. 1981). On October 17, 1980, |

oAoQ-

Adamson was convicted of first degree

murder... At sentencing, in accordance

with the Arizona statute,

Ariz.Rev.Stat.Ann. § 13-703(C),

Judge Birdsall concluded that two

aggravating circumstances -- (1) the

defendant committed the offense as

consideration for the receipt, or in

expectation of the receipt, of anything

of pecuniary value, and (2) the defendant

committed the offense in an especially

heinous, cruel or depraved manner -- were

present to invoke a death sentence. The

Arizona Supreme Court affirmed. State v-

Adamson, 136 Ariz. 250, 665 P.2d 972,

cert. denied, 464 U.S. 865, 104 S.Ct.

204, 78 L.Ed.2d 178 (1983). The

petitioner then instituted the present

federal habeas corpus proceeding.

The issues before this court are (1)

whether the admission of certain evidence

at trial violated the Confrontation

oho Ge

Clause; (2) whether the Arizona statute

denied the petitioner's right to a jury

trial by permitting judicial factfinding

to determine eligibility for a death

sentence; (3) whether the Arizona

statute's aggravating factor of heinous,

cruel or depraved manner is

unconstitutionally vague; (4) whether the

imposition of a death sentence following

Adamson's assertion of his Fifth

Amendment rights constitutes

prosecutorial or judicial

vindictiveness; (5) whether the

Arizona statute violates the Eighth

Amendment by requiring a death sentence

if aggravating circumstances are present;

and (6) whether prosecution for first

degree murder after Adamson’s guilty plea

and conviction for second degree murder

violated the prohibition against double

jeopardy. Because the state's actions

violated the Double Jeopardy Clause, we

-A-10-

do not discuss or decide the validity of

the remaining issues.

Il.

The Double Jeopardy Clause, which

applies to state proceedings, Benton V.

Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969), provides that no

person shall “ine subject for the same

offense to be twice put in jeopardy of

life or limb." U.S. Const. amend. V.

The clause incorporates three separate

guarantees: “It protects against a

second prosecution for the same offense

after acquittal, against 4a second

prosecution for the same offense after

conviction, and against multiple

punishments for the same offense.”

Justices of Boston Municipal Court Vv.

Lyndon, 466 U.S. 294, 306-07, 104 $.Ct.

1805, 1812-13, 80 L.Ed.2d 311 (1984)

(citing Illinois v. Vitale, 447 U.S. 410,

415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228

-A-1l-

(1980); see United States v. Brooklier,

637 F.2d 620, 621 (9th Cir.), cert.

denied, 450 U.S. 980, 101 S.Ct. 1514, 67

L.Ed.2d 815 (1980).

Implicit in the prohibition against

prosecution for the same offense

following conviction is the

“constitutional policy of finality for

the defendant's benefit.” United States

vy. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547,

554, 27 L.Ed.2d 543 (1971) (plurality

opinion); see also United States v.

Scott, 437 U.S. 82, 92, 98 S.Ct. 2187,

2194, 57 L.Ed.2d 65 (1978) (“primary

purpose of the Double Jeopardy Clause was

to protect the integrity of a final

judgment”). Without this respect for

finality, prosecutors, equipped with

substantially greater resources than most

individuals, would be permitted and

encouraged to reprosecute defendants when

the result was any sentence short of the

-A-12-

maximum penalty. See United States V-

Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075,

1079, 47 L.Ed.2d 267 (1976) ("Underlying

this constitutional safeguard is the

belief that ‘the State with all its

resources and power should not be allowed

to make repeated attempts to convict an

individual for an alleged offense,

thereby subjecting him to embarrassment,

expense and ordeal and compelling him to

live in a continuing state of anxiety and

insecurity, 4s well as enhancing the

possibility that even though innocent he

may be found guilty.'”) (quoting Green V-

United States, 355 U.S. 184, 187-88, 78

S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957)).-

For a defendant to invoke the double

jeopardy bar against 4a subsequent

prosecution, jeopardy must have attached

to the first prosecution. When the

defendant forgoes the right to have guilt

determined by the trier of fact and

-A-13-

instead pleads guilty to the charged

offense, under.some circumstances

jeopardy attaches when the judge accepts

the plea. See, e.g., United States v.

Vaughan, 715 F.2d 1373, 1378 n.2 (9t%

Cir. 1983); United States v. Bullock, 575

F.2d 1116, 1118 (8th Cir.), cert. denied

439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d

425 (1978).

Here it appears that the plea was

accepted subject to certain conditions.

We need not decide whether jeopardy

attached upon such an acceptance, see

United States v. Cruz, 709 F.2d 1l1l,

114-15 (lst Cir. 1983), because, in any

event, jeopardy attached to the

prosecution for second degree murder when

Judge Birdsall entered a judgment of

conviction and sentenced Adamson on

December 7, 1978.

Double jeopardy prohibits multiple

prosecutions for the same offense. AS a

-A-14-

general rule, a conviction for a

lesser-included offense bars the

subsequent prosecution for the greater

offense. Illinois v. Vitale, 447 U.S.

410, 419-21, 100 S.Ct. 2260, 2266-68, 65

L.Ed.2d 228 (1980); United States v.

Stearns, 707 F.2d 391, 393 (9th Cir.

1983), cert. denied, 464 u.S. 1047, 104

S.Ct. 720, 79 L.Ed.2d 181 (1984). The

Supreme Court, in Brown v. Ohio, 432 U.S.

161, 168, 97 S.Ct. 2221, 2226-27, 53

L.Ed.2d 187 (1977), determined that 4

conviction for joyriding barred the

subsequent prosecution for the greater

offense of auto theft because the

“greater offense is... by definition

the ‘same’ for the purposes of doubl

jeopardy as any lesser offense included

in it.” See also Garrett v. United

States, U.S. , 105 S.Ct. 2407,

2416, 85 L.Ed.2d 764 (1985) (Brown

defendant “engaged in a single course of

-A-15-

conduct"). To analyze this issue we must

determine whether each offense “requires

proof of a fact which the other does

not.” Blockburger v. United States, 284

U.S. 299, 304, 52 S.Ct. 180, 182, 76

L.Ed. 306 (1932); see also Vitale, 447

U.S. at 416-17, 100 S.Ct. at 2265-66.

The state argues that Adamson was not

subject to double jeopardy because his

first conviction was for second degree

murder and his second conviction was for

first degree murder. If accepted, this

reasoning would vitiate any protection

guaranteed by the Double Jeopardy

Clause. As with Brown, Adamson's second

degree murder conviction was a

lesser-included offense of first degree

murder. A conviction for second degree

murder .equires no fact that is not also

needed to sustain a first degree murder

conviction. Furthermore, the State of

Arizona even recognizes this relationship

-A-16-

by classifying the two types of murder as

different degrees of the same crime. See

Ariz.Rev.Stat.Ann. § 13-452, repealed by

Laws 1977, ch. 142, § 15, effective

October 1, 1978. Thus, Adamson's double

jeopardy rights were violated by the

subsequent prosecution for first degree

murder.

IIl.

The Arizona Supreme Court agreed that

jeopardy attached to the second degree

murder prosecution, Adamson v. Superior

Court, 125 Ariz. 579, 584, 611 P.2d 932,

937 (1980), but it vacated Adamson's

conviction and sentence because it

believed that he had waived his double

jeopardy rights by the plea agreement.

We need not resolve whether a defendant

may waive double jeopardy rights in the

same manner as other constitutional

rights because we conclude that, even if

-A-17-

double jeopardy protection is walivable,

it was not waived in this case.

“*(Cjlourts indulge every reasonable

presumption against waiver’ of

fundamental constitutional rights and

‘do not presume acquiescence in the

loss of fundamental rights. Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed. 1461 (1938) (quoting Aetna

Insurance Co. v. Kennedy, 301 U.S. 389,

393, 57 S.Ct. 809, 811-12, 81 L.Ed. 1177

(1937), and Ohio Bell Telephone Co. v.

Public Utilities Commission, 301 U.S.

292, 307, 57 S.Ct. 724, 731-32, 81 L.Ed.

1093 (1937)). Before finding that a

defendant has waived a right, a court

must be convinced that there was “‘an

intentional relinquishment or abandonment

of a known right or privilege.*” United

States v. Anderson, 514 F.2d 583, 586

(7th Cir. 1975) (quoting Zerbst, 304 U.S.

at 464, 58 S.Ct. at 1023). In situations

-A-18-

involving other constitutional rights, we

have required a finding that the

defendant's waiver was. “made. voluntarily,

knowingly and intelligently.” United

States v. Cochran, 770 F.2d 850, 851 (9th

Cir. 1985) (waiver of right to jury

trial). Furthermore, given the

importance of the right, such waiver must

be made expressly, rather than implied by

conduct. Cf. Menna v. New York, 423 .8.

61, 96 S.Ct. 241, 46 L.Sd.2d 195 (1975)

(per curiam) (will not imply waiver of

double jeopardy rights from guilty plea

in second prosecution); Launius v. United

States, 575 F.2d 770 (9th Cir. 1978).

The state maintains that Adamson waived

the double jeopardy protection when he

signed the agreement. It urges this

court to adopt the Arizona Supreme

Court's conclusion that the plea

agreement “by its very terms waives

double jeopardy if... [it] is

-A-19-

violated." Adamson v. Superior Court of

Arizona, 125 Ariz. 579, 584, 611 P.2d

932, 937 (1980).°- To support this

conclusion, the state argues that Adamson

impliedly waived his double jeopardy

claim by accepting paragraphs five and

fifteen of the plea agreement. Paragraph

five outlines Adamson's obligation to

testify and provides that if he refused,

"this entire agreement is null and void

and the original charges will be

automatically reinstated.” Paragraph

fifteen provides that if “this agreement

becomes null and void, then the parties

shall be returned to the positions they

were in before this agreement.”

The state's contention that these

paragraphs constitute a knowing waiver of

double jeopardy is without merit. It may

well be argued that the only manner in

which Adamson could have made an

intentional relinquishment of a known

-A-20-

double jeopardy right would be by waiver

“spread on the record” of the court after

an adequate explanation. See Boykin v.

Alabama, 395 U.S. 238, 242, 89 S.Ct.

1709, 1711-12, 23 L.Ed.2d 274 (1968).

Even if we were to permit a waiver by

implication, the more reasonable

interpretation of the agreement is that

double jeopardy was not waived. 7 ie

agreement contains several express

waivers of constitutional rights,

including the right to a jury trial, to

confront and cross-examine witnesses

against him, to present a defense, to

have appointed counsel, to remain silent,

and to be presumed innocent until proved

guilty beyond a reasonable doubt.

Although each of these waivers is

specified in the agreement, double

jeopardy is not mentioned. Furthermore,

when reviewing the plea agreement,

Judge Birdsall questioned Adamson at

-A-21-

length about his waiver of the

constitional rights enumerated in the

document, but- did not. inquire about any

waiver of double jeopardy claims.

The plea agreement provides in

paragraph five that “should the defendant

refuse to testify .. . then this entire

agreement is null and void and the

Original charges will be automatically

reinstated.” Nothing in the agreement

specifies that Adamson waived any

defenses he had to those charges,

including the constitutional defense of

double jeopardy. Agreeing that charges

may be reinstituted under certain

Circumstances is not equivalent to

agreeing that if they are reinstituted a

double jeopardy defense is waived. No

evidence has been presented that suggests

Adamson knew he was waiving his double

jeopardy defense to the reinstituted

charge. The plain language of the plea

-A-22-

agreement merely provided that under

certain circumstances the charges could

be reinstituted.

Even if we assume, as the state

contends, that the plea agreement

contained an implied waiver of double

jeopardy rights, the most that could be

found implied in the plea agreement is

that if Adamson did, or refused to do,

something in the future, his action or

inaction would constitute a waiver of his

double jeopardy rights. But to meet the

test of a knowing, intentional waiver

there would have to be an action or

inaction that Adamson knew would

constitute a waiver. Simple contractual

principles are ill-suited to determine

whether there has been a waiver of a

vital constitutional right. The state

argues, in effect, that Adamson entered

into a contract, and that implied in that

contract was a provision that if it was

-A-23-

ultimately determined that Adamson

breached the contract, even though he did

so unknowingly, the effect of the breach

would be to waive his double jeopardy

rights. Although unintentional breaches

of contract can form the basis for

damages in civil contract litigation,

such principles are inappropriate to

determine whether a defendant in a

Criminal action has knowingly and

intentionally waived a constitutional

right.

To constitute a knowing and intentional

waiver of double jeopardy rights based on

the breach of a plea agreement, the

defendant's action constituting the

breach must be taken with the knowledge

that in so doing he waives his double

jeopardy rights. Adamson's obligation to

testify under the terms of the plea

agreement was not clear and was

reasonably subject to the interpretation

-A-24-

that he and his attorney advanced. When

there was a reasonable. dispute as to -

Adamson's obligation to testify, there

could be no knowing or intentional waiver

until his obligation to testify was

announced by the court. In this case,

the superior court had uphela his refusal

to testify and it was not until the

Arizona Supreme Court ruling in Adamson

v. Superior Court, 125 Ariz. 579, 611

P.2d 932 (1980), that it was judicially

determined that he was obligated under

the plea agreement to testify.

Immediately thereafter, Adamson agreed to

do so.

Adamson reasonably believed that a

refusal to testify did not constitute 4

breach of the agreement. The only

unambiguous language in the agreement

referring to when his obligation to

testify terminated appears in paragraph

eight. That paragraph provides that

-A-25-

sentencing would occur “at the conclusion

of his testimony in all of the cases.”

Logic and common sense support Adamson's

position that when the state moved for

sentencing, it acknowledged chat his

obligation to provide further testimony

ended. The other provisions of the

agreement support this interpretation.

The state explicitly provided for two

obligations that would continue past

sentencing -- Adamson's waiver of early

parole and his waiver of an appeal. The

obligation to testify could quite

reasonably be interpreted to terminate at

the time cf sentencing.

Even if Adamson was obligated to

testify after sentencing, it was

reasonable for him to believe that his

assertion of his Fifth Amendment rights

at the Robison and Dunlap pretrial

hearings did not violate the agreement.

At oral argument, the state admitted that

-~A-26-

Adamson's attorney's letter listing the

additional demands in. exchange for. his

testimony was not a breach of the

agreement. Rather, it was Adamson's

assertion of his interpretation of the

agreement. Adamson’s refusal to testify

at the Dunlap and Robison pretrial

hearings was in direct response to the

state's letter purporting to withdraw the

protection of the plea agreement. It was

reasonable for him to believe that the

state's position vitiated his obligation

to testify. Furthermore, Judge Myers

upheld the validity of his Fifth

Amendment assertion, and the Arizona

Supreme Court refused to hear the state's

appeal. \

We fail to see how advancing one’s

interpretation of a plea agreement

without more constitutes a knowing and

voluntary waiver of double jeopardy. A

defendant has the right to assert a

-A-27-

reasorable construction of an agreement

that differs.from.the.state’'s

interpretation. Otherwise, prosecutors

would force defendants into accepting

their interpretation. Adamson’s position

is a reasonable reading of the

agreement. The defendant, faced with the

state's letter asserting that he was no

longer protected from prosecution, could

hardly be expected to forgo the

constitutional protection against

self-incrimination, especially when the

Arizona Supreme Court refused to reverse

Judge Myers‘ decision.

Although the Arizona Supreme Court may

have correctly decided under state law

that Adamson breached the agreement, its

vacation of the conviction and sentence

did not remove the jeopardy that attached

at Adamson's prior sentencing. The court

relied on pararaph five's provision that

Adamson's failure to testify would

-A-28-

nullify the agreement. By its express

provisions, this clause could only result

in voiding the executory agreement; it

has no effect on the judgment of

conviction and sentence.

The state argues that this literal

interpretation of the plea agreement

would make the bargain illusory. Such a

claim ignores available options to ensure

performance. Competent drafting of the

agreement was certainly a method

available to the state. The agreement

could have addressed the waiver issue,

specifically, whether a double jeoparcy

defense to a reinstated charge of first

degree murder would be waived and what

actions of Adamson would bring about the

waiver. Even absent sufficient foresight

and adequate drafting, the state would

have avoided the entire problem by

waiting until the Dunlap and Robison

prosecutions were completed before having

-A-29-

Adamson sentenced. The state offered no

reason why Adamson had to be sentenced in

December 1978. In fact, there was none.

Both parties had waived the time for

sentencing in paragraph eight. Finally,

the state could have called Adamson to

testify after he agreed to do so. The

state claims this last option was

inadequate because Adamson's credibility

was diminished after his attorney

submitted the list of additional

requests. We are unpersuaded that a

confessed murderer who has agreed to

testify in return for a lesser punishment

would have less credibility because his

attorney made additional demands which

were rejected by the state.

We conclude that jeopardy attached to

the conviction for second degree murder

and that Adamson did not knowingly and

intelligently waive his double jeopardy

protections.’

-A-30-

IV.

The district court is directed to issue

a writ of habeas corpus freeing the

petitioner from the sentence and

servitude of his conviction of first

degree murder and the imposition of the

death sentence.

The granting of the writ will not

impair in any degree the conviction and

sentence of the petitioner for the second

degree murder based upon his plea

agreement. The petitioner does not

assert any invalidity in that sentence,

and indeed he cannot as his claim of

double jeopardy is based upon the fact

that the second degree murder conviction

+s valid and enforceable. See State v-

Shaw, 646 S.W.2d 52 (Mo. 1983) (validity

of first conviction unaffected by

prohibiting second prosecution) ; 4 #

Morris v. Mathews, _ U.S. , 106

—<—$<$—$—_

S.Ct. 1032, 1038-39, 89 L.Ed.2d 187

-A-31-

(1986) (appellate court permitted to

reduce jeopardy-barred conviction to

lesser-included offense that is not

jeopardy-barred). Without such a valid

conviction, there could be nothing upon

which double jeopardy attaches.

The judgment of the district court

denying the petition for writ of habeas

corpus is reversed. The district court

is directed to issue a writ of habeas

corpus that frees the petitioner from the

death penalty. The writ shall further

provide for release of the defendant from

all restraint caused by his conviction of

first degree murder unless the Arizona

Supreme Court, on or before six months

from the date of the mandate in this

appeal, reinstates the conviction for

second degree murder that it previously

vacated. See Morris v. Mathews, 106

S.Ct. at 1038-39.

REVERSED AND REMANDED.

-~A-32-

l.

FOOTNOTES

The text of the plea agreement

appears in Appendix A.

The letter sent by Adamson's

attorney included the following terms

for Adamson‘s future testimony: (1)

release from custody after

testifying; (2) to be held in a

non-jail facility with full-time

protection during the retrials; (3) 4

complete set of clothing; (4)

protection for his ex-wife and son;

(5) an educational fund for his son;

(6) transportation and funds for

establishing a new identity outside

of Arizona; and (7) full and complete

immunity for all crimes in which he

may have been involved, stipulating

that none were murders. The full

text of the letter is contained in

Appendix B.

The text of the state's letter is

contained in Appendix C.

The dissenting opinion contends

that in this case there was no

prosecutorial or judicial

vindictiveness. AS we have declined

to address the validity of that

issue, we express no opinion about

the position taken by the dissent.

The Arizona Supreme Court relied on

the text of the agreement and a

statement by Adamson's attorney at

the time of sentencing in which

Adamson's attorney acknowledged that

his client understood that he might

have to testify at a future

proceeding. The dissent likewise

-A-33-

relies on the attorney's statement as

evidence that Adamson knew that his

obligations continued after

sentencing.

The uncontroverted explanation of

this “understanding” is that it

involved a wholly separate

prosecution. Simply because Adamson

might have modified his obligations

under the plea agreement to include

testifying in the Ashford Plumbing

Co. trial after his sentencing, this

modification cannot be used as

“evidence” that he knew he had to

testify further against Dunlap and

Robison. Moreover, even if the

reference were to the possible Dunlap

and Robison retrials, an attorney's

actions cannot constitute a waiver of

his or her client's protection

against double jeopardy. See United

States v. Rich, 589 F.2d 1025, 1032

(10th Cir. 1978) (“Inasmuch as this

right is anchored to the United

States Constitution, it cannot be

waived by one other then [sic] the

accused.”).

The Arizona Supreme Court's finding

of a waiver does not preclude this

court's own inquiry into that issue.

Whether Adamson's actions constituted

a waiver of a constitutional right is

determined by federal law. Gladden

v. Unsworth, 396 F.2d 373, 376 (9th

Cir. 1968). In a habeas review a

federal court must presume the

correctness of a state appellate

court's findi ig of fact unless one of

the seven circumstances provided for

in 28 U.S.C. § 2254(d) is present or

if the state court finding of fact is

-A-34-

4%

not fairly supported by the record

and the federal court provides 4

written explanation for its

conclusion. Sumner V.- Mata, 455 U.S.

591, 592-93, 102 S.Ct. 1303, 1304-05,

71 L.Ed.2d 480 (1982) (per curiam).

Section 2254(d), however, applies

only to questions of "'basic,

primary, Or historical fac(t].*”

Strickland v. Washington, 466 U.S.

668, 698, 104 S.Ct. 2052, 2070, 80

L.Ed.2d 674 (1984) (quoting Townsend

vy. Sain, 372 U.S. 293, 309 n.6, 83

S.ct. 745, 755 n.6, 9 L.Ed.2d 770

(1963)). When the issue includes a

mixed question of law and fact or

questions of law, section 2254(d)

does not require giving a presumption

of correctness to the state court's

findings. See Fendler v. Goldsmith,

728 F.2d 1181, 1190 n. 21 (9th Cir.

1984).

This case presents a mixed question

of law and facts. Section 2254(d)

applies to “historical” facts, such

as whether Adamson signed the

agreement, but it does not apply to

whether his actions constituted

waiver of double jeopardy. see

Sumner v. Mata, 455 U.S. at 597, 102

S.ct. at 1306-07 (questions of fact

governed by section 2254(d), but

reviewing court may accord “different

weight to the facts"); Fendler v.

Goldsmith, 728 F.2d at 1190 n.21.

Cf. Miller v. Fenton, U.S. ;

106 $.Ct. 445, 451, 88 L.Ed.2d 405

(1985) ("voluntariness of a

confession is a matter for

independent federal determination”).

-A-35-

6. The dissent places great reliance

on Jeffers v. United States, 432 U.S.

137, 153, 97 S.Ct. 2207, 2217-18, 53

L.Ed.2d 168 (1977), to dispose of

Adamson's double jeopardy claims. At

729. Such reliance is misplaced.

The Supreme Court in Jeffers held

that “although a defendant is

normally entitled to have charges on

a greater and a lesser offense

resolved in one proceeding, there is

no violation of the Double Jeop..dy

Clause when he elects to have the two

offenses tried separately and

persuades the trial court to honor

his election.” 432 U.S. at 152, 97

S.Ct. at 2217.

Adamson, unlike Jeffers, never

elected to have two offenses set

forth in two separate indictments

tried separately, nor did he persuade

the trial court to honor his

election, nor were there in fact two

indictments and two triais. The

Jeffers exception to Brown v. Ohio,

432 U.S. 161, 97 S.Ct. 2221, 353

L.Ed.2d 187 (1977), is unapplicable

to the facts of this case.

APPENDIX A

Terms of Plea Agreement

l. The defendant, John Harvey Adamson,

hereby agrees to plead guilty to Murder,

Second Degree.

2. The statutory range of sentence for

Murder, Second Degree, is probation if no

-A-36-

sentence is imposed and ten (10) years to

life if sentence is. imposed.

3. The parties agree that the

defendant shall receive a sentence of

forty-eight (48) to forty-nine (49) years

to date from June 13, 1976. The parties

agree that the defendant shall be

incarcerated for a total of twenty (20)

calendar years and two (2) calendar

months and that the sentence (48-49

years) when computed with statutory

credits will not permit the defendant to

complete the service of the maximum

sentence of forty-nine (49) years until

twenty (20) calendar years and two (2)

calendar months have been passed. It is

also agreed that the defendant will be

incarcerated for no longer than twenty

(20) years and two (2) months. Further

the parties agree that the defendant will

not apply for or be eligible for parole

until twenty (20) calendar years and two

(2) calendar months have passed. If the

defencgant applies for parole, the

defendant agrees that this agreement is

null and void and the original charges

are reinstated automatically. The

parties also agree that if for any reason

the statutory time credits the defendant

earns while incarcerated are taken away

from him through no fault of his,

including time spent in protective

custody, whether requested by the

defendant or ordered by the authorities,

the sentencing Court will recompute the

length of the sentence so that the

defendant will not be incarcerated for

any period longer than twenty (20)

calendar years and two (2) calendar

months.

4. The defendant hereby agrees to

testify fully and completely in any

Court, State or Federal, when requested

by proper authorities against any and all

-A-38-

parties involved in the murder of Don

Bolles, and in the beating of Leslie

Boros at the Sheraton-Scottsdale,

Maricopa County, Arizona, and any and all

parties involved in the crimes listed in

Exhibits A and B filed with this Court as

part of their agreement this date. The

contents of the crimes and persons listed

in Exhibits A and B shall remain sealed

from public view until all of the

individuals listed therein have been

taken into custody or have had charges

filed against them or until the State

requests that the contents be made public.

5. It is agreed by all parties that

the defendant shall testify truthfully

and completely at all times, whether

under oath or not, to the crimes

mentioned in this agreement. This shall

include all interviews, depositions,

hearings and trials. Should the

defendant refuse to testify or should he

-A-39-

at any time testify untruthfully or if

any material fact in the defendant's

transcribed statements given to the State

prior to this agreement be false, then

this entire agreement is null and void

and the original charge will be

automatically reinstated. The defendant

will be subject to the charge of Open

Murder, and if found guilty of First

Degree Murder, to the penalty of death or

life imprisonment requiring mandatory

twenty-five years actual incarceration,

and the State shall be free to file any

charges, not yet filed as of the date of

this agreement.

6. The parties agree that the State

will not prosecute the defendant for the

following crimes: those he will testify

to which are mentioned in this agreement

and iisted in Exhibits A and B, which are

a part of this agreement; those where the

defendant's involvement is presently

-A-40-

known to the police and the subject of

police reports; those which are material

to the direct testimony of the defendant

in relation to the crimes listed in this

agreement and Exhibits A and B; those

crimes which the defendant has revealed

to the State in transcribed statements

and those presently filed and now pending

against the defendant. The pending cases

against the defendant in the Maricopa

County Superior Court will be dismissed

with prejudice at the time of

sentencing. The defendant is to be

severed in those cases from any other

defendants.

7. The parties agree that the

defendant will not testify to any of the

matters referred to in this agreement

until Judge Birdsall has accepted all the

terms and conditions of this agreement.

8. All parties to this agreement

hereby waive the time for sentencing and

-A-41-

agree that the defendant will be

sentenced at the conclusion of his

testimony in all of the cases referred to

in this agreement and Exhibits A and B,

which accompany it.

9. The parties agree that in case of

the resignation, death or incapacitating

illness of the Judge assigned to this

case, any Superior Court Judge assigned

for that purpose by the Presiding Judge

of Maricopa County may sentence the

defendant in accordance with the terms of

this agreement and is thereby bound by

the terms of this agreement.

10. All parties agree that the

sentencing of the defendant may be in any

courthouse in any county seat or any

other place designated by the sentencing

Judge in the State of Arizona in

accordance with Arizona Rules of Criminal

Procedure and A.R.S. Sec. 12-130(C).

-A-42-

ll. The parties agree that the

defendant will not appeal from the

judgment and sentence entered herein

except as may be necessary to recompute

his sentence to insure that he be

incarcerated not longer than twenty (20)

calendar years and two (2) calendar

months. If the defendant appeals from

this plea agreement except as noted

herein, this plea agreement shall be null

and void and all original charges are

automatically reinstated.

12. It is understood by all parties at

this time, and at all times in the past,

that the only party with full authority

to enter into any piea negotiations with

the defendant herein has been William J.

Schafer III, of the office of the Arizona

Attorney General, and that any offers

alleged to have been tendered by any

member of the office of the Maricopa

-~A-43-

County Attorney and specificaily Donald

W. Harris, were made without authority.

It is specifically denied by counsel for

the defendant that Donald W. Harris ever

made any firm offer of ten (10) years

actual incarceration to the defendant

John Harvey Adamson in exchange for 4a

plea of guilty.

13. The parties agree that any Federal

immunity from prosecution will be in

accord with the document filed by the

U.S. Attorney with the Court this date.

14. The parties agree that the

defendant will serve the agreed upon

sentence in a prison outside the State of

Arizona.

LP? In the event this agreement

becomes null and void, then the parties

shall be returned to the positions they

were in before this agreement.

16. That unless the plea is rejected

Or withdrawn, the defendant hereby gives ‘

~A-44-

up any and all motions, defenses,

objections, or requests he has made or

raised, or could assert hereafter, to or

against the Court’s entry of judgment and

imposition of sentence upon him

consistent with this agreement.

17. That the defendant understands the

following rights and understands that he

gives up such rights by pleading guilty:

a. His right to a jury trial;

b. His right to confront the

witnesses against him and cross-examine

them;

c. His right to present evidence and

call witnesses in his defense, knowing

that the State will compel such witnesses

to appear and testify;

d. His right to be represented by

counsel (appointed free of charge, if he

cannot affort [sic] to hire his own) at

the trial of the proceedings; and

-~A-45-

e. His right to remain silent, to

refuse to be a witness against himself,

and to be presumed innocent until proven

guilty beyond a reasonable doubt.

18. The defendant is to remain in the

custody of the Pima County Sheriff from

the date of the entry of his plea until

the conclusion of his testimony in all of

the cases in which the defendant agrees

to testify as a result of this agreement.

-A-46-

APPENDIX B

Letter dated April 3, 1980, from

Petitioner's Attorney to

Attorney General's Office

Stanley L. Patchell, Esq.

Assistant Attorney General

Arizona State Capitol Building

Phoenix, Arizona 85007

Re: State of Arizona vs. John Harvey

Adamson

Case No. CR-93385

Dear Stan:

I am writing to confirm our telephone

conversation of April 2, 1980 wherein we

discussed the availability of John

Adamson for interviews in preparation for

his testimony in the trials of the State

of Arizona vs. James Robison and Max

Dunlap.

-A-47-

As I advised you by phone, I have met

with John Adamson at his place of

incareration [sic] along with my law

partner, Greg Martin. We had lengthy

discussions revolving around his expected

testimony as well as the plea agreement

that he had entered into with the State

of Arizona in the above-referenced case

number. Further, at that time I also

delivered to Mr. Adamson a complete set

of transcripts of his testimony in the

trial of James Robison and Max Dunlap

that was previous [sic] held.

After lengthy discussions and

consideration of all of the various

aspects of this case and the potential

ramifications to Mr. Adamson, I Can

advise you of the following matters:

1. John Harvey Adamson believes that

he has fully complied with, and

completed, his plea agreement entered

into with the State of Arizona. It is,

-A-48-

therefore, his position that his future

testimony in any case involving the

defendants Max Dunlap or James Robison

regarding the killing of Donald Bolles

will only be given upon the offer of

further consideration by the State of

Arizona.

2. John Harvey Adamson is well aware

of the fact that he can be subpoenaed by

your office to appear as a witness in any

criminal matter; however, he is further

aware that the fact that he may be called

to the stand does not mean that he must

testify. He does understand that he may

be directly ordered by the Court to

testify and, if he refuses do so, may be

held in contempt by the Court.

3. John Harvey Adamson is further

fully aware of the fact that your office

may feel that he has not completed his

obligations under the plea agreement in

CR-93385 and, further, that your office

-A-49-

may attempt to withdraw that plea

agreement from him. He is aware that if

the State were successful in doing so,

that he may be prosecuted for the killing

of Donald Bolles on a first degree murder

charge.

4. If the State of Arizona desires to

have Mr. Adamson testify in any further

proceedings against James Robison or

Max Dunlap, it is John Adamson's position

that the following conditions must be met:

a. The State of Arizona will agree

that, upon his completion of his

testimony, John Harvey Adamson will be

released from custody immediately. The

testimony referred to herein is, of

course, testimony in an additional trial

of the State of Arizona vs. Max Dunlap

and possibly, testimony in a separate

trial of the State of Arizona vs. James

Robison. If separate trials are held,

Mr. Adamson'‘s demand for his immediate

~A-50-

release will apply to the completion of

his testimony in whichever trial goes

first. This demand is not to be

considered to be contingent upon any

verdict being reached in either case.

b. If the State agrees to the first

condition, an additional condition wil!

be that when John Harvey Adamson is

transported to Maricopa County for his

testimony in the above-referenced trial,

that he will not be held in a facility of

the Maricopa County Jail or the Maricopa

County Sheriff's Department. It is his

demand that he be held in a non-jail

facility with the agreement that there

will be full time, that being 24-hour,

protection by some law enforcement

agency, preferably the U.S. Marshal's

office, for Mr. Adamson's safety.

c. As a further and separate demand,

John Harvey Adamson wishes to have a

complete clothing outfit prior to his

-A-51l-

testimony in any trial consisting of a

new suit, new shoes, socks, etc.

d. Mr. Adamson further demands that

if his testimony is going to be requested

by the State, his ex-wife Mary and his

son be provided with protection until

such time as Mr. Adamson is released from

custody. Further, Mr. Adamson requests

that an educational fund be set up for

his son.

e. Mr. Adamson further demands that,

upon his release from custody, he will be

provided with suitable transportation and

funds in order for him to travel to a

location outside of the State of Arizona

to set up a new identification and life

for himself. It is anticipated that the

State will work through the U.S.

Attorney's office and the U.S. Marshal's

office in an attempt to comply with this

demand.

~A-52-

f. Further, John Harvey Adamson

demands that, prior to any further

testimony and/or interviews, he be

provided with full and complete immunity

for any and all crimes in which he may

have been involved.

The above basically describes what

Mr. Adamson's demands are for his future

testimony in any case involving James

Robison or Max Dunlap. As we have

discussed many times in the past with

Bill Schafer, the crimes for which John

Adamson requires immunity in order to

fully and completely answer any

cross-examination by defense counsel, are

not of such a nature that the State would

be shocked for the State to extend

immunity for those crimes. Further, I

Can represent that any immunity involved

as far as any homicide case would be

concerned would be an immunity from

-A-53-

prosecution for any indirect, and

unknowing, participation in any homicide.

By this letter, it is represesnted to

you that John Harvey Adamson has not been

directly involved in any actual homicide

outside of the Don Bolles killing.

Again, I would like to re-emphasize the

point that it is Mr. Adamson's position

that he has fully and completely, and in

good faith, fulfilled all of his

obligations under the plea agreement.

The plea agreement was drafted in such a

manner that it was anticipated to be

concluded prior to Mr. Adamson's

sentencing. It is further our position

that, without some type of stipulation, a

Superior Court Judge will not have any

jurisdiction to change, alter, or

withdraw Mr. Adamson's plea agreemant

[sic] and/or sentence.

-A-54-

I look forward to hearing from you in

the near future.

Very truly yours,

MARTIN & FELDHACKER

s/ William H. Feldhacker

William H. Feldhacker

WHF :ir

CC/John Harvey Adamson

APPENDIX C

Letter dated April 9, 1980, from the

Attorney General's Office

Mr. William H. Feldhacker

Attorney at Law

1045 East Bethany Home Road

Phoenix, Arizona 85014

Re: JOHN HARVEY ADAMSON

Dear Mr. Feldhacker:

In regard to the requested testimony of

-A-55-

John Harvey Adamson in the forthcoming

retrial (or retrials) of Dunlap and

Robison, the position of the state is as

follows:

1. The January 15, 1977, plea

agreement between the state and John

Adamson is still in effect. Because of

this the state has the right to call upon

Mr. Adamson for testimony and for

interviews.

2. On April 9, the state did call upon

Mr. Adamson, through you, for an

interview regarding his forthcoming

testimony at the trial. As Mr. Adamson's

attorney you refused to allow him to be

interviewed.

3. Such a refusal by Mr. Adamson is a

violation of the plea agreement. Because

of such a refusal, the state may now

institute proceedings necessary to carry

into effect those things noted in the

plea agreement that result from a

-A-56-

violation by Mr. Adamson. Specifically

those things include: reinstatement of

the first degree murder charge against

Mr. Adamson for the murder of Don Bolles

and its possible punishment of death;

reinstatement of all other criminal

charges that were dismissed pursuant to

the plea agreement; withdrawal of the

state's request of the federal government

to assume custody of Mr. Adamson.

Mr. Adamson should also be aware that

in addition to these things that flow

directly from his breach of the plea

agreement the state may also institute

Criminal actions that were not discussed

as part of the plea agreement.

In an effort to resolve this question,

a deposition of Mr. Adamson has been set

by Judge French for 12:30 p.m. on

April 10 in the conference room of the

United States Attorney's Office at the

Federal Building in Phoenix.

Sincerely,

ROBERT K. CORBIN

Attorney General

/s/ William J. Schafer,

WILLIAM J. SCHAFEPR, III

Chief Counsel

Criminal Division

WJS/fn

0144F

BRUNETTI, Circuit Judge, with whom

Circuit Judges KENNEDY, ALARCON and

BEEZER join, dissenting:

Adamson has no valid double jeopardy

defense to his prosecution for first

degree murder, therefore I respectfully

dissent.

-~A-58-

[il

1. Background.

John Harvey Adamson was charged with

first degree murder in connection with

the bombing death of Donald Bolles in

Phoenix, Arizona. His first degree

murder trial had commenced and was in the

process of jury selection when Adamson

and his attorneys struck a plea agreement

with the district attorney whereby

Adamson agreed to provide testimony

against certain individuals, including

with regard

James Robison and Max Dunlap,

to the murder of Donald Bolles, and to

plead guilty to a charge of second degree

murder. The plea agreement provided that

Adamson would receive a sentence of 48-49

years imprisonment, with a maximum of 20

years, two months to be served, and that

other charges pending against him would

be dismissed.

The plea agreement was submitted to

Arizona Superior Court Judge Birdsall for

approval. At a formal hearing, the judge

reviewed each. detail of the plea

agreement with Adamson, approved the

agreement, and the first degree murder

trial was suspended. The plea agreement

provided for deferred sentencing;

accordingly, the sentencing hearing was

conducted without review of the details

Or consequences of the plea agreement.

2. Adamson's Double Jeopardy Claim.

A review of Adamson's double jeopardy

claim * must acknowledge the “unique

nature of the double jeopardy guarantee

as compared to other constitutional

rights.” United States v. Young, 544

F.2d 415, 418 (9th Cir.), cert. denied,

429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d

626 (1976). A double jeopardy claim

implicates the “very power of the State

*Footnotes are set out in full at the

conclusion of the text.

-A-60-

RI TEO a ab Ce ee

to bring a defendant into court,” and

thus is collateral to, and separable

from, those constitutional claims which

pertain to a determination of the

principal issue at trial, i.e., whether

or not the accused is guilty of the

offense charged. Abney v. United States,

431 U.S. 651, 659, 97 S.Ct. 2034, 2040,

52 L.Ed.2d 651 (1977). Accordingly we

have held that a plea of guilty to a

charge brought in violation of the double

jeopardy clause does not waive a double

jeopardy defense. Launius v. United

States, 575 F.2d 770, 771 (9th Cir. 1978).

Whether a double jeopardy defense may

be waived is a question this circuit has

yet squarely to address. The Supreme

Court has declined to hold that a double

jeopardy claim may never be waived.

Menna v. New York, 423 U.S. 61, 63 n.2,

96 S.Ct. 241, 242 n.2, 46 L.Ed.2d 195

(1975). The majority of sister circuits

-A-61-

that have considered the question have

concluded that a double jeopardy defense

may be waived. See, e.g., United States

v. Broce, 753 F.2d 811, 822 (10th Cir.

1985) (double jeopardy claim may be

waived by “an informed and intentional

relinquishment specifically of

rights under the Double Jeopardy

Clause of the United States

Constitution"); Brown v. Maryland, 618

F.2d 1057, 1058 (4th Cir.) (by pleading

guilty after entering into a favorable

plea bargain, defendant waived his right

to be free from double jeopardy), cert.

denied, 449 U.S. 878, 101 S.Ct. 224, 66

L.Ed.2d 100 (1980); McClain v. Brown, 587

F.2d 389, 391 (8th Cir. 1978) (a bar to

further prosecution because of former

jeopardy is not a jurisdictional defect,

but a defense or personal right which

must be affirmatively pleaded or is

-A-62-

considered waived); United States v.

Perez, 565 F.2d 1227, 1232 (2d Cir. 1977)

(the constitutional immunity from double

jeopardy is a personal right which, if

not affirmatively pleaded by the

defendant at the time of trial, will be

regarded as waived); United States v.

Wild, 551 F.2d 418, 424-25 (D.C.Cir.)

(constitutional rights which the

defendant may waive include the right not

to be twice put in jeopardy), cert.

denied, 431 U.S. 916, 97 S.Ct. 2178, 53

L.Ed.2d 226 (1977); United States v.

Buonomo, 441 F.2d 922, 924 (7th Cir.)

(constitutional immunity from double

jeopardy is a personal right which if not

affirmatively pleaded at trial will be

regarded as waived), cert. denied, 404

U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 8l

(1971).

Notwithstanding Menna and our decision

in Launius, it is certain that the double

-~A-63-

jeopardy bar is not absolute. This is

nowhere more apparent chan in the context

of a retrial following a mistrial. Where

@ mistrial has been declared without the

defendant's request or consent, a new

trial may take place so long as there

existed a manifest necessity for the

mistrial. Illinois v. Somerville, 410

U.S. 458, 461, 93 S.Ct. 1066, 1069, 35

L.Ed.2d 425 (1973). Similarly, “a motion

by the defendant for mistrial is

Ordinarily assumed to remove any barrier

to reprosecution.” United States v.

Jorn, 400 U.S. 470, 485, 91 S.Ct. 547,

957, 27 L.Ed.2d 543 (1971). This

principle reaches its limits in

permitting retrial following an

unnecessary mistrial, declared without

the defendant's request or express

consent, if the defendant's statements or

Silences constitute an implied consent.

see United States v. Smith, 621 F.2d 350,

~A-64-

351 (9th Cir. 1980), cert. denied, 449

U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 813

(1981).

The mistrial exceptions to the double

jeopardy bar clearly refute the notion

that the bar is absolute. The Supreme

Court in United States v. Dinitz, 424

U.S. 600, 609 n.1l, 96 S.Ct. 1075,

1080-81 n.1ll, 47 L.Ed.2d 267 (1976), has

stated that a defendant's double jeopardy

guarantee against multiple prosecutions

may be served by a mistrial declaration,

and that the permissibility of retrial in

such cases does not depend on a waiver of

the defendant's double jeopardy right.

In certain cases a second prosecution may

follow the midtrial dismissal of an

indictment without running afoul of the

double jeopardy clause. See Lee v.

United States, 432 U.S. 23, 30, 97 S.Ct.

2141, 2145-46, 52 L.Ed.2d 80 (1977).

An exception to the double jeopardy bar

pertinent to Adamson's case is described

in Jeffers v. United States, 432 U.S.

L137, 152, 97 &.Ct. 2207, 2217, 53 L.Bd.2€

168 (1977). In Jeffers, the defendart

elected to be tried separately on greater

and lesser included offenses. Although a

subsequent trial on a greater offense

following trial on a lesser included

offense is, as a general rule, prohibited

by the double jeopardy clause, see Brown

v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53

L.Ed.2d 187 (1977), the Jeffers Court

found that the defendant's election

deprived him of a double jeopardy defense

to the second trial 432 U.S. at 152, 97

S.Ct. at 2217. The Jeffers Court did not

speak of “waiver”; rather, the Court

concluded that no violation of the double

jeopardy clause had occurred. The second

trial fell within an exception to the

-A-66-

Brown rule, based on the defendant's role

in. bringing about the second trial.

This view of the double jeopardy clause

was expanded and strengthened in United

States v. Scott, 437 U.S. 82, 98 S.Ct.

2187, 57 L.Ed.2d 65 (1978), where the

Court found permissible a second trial on

two counts that had been dismissed in

midtrial at the defendant's behest. The

Court concluded that the policies

underlying the double jeopardy clause do

not extend “to include situations in

which the defendant is responsible for

the second prosecution.” Id. at 96, 98

S.Ct. at 2196-97. Again the Court

declined to adopt a “waiver” analysis,

stating that “the double jeopardy clause,

which guards against Government

oppression, does not relieve a defendant

from the consequences of his voluntary

choice.” Id. at 99, 98 S.Ct. at 2198.

3. Adamson Knowingly Waived His Fifth

Amendment Double Jeopardy Rights.

There is no presumption of acquiesence

in the loss of fundamental constitutional

rights. The courts indulge in every

reasonable presumption against waiver of

fundamental constitutional rights.

Johnson v. Zerbst, 304 U.S. 458, 464, 58

S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

A waiver is ordinarily an intentional

relinquishment or abandonment of a known

right or privilege. Id.

On January 15, 1977, Adamson and his

three court-appvinted attorneys appeared

in open court before Arizona Supreme

Court Judge Birdsall. Judge Birdsall

reviewed the plea agreement with Adamson

paragraph by paragraph, and at times,

word by word. Adamson intentionally

waived his double jeopardy rights when he

accepted the totality of the plea

agreement negotiated by his three

-A-68-

attorneys. It is clear from the record

that Adamson knew the circumstances

confronting him and the consequences of

entering into the plea agreement.

Accordingly, his acceptance of the

agreement constituted a waiver of all

conflicting rights existing at that time.

The record shows the following: On

January 15, 1977, Adamson was on trial as

the defendant in Case No. CR 93385,

Maricopa County, State of Arizona v. John

Harvey Adamson, under a charge of open

murder for the killing of Donald Bolles.

On. January 15, 1977, at a time set for

continuing the voir dire examination of

jurors in the case, the defense and the

State of Arizona announced to the court

that they had reached a plea agreement

and the document with two sealed

exhibits, Exhibits A and B, were

presented to the court. Exhibits A and B

were referred to in, and were part of,

-A-69-

the plea agreement. The exhibits were

unsealed and Adamson signed each exhibit

in open court whereupon the exhibits were

replaced in their respective envelopes

and sealed. The signatures of Adamson,

his three attorneys and the two attorneys

representing the State of Arizona were on

the plea agreement.

The judge established that Adamson had

four years of college education, never

had any mental illness or disease, and

was not under the influence of drugs or

alcohol. Adamson acknowledged that his

Signature was on page 5 of the original

plea agreement and that he had reviewed

the agreement with all three of his

counsel.* Judge Birdsall told Adamson

that he initially plead not guilty to the

charge that he murdered Donald Bolles on

Or about June 2, 1976 in Maricopa County,

Arizona, ana now by virtue of the plea

agreement he was agreeing to plead guilty

to murder in the second degree. Judge

Birdsall reviewed the nature of murder in

the second degree, and then in detail

reviewed each paragraph of the plea

agreement with Adamson, receiving

acknowledgements from Adamson that he

understood each plea agreement

provision. Adamson acknowledged that he

understood that by entering a guilty plea

he was giving up his constitutional

rights of a speedy public trial by a

jury, (his trial being into the third

week and in the process of jury

selection), the confrontation of

witnesses, the presentation of evidence

on his own behalf, the right to compel

attendance of witnesses, the right to be

represented by counsel, and the right to

remain silent.

Judge Birdsall reviewed paragraph 5 of

the plea agreement with Adamson word for

word.’ He explained to him that one of

-A-71-

the provisions of that paragraph was that

Should.Adamson. refuse to testify or at

anytime testify untruthfully concerning

the crimes mentioned in the agreement,

then the agreement would become null and

void, and he would be subject to the

charge of open murder. Adamson was told

that if he was charged and found guilty

of first degree murder, he would be

subject to the penalty of death or life

imprisonment requiring a mandatory

twenty-five years of actual

incarceration. Adamson stated that he

understood what would happen if for any

reason the agreement became null and void

and the open murder charges were

reinstated. As a result of understanding

and agreeing to that provision, Adamson,

with the advice of his attorneys,

accepted the totality of the plea

agreement and the benefits derived

therefrom in exchange for the rights and

-~A-72-

powers he had relinquished as set forth

in the agreement. Each of the parties

had now recast their legal status, and

their respective rights and powers, into

the terms of the integrated plea

agreement which set forth their new

rights and powers, including the

enforcement provisions of paragraph 5.

At the conclusion of the plea agreement

review Judge Birdsall read Adamson's, his

attorneys’ and the state prosecutors’

acknowledgements of the agreement into

the record.* All the parties confirmed

their signatures and acknowledgements.

Judge Birdsall then requested Adamson to

establish a factual basis for his plea of

guilty to the crime of murder in the

second degree, whereupon Adamson related

the facts of his participation in the

killing of Donald Bolles. At this point

Judge Birdsall confirmed that Adamson was

satisfied with the legal representation

of his three court appointed attorneys

and that he had no complaints concerning

the manner in which they had represented

him as his attorneys.

The court deferred acceptance of the

sentencing provisions in the plea

agreement until it could receive and

review a presentence report, and

concluded by accepting the plea agreement

and Adamson's plea to the charge of

murder in the second degree.

On January 19, 1977, Judge Birdsall

after having reviewed the presentencing

report found that the provisions

contained in the plea agreement regarding

the sentence to be imposed upon Adamson

were appropriate and that Adamson should

be sentenced strictly in accordance with

the provisions contained in the plea

agreement. The sentencing date was to be

subject to call, and the court set a

review hearing in the matter for

-~A-74-

eae?) <5 Seen to Yate eo ee eee eee

January 18, 1978, one year from the date

of the hearing. All of the jurors were

permanently excused and the case was

recessed.

It is evident from a review of the

record and of the entire plea agreement

and exhibits that the purpose of the plea

bargaining was for Adamson, with advice

of counsel, to waive any rights he may

have had at the time the plea agreement

was entered into and to proceed in

accordance with the terms of the

agreement. He knowingly relinquished and

abandoned his right to proceed with the

open murder trial subject to the

condition that if the agreement was

breached and became null and void that

the parties would be returned to the

positions they were in before the

agreement. If Adamson breached the

agreement, he could again be subject to a

first degree murder charge, but he would

-A-75-

also reacquire the defenses he had

waived, especially as to the

incriminating statements he had given as

part of the agreement. Adamson does not

question the legal sufficiency of his

counsel's advise [sic] regarding the

legal rights he waived under this

agreement. It is clear from the record

that Adamson, with the aid of his

attorneys, knowingly and willingly waived

any defense to being subjected again to a

first degree murder charge (double

Jeopardy). Adamson accepted the

integrated terms and operation of the

plea agreement in exchange for the

Situation he found himself in at the time

the agreement was entered into.

We now must analyze what Adamson

received under the plea agreement and

what the other parties to the agreement

expected and to what they were entitled.

~A-76-

At the time the plea agreement was

entered into, Adamson was on trial under

an open murder charge for the killing of

Donald Bolles. In addition, the state

could have prosecuted Adamson for the

crimes listed in Exhibits A and B to the

plea agreement, crimes in which Adamson’'s

involvement was then known to the police

and subject to police reports, and crimes

which Adamson had .revealed to the state

in transcribed statements. Also there

were charges in other cases pending

against Adamson and other defendants in

the Maricopa County Superior Court. The

state had the power to try Adamson for

each of those crimes, and society and the

victims of all those crimes had a

legitimate expectation and an interest

that the state would prosecute those

crimes. The state surrendered that

power, and society and the victims

through the state gave up their

-A-77-

expectations and interests in exchange

for Adamson's plea of guilty to the

Charge of murder in the second degree for

the murder of Donald Bolles, and further

for Adamson's promise that he would

testify fully and completely as required

by the plea agreement. As a result of

entering into the plea agreement, not -

only did Adamson eliminate the

possibility of being found guilty of

murder in the first degree in the pending

trial, but he also obtained the state's

agreement not to prosecute him for the

Crimes listed in Exhibits A and B and in

Paragraph 6 of the plea agreement. The

many serious actions and charges against

Adamson which could have resulted in a

death penalty or imprisonment for the

rest of his life were dismissed with

prejudice. Adamson bargained for, and

received as a result of the second degree

murder guilty plea, a SCRTSRSS, Be longer

/

-A-78-

than twenty calendar years and two

months. ‘Adamson obtained federal

immunity from prosecution and was

to serve his sentence in a prison

of the State of Arizona. In turn

that was required of Adamson was his

truthful and complete testimony

concerning crimes in which he admi

was involved,

ybtaining immunity and freedom of

prosecution.

To protect the rights of the sta

the plea agreement, and to insure

value of Adamson's promise to test

paragraph 5 of the plea agreement

provided that, in the event he fai

testify or defaulted in the terms

plea agreement the plea agreement

secome nul 3nd void and that all

iginal charges wou i be reinstat

and as to which he was

allowed

outside

all

tted he

te in

the

ify,

led to

of the

would

+? 4

the removal of Adamson from the threat of

the pending trial and all future charges

and trials, Adamson waived the rights

that would have precluded his being

charged again and tried for open murder

as a part of the mutuality of waiver of

rights and powers that all parties agreed

to in the plea agreement. The plea

agreement redefined the rights and powers

of the parties in an integrated

contract. By entering into the plea

agreement the parties waived any

constitutional rights they may have had

and substituted therefor the contractual

terms and remedies. Any other

interpretation renders the plea agreement

ineffectual and unenforceable from the

-~A-80-

4. Adamson's First Degree Murder

Conviction is the Consequence of his

Voluntary Choice and is Not Invalidated

by the Double Jeopardy Clause.

The majority correctly notes that valid

waiver of a constitutional right

ordinarily requires that there be an

"intentional relinquishment of a known

right or privilege.” Johnson v. Zerbst,

304 U.S. 58 S.Ct. 1019, 1023,

82 L.Ed. 1461 (1938). The majority errs,

however, in its implicit and fundamental

premise that only a waiver could remove

the double jeopardy bar to Adamson's

retrial. The foregoing review of

exceptions to the double jeopardy bar

should dispel the notion that waiver is

an invariable prerequisite to a valid

second trial where jeopardy has once

attached. Indeed, Jeffers v. United

States, 432 U.S. 137, 152, 97 S.Ct. 2207,

2217, 53 L.Ed.2d 168 (1977), turned on

this very point, and, I believe, disposes

entirely of Adamson's double jeopardy

claim.

In Jeffers, as in Adamson, the two

prosecutions were for a greater and

lesser included offense. The defendant

in Jeffers sought co have the greater and

lesser included offenses tried

separately. The Court concluded that the

defendant's role in bringing about the

Successive trials removed any

constitutional barrier to the second

prosecution. Id.

This essentially is Adamson's case.

Jeopardy attached upon Adamson's entry of

a guilty plea. See United States v.

Vaughan, 715 F.2d 1373, 1376 (9th Cir.

1983). By entering into the plea

agreement, Adamson elected the lesser

included offense -- second degree

murder. The only difference from Jeffers

is that there, a second presecution on

-A-82-

the greater offense was a certainty; for

Adamson it was contingent upon his breach

of the plea agreement. But this

distinction is without constitutional

Significance, and in any event would seem

to weigh in favor of the state in the

case before us.

The Jeffers Court noted that “the

considerations relating to the propriety

of a second trial obviously would be much

different if any action by the Government

contributed to the separate prosecutions

on the lesser and greater charges.” 432

U.S. at 152 n.2, 97 S.Ct. at 2217 n.2.

In other words, a different result might

have been required had the government

acted unilaterally to separate the

trials, or if the defendant's

voluntariness was compromised or

otherwise at issue. Adamson does not

seriously contest his voluntariness in

entering into the plea agreement, and the

state can hardly be heid accountable for

Adamson‘s admitted refusal to be

interviewed in preparation to testify --

the triggering event which after all, set

into motion the second prosecution.

Ajamson must accept responsibility for

the second prosecution; the double

jeopardy clause “does not relieve a

defendant from the consequences of his

voluntary choice.” United States v.

Scott, 437 U.S. 82, 99, 98 S.Ct. 2187,

2198, 57 L.Ed.2d 65 (1978).

The state's freedom from blame in the

events leading to Adamson's retrial

distinguishes this case from Menna v. New

York, 423 U.S. 61, 96 S.Ct. 241, 46

L.Ed.2d 195 (1975), and Launius v. United

States, 575 F.2d 770 (9th Cir. 1978). In

Menna, the defendant was charged with an

offense for which he had already served a

sentence. Thus, the charge was one the

state constitutionally could not

-A-84-

prosecute. 432 U.S. at 62 n.2, 96 S.Ct.

at 242 n.2. The state had acted to place

the defendant in double jeopardy;

accordingly, the defendant's plea of

guilty, which removed only the issue of

factual guilt from the case, did not

impair the defendant's legitimate double

jeopardy defense. Id.

Similarly, in Launius, defendants

pleaded guilty to a multiplicious

information, and received consecutive

sentences on two counts, exceeding the

statutory maximum for the single offense

charged. 575 F.2d at 771. The

government was responsible for initiating

proceedings in violation of the double

jeopardy clause. The defendants’ guilty

pleas did not waive their double jeopardy

rights. Id. at 772. In both these cases

the double jepardy violation was directly

attributable to the government in the

first instance.

-A-85-

Adamson, however, did not plead guilty

to an indictment brought in violation of

the double jeopardy clause. By the same

token, the state did not attempt to

redeem an otherwise invalid prosecution

by bargaining for his guilty plea. The

second prosecution sprung from the terms

of the plea agreement itself. Adamson

voluntarily agreed to those terms,

precipitated his second prosecution, and

should not now be heard to complain of

the result.

Whether Adamson's actions are viewed as

a waiver or as a voluntary choice, his

double jeopardy claims fail.

5. Adamson Knowingly and Intentionally

Breached the Plea Agreement.

There should be little doubt that

Adamson breached his obligation when he

expressly refused to provide interviews

in preparation for his testimony in the

retrial of Robison and Dunlap. The

-A-86-

purpose of the plea agreement was to

obtain Adamson's testimony concerning

certain crimes listed in the agreement

and in Exhibits A and B and specifically

with regard to the Robison and Dunlap

trials, the defendants therein being

charged with the murder of Donald

Bolles. Unless Adamson's testimony as

required by the plea agreement was

obtained for the state there is no

purpose for the plea agreement and for

relieving Adamson of the charges and

prosecutions listed in the plea

agreement. The agreement at paragraph 5

required Adamson to testify truthfully

and completely at all times, whether

under oath or not, to the crimes

mentioned in the plea agreement,

including all interviews, depositions,

hearings and trials. In paragraph 4 of

the plea agreement Adamson agreed to

testify fully and completely when

-A-87-

requested by proper authorities. By his

April 3, 1980, letter through his

attorney, Adamson refused to provide

requested pretrial interviews, in plain

breach of his obligation.

I cannot agree with the majority's view

that Adamson was merely advancing a

reasonable interpretation of the plea

agreement. The majority points to

Paragraph 8, which states that Adamson

would be sentenced “at the conclusion of

his testimony in all of the cases,” as

the only unambiguous language in the plea

agreement regarding the point at which

Adamson's obligation to testify would

terminate. This language cannot be

interpreted out of context and does not

bear the construction the majority places

upon it. It does not support the view

that, by sentencing Adamson, the state

relieved him of his duty to testify. The

totality of the plea agreement suggests,

-A-88-

and common sense demands, that Adamson

was required to testify in the Dunlap and

Robison trials whenever called upon to do

so.

Paragraph 8 of the plea agreement

provides "All parties to this agreement

hereby waive the time for sentencing and

agree that the defendant will be

sentenced at the conclusion of his

testimony in all of the cases referred to

in this agreement and in Exhibits A and

(Emphasis

B, which accompany it.

added). Adamson argues that because he

was sentenced before the retrial of the

state's cases against James Robison and

Max Dunlap he had no obligation under the

plea agreement to testify at the retrial

of those two cases. Adamson is incorrect

in his contention and the record contains

substantial evidence clearly supporting

the conclusion that he knowingly and

intentionally breached the plea agreement.

Adamson's attorney, William H.

Feldhacker,”® wrote a letter to the

Assistant Attorney General on April 3,

1980, (Appendix B to the majority

Opinion) stating that he and his law

partner had met with John Adamson, and

that after lengthy discussions and

considerations of all the various aspects

of the case and potential ramifications

to Mr. Adamson, he was advising the

Attorney General of the following matters

contained in the letter. The letter

stated, “John Harvey Adamson believes

that he has fully complied with and

completed his plea agreement entered into

with the State of Arizona. It is,

therefore, his position that his future

testimony in any case involving the

defendants Max Dunlap or James Robison

regarding the killing of Donald Bolles

will only be given upon the offer of

-A-90-

further consideration by the State of

Arizona.” (Emphasis added).

The reason for the letter is apparent

from its first paragraph wherein it

confirmed telephone discussions between

the state attorneys and Adamson's

attorneys as to the availability of

Adamson for interviews in preparation for

his expected testimony in the retrials of

the State of Arizona against James

Robison and Max Dunlap. Interviews are

clearly and explicitly stated as one of

Adamson's obligations in the plea

agreement. Throughout the letter the

wording establishes that the statements

are communications from John Adamson

through his attorney to the state. “John

Harvey Adamson is well aware of the fact

that he can be subpoenaed .. . Dy your

office to appear as a witness in any

Criminal matter; however, he is further

aware that the fact that he may be called

-A-91-

to the stand does not mean he must

testify” (paragraph 2); “John Harvey

Adamson is further fully aware of the

fact that your office may feel he has not

completed his obligations under the plea

agreement in CR-93385 and, further, that

your office may attempt to withdraw that

plea agreement from him” (paragraph 3);

"If the State of Arizona desires to have

Mr. Adamson testify in any furtnrer

proceedings against James Robison or Max

Dunlap, it is John Adamson's position

that the following conditions must be

-

met. (Paragraph 4). And then Adamson

listed his demands.

Adamson's attorneys do not render their

opinion as to whether Adamson's position

is correct or reasonable -- only that

Adamson had taken a position. The

language of the letter is carefully

couched in this regard. The seconde

sentence in the last paragraph states

-A-92-

chat “The plea agreement was drafted in

such a manner that it was anticipated to

be concluded prior to Mr. Adamson’s

sentencing.” What the plea agreement

States is contrclling, not what Adamson

at the moment of breach alleges was

The plea agreement defines the time for

sentencing, but it does not set the time

for am absolute conclusion of Adamson’s

duty to testify. Paragraph 18 of plea

agreement states that Adamson was to

remain in the custody of the Pima County

Sheriff from the date of the entry of his

plea until the conclusion of his

testimony in all of the cases in which

Adamson agreed to testify. That

paragraph does not limit his duty to

testify only to such time that he remains

in the custody of the Pima County

Sheriff. The plea agreement and the

sentence had been accepted by Judge

~A-93-

Birdsall and there remained only a

ministerial act of a sentencing hearing

to complete the imposition of the

sentence fixed by the plea agreement.

Adamson's change in status with the Pima

County Sheriff and the sentencing only

changed the place of his incarceration.

That ministerial act of sentencing did

not change nor could it change his guilty

plea, or the acceptance of a guilty plea

by the court, or the terms of the plea

agreement including the sentence fixed by

the plea agreement. When the plea

agreement was finally accepted by the

judge he stated “The defendant will be

sentenced strictly in accordance with the

provisions contained in the plea

agreement.”°®

The sentencing date was

set by Judge Birdsall at that time for

January 18, 1978, in accordance with his

policy and practice not to leave an

-A-94-

Criminal case sentencing date on a

subject to call basis.

The procedure in paragraph 8 waived the

time for sentencing and set a time for

sentencing not for setting a conclusion

on Adamson‘’s duty to testify or retestify

in a retried case. This subject was

discussed with Adamson and all attorneys

by Judge Birdsall at the change of plea

hearing on January 15, 1977. Judge

Birdsall apprised Adamson that he was

entitled under the Arizona Rules of

Criminal Procedure to be sentenced within

ninety days from the acceptance of his

plea agreement and that pursuant to the

agreement he was waiving the time for

sentencing.

The record establishes that Adamson's

continuing obligation to testify, before

and after sentencing, was known and

understood by Adamson ana his attorneys.

This is clearly set forth in the dialogue

-A-95-

at the December 7, 1978, sentencing

hearing before Judge Birdsall in Case No.

CR-93385. Adamson and his attorneys,

Gregory H. Martin and William H.

Feldhacker, were present, together with

the Assistant Attorney General William J.

Schafer III. As the court was proceeding

with the sentencing in eccordance with

the plea agreement, the following was

Said:

THE COURT: All right. The

court's sentencing is limited by

the terms of the plea agreement

which was entered in this case,

which was previously accepted by

the Court and the Court is going

to proceed with the sentencing in

accordance with that plea

agreement. Do you have anything

Mr. Schafer?

MR. SCHAFER: Yes, I would like to

add one thing. I wish the record

would show that it has been

discussed with counsel, and I

believe counsel has discussed it

with Mr. Adamson that it may be

necessary in the future to bring

Mr. Adamson back after sentencing

for further testimony.

THE COURT: The record may show

that.

-A-96-

MR. FELDHACKER: That's our

understanding.

MR. MARTIN: That’*s correct.”

Transcript at page 43. (Emphasis added).

Adamson was then sentenced.

It is Adamson's position at this time

that his former attorneys have sworn that

the “further testimony” involved a wholly

separate case than the Bolles murder

case, and arising out of the arson of the

Ashford Plumbing Company in Phoenix,

Arizona. See page 3 n.2 Appellant's

Supplemental Brief on Rehearing En Banc.

In fact, that “further testimony” is

testimony contemplated by and included

specifically in the plea agreement, the

Ashford Plumbing Company case being one

of the cases listed in Exhibits A and B

to the plea agreement. Adamson's

counsel, William Feldhacker, in his

argument of Adamson's petition for

special action before the Arizona Supreme

-A-97-

Court on May 28, 1980, appeared with

Adamson'‘s other former attorney, Glen

Martin. Mr. Feldhacker stated to the

court his explanation of the colloquy

between counsel at the sentencing hearing

before Judge Birdsall regarding the

“further testimony.” He told the Arizona

Supreme Court that at the time of

sentencing there was one case left which

required Adamson's testimony, and it was

from Exhibits A and B appended to the

plea agreement, State of Arizona versus

Ashford. He admitted to a conversation

with Mr. Schafer discussing the Ashford

case, in which he agreed that, if

necessary Adamson may have to testify in

that case.’

It is obvicus that testimony after

sentencing was contemplated by the clear

language of the plea agreement and

understood and intended by the parties.

Adamson"s anticipated testimony in the

-A-98-

Ashford case after sentencing was not an

addition to or amendment of the plea

agreement by the parties, but was one of

Adamson's obligations required by the

plea agreement, acknowledged by Adamson,

Adamson‘s counsel and the state at

Adamson's sentencing hearing on

December 7, 1978. Adamson can not assert

a reservation for refusal to further

testify after sentencing in the Robison

and Dunlap Bolles murder cases, and at

the same time acknowledge an obligation

to testify in the Ashford case after

sentencing. The plea agreement makes no

such distinctions.

Adamson, in an attempt to take a

negotiation advantage as a result of the

reversal of the Robison and Dunlap cases

refused to testify. He attempted to

better his position but also took the

risk of the refusal to testify. His

position at the same time frustrated the

-A-99-

state's prosecution of Robison and Dunlap

cases and destroyed the very essence of

the plea agreement. Adamson never raised

the defense of double jeopa”dy during the

time when he was receiving the benefits

guaranteed to him by the plea agreement.

However, when the Arizona Supreme Court

held that Adamson had breached the plea

agreement by refusing to testify, and

vacated the second degree murder

conviction and sentence and reinstated

the open murder charge,”* Adamson then

asserted the position that the plea

agreement violated his double jeopardy

rights.” In fact, those rights were

waived when he entered into the plea

agreement, and the reinstatement of the

first degree murder charge was the

consequence of his voluntary choice and

excepted from the double jeopardy

defense, as fully discussed supra.

In order to escape a possible first

degree murder conviction in the trial

which was pending at the time of the plea

agreement, Adamson accepted all the

benefits the state was willing to give

for his testimony. Then when faced with

further testimony in the Robison and

Dunlap cases he attempted to compound his

benefits, with further detriment to the

state, for the “additional testimony”

which was in fact fully contemplated by

the plea agreement. The plea agreement

and the statements Adamson gave in

connection with the plea agreement

ostensibly set forth all of the crimes

which he was willing to reveal and obtain

dismissal and immunity for. However, in

paragraph 4(f) of his demand letter of

April 3, 1980, Adamson demands further

immunity for any and all crimes in which

he may have been involved. This is a ,

request for more protection when the

-A-101-

state is still only trying to obtain what

it had originally had [sic] bargained

for; testimony with regard to the Donald

Bolles murder and the other crimes listed

in the plea agreement.

After Adamson proceeded in breach of

the agreement, the sequence of events

that followed was entirely predictable;

indeed, the outcome was specified by the

plea agreement. Because the results of

Adamson's breach were fully contemplated

and determined by the plea agreement, it

should be upheld by this court.

6. Prosecutorial Vindictiveness.

I would aiso reject Adamson's claim

that his second conviction violates due

process because it is the product of

prosecutorial vindictiveness.

In advancing this claim, Adamson relies

primarily on the Supreme Court's decision

in Blackledge v. Perry, 417 U.S. 21, 94

S.Ct. 2098, 40 L.Ed.2d 628 (1974). The

-A-102-

Court in Blackledge held that due process

forbids a prosecutor from bringing

increased charges in retaliation to a

defendant's exercise of a constitutional

right. Id. at 27-28, 94 S.Ct. at

2102-03. The prohibition against

prosecutorial vindictiveness does not

require evidence that retaliatory

motivation actually existed; rather, it

is to the appearance of vindictiveness

that the prohibition is directed. The

underlying policy is to insure that

apprehension of retaliation does not

deter a defendant's exercise of the right

to appeal or to collaterally attack a

first conviction. Id. at 28, 94 S.Ct. at

2102-03.

The problem for Adamson is that he can

point to no exercise of a constitutional

right that precipitated his second

prosecution on an increased charge.

Indeed, the retrial came about because a £

-A-103-

his breach of a plea agr@zement. Because

there had been no exercise of a

constitutional right, the Blackledge

"presumption of vindictiveness,” and the

policy underlying it, does not apply.

Although Adamson invoked his fifth

amendment rights when he refused to

testify at a pretrial hearing in the

Dunlap and Robison retrials, this

exercise of a constitutional right was

wholly unconnected to his reprosecution.

Adamson had acted in breach of the

agreement by his letter of April 3,

1980. The state, by its letter of

April 9, 1980, had already indicated that

it considered that Adamson had breached

the agreement, and his breach permitted

reinstatement of the original charges and

Adamson's original defenses.

The prosecutor's freedom to seek

increased charges is vital to the

integrity of the plea bargaining process,

-A-104-

and is well supported by case law. The

Supreme Court in Bordenkircher v. Hayes,

434 U.S. 357, 364-65, 98 S.Ct. 663,

668-69, 54 L.Ed.2d 604 (1978), held that

a prosecutor properly could use the

threat of increased charges to secure a

plea agreement. This is exactly what

happened in Adamson’s case. The prospect

of a first degree murder charge induced

Adamson to plead guilty to second degree

murder and to promise to testify against

Robison and Dunlap and as further

specified in the plea agreement. The

agreement provided for reinstatement of

the first degree murder charge in the

event of breach.

It is totally unreasonable and

senseless to suggest that the prosecutor

could fairly strike a bargain with a

first degree murder reinstatement

provision, but that prohibitions against

-A-105-

prosecutorial vindictiveness prevent his

Carrying it out.

The evidence supported the first degree

murder charge against Adamson, and

society and the victims had a legitimate

interest in seeing that charge filed and

pursued. In view of the especially

savage Bolles murder contract it would

have been amazing if the prosecutor had

filed anything else. There is no

vindictiveness evident in the

prosecutor's intent to retry Adamson.

The intent to retry arose long before

Adamson refused to testify as it was

included in the paragraph 5,

reinstatement provision of the plea

agreement. Allowing Adamson to decide

whether or not he should breach the plea

agreement or to challenge it

constitutionally, and once having lost

the challenge to again volunteer to

perform the plea agreement makes the

-A-106-

er NEES ENON ue

reinstatement clause totally illusory.

This gives Adamson the unilateral right

to defeat the substance and value of the

plea agreement. The threat of the death

penalty against Adamson was necessary to

insure performance of Adamson's promise

that he would testify in accordance with

the plea agreement. In any trial or

retrial once the trial court swears and

seats the jury and the trial proceeds

double jeopardy attaches as to that

specific defendant. Crist v. Bretz, 437

U.S. 28, 29, 98 S.Ct. 2156, 2157-58, 57

L.Ed.2d 24 (1978). If at that point

Adamson takes the stand and asserts the

Fifth Amendment, which he had the power

(mot the right) to do under the plea

agreement, then the Dunlap or Robison

. cases or any other case in which he was

to testify cannot be prosecuted. Adamson

in fact did that and caused that exact

result with his breach letter of April 3,

1980. In fact, in paragraph 2.of his

letter he evidenced his. threat that he

could not be made to testify. At that

point a contempt citation did not bother

Adamson. The heart of the plea agreement

is the default clauses, paragraphs 3, 5,

ll and 15, containing the reinstatement

of open murder charges to prevent Adamson

from unilaterally defeating the

agreement. Adamson's testimony and

credibility were crucial to the

conviction of Dunlap and Robison. See

State v. Robison, 125 Ariz. 107, 608 P.2d

44, 45 (1980). Adamson's unilateral

nonnegotiable demands for his testimony

in the retrials destroyed his credibility

and the state acted without

vindictiveness and appropriately under

the agreement to reinstate the open

murder charges.

-A-108-

rs |

7. The Improper Reinstatement of the

Second Degree Murder. Conviction and

Sentence.

The majority erroneously reads

Paragraph 5 in isolation and concludes

that under its provisions Adamson's

breach would result only in voiding the

executory agreement but would have no

effect on the second degree murder

judgment of conviction and sentence. To

the contrary, Paragraph 15, by its very

terms applies where the agreement has

been voided, and requires that the

parties be returned to their positions

prior to agreement. Thus the majority's

view that the conviction and sentence

somehow would survive is refuted by a

plain reading of the agreement itself.

To leave Adamson with a second degree

murder conviction based on his guilty

plea, and with a sentence meted out

precisely according to the terms of the

-A-109-

\

agreement, would hardly return him to his

position before the agreement.

Adamson cannot again be tried for first

degree murder, the plea agreement has

been made unenforceable and worthless by

the majority opirion, and the parties are

left with the scattered remains of all

the proceedings which have transpired.

Reinstatement of the second degree

murder judgment and sentence is not

before this court. The majority,

however, having freed Adamson from the

death penalty, attempts to prevent his

release by imposing upon the Arizona

Supreme Court the burden of reinstating

the second degree murder conviction

within six months. If for any reason the

Arizona Supreme Court fails to reinstate

the conviction within the six months,

Adamson, who has admitted to the

involvement in and commission of the

crimes set forth in the plea agreement,

will go free. Adamson's status may be in

question if the Arizona Supreme Court is

unable to reinstate the conviction until

after six months. The Arizona Supreme

Court's burden is further enhanced by the

spectre of another double jeopardy attack

based upon the reasoning of the majority

opinion. I respectfully submit that the

plea agreement was negotiated by the

parties to avoid the complications and

convolutions brought on by the majority's

misinterpretation of the plea agreement,

3ll as set forth in this dissent.

I would affirm the district court's

denial of Adamson’'s petition for writ of

habeas corpus.

KENNEDY, Circuit Judge, dissenting:

I concur in general in the dissent by

£

Judge Brunetti and find compelling his

demonstration that this defendant so well

understood the mechanics of the plea

-A-1ll-

bargain and the risks consequent from

breach that the majority's requirement of

double jeopardy waiver is pointless.

With all respect, I submit the majority's

analysis rests on other explicit and

implicit assumptions that are quite

contrary to settled principles of double

jeopardy law. I dissent separately to

make clear the full extent of my

disagreement with the analysis apparently

adopted by 4a majority of the court.

As I explain further below, the

principal error of the majority is its

assumption that a conviction resting on a

plea agreement protects the defendant

against trial for a higher offense if the

plea or the conviction on which it stands

is properly set aside. I submit this is

incorrect. The extent of double jeopardy

protection when a guilty plea and

conviction are set aside requires an

inquiry into the grounds upon which they

———————

were set aside. If the conviction here

could not stand by reason of a breach of

the plea agreement, the defendant could

be tried on the same charge or on a

higher one, for the conviction rested on

the plea alone, not a trial, and the plea

was set aside by reason of the

defendant's own default, not by the mere

fiat of the state. The majority's first

false premise is that there was 4 double

jeopardy right to be waived; there was

not. The second false premise is that

express waiver was required; it was not.

The third false premise is that the

contract was not a waiver in itself; it

was. I turn to a more detailed

discussion of these matters.

To begin with, jeopardy may attach upon

the entry of a guilty plea. ‘A plea of

guilty is more than a confession which

admits that the accused did various acts;

it is itself a conviction; nothing

-A-113-

remains but to give judgment and

determine punishment.” Boykin Vv.

Alabama, 395 U.S. 238, 242, 89 s.Ct.

1709, 1711-12, 23 L.Ed.2d 274 (1969).

Guilty pleas are entered under such a

variety of circumstances that a general

rule is not easily. stated, but I should

think that when a plea of guilty is

accepted on the record and nothing

remains but to pass sentence and enter

the conviction, jeopardy attaches upon

entry of the plea. United States v-

Cruz, 709 F.2d 111, 112, 115 (ist Circ.

1983) (holding jeopardy attached upon

acceptance of the plea). Despite the

majority's statement to the contrary,

there were no conditions attendant upon

acceptance of this plea, other than the

terms of the written plea bargain

itself. I would conclude that jeopardy

attached upon entry of the plea. With

this principle in mind, a major defect of

the majority opinion becomes apparent.

By the majority's reasoning, Adamson

could have renounced the agreement a week

after it was made and, as it holds double

jeopardy had not been waived, he would

have the same incredible immunity from

the agreement's enforcement mechanism as

the majority grants him because the

conviction and sentence were entered.

The question becomes what jeopardy

protection remained after the plea and

conviction were set aside. The quality

and degree of jeopardy protection derived

from a conviction based on a voluntary

plea must be confronted by the majority.

When the plea or conviction based upon it

is set aside and further proceedings

commence, the authorities do not support

the premise that prosecution for a

greater offense is necessarily

prohibited. Where a conviction is set

aside, the protections of the double

-A-11$-

ee

jeopardy clause are only in proportion

to, not greater than, the risks assumed

by the defendant in the former

proceeding. As the plea does not put a

defendant at risk of a determination of

guilt for a higher offense, 4 charge for

the higher offense may be reinstated when

and if the plea or its consequent

conviction are set aside, absent, say, 4

circumstance in which the state somehow

is entitled to set aside the plea but

acts unilaterally and without cause to

impose greater burdens on the defendant.

In United States V. Barker, 681 F.2d

589 (9th Cir. 1982), the defendant agreed

to plead guilty to second degree murder.

She successfully had the conviction set

aside on a section 2255 motion, on the

ground that she had not been adequately

informed of the nature of the second

degree murder charge. Id. at 590. Her

retrial for first degree murder was held

not barred by double jeopardy, because

the court's acceptance of-the- piea to

second degree murder did not constitute

an implied acquittal of first degree

murder. Id. at 590-92. As Judge Hug

noted in his opinion for the court in

Barker, the precedents are in full

accord. Klobuchir v. Pennsylvania, 639

F.2d 966 (3d Cir.), cert. denied, 454

U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474

(1981) (where conviction of third degree

murder set aside, double jeopardy did not

bar trial for murder in the first degree,

as the prior conviction rested on a plea,

not a trial); Hawk v. Berkemer, 610 F.2d

445 (6th Cir. 1979) (after guilty plea

and conviction of murder and dismissal of

aggravated murder charge in state court,

defendant's appeal in effect withdrew the

plea and the original, more serious

charge can be reinstated). The rule of

Brown v. Ohio, 432 U.S. 161, 97 S.Ct.

-A-117-

2221, 53 L.Ed.2d 187 (1977), is simply

not controlling,- though the majority

assumes its applicability without

discussion. That case discusses double

jeopardy protections which stem from a

plea and a conviction that remain in

force, not a plea and conviction that are

set aside. Here the state ordered the

conviction vacated under terms agreed

upon by the defendant, and so acted on a

clean slate. In Brown the prosecution

attempted to proceed when the conviction

on a lesser charge remained in force and

unimpeached. Though I reject the

fanciful notion that the rule of double

jeopardy gives any help at all to the

defendant in the face of the express

terms of this plea bargain, even if those

rules do apply, they do not support the

result the majority reaches. The plain

fact is there was no double jeopardy

protection to waive if the plea and

conviction were to be set aside by the

defendant's own acts of default. - Adamson

not having undergone a trial on the

merits and not having established

innocence to the charge of murder in the

first degree, the trial could and did

proceed on the greater charges without

offending constitutional principles.

We may turn next to examination of the

waiver rules the majority applies to the

case. Here too the court departs from

controlling authority. Jeopardy is

waived in a number of instances by the

defendant's own actions, and no express

waiver or admonition is required before

the court finds the waiver to have taken

place. If a defendant moves for mistrial

and obtains it, jeopardy is waived though

he was not forewarned of such a

consequence. United States v. Dinitz,

424 U.S. 600, 609 n.1l, 96 S.Ct. 1075,

1080-81 n.1ll, 47 L.Ed.2d 267 (1976).

-A-119-

This same result 2%ccurs where a guilty

plea is withdrawn or the conviction based

upon it is set aside by reason of the

defendant's action. See United States Vv.

Barker, 681 F.2d 589 (9th Cir. 1982)

(defendant appeals plea-based

conviction). The state can retry the

defendant, and the authorities contain no

requirement ‘that he be forewarned of such

a result. See, e.g., United States v.

Jerry, 487 F.2d 600, 606 (3d Cir. 1973)

(“where a defendant by his own motion

causes the withdrawal of his guilty plea,

he has waived his right not to be put in

jeopardy a second time”). In the case

before us, of course, the defendant was

forewarned of the consequences attendant

upon breach of the plea agreement. The

agreement specifically set forth that the

defendant could be retried for murder in

the first degree if a breach of the

agreement caused the conviction to be set

aside, which, as I have demonstrated, is

the law in any event.

The majority seems to proceed on the

assumption that jeopardy did not attach

until the sentencing hearing, and on the

further assumption that the record was

somehow confused by the colloquy

respecting defendant's obligation to give

Further testimony. As I have indicated,

jeopardy attached much earlier, upon

acceptance of the plea; and, in any

event, the protections of the double

jeopardy clause do not extend where the

defendant did not face a trial and a

plea-based conviction is properly set

aside. Beyond this, waiver is not

required in any event. Prosecutors do

not have to explain the mysteries of

double jeopardy before entering into an

enforceable plea agreement. The whole

purpose of such agreements, as in this

case, is to permit the defendant to plead

-A-121-

to lesser charges subject to the risk of

facing more serious ones if he does not

keep his end of the deal. For the court,

deus ex machina, to drop the idea of

double jeopardy and waiver into the plea

bargain context is inconsistent with any

reasonable interpretation of the contract

made between the defendant and the

state. The contract makes no sense if by

some legal theory it is contended

defendant did mot accept it with full

knowledge and understanding of its

enforcement terms. The defendant well

knew that he could not be required to

accept the enforcement terms of the plea

agreement, and in this context the

failure to advise him of his double

jeopardy rights is quite beside the

point. Indeed, if the phrase “double

jeopardy” had been added to the litany of

rights the defendant was asked to waive

in the plea agreement, competent defense

-A-122-

counsel most surely would have objected

to it. For in truth the defendant was

not waiving double jeopardy. Its

protections would not apply in the event

of the breach; and if the second degree

conviction remained in force, the

defendant was entitled to the protections

of the double jeopardy clause. Had the

conviction remained in force, there could

have been no trial for newly discovered

evidence, no new sentencing procedure, or

no further trial to impose heavier

burdens upon him. Any general waiver of

double jeopardy simply would have

confused the record.

I recognize that the state has raised

certain questions by having entered the

second degree conviction before the terms

of the bargain were fulfilled, but

whether that was in violation of the

agreement or somehow excused the

defendant's further performance is simply

-A-123-

a state law issue, not a double jeopardy

question. The critical issue in the case

becomes whether the defendant's acts were

in breach of the agreement. That issue

is one of state law, nothing more. Its

outcome depends on primary and historical

facts, which we have no authority to

determine. See Cuyler v. Sullivan, 446

U.S. 335, 341-42, 100 S.Ct. 1708,

1714-15, 64 L.Ed.2d 333 (1980). Even if

we did have authority to scan the state's

finding that there was a breach of the

agreement, there is ample support for

it. The defendant agreed that the first

degree charges could be reinstated for a

breach, and nothing in the later

proceedings changed that compact. When

the defendant first gave the state notice

of his refusal to cooperate further, his

own attorneys specifically noted the

possibility that the state would

interpret noncooperation as a breach.

The defendant took a risk not without

some attractions for him.._He was serving

a twenty-year sentence. If the state

elected to try him for firste degree

murder, conceivably he might have won an

acquittal. It is hardly surprising that

one as depraved as Adamson would shrink

from a breach of contract and a gamble on

the results. The court errs in not

recognizing his defiance for what it is.

Finally, the court papers over the

consequences of its ruling by telling

Arizona it need not set Adamson free if

it can find some way to reinstate the

second degree murder conviction. We

Cannot, of course, by our own authority

order that conviction reinstated. The

matter has not been argued to us, but it

may be that under Arizona law

reinstatement is not permitted. Given

Our erroneous double jeopardy ruling,

there can be no retrial for first degree

-A-125-

murder; given the Arizona court's final

determination that the plea bargain was

breached and its ruling that the second

degree murder conviction should be

vacated, it is not clear to me that as a

matter of state law it can turn agound

and change its decision to accommodate

our error. Though I intimate no views as

to the outcome under Arizona law, it is

not beyond possibility that as a result

of our decision the defendant will walk

free.

In the context of the plea bargain

before us, the double jeopardy analysis

of the court is artifical. It gives the

defendant a windfall of the kind that

results when a court imposes a

constitutional interpretation of new

dimensions in what should have been a

Simple case of the making of a bargain

and the failure to keep it. I dissent.

Be

5 FOOTNOTES

The double jeopardy issue was not

raised by Adamson in the district

court or his appeal from the district

court, but was raised for the first

time in this habeas corpus proceeding

in appellant’s Supplemental Brief on

Rehearing En Banc. The double

jeopardy defense had been previously

rejected by this court in a prior

habeas corpus proceeding. See

Adamson v. Hill, 667 F.2d 1030 (9th

Cir., 1983) [sic], cert. denied, 455

U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d

853 (1982).

The judge asked “At this point do

you believe you understand the

provisions of the plea agreement?”

Adamson answered “Entirely sir." The

judge then asked Adamson “Do you have

any questions that you want to ask me

about before we go any further?” and

Adamscn answered “No sir."

Transcript, Change of Plea,

January 15, 1977, at 7.

Paragraph 5 of the plea agreement

provides: It is agreed by all

parties that the defendant shall

testify truthfully and completely at

all times, whether under oath or not,

to the crimes mentioned in this

agreement. This shall include all

interviews, depositions, hearings and

trials. Should the defendant refuse

to testify or should he at any time

testify untruthfully or if any

material fact in the defendant's

transcribed statements given to the

State prior to this agreement be

false, then this entire agreement is

-A-127-

null and void and the original charge

will be automatically reinstated.

The defendant will be subject to the

charge of Open Murder, and if found

guilty of First Degree Murder, to the

penalty of death or life imprisonment

requiring mandatory twenty-five years

actual incarceration, and the State

shall be free to file any charges not

yet filed as of the date of this

agreement.

Adamson signed the following

acknowledgement: “I John Harvey

Adamson, have read this agreement

with the assistance of counsel,

understand its terms, understand the

rights I give up by pleading guilty

in this matter, and agree to be bound

according to the provisions herein.”

Adamson'’s three attorneys signed the

following acknowledgement: “We have

discussed this case and the plea

agreement with the defendant. We

have advised him of his rights and

the consequences of his plea, and we

concur in his entry of this plea."

The state prosecutors signed the

following acknowledgement: “We have

reviewed this agreement and agree on

behalf of the State of Arizona that

the terms and conditions set forth

herein are appropriate and are in the

interests of justice.”

One of the same three attorneys

that appeared for Adamson at his

trial, the change of plea hearing and

the sentencing hearing.

Case No. CR-93385, State of Arizona

v. John Harvey Adamson, January 19,

1977 Transcript, Wednesday, 10:00

-A-128-

a.m., before Judge Birdsall, page 37,

lines 13-15.

P The following conversation took

place in the Arizona Supreme Court

hearing:

JUSTICE HAYS: Counsel, do you

give any weight to that portion

of the sentencing where I think

Mr. Schafer indicated, Now have

it clear for the final

acceptance of this plea. We

have it clear that Mr. Adamson

testified some more -- or

something to that effect, and

nobody seemed to object to that

position. I make this

response. Was that understood?

Does that have any weight, or

does it mean --

MR. FELDHACKER: As to the

meaning of that, Your Honor -- I

think that was on December 7,

1978 -- I believe I have in my

notes -- I have that there was a

discussion of that. I don't

think it's as clear as Your

Honor stated, but it's clear

that it's understood that it

happened.

What happened was that we were

asked if there was any legal

cause for Mr. Adamson not to be

sentenced. We certainly stated

there was none. Mr. Schafer

said, Yes, I would like to add

one thing. I wish the record

would show that it has been

discussed with Counsel, and I

believe Counsel has discussed it

-A-129-

with Mr. Adamson, that it may be

necessary in the future to bring

Mr. Adamson back after

sentencing for further

evidence. The record may show

that; and I stated, That's our

understanding.

Subsequently there was one

case left from exhibits A and B

that were appended to that plea

agreement, and that case left

was State of Arizona versus

Ashford. It's a case that was

under under [sic]

investigation. It's basically

-- I would submit from my

conversation with Mr. Schafer --

a case that they concluded they

would never be able to actually

put together and prosecute.

However, Mr. Schafer discussed

it with us -- about the Ashford

case; about the fact that, you

know, we had that in the

agreement; that, if necessary,

he may have to testify in that

case.

aa =

Adamson v. Superior Court, No. 14898,

Transcript of Proceedings, May 28,

1980, commencing at page 6, line 2l.

(Emphasis added).

8. Adamson v. Superior Court, 125

Ariz. 579, 583, 584, 611 P.2d 932,

936, 937 (1980).

9. It was at this point that Adamson

filed his first Petition for Writ of

Habeas Corpus in the district court

which was dismissed on September 26,

1980. Adamson then appealed that

order to this court claiming that the

rejection of his double jeopardy

argument by both the Arizona Supreme

Court and the district court rested

On erroneous interpretations of the

plea agreement, and that he was

denied due process for failure of the

courts to hold a full evidentiary

hearing to determine that material

facts surrounding the breach of the

plea agreement. -In unpublished

Memorandum No: 80-5941 this court on

November 30, 1981 affirmed the

district court dismissal of Adamson's

habeas corpus petition, and upheld

the Arizona Supreme Court and federal

district court interpretation that

Adamson had breached the plea

agreement by refusing to testify, and

that the plea agreement did not

contemplate renegotiation in the

event of a retrial. This court

further held that Adamson's double

jeopardy rights had not been

violated, and that due process did

not require an evidentiary hearing.

Adamson v. Hill, 667 F.2d 1030 (9th

Cir., 1981) see page 5 n.4. The

United States Supreme Court denied

certiorari on March l, 1982, 455 U.S.

992, 102 S.Ct. 1619, 71 L.Ed.2d 853.

-A-131-

APPENDIX B

ORDER OF THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN HARVEY ADAMSON,

Petitioner-Appellant, No. 84-2069

)

)

)

)

) DC No. CIV 83-2323

) PHX(CAM)

)

)

)

-)

)

Vv.

JAMES G. RICKETTS,

et al.,

Respondents-Appellees ORDER

Before: KENNEDY, HUG, SCHROEDER,

PREGERSON, ALARCON, FERGUSON,

NELSON, BOOCHEVER, NORRIS,

BEEZER and BRUNETTI, Circuit Judges

Upon due consideration, the motion

for rehearing filed May 22, 1986 by

respondents-appellees is

DENIED.

Filed June 6, 1986

APPENDIX C

MEMORANDUM

OF THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN HARVEY ADAMSON,

Petitioner-Appellant,

We

JERRY HILL, Sheriff of No. 80-5941

Maricopa County, State

of Arizona; HONORABLE D.C. No. CV 80-502

FRED C. STRUCKMEYER, PHX-CAM

JR., Chief Justice of

the Supreme Court of MEMORANDUM

)

)

)

)

)

)

)

)

)

)

)

)

the State of Arizona; )

HONORABLE WILLIAM A. )

HOLOHAN, Vice Chief )

Justice of the Supreme )

Court of the State of )

Arizona; HONORABLE )

JACK D.H. HAYS, )

HONORABLE JAMES DUKE )

CAMERON, and HONORABLE )

FRANK X. GORDON, JR., )

Justices of the Supreme)

Court of the State of )

Arizona; )

ROBERT K. CORBIN, )

Attorney General in )

and for the State of )

Arizona, Real Party in )

Interest: State of )

Arizona, )

)

)

)

Respondents-Appellees.

Appeal from the United States District

Court for the District of Arizona

Carl A. Muecke, Chief District Judge,

Presiding

Argued and Submitted July 13, 1981

aGale

Before: ELY and CHOY, Circuit Judges, and

PFAELZER,* District Judge.

Appellant Adamson appeals from a district

coutt order dismissing his habeas corpus

petition as legally frivolous and from the

district court's subsequent denial of his

motions to amend the findings and the

judgment. We affirm.

- The Case

Adamson was charged with Open Murder in

the June 1976 bombing death of Donald

Bolles, a charge permitting a verdict of

first degree murder. The prosecution

struck a plea-bargaining agreement with him

providing inter alia that Adamson would be

allowed to plead guilty to the reduced

charge of second degree murder and receive

a stipulated sentence. Adamson agreed in

* The Honorable Mariana R. Pfaelzer,

United States District Judge for the

Central District of California, sitting

by designation.

return to testify against other

individuals under investigation in a

number of cases, including his alleged

accomplices in the Bolles killing, Max

Dunlap and James Robison.

Pursuant to the agreement, Adamson

pleaded guilty to second degree murder on

January 15, 1977. Adamson cooperated

with the prosecution in a number of cases

and Robison and Dunlap were convicted of

first degree murder in the Bolles case

primarily because of his testimony.

Although Adamson began to serve time

after entering his guilty pleas, he was

not formally sentenced until the judgment

of guilt was entered on December 7, 1978,

nearly two years later.

In early 1980, the convictions of

Robison and Dunlap were reversed by the

Arizona Supreme Court. The Arizona

Attorney General, preparing to

reinstitute charges against them,

soe

notified Adamson that his testimony would

again be required. Adamson, through his

counsel, refused to testify unless the

state complied with a list of

“non-negotiable” demands, including his

release from custody. Adamson claimed

that his obligations under the plea

agreement ended at the time of his formal

sentencing. The state warned Adamson of

the consequences of continued

recalcitrance, and upon his refusal to

cooperate charged him with the original

count of first degree murder.

The Arizona Superior Court denied

Adamson‘s motions to strike the renewed

charge as barred by the existing

judgment. Adamson then filed a Petition

ter Special Action with the Arizona

Supreme Court, alleging that the lower

court had abused its discretion in

refusing to block the prosecution. The

Arizona Supreme Court agreed to hear

arguments as to the meaning of the plea

agreement despite Adamson's attempt to

dismiss the petition when he learned that

he could not restrict that court's scope

of review.

Following briefing and oral argument,

the Arizona Supreme Court concluded that

the terms of the plea agreement

contemplated a continuing duty on

Adamson's part to’testify at any retrial

made necessary by appellate reversal.

The court also ruled that Adamson's

breach of his duty to testify constituted

a waiver of his right az.inst double

jeopardy under the terms of the plea

agreement and justified the state's

reprosecution.-/ The court vacated

Adamson's existing conviction and

reinstated the original charge against

him.

Adamson then petitioned the federal

district court for awrit of habeas

afaha

corpus, seeking to block the impending

state prosecution. He argued that the

Arizona Supreme Court had erred in making

its double jeopardy ruling and that the

state had denied him due process by

failing to hold an evidentiary hearing

prior to interpreting the plea

agreement. After hearing oral argument,

the district court dismissed the petition

as legally frivolous, agreeing with the

Arizona Supreme Court that the provisions

of the plea agreement obligated Adamson

to testify and that his refusal justified

the reprosecution. In an order denying

several post-judgment motions by Adamson,

the court found that Adamson's counsel

had discussed at length the merits of the

plea agreement issue before the Arizona

Supreme Court and rejected Adamson's

request for an evidentiary hearing.

Adamson was subsequently tried, convicted

of first degree murder and sentenced to

death.

II. Analysis

Adamson raises two central arguments on

appeal from the district court's order:

(1) that the rejection of his double

jeopardy argument by both the Arizona

Supreme Court and the federal district

court rested on erroneous interpretations

of the plea agreement; (2) that he was

denied due process by the failure of the

state courts to hold a full evidentiary

hearing to determine the material facts

Surrounding the breach of the plea

agreement.

We turn to the procedural argument

because its resolution determines the

degree of deference due the state court's

findings of fact. A federal statute

requires that federal courts entertaining

habeas corpus petitions treat state court

findings of fact with a presumption of

7

correctness so long as the state

proceedings meet certain procedural

requirements. 28 U.S.C. § 2254(d).

Adamson does not dispute that the Arizona

Supreme Court proceeding constituted a

"hearing on the merits of a factual

issue” as required by the statute. See

Sumner v. Mata, 449 U.S. 539, 546

(1981). He argues instead that the state

court hearing was procedurally deficient,

thus bringing the factual findings within

one of the exceptions enumerated in

§ 2254(d).+*/

Adamson argues generaily that the

record on which the Arizona Supreme Court

made its decision was inadequate. More

specifically, he argues that an

evidentiary hearing should have been held

to establish “among other things” the

context of a colloquy between the

sentencing judge and the parties at the

time of sentencing.

fafa

We disagree that the state proceedings

were procedurally inadequate. The

Arizona Supreme Court had the benefit of

Adamson's pleadings, oral argument, and a

record including inter alia the plea

agreement, Adamson's written refusal to

testify, and a transcript of the

proceedings at Adamson'’s sentencing.

Although Adamson objected to the Supreme

Court's consideration of the plea

agreement, he was given full opportunity

to address the issue and his counsel

indeed discussed it at oral argument. He

specifically identifies only one issue

which would be illuminated by the

evidentiary hearing he requests, the

meaning of a colloquy between his counsel

and the sentencing judge, and that issue

is essentially collateral to

interpretation of the agreement

terms.*/ The Supreme Court mentioned

the colloquy as evidence rebutting

aaa

Adamson's interpretation of the plea

agreement, but rested its decision upon

the provisions of the agreement itself.

See Adamson v. Superior Court, 125 Ariz.

979, 582-83, 611 P.2d 932, 935-6 (1980).

Even if the colloquy were interpreted as

Adamson argues it should be, it would

cast no doubt on the accuracy of the

decision. We find that Adamson was given

a full and fair hearing of his claims in

State court and that the statutory

presumption of correctness attaches to

its findings of fact.

Adamson cannot refute that presumption,

although he argues that the Arizona

Supreme Court erred on the merits in

interpreting the plea agreement. The

interpretation reached by both the state

court and the federal district court,

that the plea agreement did not

contemplate renegotiation in the event of

a retrial, is eminently reasonable. +/

The same can be said for the significance

attributed by both courts to the deferred

sentencing provision.2/ The thrust of

that provision concerns a waiver of

prompt sentencing rights and not a time

for termination of the plea agreement.

This interpretation is buttressed by

terms of the agreement obligating Adamson

to refrain from appealing the conviction

or from applying for parole, obligations

which were clearly intended to extend

beyond the time of sentencing.

In anticipation that this appeal would

fail, Adamson suggests that this court

allow him to “cure™ his breach of the

plea agreement by returning him to the

status quo prior to his refusal to

testify. Compliance with his request

would reduce the meaning of the various

State and federal decisions in this case

to the status of advisory opinions and

render meaningless the trial resulting in

-C-1l-

his murder conviction. In his written

refusal to testify and list of demands,

Adamson acknowledged that he ran the risk

of reprosecution for first degree murder

under the terms of the plea agreement.

He cannot now claim immunity in what

proved to be a losing gamble.

AFFIRMED.

-C-l2-

FOOTNOTES

i

Paragraph 5 of the plea agreement

provides in part that:

Should the defendant refuse to

testify or should he at any time

testify untruthfully or if any

material fact in the defendant's

transcribed statements given to

the State prior to this agreement

be false, then this entire

agreement is null and void and the

Original charges will be

automatically reinstated. The

defendant will be subject to the

charge of Open Murder and if found

guilty of First Degree Murder to

the penalty of death or life

imprisonment requiring mandatory

twenty-five (25) years actual

incarceration, and the State shall

be free to file any charges, not

yet filed as of the date of this

agreement.

Adamson specifically alleges that

the state proceedings were

defective under 28

U.S.C. § 2254(a)(2), (3), (6) and

(8), which provide exceptions to

the presumption of correctness

where it is established.

(2) that the factfinding

procedure employed by the State

court was not adequate to afford a

full and fair hearing:

-C-13-

(3) that the material facts were

not adequately developed at the

State court hearing;

(6) that the applicant did not

receive a full, fair, and adequate

hearing in the State court

proceeding; or

(8) or unless that part of the

record of the State court

| proceeding in which the

determination of such factual

issue was made, pertinent to a

| determination of the sufficiency

of the evidence to support such

factual determination, is produced

as provided for hereinafter, and

the Federal court on a

consideration of such part of the

record as a whole concludes that

such factual determination is not

fairly pe epee by the

record: ,

os In the colloquy, Adamson's counsel

acquiesced in the prosecutor's

statement for the record that the

opposing counsel had discussed the

fact “that it may be necessary in the

future to bring Mr. Adamson back

after sentencing for further

testimony.” Adamson argues that the

discussion related only to testimony

in a case unrelated to the Bolles

case and did not extend to testimony

at a retrial.

-C-14-

Paragraphs 4 and 5 of the plea

agreement provide, in pertinent part,

that:

4. The defendant hereby agrees

to testify fully and completely in

any Court, State or Federal,.when

requested by proper authorities

against any and all parties

involved in the murder of Don

Bolles, and in the beating of

Leslie Boros at the

Sheraton-Scottsdale, Maricopa

County, Arizona, and any and all

parties involved in the crimes

listed in Exhibits A and B filed

with this Court as part of their

agreement this date.

5S. It is agreed by all parties

that the defendant shall testify

truthfully and completely at all

times, whether under oath or not,

to the crimes mentioned in this

agreement. This shall include all

interviews, depositions, hearings

and trials.

In interpreting those provisions, the

Arizona Supreme Court held:

Although the plea agreement does

not specifically spell out the

duration of petitioner's

obligations, it does contemplate

full compliance with the requests

of the state until the objectives

have been accomplished. This is

stated in the broadest of terms.

We have no hesitation in holding

that the plea agreement

contemplates availability of

-C-15-

petitioner's testimony whether at

trial or retrial after reversal.

Kdamson v. Superior Court, 125 Ariz.

574, 583, 611 P.2d 932, 936 (1980).

De Paragraph 8 of the plea agreement

provides:

8. All parties to this

agreement hereby waive the time

| for sentencing and agree that the

defendant will be sentenced at the

conclusion of his testimony in all

of the cases referred to in this

agreement and Exhibits A and B,

which accompany it.

Adamson contends that this

provision should be interpreted as

indicating that the act of

sentencing concluded his

obligation to testify.

Filed November 30, 1981

-C-16-