Amicus Curiae Brief — Ricketts v. Adamson

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cunreme Court US.

FILED

OCTOBER TERM, 1986

STATE OF ARIZONA, PETITIONER

JOHN HARVEY ADAMSON

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

CHARLES A. ROTHFELD

Assistant to the Solicitor General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Double Jeopardy Clause bars the

prosecution of a defendant who voluntarily breaches

the terms of a plea agreement that disposed of the

original charges against him.

TABLE OF CONTENTS

Page

Interest of the United States ...... a eae | 1

I ce Ee 1

EE LT OO 9

Argument:

Prosecution of a defendant who breaches a plea

agreement is not barred by the Double Jeopardy

SD heinrcsccesnccsinssbes ET ET 12

A. The Double Jeopardy Clause does not relieve a

defendant of the consequences of his voluntary

NE. Fe a RS Ee eee 13

B. The court of appeals’ holding is inconsistent

with the policies of the Double Jeopardy Clause 22

IEE AES TER Te Ee OO 25

TABLE OF AUTHORITIES

Cases:

Adamson V. Ricketts, 758 F.2d 441 .... 6

Adamson Vv. Superior Court, 125 Ariz. 579, 611

a a |

Arizona V. Washington, 434 U.S. 497 . ae | 23

Blackledge v. Allison, 431 U.S. 63 . atiamasinaiie 23

Brown Vv. Ohio, 432 U.S. 161 .................... veseneeeBdy 24-25

Burks v. United States, 4837 U.S. 1 14

Garrett v. United States, No. 83-1842 (June 3,

NS 17

Green V. United States, 355 U.S. 184 16, 17, 22, 23

Hawk v. Berkemer, 610 F.2d 446 ...... ‘ 7 15

Jeffers V. United States, 482 U.S. 137 14

Johnson Vv. Zerbst, 304 U.S. 458 . rhe 13, 17

Justices of Boston Municipal Court v. Lydon, 466

Eh .....17, 22, 23

Klobuchir v. Pennsylvania, 639 F.2d 966, cert. de-

nied, 464 U.S. 10811 ...:.................... er fee niet 15

Lee Vv. United States, 432 U.S. 23 - ae ao 14, 16

(mI)

Cases—Continued : Page

Lowery V. Estelle, 696 F.2d 338 ...........................-..-. 15

Mabry Vv. Johnson, 467 U.S. 504 .................-....-..-.... . 19, 24

Menna Vv. New York, 423 U.S. 61 .............................. 17

Ohio v. Johnson, 467 U.S. 493 -........... 11, 12, 15, 22, 23, 25

Sanabria v. United States, 487 U.S. 54 -................... 14, 25

Santobello v. New York, 404 U.S. 257 —.........0-..0...... 24

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

ME 2,6

State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 _...... Pe 4

State v. Robison, 125 Ariz. 107, 608 P.2d 44 _.......... 4

Taylor v. United States, 414 U.S. 17 -........--............. 18

ro RB Ra See 17, 22

United States v. Anderson, 514 F.2d 583 ................ 15, 24

United States v. Arnett, 628 F.2d 1162 _.................. 19

United States v. Baldacchino, 762 F.2d 170 ........... 19

United States v. Ball, 163 U.S. 662 .......................... 14

United States v. Barker, 681 F.2d 589 _.............-.0.... 15

United States v. Calabrese, 645 F.2d 1379, cert. de-

nied, 451 U.S. 1018 . oie 6 ee 21

United States v. Carrillo, 709 F. od 35 . RL 19

United States v. Dinitz, 424 U.S. 600..10, 14, 16, 21, 22, 23

United States v. Gogarty, 533 F.2d 98 ...................... 19

United States v. Jerry, 487 F.2d 600 ........................ 15

United States v. Johnson, 537 F.2d 1170 ................ 15

United States v. Jorn, 400 U.S. 470 .................... 14, 16, 20

United States v. McIntosh, 612 F.2d 835 ................ 24

United States v. Myles, 430 F. Supp. 98, aff’d, 569

RE eee 15

United States v. Scott, 4837 U.S. 82 ........... 8, 10, 14, 16, 17,

19, 21, 22

United States v. Simmons, 537 F.2d 1260 ................ 21

United States v. Tateo, 377 U.S. 468 ...... 12, 13, 14, 23, 24

United States v. Verusio, No. 85-1690 (7th Cir.

I et 21

United States v. Whitley, 759 F.2d 327, cert. de-

nied, No. 84-6980 (Oct. 7, 1985) —..........---........... 15

United States ex rel. Williams v. McMann, 436

F.2d 103, cert. denied, 402 U.S. 946 ..................... 15, 24

Ward v. Page, 424 F.2d 491, cert. denied, 400 U.S. |

teianaiiaiienmamantaiiadiusiiadlalieie siniainiatalenis 15

Constitution and statute: Page

U.S. Const. Amend. V (Double Jeopardy Clause) ..passim

Lt Ere eecee a aad ciel al 5

Ariz. Rev. Stat. §§ 13-451 to 13-452 _..... siding 2

A A A ———__

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-6

STATE OF ARIZONA, PETITIONER

JOHN HARVEY ADAMSON

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case involves a claim that the Double Jeopardy

Clause bars reprosecution when the defendant volun-

tarily breaches the terms of a plea agreement. Be-

cause plea agreements play an important role in the

federal criminal justice s:stem, and because the

Court’s decision here is likely to affect federal crimi-

nal prosecutions, the United States has a substantial

interest in the outcome of this case.

STATEMENT

1. On June 2, 1976, Donald Bolles, a reporter for

the Arizona Republic, was critically injured when a

(1)

powerful bomb exploded in his car. Bolles survived

for 11 days, during which three of his limbs.were

amputated in an attemnt to save his life. He died on

June 18, 1976. State v. Adamson (Adamson II), 136

Ariz. 250, 258, 665 P.2d 972, 975, cert. denied, 464

U.S. 865 (1983).

The evidence that was produced at respondent’s

trial established that respondent placed the bomb in

Bolles’ car and lured Bolles to the spot where it was

detonated. Respondent received $10,000 for his ef-

forts. Bolles had been targeted, respondent told a

companion, because he “was giving people a lot of

hard times and stepping on people’s toes.” Adamson

II, 1386 Ariz. at 253-254, 665 P.2d at 975-976.

2. Respondent was indicted on the state criminal

charge of “open murder” for his role in the Bolles

killing. See Ariz. Rev. Ann. Stat. §§ 13-451 and 13-

452 (repealed). Prior to jury selection, however, re-

spondent and the State entered into a plea agreement

(Pet. App. A36-A46, A69). The State agreed to

amend the open murder charge to-one of second de-

gree murder; petitioner was to plead guilty to that

charge and receive a sentence of between 48 and 49

years’ imprisonment.’ Respondent also received im-

munity from prosecution for certain other crimes.

Id. at A36-A38, A40-A41. In return, respondent

agreed “to testify fully and completely in any Court,

State or Federal, when requested by proper author-

ities against any and all parties involved in the mur-

der of Don Bolles” (id. at A38), and to “testify fully

and completely at all times, whether under oath or

not,” at “all interviews, depositions, hearings and

trials’ (id. at A39). The agreement also provided

1Under that sentence, respondent actually would be in-

carcerated for 20 years and two months.

that, “[s]hould [respondent] refuse to testify or

should he at any time testify untruthfully * * * tuen

this entire agreement is null and void and the orig-

inal charge will be’ automatically reinstated. |[Re-

spondent] will be subject to the charge of Open Mur-

der, and if found guilty of First Degree Murder to

the penalty of death or life imprisonment.” Jd. at

A39-A40. Similarly, the State and respondent agreed

that “‘[i]n the event this agreement becomes null and

void, then the parties shall be returned to the posi-

tions they were in before this agreement” (id. at

A44).

Before accepting the plea, the trial judge “in de-

tail reviewed each paragraph of the plea agreement

with [respondent],” receiving respondent’s assur-

ance that he understood the meaning of each provi-

sion (Pet. App. A71; see id. at A68). Among other

things, the trial judge informed respondent that

should he “refuse to testify * * * he would be sub-

ject to the charge of open murder”; respondent re-

plied that “he understood what would happen if for

any reason the agreement became null and void and

the open murder charges were reinstated” (id. at

A72). The trial judge ultimately made the finding

that the plea was entered “voluntarily and intelli-

gently with full understanding.” Adamson v. Su-

perior Court (Adamson I), 125 Ariz. 579, 583, 611

P.2d 932, 936 (1980). Respondent subsequently testi-

fied’ against Max Dunlap and James Robison on

charges growing out of the Bolles ‘murder. After

Dunlap and Robison were convicted, respondent was

sentenced in accordance with the terms of the plea

agreement. Pet. App. A5.’

2 At sentencing, the prosecutor stated that he “wish[ed] the

record would show that it has been discussed with counsel,

3. In February 1980, the convictions of Dunlap

and Robison were reversed by the Arizona Supreme

Court and the cases were remanded 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 interview respondent to

prepare for the retrials, however, respondent refused

to cooperate. On April 3, 1980, he informed the State

that he believed he had fulfilled his obligations under

the plea agreement, although his attorney recognized

that the State “may feel that [respondent] has not

completed his obligations” and “may attempt to’ with-

draw that plea agreement from him”; respondent also

acknowledged through his attorney that “if the State

were successful in doing so, [respondent] may be

prosecuted for the killing of Donald Bolles on a first

degree murder charge.” Pet. App. A48-A50. Re-

spondent nevertheless stated that he. would testify in

a retrial of Dunlap or Robison only “upon the offer of

further consideration by the State of Arizona” (id.

at A49), including, among other things, his release

from custody (id. at A50-A53).

On April 9, 1980, the State attempted to inter-

view respondent. When he refused to cooperate, the

State indicated that, in its view, his action amounted

to a violation of the plea agreement and that the

State was free to prosecute him for first degree

murder. Pet. App. A56-A57. The State accordingly

scheduled respondent’s deposition “in an effort to

resolve this question” (id. at A57). Respondent re-

fused to testify in the pretrial proceedings, however,

and I believe counsel has discussed it with [respondent] that

it may be necessary in the future to bring [respondent] back

after sentencing for further testimony.” Respondent’s coun-

sel agreed “[tjhat’s our understanding” and “[t]hat’s cor-

rect.” Pet. App. A96-A97.

and the trial court refused to compel his testimony.

The Arizona Supreme Court declined to accept juris-

diction of the State’s Petition for a Special Action to

challenge the trial court’s ruling. See Adamson I,

125 Ariz. at 582, 611 P.2d at 935.

On May 8, 1980, the State accordingly filed a new

information charging respondent with first degree

murder. The trial court denied respondent’s motion

to dismiss the information on double jeopardy

grounds. On respondent’s Petition for a Special Ac-

tion, the Arizona Supreme Court affirmed. The court

first held, with “no hesitation,” that the plea agree-

ment “contemplates the availability of [respondent’s]

testimony whether at trial or retrial after reversal.”

Adamson I, 125 Ariz. at 583, 611 P.2d at 936. Hav-

ing concluded that respondent violated the terms of

the plea agreement, the court found it easy to dispose

of respondent’s double jeopardy argument, since the

agreement “by its very terms waives the defense of

double jeopardy if the agreement is violated” (125

Ariz. at 584, 611 P.2d at 937).

Respondent then sought habeas corpus relief pur-

suant to 28 U.S.C. 2254, arguing that the state court

had erred in its interpretation of the plea agreement

(Pet. App. C7). The district court dismissed the

petition. The court of appeals affirmed (id. at Cl-

C12; 667 F.2d 1030), finding that respondent re-

ceived “a full and fair hearing of his claims in state

court” and that the interpretation given the plea

3 As a matter of state law, the Arizona Supreme Court held

that the State should not have proceeded with a new informa-

tion; the court therefore vacated respondent’s second degree

murder conviction and guilty plea, reinstated the original

charge, and dismissed the new information. Adamson I, 125

Ariz. at 583-584, 611 P.2d at 936-937.

agreement by the Arizona Supreme Court and by the

district court “is eminently reasonable” (Pet. App.

C10). This Court then denied certiorari. 455 U.S.

992 (1982).

4. In October 1980, respondent was convicted of

first degree murder and sentenced to death. The

Arizona Supreme Court affirmed the conviction and

sentence (see Adamson II, supra), and this Court

again denied certiorari. 464 U.S. 865 (1983).

Respondent then filed another petition for habeas

corpus, raising a number of issues relating to his

trial and sentence. The district court again denied

the petition, and a panel of the Ninth Circuit again

affirmed. Adamson v. Ricketts, 758 F.2d 441 (1985).

At the rehearing en banc stage, however, respondent

argued for the first time in this habeas corpus pro-

ceeding that his trial on the first degree murder

charge violated his double jeopardy rights (see Pet.

App. Al27 n.1). A majority of the en bane court

accepted that argument and granted respondent re-

hef (id. at Al-A36).

The court first held that jeopardy attached to the

prosecution for second degree murder when the judg-

ment of conviction was entered and respondent was

sentenced on his plea (Pet. App. Al4). The court also

reasoned that second degree murder is a lesser in-

cluded offense of first degree murder, so that a con-

viction on the former charge bars prosecution or con-

viction on the latter (7d. at A15-A17). And the court

* The court of appeals noted that “[i]n his written refusal

to testify and list of demands, [respondent] 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.” Pet. App.

C12.

found that respondent had not waived his double jeop-

ardy rights by entering into the plea agreement,

reasoning that such a waiver can be effective only if

it involves “an intentional relinquishment or aban-

donment of a known right or privilege” (id. at A18

(citation omitted)). “It may well be argued,” the

court stated, “that the only manner in which [re-

spondent] could have made an intentional relinquish-

ment of a known double jeopardy right would be by

waiver ‘spread on the record’ of the court after an

adequate explanation” (id. at A20-A21). Even if

respondent could have made an implied waiver of his

double jeopardy right, the court continued, “the more

reasonable interpretation of the agreement is that

double jeopardy was not waived,” since “[a]greeing

that charges may be [reinstated] under certain cir-

cumstances is not equivalent to agreeing that if they

are [reinstated] a double jeopardy defense is

waived” (id. at A21-A22).

The court went on to hold that, even if the plea

agreeinent could implicitly waive respondent’s double

jeopardy rights, that waiver would be effective in a

given case only if “the defendant’s action constituting

the breach [of the agreement is] taken with the

knowledge that in [committing the breach] he waives

his double jeopardy rights” (Pet. App. A24). The

court reasoned that a defendant acts with such know]l-

edge only when he intentionally breaches his plea

agreement. Here, the court concluded, respondent

“reasonably believed that a refusal to testify did not

constitute a breach of the agreement.” In such cir-

cumstances, the court held, “there could be no know-

ing or intentional waiver until [respondent’s] obliga-

tion to testify was announced by the court” (id. at

A25). The court of appeals accordingly ordered re-

spondent freed “from the sentence and servitude of

his conviction of first degree murder” (id. at A31).

Judge Brunetti, joined by three other judges, dis-

sented (Pet. App. A58-Al111), He noted that the

court’s analysis “render[ed] the plea agreement in-

effectual and unenforceable from the inception” (id.

at A80). He also criticized the court for basing its

holding on the absence of an express waiver of a

known right or privilege. In Judge Brunetti’s view,

a “defendant’s role in bringing about * * * sutces-

sive trials remove[s] any constitutional barrier to

the second |[trial]” (id. at A82). Here, Judge Bru-

netti concluded, respondent’s refusal to testify was

“the triggering event which * * * set into motion

the second prosecution, [Respondent] must accept

responsibility for the second prosecution; the double

jeopardy clause ‘does not relieve a defend-nt from

the consequences of his voluntary choice.’” Jd. at

A84 (quoting United States v. Scott, 437 U.S. 82, 99

(1978) ).°

5 Judge Kennedy both joined Judge Brunetti’s dissent and

dissented separately, emphasizing that ‘‘[j]eopardy 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” (Pet. App. A119). He

added: “The whole purpose of [plea] agreements, as in this

case, is to permit the defendant to plead to lesser charges sub-

ject to the risk of facing more serious ones if he does not keep

his end of the deal. For the court, deux ex machina, to drop

the idea of double jeopardy into the plea bargain context is

inconsistent with any reasonable interpretation of the con-

tract made between the defendant and the state. The contract

makes no sense if by some legal theory it is contended de-

fendant did not accept it with full knowledge and under-

standing of its enforcement terms.” /d. at A121-A122.

$e Se a SS —EEe

Judge Brunetti also saw “little doubt” that respond-

ent breached the agreement when he refused to par-

ticipate in interviews to prepare for the Dunlap and

Robison retrials (Pet. App. A86), and he rejected the

proposition that respondent “‘was merely advancing a

reasonable interpretation of the plea agreement” (id.

at A88). In all, Judge Brunetti found it “clear from

the record that [respondent] 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.” Jd. at A69.°

SUMMARY OF ARGUMENT

1. The court of appeals’ holding is premised on the

proposition that a defendant’s action may trigger a

new prosecution only if the defendant intentionally

and knowingly relinquished his double jeopardy

rights. That premise, however, is flatly inconsistent

with this Court’s decisions in the double jeopardy

area, which repeatedly have held that the Double

Jeopardy Clause does not bar successive trials when

the defendant himself triggered the need for a second

prosecution. Retrial is permissible, for example, when

the defendant successfully challenges his conviction

on appeal or in collateral proceedings, or when a mis-

* Judge Brunetti also took issue with the remedy imposed

by the court. The majority took the position that its holding

left respondent’s second degree murder conviction intact; the

court of appeals left it to the Arizona Supreme Court to rein-

state that conviction (see Pet. App. A31-A32). Judge Brunetti

suggested, however, that the court’s chosen remedy did not

appear to be consistent with the terms of the plea agreement,

since the agreement explicitly required the parties to be re-

turned to their pre-plea positions in the event of a breach

(id. at A109-A110). See also id. at Al25-126 (Kennedy, J.,

dissenting).

trial is granted on the defendant’s motion. Similarly,

the Double Jeopardy Clause is not implicated when a

defendant elects to have greater and lesser included

offenses tried separately, although he normally is en-

titled to have the two resolved in one proceeding. This

principle is fully applicable in the plea bargain con-

text: the courts uniformly have concluded that when

a defendant has his guilty plea vacated, a retrial on

all the original charges is permissible.

In each of these examples, the crucial factor is that

it was the defendant’s voluntary action that brought

about the second proceeding. In none of them, how-

ever, was the defendant’s conduct accompanied by a

knowing or intentional waiver of double jeopardy

rights of the type required by the court of appeals.

To the contrary, this Court has “implicitly rejected

the contention that the permissibility of a retrial

* * * depends on a knowing, voluntary and intelli-

gent waiver of a constitutional right.” United States

v. Dinitz, 424 U.S. 600, 609-610 n.11 (1976). As the

Court has noted, “traditional waiver concepts have

little relevance [in this setting]; rather, “[t]he im-

portant consideration, for purposes of the Double

Jeopardy Clause, is that the defendant retain primary

control over the course to be followed.” Jd. at 609

(footnote omitted). It is enough that the retrial is

prompted by the defendant’s actions, for ‘the Double

Jeopardy Clause, which guards against Government

oppression, does not relieve a defendant from the con-

sequences of his voluntary choice.” United States v.

Scott, 437 U.S. 82, 99 (1978).

The court of appeals’ holding cannot be reconciled

with this principle. Respondent entered the plea

agreement voluntarily, with full knowledge and un-

derstanding of the proviso that the agreement would

eee eee

be rendered “null and void” and the original charge

“automatically reinstated” if he failed to cooperate as

he had agreed. In these circumstances, where it is

undisputed that respondent’s breach was the trigger-

ing event that set the new prosecution in motion, the

court of appeals simply—and improperly—used the

Double Jeopardy Clause to relieve respondent of the

consequences of his voluntary choice. That conclusion

would not be affected even if the court of appeals

were correct in its highly implausible suggestion that

respondent’s reading of the plea agreement, although

erroneous, was reasonable: respondent voluntarily

chose to stend on a questionable reading of the plea

agreement, with full knowledge that his interpreta-

tion could be rejected by the courts.

2. A review of the purposes of the Double Jeop-

ardy Clause confirms that respondent’s rights were

not violated by his prosecution for first degree mur-

der. Because respondent’s breach of the agreement

led the Arizona Supreme Court to vacate his convic-

tion and sentence, he did not face the risk of multiple

punishment for the same offense. Conversely, the

State was not attempting to revive an unsuccessful

prosecution: respondent had never faced trial or been

exposed to conviction on the first degree murder

charge. Once respondent’s breach returned the par-

ties to their original positions, the State simply

sought to exercise “its right to one full and fair op-

portunity to convict [an individual] who ha[s] vio-

lated its laws.” Ohio v. Johnson, 467 U.S. 493, 502

(1984).

The court of appeals’ analysis is also contrary to

the principle that a court must look to the implica-

tions “for the sound administration of justice” of

applying a double jeopardy bar in a given context.

United States v. Tateo, 377 U.S. 4638, 466 (1964).

Far from taking those implications into account, the

court of appeals’ holding would render plea agree-

ments almost entirely unenforceable by the govern-

ment, at least to the extent that they imposed future

obligations on the defendant. That holding would

allow defendants to disregard the terms of their plea

agreements at will, secure in the knowledge that their

refusal to comply could not be reciprocated by the

government. Such a result does nothing to safeguard

the legitimate interests of defendants. To the con-

trary, far from furthering the purposes of the Double

Jeopardy Clause, the decision below would permit de-

fendants “to use the Double Jeopardy Clause as a

sword” to prevent the State from securing compliance

with the terms of its plea agreements. Johnson, 467

U.S. at 502.

ARGUMENT

PROSECUTION OF A DEFENDANT WHO BREACHES

A PLEA AGREEMENT IS NOT BARRED BY THE

DOUBLE JEOPARDY CLAUSE

The court of appeals offered three alternative

rationales for its refusal to enforce the terms of

respondent’s plea bargain. First, it held that a de-

fendant cannot relinquish his double jeopardy rights

(and thus permit a new trial after jeopardy has once

attached) unless he expressly waives those rights on

the record (Pet. App. A18-A21). Second; it held that,

even if an implied waiver of double jeopardy rights

may be made, the plea agreement here effected no

such waiver (id. at A22-A23). Third, it held that,

even if the agreement did implicitly waive respond-

ent’s double jeopardy protections against a new pros-

ecution, such a waiver would be effective only if re-

spondent intentionally breached the plea agreement

with the knowledge that in doing so he waived his

double jeopardy rights (id. at A23-A24). While these

are alternative holdings, all are based on one common

premise: that a defendant’s action may trigger a

new prosecution only if that action amounted to an

“intentional relinquishment or abandonment of a

known [double jeopardy] right,” as that standard

was described in Johnson v. Zerbst, 304 U.S. 458,

464 (1938). See Pet. App. A18-A19.

The court of appeals’ premise is flatly inconsistent

with this Court’s decisions in the double jeopardy

area, which repeatedly have held that the Double

Jeopardy Clause does not protect a defendant from

the consequences of his voluntary actions. At the

same time, the court of appeals disregarded this

Court’s more general admonition that double jeopardy

principles must be applied with an eye towards “the

implications of [those] principle[s] for the sound ad-

ministration of justice.” United States v. Tateo, 377

U.S. 463, 466 (1964). And the court of appeals failed

to take into account either the nature of the plea bar-

gaining process or the plain meaning of respondent’s

bargain. When these considerations are weighed, it

becomes clear that the court of appeals’ holding is

fatally flawed.

A. The Double Jeopardy Clause Does Not Relieve A

Defendant Of the Consequences Of His Voluntary

Actions

1. This Court has consistently held that the Dou-

ble Jeopardy Clause does not bar successive trials

when it is the defendant’s action that triggers the need

for a new prosecution—when, in other words, the de-

fendant acts in a way that returns him to the situa-

tion that prevailed prior to the point at which jeop-

ardy first attached. For example, it has long been

the law that a defendant whose conviction is set aside

on appeal “may be tried anew upon the same indict-

ment, or upon another indictment, for the same of-

fence [sic] of which he had been convicted.” United

States v. Ball, 163 U.S. 662, 671-672 (1896).’ A re-

trial also is permissible when the defendant has suc-

cessfully sought collateral relief, see Tateo, 377 U.S.

at 465, or when he has prevailed at trial on a motion

to dismiss. See Lee v. United States, 432 U.S. 23, 33

(1977). And when the defendant “successfully seeks

to avoid his trial prior to its conclusion by a motion

for mistrial, the Double Jeopardy Clause is not of-

fended by a second prosecution”—even where the

mistrial motion is prompted by prosecutorial or judi-

cial error. United States v. Scott, 487 U.S. 82, 93

(1978). See United States v. Dinitz, 424 U.S. 600,

608 (1976); United States v. Jorn, 400 U.S. 470, 485

(1971) (plurality opinion) ; see generally Sanabria v.

United States, 437 U.S. 54, 63 n.15 (1978).

In other, related contexts, the Court similarly has

held that multiple prosecutions growing out of the

same offense may be permissible when the second pro-

ceeding was prompted or made necessary by the de-

fendant’s voluntary actions. Thus, “although a de-

fendant is normally entitled to have charges on a

greater and lesser offense resolved in one proceeding,

there is no violation of the Double Jeopardy Clause

when he elects to have the two offenses tried sepa-

rately and persuades the trial court to honor his elec-

tion.” Jeffers v. United States, 432 U.S. 1387, 152

(1977) (plurality opinion). And the Court has held

that a defendant’s guilty plea to a lesser included

offense does not bar trial on the greater offense

charged along with it, if it was the defendant’s effort

* This rule does not apply, of course, when the conviction is

set aside for insufficiency of the evidence. See Burks v. United

States, 437 U.S. 1 (1978).

that led to “separate disposition of counts in the same

indictment.” Ohio v. Johnson, 467 U.S. 4938, 502

(1984).

Not surprisingly, the courts of appeals have found

this principle fully applicable in the context of plea

bargains. Plea agreements commonly provide that a

defendant will plead guilty to one or more counts of

an indictment in exchange for the prosecution’s agree-

ment to dismiss the remaining counts. In that set-

ting, if the defendant successfully moves to have his

guilty plea vacated, the courts have uniformly held

that he can properly be tried on ali the original

charges. Such a trial on all the charges is permissible

because it was the defendant’s “own decision to plead

guilty and to have that plea set aside.” United States

v. Barker, 681 F.2d 589, 591 (9th Cir. 1982). See

Klobuchir v. Pennsylvania, 639 F.2d 966, 969-970

(3d Cir.), cert. denied, 454 U.S. 1031 (1981); Hawk

v. Berkemer, 610 F.2d 445, 447-448 (6th Cir. 1979);

United States v. Johnson, 537 F.2d 1170, 1174 (4th

Cir. 1976) ; United States v. Anderson, 514 F.2d 583,

586-587 (7th Cir. 1975); United States v. Jerry, 487

F.2d 600, 606 (3d Cir. 1973); Ward v. Page, 424

F.2d 491, 493 (10th Cir), cert. denied, 400 U.S. 917

(1970); United States v. Myles, 430 F. Supp. 98,

101-102 (D.D.C. 1977), aff'd, 569 F.2d 161 (D.C.

Cir. 1978). Cf. United States v. Whitley, 759 F.2d

327, 332 (4th Cir.) (en banc), cert. denied, No. 84-

6980 (Oct. 7, 1985); Lowery v. Estelle, 696 F.2d

383, 340-342 (5th Cir. 1983); United States ex rel.

Williams v. McMann, 436 F.2d 103 (2d Cir. 1970),

cert. denied, 402 U.S. 914 (1971). ¢

2. In each of those settings, the crucial factor was

the defendant’s voluntary action that brought about

the second proceeding. In none of them, however, was

that action accompanied by a knowing, intelligent, or

intentional waiver of double jeopardy rights of the

type required by the court of appeals here. The de-

fendants who requested a mistrial or pursued an ap-

peal, for example, were not warned by the court that

in doing so they risked a retrial; at the same time,

of course, the defendants did not explicitly relinquish

(or, indeed, advert in any way to) their double jeop-

ardy rights.

As this Court has stated, the permissibility of a

retrial following a mistrial or a reversal of a convic-

tion on appeal thus does not depend on the defend-

ant’s making a “knowing, voluntary and intelligent

waiver of a constitutional right.” Dinitz, 424 US.

at 609-610 n.11. To the contrary, the Court has

explained, “traditional waiver concepts have little

relevance” in this setting;"[t]he important considera-

tion, for purposes of the Double Jeopardy Clause, is

that the defendant retain primary control over the

course to be followed.” Jd. at 609 (footnote omitted).

See Scott, 487 U.S. at 93-94; Lee, 432 U.S. at 32-33;

Jorn, 400 U.S. at 484-485 n.11 (plurality opinion) .*

8 In Green Vv. United States, 355 U.S. 184, 189 (1957), the

Court discussed the “waiver” of double jeopardy protections

in terms of the voluntary relinquishment of a known right.

The Court actually neld, however, that the defendant’s action

did not amount to a “‘waiver” because it was not voluntary.

The defendant in Green was tried on charges of first and

second degree murder; the jury found him guilty only of

second degree murder. When the verdict was set aside on

the defendant’s appeal, the government attempted to retry

him for first degree murder as well. The Court held that the

defendant’s appeal did not constitute a “waiver” of his double

jeopardy protections against such e reprosecution, reasoning

that “[w]hen a man has been convicted of second degree

murder and given a long term of imprisonment it is wholly

fictional to say that he ‘chooses’ to forego his constitutional

It is enough that the retrial is prompted “by the ac-

tions of the defendant himself” (Garrett v. United

States, No. 83-1842 (June v, 1985), slip op. 3

(O’Connor, J., concurring) ); for “the Double Jeop-

ardy Clause, which guards against Government op-

pression, does not relieve a defendant from the con-

sequences of his voluntary choice.” Scott, 437 U.S.

at 99.

The permissibility of retrial therefore does not turn

on the existence of a conventional “‘waiver’” of double

jeopardy rights. As long as it is the defendant’s vol-

untary action that aborts his trial or obviates his con-

viction, the principles underlying the Double Jeop-

ardy Clause are satisfied: in that setting, requiring

the defendant to stand trial again “is not an act of

governmental oppression of the sort against which the

Double Jeopardy Clause was intended to protect.”

Scott, 487 U.S. at 91. See Justices of Boston Muni-

cipal Court v. Lydon, 466 U.S. 294, 308 (1984);

Tibbs v. Florida, 457 U.S. 31, 40 (1982). This prin-

ciple thus involves not so much a relinquishment of

defense of former jeopardy on a charge of murder in the

first degree in order to secure a reversal of an erroneous con-

viction of the lesser offense. In short, he has no meaningful

choice.” Jd. at 191-192; see id. at 193-194.

Similarly, in Menna v. New York, 423 U.S. 61 (1975) (per

curiam), the Court held that a defendant who had pleaded

guilty after unsuccessfully seeking dismissal of his indict-

ment on double jeopardy grounds did not “waive” his double

jeopardy claim by the entry of his plea. See id. at 62-63 & n.2.

The ruling in that case has no bearing here, since the defend-

ant in Menna tvok no action to return himself to the position

that he occupied prior to the attachment of jeopardy. In any

event, the Court did not suggest that conduct having the effect

of waiving a double jeopardy claim must satisfy the require-

ments of Johnson V. Zerbst, supra, in order to be valid.

constitutional prerogatives as a determination that

the Clause simply does not apply when retrials are

triggered by the defendants’ actions.

8. The court of appeals’ holding in this case can-

not be reconciled with these principles of double

jeopardy law. It is conceded that respondent entered

the plea agreement voluntarily, with full knowledge

of its provisions—including the proviso that the

agreement would be rendered “null and void” and the

original charge “automatically reinstated” if he failed

to cooperate as agreed (Pet. App. A39-A40). And

respondent plainly understood the consequences of a

breach; indeed, in the letter announcing his refusal

to cooperate, he declared his awareness that the State

might seek to nullify the plea agreement and, if suc-

cessful, might prosecute him for first degree murder

(id. at A49-A50). Given the plain terms of the plea

agreement, it would have been wholly incredible for

him to have suggested otherwise. Cf. Taylor v.

United: States, 414 U.S. 17, 19-20 .(1973). In these

circumstances, where it is undisputed that respond-

ent’s breach was “the triggering event * * * which

set in motion the new prosecution” (Pet. App. A84

(Brunetti, J., dissenting)), the court of appeals

simply—and: improperly—used' the Double Jeopardy

* Indeed, as Judge Kennedy noted in dissent (Pet. App.

A121-A122), the essential purpose of any plea agreement is

to permit the defendant to avoid prosecution on a greater

charge, subject to the threat of prosecution on that charge

if he fails to comply with the agreement’s terms. That threat

is the essential enforcement mechanism of all plea agreements.

It belies belief that either the State or the defendant would

enter into a plea agreement without appreciating this—or

that, as the court of appeals held to be the case here (id. at

A21-A22), either side wéuld believe that the defendant could

assert double jeopardy as a defense to such a prosecution.

Clause to rescue respondent “from the consequences

of his voluntary choice.” Scott, 437 U.S. at 99.

As long as respondent knew he would be subject to

reprosecution if he violated the plea agreement, it

was of no consequence whether he knew that the legal

significance of what he was doing was to waive his

double jeopardy rights. The information on the face

of the agreement—which clearly advised respondent

that he would be subject to prosecution under the

original charge if he failed to comply with his obli-

gation of cooperation—was all the information he

needed to make his choice. By consciously running

the risk that he would have to face prosecution on

the original charge, respondent knowingly aban-

doned the protection that the plea agreement afforded

him: An awareness of the legal description of that

protection would not have altered in any way the

nature of the choice he faced.

That the reprosecution ultimately is attributable

to respondent also comes clear from the nature of

the plea bargaining process itself. Plea bargains are

essentially contractual undertakings that are ren-

dered unenforceable when either side commits a

breach. See generally Mabry v. Johnson, 467 U.S. 504,

509-510 (1984); United States v. Baldacchino, 762

F.2d 170, 179 (1st Cir. 1985); United States v. Car-

rillo, 709 F.2d 35, 36-37 (9th Cir. 1983); United

States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.

1979) ; United States v. Gogarty, 533 F.2d 93, 95

(2d Cir. 1976). Here, the State agreed to forgo a

first degree murder prosecution on the express condi-

tion that respondent fulfill the terms of the agree-

ment. When respondent refused to comply, his posi-

tion did not differ in any essential way from that of

a defendant who seeks to withdraw a guilty plea: in

— i

essence, respondent simply wanted to get out of his

bargain. In doing so, he returned the parties to the

positions that they occupied before jeopardy attached.

The Double Jeopardy Clause, after all, “represents a

constitutional policy of finality for the defendant’s

benefit” (Jorn, 400 U.S. at 479 (plurality opinion) ) ;

a defendant who pretermits prosecution by entering

into an executory agreement and then refuses to

comply should not benefit from that policy.

This conclusion would not be affected even if the

court of appeals were correct in its implausible sug:

gestion that respondent’s reading of the plea agree-

ment, although erroneous, was reasonable.” Respond-

ent was entitled to a judicial determination as to

10 In finding respondent’s position reasonable, the court of

appeals pointed to a provision of the plea agreement stating

that respondent would be sentenced “ ‘at the conclusion of his

testimony’ ”; the cour. of appeals concluded that this provi-

sion might be read to terminate respondent’s obligations to

testify at the time that he was sentenced. Pet. App. A25-A26.

The Arizona Supreme Court, however, found it plain from the

terms of the agreement that respondent was obligated to

testify “at trial or retrial after reversal,” and explained that

at the sentencing hearing itself respondent evidenced ‘“‘a clear

understanding that [he] would testify after [his] sentenc-

ing.” Adamson I, 125 Ariz. at 583, 611 P.2d at 936. Given

this definitive factual finding that respondent “clearly under-

st[ood]” his obligations, it is difficult to see how his refusal

to cooperate could have been made in good faith, no matter

how ambiguous the terms of the plea agreement. In any event,

on respondent’s first petition for habeas corpus, a panel of

the Ninth Circuit found the Arizona Supreme Court’s inter-

pretation of the agreement “eminently reasonable” (Pet. App.

C10). And Judge Brunetti’s careful analysis of the record

makes it clear that respondent’s refusal to testify was entirely

unjustified.

whether he had breached the agreement. See United

States v. Verusio, No. 85-1690 (7th Cir. -Oct. 9,

1986); United States v. Calabrese, 645 F.2d 1379,

1389-1390 (10th Cir.), cert. denied, 451 U.S. 1018

(1981); United States v. Simmons, 537 F.2d 1260,

1261-1262 (4th Cir. 1976). He rétéived that de

termination from the Arizona Supreme Court before

the prosecution was begun on the original charges.

To be sure, that determination came after the prose-

cutors had already concluded that respondent was in

breach of the agreement and had decided t reinstate

the original charges against him as a result. But

the Double Jeopardy Clause does not relieve defend-

ants of the burden of making difficult decisions;

a defendant who must decide whether to seek a mis-

trial, for example, often “‘face[s] a ‘Hobson’s choice’ ”

(Dinitz, 424 U.S. at 609) between surrendering the

right to have his case decided in one proceeding and

allowing a trial tainted by error to continue. Simi-

larly, a defendant who asserts (as respondent did) a

reading of his plea agreement that is no better than

arguable “takes the risk” that a court will find his

interpretation incorrect. Scott, 437 U.S. at 100 n.13.™

That this procedure puts the defendant to a difficult

11 1t may be added that, as a practical matter, a defendant

who advances a good faith interpretation of his plea agree-

ment is unlikely to suffer even if that interpretation ultimately

is rejected by a court. Once the defendant’s obligations are

settled, the prosecution is likely to be satisfied if the defend-

ant is willing to comply with the terms of the agreement

(as long as the value of the defendant’s cooperation has not

diminished during the period of his recalcitrance) ; after all,

the government’s need for the defendant’s cooperation—which

induced it to enter into the agreement as an initial matter—

is likely to lead it to the same conclusion the second time

around.

choice between acquiescing in the government’s re-

quest and asserting a debatable interpretation of the

plea agreement does not implicate the Double Jeop-

ardy Clause, as long as the choice remains the de-

fendant’s to make. See Dinitz, 424 U.S. at 609.

B. The Court Of Appeals’ Holding Is Inconsistent

With The Policies Of The Double Jeopardy Clause

1. As the discussion above suggests, the purposes

of the Double Jeopardy Clause—forestaliing a certain

sort of “governmental oppression” (Scott, 437 U.S.

at 91)—are not implicated when the defendant’s

voluntary action invites the reprosecution. A more

detailed look at those purposes confirms that “[n]o

interest of respondent protected by the Double Jeop-

ardy Clause” (Johnson, 467 U.S. at 501) is affected

by his prosecution on a first degree murder charge. ”

“The primary purpose of foreclosing a second pros-

ecution after conviction * * * is to prevent a defend-

ant from being subjected to multiple punishment for

the same offense.” Lydon, 466 U.S. at 307. See

Brown v. Ohio, 432 U.S. 161, 166 (1977). That con-

cern has no bearing in this case, where respondent’s

breach of the plea agreement led the Arizona Su-

preme Court to vacate his conviction and sentence.

Conversely, the State is not attempting to revive an

unsuccessful prosecution: respondent has never been

exposed to conviction on the first degree murder

charge, “nor has the State had an opportunity to

marshal its evidence and resources more than once

or to h»»e the presentation of its case through a

trial.” Johnson, 467 U.S. at 501. See Tibbs, 457

U.S. at 41-42." And a case in which the defendant

12 Similarly, there has been no implied acquittal of respond-

ent for first degree murder. See Johnson, 467 U.S. at 501.

Compare Green v. United States, 355 U.S. 184, 191 (1957).

- ee ee

pleaded guilty prior to jury selection plainly does

not involve “the defendant’s ‘valued right to have his

trial completed by a particular tribunal.’” Dinitz,

424 U.S. at 606 (citation omitted).

Equally as important, the imposition of a double

jeopardy bar is not necessary to serve what the Court

has often stated as the broad purpose of the Clause:

“ensur[ing] that the State does not make repeated

attempts to convict an individual, thereby exposing

him to continued embarrassment, anxiety, and expense,

while increasing the risk of an erroneous conviction.”

Johnson, 467 U.S. at 498-499. See Scott, 437 U.S.

at 87; Green v. United States, 355 U.S. 184, 187-

188 (1957). At the time the State initially was

prepared to go to trial in this case, respondent in-

duced it to terminate the prosecution on the condi-

tions set out in the plea agreement. Now that re-

spondent’s breach of the agreement has returned

the parties to their original positions, the State is

simply seeking to exercise “its right to one full and

fair opportunity to convict [an individual] who ha[s]

violated its laws.” Johnson, 467 U.S. at 502. See

Arizona v. Washington, 434 U.S. 497, 509 (1978).

2. The flaw in respondent’s position also is sug-

gested by the other prong in this Court’s double jeop-

ardy analysis, which has looked to the implications

“for the sound administration of justice” of apply-

ing a double jeopardy bar in a given context. Tateo,

377 U.S. at 466. See Lydon, 466 U.S. at 308. Far

from taking such considerations into account, the

court of appeals’ holding renders plea agreements—

which are, of course, an “important component of

this country’s criminal justice system” (Blackledge v.

Allison, 431 U.S. 63, 71 (1977))—almost entirely

unenforceable by the government, at least to the ex-

tent that they impose future obligations on the de-

fendant.

Predictability and reliance are “the foundation of

plea bargaining.” United States v. McIntosh, 612

F.2d 835, 837 (4th Cir. 1979). The approach taken

by the court of appeals, however, would make re-

liance on the defendant’s undertakings impossible by

“giv[ing] the defendant more than the ‘benefit of

his bargain.’” United States v. Anderson, 514 F.2d

583, 587 (7th Cir. 1975). Indeed, unless the plea

agreement is drafted with extraordinary precision—

a precision that, if the scrutiny given the agreement

here by the court of appeals is any indication, is

beyond the capability of most attorneys (see Pet.

App. A20-A22, A25-A26)—the court of appeals’ hold-

ing would allow defendants to disregard the terms of

their plea agreements at will, secure in the knowledge

that their refusal to comply could not be reciprocated

by the government. The result inevitably would be

to discourage the use of plea agreements, a develop-

ment that would benefit neither society nor criminal

defendants. See generally McMann, 436 F.2d at 107.

This would be “a high price indeed for society to

pay” (Tateo, 377 U.S. at 466) even if the court of

appeals’ approach otherwise had beneficial effects.

The court’s holding, however, does nothing to safe-

guard the legitimate interests of defendants. Their

expectations are protected by the plea agreement

itself—whose terms are enforceable as a matter of

due process (see generally Mabry, 467 U.S. at 509;

Santobello v. New York, 404 U.S. 257, 262-263

(1971) )—and by the Double Jeopardy Clause, which

stands as an independent bar to renewed prosecution

on a greater offense when the defendant has pleaded

guilty to a lesser included offense. See Brown v.

Ohio, supra, The court of appeals’ decision in this

case thus gives defendants no added protection against

government overreaching. Instead, the decision sim-

ply permitted responde=t. “to use the Double Jeop-

ardy Clause as a sword” to prevent the State from

securing compliance with its plea agreement. John-

son, 467 U.S. at 502. Giving such a benefit to a de-

fendant who breaches his plea agreement would be

perverse. Respondent’s maneuvers should not be re-

warded under the mantle of protecting his right to

be free from double jeopardy; to the contrary, those

maneuvers “should result in a surrender’ of his

claim to theprotection of the Double Jeopardy

Clause. Sanabria, 437 U.S. at 80-81 (Blackmun, J.,

dissenting) (emphasis added).

CONCLUSION

The judgment of the court of appeals should be

reversed,

Respectfully submitted.