Opposition Brief — Del Rivo v. United States

aint

)) Supreme Court, U.S,

a FILE QD

No. 87-292

OCT 15 987

In the Supreme Court of the United Stakes”

OCTOBER TERM, 1987

UMBERTO DEL RIVO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

Louis M. FISCHER

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner may take an interlocutory appeal

from an order denying his motion to dismiss an indictment

on the ground that a prior plea agreement should be inter-

preted as a bar to the prosecution.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S. 651 (1977) ............ 5

Flanagan v. United States, 465 U.S. 259 (1984) ......... 6

Heike v. United States, 217 U.S. 423 (1910) .......... 4,5,4,7

John Doe Corp. v. United States, 714 F.2d 604 (6th

a RR a a a ee 3, 6

United States v. Abbamonte, 759 F.2d 1065 (2d Cir.

eG a 4 a pho awe ke eens te ie

United States v. Alessi:

Se a Fo” a a | er Pas Te

544 F.2d 1139 (2d Cir.), cert. denied, 429 U.S. 960

ae Ralls AOE SS ae a ne er 7,3

United States v. Bird, 709 F.2d 388 (Sth Cir. 1983) ...... 6

United States v. Brizendine, 659 F.2d 215 (D.C. Cir.

a Or dss ew ata kon wu 0 Sao ae vie 7

United States v. Eggert, 624 F.2d 973 (10th Cir. 1980) .... 6-7

United States v. Hollywood Motor Car Co., 458 U.S. 263

UG as a a a nd Weed ane ee 5-6

United States v. Levine, 658 F.2d 113 (3d Cir. 1981) ..... 7

United States v. MacDonald, 435 U.S. 850 (1978) ....... 5, 6,7

United States v. Rosario, 677 F.2d 614 (7th Cir.), cert.

oo URE Et, +, 6

United States v. Solano, 605 F.2d 1141 (9th Cir. 1979),

cert. denied, 444 U.S. 1020 (1980) .................. 7

Constitution and statutes:

U.S. Const. Amend. V (Double Jeopardy Clause) ....... 2

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IV

Statutes — Continued:

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-292

UMBERTO DEL RIVO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3-6) and

the memorandum opinions of the district court (Pet. App.

8-19) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 18, 1987. A petition for rehearing was denied on July

1, 1987 (Pet. App. 7), and the petition for a writ of cer-

tiorari was filed on August 20, 1987. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. On June 14, 1984, petitioner was indicted by a

grand jury sitting in the Eastern District of Louisiana. He

was charged with one count of possessing marijuana with

intent to distribute it and one count of conspiring to com-

mit that offense (21 U.S.C. 841(a)(1), 846). Pursuant to a

plea agreement, those charges were dismissed, and peti-

tioner pleaded guilty to an information charging him with

being an accessory after the fact (18 U.S.C. 3). He was

(1)

2

sentenced to six months’ imprisonment. Under his plea

agreement, petitioner agreed to provide information about

the marijuana distribution scheme and other criminal ac-

tivity in the New Orleans area. He also agreed to testify

before a grand jury or at trial. In return, the government

agreed not to use that information against petitioner

unless petitioner committed perjury. The government also

agreed not to charge petitioner with drug or income tax

violations in the Eastern District of Louisiana for activity

preceding the agreement of October 17, 1984 (Pet. App.

33-35).

On December 19, 1985, petitioner was indicted in the

United States District Court for the Southern District of

Ohio on one count of conspiring to possess marijuana

with intent to distribute it (21 U.S.C. 841(a)(1)), two

counts of income tax evasion (26 U.S.C. 7201), and one

count of conspiracy to defraud the United States by failing

to provide accurate information to the Internal Revenue

Service (18 U.S.C. 371). Before trial, petitioner moved to

dismiss those charges, claiming that they violated his

rights under the Double Jeopardy Clause and contravened

his plea agreement in the Eastern District of Louisiana.

The district court conducted an evidentiary hearing, at

which the prosecutor from the Eastern District of Loui-

siana testified. The court then ruled against petitioner,

denying both motions (Pet. App. 8-19). The court found

that jeopardy never attached on the Louisiana marijuana

conspiracy charges, so the new indictment did not violate

the Double Jeopardy Clause (Pet. App. 9). In addition,

the court determined that the two marijuana conspiracy

charges were different, because the new indictment in-

volved events in Ohio only, while the Louisiana federal in-

dictment charged a single importation into Louisiana (id.

at 9-12, 17-18). The district court likewise rejected peti-

tioner’s contention that his Louisiana federal plea agree-

ment barred the present tax charges. The court found that

the agreement was unambiguous and bound the govern-

ment only in the Eastern District of Louisiana, so that the

charges in the Southern District of Ohio were not affected

by the agreement (id. at 12-14, 18-19).!

2. In an unpublished opinion, the court of appeals af-

firmed on the double jeopardy claim and dismissed the ap-

peal on the claim that the new indictment violated peti-

tioner’s earlier plea agreement (Pet. App. 3-6). The court

of appeals agreed with the district court that petitioner had

no double jeopardy claim on the marijuana charges,

because jeopardy never attached to those charges in his

earlier prosecution (id. at 4). With respect to petitioner’s

claims about the plea agreement, the court of appeals held

that it lacked jurisdiction over petitioner’s claims because

there was no final judgment (id. at 5-6). Relying on its

previous decision in John Doe Corp. v. United States, 714

F.2d 604, 606 (6th Cir. 1983), the court held that a claim

of violation of a plea agreement did not constitute an ex-

ception to the final judgment rule and was not a matter

that could be presented on interlocutory appeal from a

pretrial ruling in a criminal case. Pet. App. 5-6.?

ARGUMENT

Pe:itioner! raises no double jeopardy issues here; rather,

his only ehateaige (Pet. 3-9) is to the decision of the court

of appeats that his claim of violation of a prior plea agree-

ment is not a proper subject for interlocutory appeal.

' The district court was later provided the transcript of petitioner’s

guilty plea proceeding in the Eastern District of Louisiana. The court

adhered to its rulings after reviewing that transcript. Pet. App. 16-19.

2 The court of appeals denied rehearing and rehearing en banc on

July 1, 1987 (Pet. App. 7). On July 14, 1987, petitioner sought a stay

of mandate from the court of appeals. On August 13, 1987, the court

of appeals denied a stay of mandate. The mandate issued on August

18, 1987. Petitioner has not sought a stay from this Court. Trial has

been scheduled for October 26, 1987.

4

The decision of the court of appeals on that point,

however, is correct and is compelled by binding precedent

of this Court. At least four other courts of appeals have

reached the same result. Although one court of appeals

(the Second Circuit) has reached a contrary result in deci-

sions rendered in 1976 and 1985, we submit that the con-

flict in the circuits is not One that merits resolution by this

Court, given the infrequency with which the issue arises,

the existence of binding precedent from this Court, and

the substantial indications that the Second Circuit might

reconsider its unique rule in an appropriate case.

1. This case is controlled by Heike v. United States,

217 U.S. 423 (1910). In that case, the defendant claimed

that a statute granted him immunity from prosecution,

and he sought to appeal, before trial, a ruling of the trial

court rejecting his contention. This Court unanimously

held that no interlocutory appeal could be taken. The

Court explicitly rejected the argument “that this judgment

must be held to be final for the purpose of review, other-

wise the Government cannot keep the contract of immuni-

ty which it has made with the accused” (217 U.S. at 430);

reversal of any final judgment of conviction, this Court

held, would be sufficient to protect the defendant’s in-

terests if his claim of immunity from prosecution was cor-

rect (id. at 430-433).

Petitioner’s argumenmi (see Pet. 6) amounts to nothing

more than the same argument that was rejected in

Heike—that he has a “contract of immunity” with the

government that requires pretrial vindication if it is to be

vindicated at all. That argument is no more compelling in

this case than it was in Heike: reversal of a conviction

would vindicate petitioner’s interests if his underlying con-

tention were correct, and acquittal or other favorable ter-

mination of petitioner’s criminal charges in the trial court

would avert the necessity of reviewing that contention. To

be sure, this case involves a plea agreement made

specifically between the government and _ petitioner,

whereas Heike involved a statutory grant of immunity to

all persons ina defined class, but that distinction makes no

difference in the analysis. Both the plea agreement in this

case and the statute in Heike are “contracts” binding on

the government, and both would have resulted in pretrial

termination of the prosecution if the trial court had agreed

with the defendant’s contention. There is no distinction

between the two situations that would justify granting

petitioner a right to interlocutory appeal that was denied

to the defendant in Heike.

In the 1970s, as the rule allowing appeal from denials of

double jeopardy claims developed (see Abney v. United

States, 431 U.S. 651, 657 (1977) (affirming that rule and

collecting cases)), a question arose whether the principles

of Heike remained valid. In United States v. Alessi, 536

F.2d 978 (1976) (Alessi I), the Second Circuit did not even

cite Heike in the course of holding that, by analogy to

double jeopardy claims, claims of government breach of a

plea agreement could be the subject of an interlocutory ap-

peal.3

Just one year after Abney, however, this Court reaf-

firmed the continuing vitality of Heike. In United States v.

MacDonald, 435 U.S 850, 860 (1978), the Court unan-

imously rejected the “superficial{ly] attracti[ve] * * *

argument” that all claims that would result in dismissal of

the indictment must, like double jeopardy claims, be

presentable on interlocutory appeal. See also United States

v. Hollywood Motor Car Co., 458 U.S. 263, 268-270

3 Ina later chapter of the same litigation, however, a different panel

of the Second Circuit (per Judge Friendly), citing Heike, indicated

that it disagreed with the prior panel as to appealability. United States

v. Alessi, 544 F.2d 1139, 1143-1152, cert. denied, 429 U.S. 960 (1976)

(Alessi 111; see 544 F.2d at 1152 (“[i]f the point were open in this cir-

cuit, we would cast our lot in favor of the continuing vitality of

Heike’).

6

(1982) (per curiam). As an explicit example of nonap-

pealable orders, this Court, citing Heike, wrote:

“Dismissal of the indictment is the proper sanction when a

defendant has been granted immunity from prosecution

* * * Obviously, however, this has not led the Court to

conclude that such defendants can pursue interlocutory

appeals.” 435 U.S. at 860 n.7.

In light of MacDonald’s explicit reaffirmance of Heike

(see also Flanagan v. United States, 465 U.S. 259, 270

(1984)), there is no basis to maintain that interlocutory ap-

peal is proper in this case. Petitioner’s rights under the plea

agreement are not, as he maintains, analogous to double

jeopardy rights that will be lost if not vindicated before

trial, but rather are precisely equivalent to the rights of the

defendant in Heike; the possibility of vindication on ap-

peal from a final judgment is sufficient to protect peti-

tioner’s rights.4

2. Although the courts of appeals often fail to cite

Heike, all but one of the courts of appeals that have ad-

dressed the issue presented by this case have reached the

result that Heike compels, holding that pretrial denials of

motions to dismiss based on prior plea agreements are not

immediately appealable. See John Doe Corp. v. United

States, 714 F.2d at 606; United States v. Bird, 709 F.2d

388, 392 (Sth Cir. 1983); United States v. Rosario, 677

F.2d 614, 615 n.4 (7th Cir.), cert. denied, 459 U.S. 867

(1982); United States v. Eggert, 624 F.2d 973, 975-976

* As the Fifth Circuit observed in United States v. Bird, 709 F.2d

388 (1983), in rejecting an argument identical to petitioner’s, a defend-

ant’s rights under a plea agreement are not equivalent to a right not to

be tried. “It is not enough that an eventual conviction would be in-

valid. Ms. Bird’s asserted right fails this test. Her plea that the agree-

ment bars her prosecution can be fully vindicated, if appropriate, in

an appeal from any conviction the government obtains in her case.

While the agreement is phrased in terms of nonprosecution, its essence

is a promise of immunity. Her immunity from punishment will not be

lost simply because she is forced to stand trial.” 709 F.2d at 392.

7

(10th Cir. 1980); United States v. Solano, 605 F.2d 1141,

1142-1143 (9th Cir. 1979), cert. denied, 444 U.S. 1020

(1980); see also United States v. Brizendine, 659 F.2d 215

(D.C. Cir. 1981); cf. United States v. Levine, 658 F.2d

113, 127 (3d Cir. 1981) (in discussion of appealability of a

different kind of order, noting “[t}he continuing vitality of

Heike’).

Standing against this weight of authority are the Second

Circuit’s decisions in Alessi I and United States vy. Ab-

bamonte, 759 F.2d 1065, 1070-1071 (1985), that a defend-

ant may take an interlocutory appeal when he claims that a

prior plea agreement bars the government from bringing

the charges alleged. For several reasons, we do not think it

is necessary for this Court to resolve the conflict between

the Second Circuit and the other circuits that have con-

sidered the issue.

First, this issue arises infrequently. Even in the Second

Circuit, we know of no defendant other than the defend-

ants in Alessi and Abbamonte who has called on the Sec-

ond Circuit to decide, on an interlocutory basis, a claim of

breach of a plea agreement —despite the passage of nine

years between Alessi [ and Abbamonte, and another two

years since Abbamonte.

Second, both the Alessi J panel and the Abbamonte

panel failed to cite Heike, even though, as Judge Friendly

noted in Alessi III, Heike seems to compel the opposite

result (see note 3, supra). Although the Abbamonte deci-

sion was rendered after this Court reaffirmed Heke in

MacDonald, the Abbamonte panel failed to note the perti-

nent language from MacDonald. We trust that, ina future

case, a Second Circuit panel that is made aware of Heike

and its reaffirmance in MacDonald will give serious con-

sideration to our contention that Heike is controlling and

will reconsider the jurisdictional portions of the decisions

in Abbamonte and Alessi.

8

Third, there are other indications that the Second Cir-

cuit might reconsider its unique rule in an appropriate

case. In Alessi [1], the panel disagreed with Alessi J but

explicitly indicated that it failed to call for en banc recon-

sideration of Alessi J] because, among other things, “as in

* * * Alessi I, (the court] agree[d] with the Government on

the merits” (544 F.2d at 1143). Likewise, in Abbamonte,

the panel considered itself “obliged to follow the holding

on appealability in Alessi” (759 F.2d at 1071) but then

ruled for the government on the merits (/d. at 1072). Ab-

bamonte thus represents only adherence to, not independ-

ent endorsement of, a decision that some members of the

Second Circuit had already declared was wrongly decided

and merited en banc reconsideration.’ There was, of

course, no occasion for the government to seek such

reconsideration in Abbamonte because the government

prevailed on the merits. Indeed, the fact that the defend-

ants in both Alessi and Abbamonte have failed on the

merits of their claims means that no defendant has ever in

fact benefited (except by delaying trial) from the

Alessi/Abbamonte rule.

in sum, we recognize the conflict in the circuits, but we

submit that it is one that this Court does not need to

resolve at this time, and may never need to resolve.

> Indeed, the Abbamonte court’s uncertainty about the Alessi

holding may be reflected in the fact that the court thought it ap-

propriate to comment on an “arguably available” independent

basis—pendent jurisdiction—for reaching the merits of the

defendant’s claim of breach of a plea agreement (759 F.2d at 1071

n.3).

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. |

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

Louis M. FISCHER

Altorney

OCTOBER 1987

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