Reply Brief — Witte v. United States

/ Supreme Court, US |

FILE D :

No. 94-6187 APR 1 2 1995

— OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1994

°

STEVEN KURT WITTE,

Petitioner,

VS.

UNITED STATES,

Respondent.

+

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

REPLY BRIEF FOR PETITIONER

*

RoLaANbD E. Dautin II*

Federal Public Defender

Southern District of Texas

H. MicHAEL SOKOLOW

THomMaAS S. BERG

Asst. Federal Public Defenders

440 Louisiana, Suite 310

P.O. Box 61508

Houston, TX 77208-1508

Telephone: (713) 238-9600

“Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

EO

TABLE OF CONTENTS

pr 8 Ge Bex 91) | |: >. SR aera rare are

Te Re Pe I 6 oe os heheh heey Ne dei kins

Pe hea ees ee ee en

I.

I].

IT].

THE COURT SHOULD ADDRESS THIS

CASE AS PRESENTED AND DECIDED IN

THE FIFTH CIRCUIT AND SHOULD

REVERSE THE FIFTH CIRCUIT’S OPINION

BECAUSE CONGRESS CANNOT AUTHO-

RIZE THE IMPOSITION OF CUMULATIVE

PUNISHMENT FOR ONE OFFENSE IN

TWO CRIMINAL PROCEEDINGS .........

THE GOVERNMENT’S CATEGORICAL

APPROACH TO THE DOUBLE JEOPARDY

ANALYSIS IGNORES THIS COURT'S PRE-

CEDENT AND CALLS FOR RESOLUTION

OF THE CONSTITUTIONAL QUESTION IN

| rr erie are eee eee

HOLDING THAT FURTHER PROSECU-

TION AND PUNISHMENT OF MR. WITTE

VIOLATES THE DOUBLE JEOPARDY

CLAUSE WILL NOT HAVE “FAR-REACH-

ING AND UNTENABLE IMPLICATIONS”

IF THAT HOLDING IS BASED ON THE

FACTS AND OPERATION OF THE GUIDE-

Luma? GE0 SEEeee GUUS 6 <5 ix kncescasesivuss

A. Holding in Favor of Mr. Witte Does Not

Undermine Enhancements for Prior

Convictions Under the Guidelines.....

B. The Complaint About the Limitation on

Obtaining Successive and Additional

Punishments Through Manipulating the

Charges in the Indictment Is a Com-

plaint About the Commission’s Policy

Choices and Should Be Addressed to

ie Ss ac Ss bc pee Ss se oe eee

TABLE OF CONTENTS - Continued

Page

C. Problems of Due Process Raised by the

Parties at the Sentencing in the First Pros-

ecution Were Abandoned by Failure to

Perfect an Appeal and Are Not Presented

For Resolution on this Record.......... 11

D. Holding in Favor of Mr. Witte Will Not

Result in an “Amorphous Inquiry” into

Conduct, and the Guidelines Already

Require a Limited Inquiry into Conduct

-eeps en osenee eeeeees eden aera 14

IV. THE GOVERNMENT PROVIDES THE

COURT WITH NO AUTHORITY FOR

IGNORING THE CLEAR LANGUAGE AND

POLICY CHOICES EXPRESSED IN THE

CGLITEPGRIGUD « cavscdsvacevssyraretcuerves 16

V. THE GUIDELINES DO MORE THAN

-CHANNEL A COURT'S DISCRETION..... 19

CRP LUD ists eX c ne vny de aeeaten eae eee ees 20

ill

TABLE OF AUTHORITIES

Page

CASES

Alabama v. Smith, 490 U.S. 794 (1989)... 000.0022... 5

Albernaz v. United States, 450 U.S. 333 (1981) ........ 18

Benton v. Maryland, 395 U.S. 784 (1969).............. 13

Burns v. United States, 501 U.S. 129 (1991)........... 16

Chaffin v. Stynchcombe, 412 U.S. 17 (1973)............. 5

Dep't of Revenue of Montana v. Kurth Ranch, 114 S.

Oe 0 | ee a, & &, & 13, 18

Hughey v. United States, 495 U.S. 411 (1990) ......... 18

Kinder v. United States, 112 S. Ct. 2290 (1992)........ 13

Ladner v. Smith, 941 F.2d 356 (5th Cir. 1991), cert.

ie 6) 14

Liparota v. United States, 471 U.S. 419 (1985)......... 16

McMillan v. Pennsylvania, 477 U.S. 79 (1986)......... 12

Miller v. Florida, 482 U.S. 423 (1987)........... 5, 19, 20

Mistretta v. United States, 488 U.S. 361 (1989)........ 17

Moskal v. United States, 498 U.S. 103 (1990).......... 18

Payne v. Tennessee, 501 U.S. 808 (1991)............... 17

Sharpton v. Turner, 964 F.2d 1284 (2d Cir.), cert.

eee, Bae o. OE OPS CP99Z) ........ 5.5... eon 14

United States v. Dixon, 113 S. Ct. 2849 (1993) ......... 9

United States v. Felix, 112 S. Ct. 1377 (1992) ......... 10

United States v. Halper, 490 U.S. 435 (1989)

OIE eo re Rcaeankx ae Oe ey Oo, be BO

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Kikumura, 918 F.2d 1084 (3d Cir.

i a Ee ice ane pone rer PM cited Me (gta ae eareee 13

United States v. McCormick, 992 F.2d 437 (2d Cir.

UI oink oc es aria gtk aa win a ce a ke WON ee 15

United States v. Trujillo, 959 F.2d 1377 (7th Cir.),

covt. Gomied. 119 BS. 0. 277 CADRE ov cain cswsnecens 13

United States v. Wittie, 25 F.3d 250 (Sth Cir. 1994) ...1, 2

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

Se WS ce er Re ae eens eee 6

Whitmore v. Arkansas, 495 U.S. 149 (1990)............. 6

Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993).......... 16

STATUTES

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2 Va we AE eG eas ee 16

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hh Se See ere ere re rere errr T eer eee sees

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TABLE OF AUTHORITIES —- Continued

Page

SENTENCING GUIDELINES

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GS UUREAE 65 64 of po eeo cae t Unease nual, 9, 17, 18

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U56G 6 sos se 15

No. 94-6187

¢

In The

Supreme Court of the United States

October Term, 1994

.

STEVEN KURT WITTE,

Petitioner,

VS.

UNITED STATES,

Respondent.

.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

REPLY BRIEF FOR PETITIONER

- >

ARGUMENT

I. THE COURT SHOULD ADDRESS THIS CASE AS

PRESENTED AND DECIDED IN THE FIFTH CIR-

CUIT AND SHOULD REVERSE THE FIFTH CIR-

CUIT’S OPINION BECAUSE CONGRESS CANNOT

AUTHORIZE THE IMPOSITION OF CUMULATIVE

PUNISHMENT FOR ONE OFFENSE IN TWO

CRIMINAL PROCEEDINGS.

As stated in the Brief for Petitioner (Br. 33-34), the

Court of Appeals for the Fifth Circuit assumed that both

prosecutions at issue here involved the “same offense,”

and it “address[ed] the issues in this case . . . as they were

presented by the parties.” United States v. Wittie, 25 F.3d

250, 255 & n.17 (5th Cir. 1994); (J.A. 145 & n.17). For

purposes of its analysis, the court also accepted that Mr.

Witte “had been punished by inclusion of the cocaine

activities in relevant conduct” in the first prosecution. Id.

at 258; (J.A. 154). Contrary to the dictates of Dep't of

Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937, 1945,

1948 (1994), and United States v. Halper, 490 U.S. 435,

450-51 & n.10 (1989), the court of appeals held that Mr.

Witte could be punished for the offense again in a second

criminal proceeding, because a second punishment had

been authorized by Congress under section 5G1.3(b) of

the United States Sentencing Guidelines. Wittie, 25 F.3d at

258, 261; (J.A. 154, 162); see also Pet. Br. 33-34.

In the Brief for the United States, the Government

argues that “there is no basis for treating these two

prosecutions as involving the same offense,” and that the

“government's brief in the court of appeals made no such

assumption.” Gov’t Br. 12 & n. 5. In its opinion, however,

the court of appeals did not state whether its conclusion

about the assumptions of the parties was based on the

briefs or oral arguments of the parties or the facts in or

posture of the record. See Wittie, 25 F.3d at 255 & n.17;

(J.-A. 145 & n.17). For example, the court’s conclusion

could have been based on the unappealed ruling made by

the district court during the sentencing in the first pros-

ecution, which rejected the Government’s argument that

the cocaine transactions and the marijuana transactions

were “separate agreements and separate offenses,” (J.A.

61, 68-69), and the Government’s concession that it was

“not now attacking the sentencing court’s inclusion of the

cocaine as relevant conduct.” Gov’t C.A. Reply Br. 6.

In any event, no petition for rehearing on the

assumption underlying the opinion was filed in the court

of appeals, and the issue was not raised in the petition for

writ of certiorari or the Government's brief in response to

the petition. Under similar circumstances, this Court

refused to address the issue of whether the criminal

conviction and the subsequent tax assessment in Kurth

Ranch involved separate offenses. See Kurth Ranch, 114

S. Ct. at 1942 n.9. Instead, the Court addressed the issue

as decided in the court below and found a violation of the

Double Jeopardy Clause.

As in Kurth Ranch, the Court should decide this case

in the posture that it was presented and decided in the

court below. In its brief, the Government now concedes

that “congressional intent does not control the constitu-

tional analysis in this context.” Gov’t Br. 27. In light of

that concession and the posture of the case and the deci-

sion in the court of appeals, Kurth Ranch and Halper

control this case. Under the unique circumstances of this

case, therefore, the Court should reverse the judgment of

the court of appeals and remand with instructions to

affirm the district court’s dismissal of the indictment.

Il. THE GOVERNMENT’S CATEGORICAL

APPROACH TO THE DOUBLE JEOPARDY

ANALYSIS IGNORES THIS COURT’S PRECE-

DENT AND CALLS FOR RESOLUTION OF THE

CONSTITUTIONAL QUESTION IN A VACUUM.

The Government argues that a person cannot be

“punished” for an “offense” in a particular proceeding

for double jeopardy purposes unless the offense was the

subject of an indictment and conviction. Gov’t Br. 14-16.

In other words, even if uncharged conduct or an

uncharged offense is “considered” or used to impose a

punitive sanction on a person, the person has not been

“punished” for the offense for double jeopardy purposes

unless the person has been prosecuted explicitly for that

offense. See id.

This analysis of the multiple punishment protection

of the Double Jeopardy Clause ignores this Court’s prece-

dent and views the problem in a vacuum without requir-

ing any scrutiny of the rules under which the punishment

was imposed or the manner in which the punishment

resulted from those rules. First, in Kurth Ranch and in

Halper, which involved civil proceedings, this Court

found that the Double Jeopardy Clause’s protection

against multiple punishments had been violated even

though no “offenses” had been indicted and no “punish-

ment” had been imposed on an “offense” of conviction in

those proceedings. See Kurth Ranch, 114 S. Ct. at 1942-43;

Halper, 490 U.S. at 504. If the Government's per se rule -

that “punishment” is imposed only for an “offense” that

is the subject of conviction in a proceeding - were appli-

cable to a claim of unconstitutional multiple punish-

ments, the Court could not have found constitutional

violations in Halper and Kurth Ranch. If “punishment” can

be imposed for double jeopardy purposes in civil pro-

ceedings when no indictment has been filed and no con-

viction obtained, then “punishment” can be imposed on

an “offense” that is not contained in a particular indict-

ment.

Second, the Court specifically rejected a similar argu-

ment made by the Government in Halper. There, the Gov-

ernment argued for the application of the per se rule that

“punishment in the relevant sense is meted out only in

criminal proceedings.” Halper, 490 U.S. at 447. The Court

rejected this categorical approach to the assessment of the

Double Jeopardy Clause’s proscription of multiple pun-

ishments, stating: “This constitutional protection is intrin-

sically personal. Its violation can be identified only by

assessing the character of the actual sanctions imposed on

the individual by the machinery of the state.” Id. (foot-

note omitted).

The Government's categorical approach to the double

jeopardy issue in this case similarly seeks to have the

Court analyze the issue of multiple punishments without

assessing the sanction imposed and the machinery or

rules used by the state in imposing the sanction. In fact,

the Government's approach is tautological: if the offense

was stated in the indictment, then the defendant was

punished for it, and if it was not stated in the indictment,

then the defendant was not punished for it. In cases

challenging the constitutionality of punishments imposed

upon citizens, however, the Court has scrutinized care-

fully the particular rules and systems challenged and the

resulting punishments. See, e.g., Kurth Ranch, 114 S. Ct. at

1946-48 (reviewing the specific characteristics of the tax

imposed); Halper, 490 U.S. at 441-49 (analyzing the issue

on the facts of the civil penalty before the Court); Alabama

v. Smith, 490 U.S. 794, 797-801 (1989) (resolving due pro-

cess issue on specific fact that more information was

available after trial than after invalid guilty plea); Miller

v. Florida, 482 U.S. 423, 429-35 (1987) (analyzing operation

of Florida sentencing guidelines to determine ex post

facto challenge); Chaffin v. Stynchcombe, 412 U.S. 17, 26-28

(1973) (resolving due process issue on specific fact that

resentencing followed retrial by a different jury).

Third, the Government's approach also requires the

Court to decide the case in a vacuum and reach a resolu-

tion that applies in all cases regardless of the sentencing

system. Thus, in various passages in its brief, the Govern-

ment argues that, because “petitioner requests judgment

on constitutional grounds, the logic of the Court’s deci-

sion will apply to all state and federal charging and

sentencing schemes, now and in the future,” Gov’t Br. 19

n.9, and that petitioner’s theory “would logically apply to

any sentencing scheme in which uncharged conduct is

used to enhance the sentence for the offense of convic-

tion.” Gov’t Br. 16 n.7.

This Court never has held that decisions on the con-

stitutionality of a particular sentencing scheme as applied

to a particular defendant must apply necessarily to all

federal and state sentencing schemes “now and in the

future” regardless of the facts. Indeed, Article III of the

Constitution is to the contrary and requires the Court to

decide only “cases” and “controversies” involving the

legal rights of persons actually injured. See Valley Forge

Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 471 (1982); see also

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).

The Government's standard for the resolution of con-

stitutional questions begs the difficult and fact-specific

issue in this case: Whether Mr. Witte can be prosecuted

and punished yet again for the cocaine offenses when

those offenses previously were included in relevant con-

duct under the United States Sentencing Guidelines. As

argued in the Brief for Petitioner, the answer is that he

cannot be prosecuted and punished again because he was

punished in the first prosecution for all drug offenses and

all drug quantities for which he could be punished under

federal statutes and the guidelines and that punishment

was imposed pursuant to and as mandated by the guide-

lines. See Pet. Br. 26, 28, 31, 47-48. To argue, as the

a

Government does, that the issue is resolved by the mere

fact that the Government placed different language in the

two indictments at issue avoids the difficult fact-specific

question posed by the interface of the guidelines and the

protections of the Double Jeopardy Clause in this case.

Ill. HOLDING THAT FURTHER PROSECUTION

AND PUNISHMENT OF MR. WITTE VIOLATES

THE DOUBLE JEOPARDY CLAUSE WILL NOT

HAVE “FAR-REACHING AND UNTENABLE

IMPLICATIONS” IF THAT HOLDING IS BASED

ON THE FACTS AND OPERATION OF THE

GUIDELINES IN THIS CASE.

The Government argues that this Court’s holding

that further prosecution and punishment of Mr. Witte

violates the Double Jeopardy Clause “would have far-

reaching and untenable implications.” Gov't Br. 16-20.

Nevertheless, if the Court decides the case on its facts

and the application of the guidelines to those facts, no

such “far-reaching and untenable implications” will

result from a holding in Mr. Witte’s favor.

A. Holding in Favor of Mr. Witte Does Not Under-

mine Enhancements for Prior Convictions

under the Guidelines

The Government first argues that a ruling that the

Double Jeopardy Clause prohibits further prosecution

and punishment would undermine the Court’s precedent

upholding “common sentence enhancements based on

prior convictions.” Gov’t Br. at 16-17. As explained in the

Brief for Petitioner, however, the guidelines specifically

address criminal history in a measure distinct from the

base offense level. Pet. Br. 30; see also U.S.S.G. Ch. 4. Thus,

a holding that Mr. Witte had been punished under the

base offense level in the first criminal proceeding for all

the offenses that he had committed could not be used to

attack the criminal history scoring under the guidelines.

In addition, an argument concerning criminal history

scoring under the guidelines that was strictly analogous

to Mr. Witte’s argument in this case would prevail under

the express language of the guidelines. For example,

assume that a defendant argued in a second federal pros-

ecution that his criminal history score should not be

increased by a prior conviction and sentence because the

prior conviction and sentence were imposed for facts and

transactions related to the present prosecution. Under the

guidelines, the defendant would prevail because “prior

sentence” means “any sentence previously imposed

... for conduct not part of the instant offense.” U.S.S.G.

§ 4A1.2(a)(1)(emphasis added). Far from dismantling the

use of prior convictions as enhancements under the

guidelines, Mr. Witte’s position on punishment under the

base offense level is, by analogy, in accordance with the

express approach of the guidelines.

B. The Complaint About the Limitation on

Obtaining Successive and Additional Punish-

ments Through Manipulating the Charges in

the Indictment Is a Complaint About the Com-

mission’s Policy Choices and Should Be

Addressed to the Commission.

The Government next argues that, if the Court finds a

double jeopardy violation: (1) this “would also complicate,

and probably prevent, most prosecutions for conspiracy after

the defendant had previously been convicted of a substan-

tive offense based on the same conduct,” Gov’t Br. at 17; (2)

there often are valid reasons for not prosecuting related

crimes in the same proceeding, such as when venue lies in

different districts or an investigation on one crime has not

been completed, Gov’t Br. at 24; and (3) double jeopardy

principles purportedly are not necessary to prevent abuses

because “the government is surely ‘deterred from abusive,

repeated prosecutions of a single offender for similar

offenses by the sheer press of other demands upon pros-

ecutorial and judicial resources.’ ” Gov’t Br. 25 n.13 (quoting

United States v. Dixon, 113 S. Ct. 2849, 2863 n.15 (1993)).

The Government'’s first argument that it is Mr. Witte’s

“theory,” Gov’t Br. 17, that would limit subsequent pros-

ecutions and punishments for conspiracy after conviction

for a substantive offense is misguided because it is not

Mr. Witte’s theory that does so but the express language

and operation of the guidelines. The Sentencing Commis-

sion, under mandate of Congress, wrote the rules of

punishment “with an eye toward eliminating unfair treat-

ment that might flow from count manipulation.” U.S.S.G.

Ch. 1, Pt. 4(a). The Commission also defined “offense” as

“the offense of conviction and all relevant conduct,” id.

§ 1B1.1, comment (n.1(l)), and determined that: (1) a

defendant is to be punished for all related criminal activ-

ity “whether or not charged as a conspiracy,” id.

§ 1B1.3(a)(1)(B); (2) related multiple counts are grouped

whether or not the defendant is convicted of multiple

counts, id. § 1B1.3, comment. (n.3); (3) the base offense

level is-calculated on the total amount of drugs involved

in all related offenses, id. §§ 2D1.1(c), 3D1.2, comment.

(n.4, ex.4), (n.6 & ex.5); and (4) “[o]ffenses under 21

10

U.S.C. §§ 841 and 960 receive identical punishment.”

U.S.S.G. § 2D1.1, comment. (backg’d.) (italics deleted).

The Government’s complaint that it no longer can

repeatedly change the charges in successive indictments

and repeatedly punish a defendant for drug offenses

involving substantially the same harm, see U.S.S.G.

§ 3D1.2, is a complaint about the policy determinations

made by the Sentencing Commission and implemented

by the guidelines. To the extent that the Government is

asking the Court to interpret the Double Jeopardy Clause

to allow it to do again under the new specific rules of

punishment what it once did in the absence of those

rules, the Government’s remedy lies with Congress and

the Commission and not in this Court.!

In addition, the Government’s argument that there

often are valid reasons for not prosecuting related crimes

in the same proceeding cannot trump the Commission’s

policy determinations to punish all such crimes in one

proceeding. Nor is this argument compelling on the facts

of this case. Venue did not lie in different districts, and

1 Nor does United States v. Felix, 112 S. Ct. 1377 (1992),

answer the question presented in this case. Felix did not raise

the issue of whether the defendant was being twice punished in

violation of the Double Jeopardy Clause, and the offenses in that

case were not subject to punishment under the guidelines. See

id. at 1379-81 (offenses occurred prior to November 1, 1987, and

constitutional challenge was to subsequent prosecution). Thus,

the issue presented here concerning the interface between the

rules of punishment mandated by the guidelines and the Dou-

ble Jeopardy Clause’s proscription of multiple punishment was

not before the Court. Nor were the Commission's specific policy

choices and rules regarding punishment of drug offenses pres-

ent in that case.

11

the two indictments were filed in the same courthouse.

(J.A. 9, 82). With regard to the necessity to keep the facts

or agents secret in order to complete further investiga-

tion, the Government revealed in the public record all

facts and the agents and participants involved in all

offenses in the criminal complaint and affidavit it filed at

the beginning of the first prosecution. (J.A. 3-8). The

prosecutor, moreover, admitted to the district court in the

hearing on the motion to dismiss the second prosecution

that the Government’s evidence against Mr. Witte in the

second case was in the Government's possession during

the first prosecution. (J.A. 90-91).

Finally, with regard to the press of demands upon

prosecutorial and judicial resources limiting successive

prosecutions, the district court specifically noted its frus-

tration with the waste of resources resulting from the

second prosecution and punishment of Mr. Witte. (J.A.

100-01) (“if all you want is another 50 months or 60

months, why didn’t you just get it out of him in the first

place?”). Thus, the Government’s argument about the

crimp On successive prosecutions and punishments is a

complaint about the Commission’s policy determinations

and is not compelling on the facts of this case.

C. Problems of Due Process Raised by the Parties

at the Sentencing in the First Prosecution Were

Abandoned by Failure to Perfect an Appeal and

Are Not Presented for Resolution on this

Record.

The Government next argues that barring further

punishment of Mr. Witte in this case cannot “be squared

with this Court’s cases that allow a sentencing court to

12

enhance a sentence based on conduct that has never

resulted in a conviction.” Gov’t Br. 17. Supposedly, a

holding in favor of Mr. Witte would make “constitu-

tionally. suspect” the “lower standard of proof and less

rigorous procedural protections applied in criminal sen-

tencing.” Gov’t Br. 18 (citing McMillan v. Pennsylvania,

477 U.S. 79, 84-92 (1986)).?

Questions about the reach of McMillan and the

proper burden of proof at guideline sentencings are not at

issue in this appeal. The Government did argue at Mr.

Witte’s sentencing in the first prosecution that the

charged offense and the cocaine offenses were “separate

agreements and separate offenses” and should not be

punished together. (J.A. 61).° Mr. Witte also objected on

2 In McMillan, this Court held that Pennsylvania’s use of

the preponderance-of-the-evidence standard in sentencing a

defendant to a mandatory minimum sentence within an existing

sentencing range did not violate due process because the legis-

lature simply had taken “one factor that has always been con-

sidered by sentencing courts to bear on punishment - the

instrumentality used in committing a violent felony — and dic-

tated the precise weight to be given that factor if the instrumen-

tality is a firearm.” 447 U.S. at 89-90.

3 Interestingly, at the sentencing, the Government took the

position that Mr. Witte should not be punished under the first

indictment for the cocaine offenses (J.A. 60-62), and at the hear-

ing on the motion to dismiss, it agreed that the proper guideline

range for the first indictment was 63 to 78 months, from which

the sentencing judge should have departed downward. (J.A.

94-95) (prosecutor’s statement at the hearing on the motion to

dismiss that the court was “preaching to the choir” that the

downward departure was from a sentence that Mr. Witte should

not “have received in the first place”). On the Government’s

position in the district court, Mr. Witte was erroneously pun-

ished for the cocaine offenses that should have been punished

13

the ground that he was being denied due process of law

due to the lessened burden of proof. (J.A. 64). Neither

party perfected an appeal of the first prosecution, how-

ever. The state of the record, therefore, calls for a decision

about whether Mr. Witte was previously punished under

the guidelines for the cocaine offenses regardless of

whether the proper burden of proof was employed at the

sentencing in the first prosecution. Certainly, in Halper

and Kurth Ranch, the Court was not required and did not

reach out to resolve due process issues in finding a viola-

tion of the Double Jeopardy Clause’s proscription against

multiple punishments. That due process might require a

heightened standard of proof when the results of guide-

line enhancements are extreme is a question that must be

resolved by the circuit courts and perhaps this Court in

some other case on a different record. See, e.g., United

States v. Trujillo, 959 F.2d 1377, 1382 (7th Cir.), cert. denied,

113 S. Ct. 277 (1992); United States v. Kikumura, 918 F.2d

1084, 1102-03 (3d Cir. 1990); see also Kinder v. United States,

112 S. Ct. 2290, 2291-92 (1992) (White, J., dissenting from

denial of certiorari).

only on the presentment of a separate indictment. On that posi-

tion, Mr. Witte should not be punished again because he cannot

be placed in jeopardy a second time if he was erroneously

placed in jeopardy before. Cf. Benton v. Maryland, 395 U.S. 784,

796-97 (1969) (retrial prohibited when prior acquittal resulted

from an invalid indictment).

14

D. Holding in Favor of Mr. Witte Wil! Not Result

in an “Amorphous Inquiry” into Conduct, and

the Guidelines Already Require a Limited

Inquiry into Conduct.

The Government argues that Mr. Witte’s “view

would also require sentencing courts to translate ‘acts

and omissions’ taken into account at the prior sentenc-

ing . . . into ‘offenses’ that could be compared to the

offense charged in a subsequent prosecution.” Gov’t Br.

19-20 (citation omitted). This purportedly would be an

“amorphous” inquiry. Gov't Br. 20.

The inquiry concerning the instant offense and base

offense level required in this or other guidelines cases is

not “amorphous” and requires less inquiry into conduct

than that required by other provisions of the guidelines.

First, because the Commission wrote the guidelines in

terms of conduct, any question about punishment will

involve at least a limited question about conduct. See

U.S.S.G. Ch. 1, Pt. A.4(a) (guidelines are description of

generic conduct). Second, the presentence report in a

federal case summarizes the offense conduct and partic-

ularly specifies the “instant offense” for which a defen-

dant is being punished. See PSR, para. 35. Thus, there is

no problem of attempting to discern the conduct that was

prosecuted or punished under the laws of the different

states. See, e.g., Sharpton v. Turner, 964 F.2d 1284, 1285-86

(2d Cir.), cert. denied, 113 S. Ct. 494 (1992); Ladner v. Smith,

941 F.2d 356, 358 (5th Cir. 1991), cert. denied, 112 S. Ct.

1665 (1992).

Third, even the Government in its brief has no prob-

lem in-this case discerning from the offense conduct

15

section of the presentence report that Mr. Witte’s punish-

ment was determined at least in part on the marijuana

and cocaine he “planned to import.” Gov’t Br. 4; see also

id. at 5 (speaking of “1990 importation offenses”). Nor

does it pose a problem for appellate courts in light of the

specific descriptions and summaries in federal presen-

tence reports. See, e.g., United States v. McCormick, 992

F.2d 437, 438 (2d Cir. 1993) (affirming dismissal of only

those counts that previously had been used to determine

the defendant's prior sentence). In fact, reading the speci-

fic description of the “instant offense” in the presentence

report may be the clearest way (if not the only way) to

determine specifically for what a defendant has been

punished in a prior proceeding under the guidelines.

Finally, section 5G1.3(b) of the guidelines, which the

Government embraces, requires much more analysis of

conduct underlying offenses than the analysis required

by Mr. Witte’s position. See U.S.S.G. § 5G1.3(b); see also

Gov't Br. 26-27. To apply section 5G1.3(b) to alleviate any

double jeopardy problem resulting from multiple punish-

ment of a prior offense of a less serious nature, see McCor-

mick, 992 F.2d at 441 n.3, the sentencing court must set the

“offense level in the second prosecution . . . taking into

account conduct that already has been the subject of a

conviction and sentence.” Id. This may involve translat-

ing conduct underlying even state offenses into federal

offenses. See U.S.S.G. § 5G1.3, comment. (n.2) (lesser state

drug offense converted into federal offense conduct).

Because this more complex analysis must be used under

the guidelines to prevent a double jeopardy problem

under section 5G1.3(b), the relatively simple analysis of

reading the specific description of the “instant offense” in

a federal presentence report that was prepared previously

16

will not prove to be an “amorphous inquiry” that will be

unmanageable in the district courts in cases such as Mr.

Witte’s, where all offenses previously have been pun-

ished.

IV. THE GOVERNMENT PROVIDES THE COURT

WITH NO AUTHORITY FOR IGNORING THE

CLEAR LANGUAGE AND POLICY CHOICES

EXPRESSED IN THE GUIDELINES.

Although the Government acknowledges that the

Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3742

and 28 U.S.C. §§ 991-998, “revolutionized the manner in

which district courts sentence persons convicted of fed-

eral crimes,” Burns v. United States, 501 U.S. 129, 132

(1991), the Government views the revolution as having no

effect on constitutional analysis. Gov’t Brief 20; id. at

20-27 (arguing that the revolution was one of consistency

and transparency oniy) Whatever the scope of the revo-

lution, Congress mandated the promulgation and appli-

cation of the United States Sentencing Guidelines, 18

U.S.C. § 3553(b); 28 U.S.C. § 994(a)(1), (2), and the Sen-

tencing Commission expressly stated in the guidelines

specific rules and principles governing the punishment of

violations of federal criminal law. The Government pro-

vides the Court with no authority for ignoring the clear

language and policy choices expressed in the guidelines

for purposes of the constitutional analysis.

Federal crimes “are solely creatures of statute,” Lip-

arota v. United States, 471 U.S. 419, 424 (1985), and “the

primary responsibility for fixing penalties lies with the

legislature.” Wisconsin v. Mitchell, 113 S. Ct. 2194, 2200

17

(1993). The assessment of the harm caused by a defen-

dant’s criminal acts plays a significant role in the deter-

mination of the punishment to be imposed in Anglo-

American jurisprudence in general and under the guide-

lines in particular. See Payne v. Tennessee, 501 U.S. 808, 820

(1991). In the present system of punishment for federal

crimes, “Congress prescribed the specific tool - the

guidelines system — for the Commission to use in regulat-

ing sentencing.” Mistretta v. United States, 488 U.S. 361,

374 (1989).

The Sentencing Commission explicitly defined

“offense” as “the offense of conviction and all relevant

conduct under § 1B1.3 (relevant conduct) unless a differ-

ent meaning is specified or is otherwise clear from the

context.” U.S.S.G. § 1B1.1, comment. (n.1(1)). It wrote the

rules of punishment for multi-count convictions “with an

eye toward eliminating unfair treatment that might flow

from count manipulation,” U.S.S.G. Ch. 1, Pt. A.4(a), and

to avoid multiple punishment from multi-count convic-

tions involving the same harm or “fungible items,” such

as “separate drug transactions.” Id. Pt. A.4(e).

The jointly undertaken criminal activity of a defen-

dant in a drug prosecution is expressly to be used to

calculate his base offense level whether or not charged as

a conspiracy, and multiple drug counts are to be grouped

based on the total quantity of drugs whether or not the

defendant is convicted of multiple counts. U.S.S.G.

§§ 1B1.3(a)(1)(B), 1B1.3, comment. (n.3), 2D1.1{(c),

3D1.2(d). Offenses under 21 U.S.C. §§ 841 and 960, more-

over, receive identical punishment. U.S.S.G. § 2D1.1, com-

ment. (backg’d.). The express language and policy

choices embedded in the guidelines reflect the Commis-

sion’s attempt “to limit the significance of the formal

18

charging decision and to prevent multiple punishment

for substantially identical offense conduct.” U.S.S.G. Ch.

3, Pt. D, intro. comment.

If the questions of for what and how a criminal

defendant is to be punished in a single prosecution are

determined by the intent of the legislature, see Albernaz v.

United States, 450 U.S. 333, 337 (1981), the Court should

look to the plain language of the guidelines to determine

that intent. Cf. Moskal v. United States, 498 U.S. 103, 108

(1990). Under that plain language, the “offense” for

which Mr. Witte was punished included “the offense of

conviction and all relevant conduct.” U.S.S.G. § 1B1.1

comment. (n.1(1)). The punishment that attached was

based on all harm embodied in his jointly undertaken

activity whether charged or uncharged as a conspiracy or

otherwise. U.S.S.G. § 1B1.3(a)(1)(B); id. comment. (n.3).

Having been so punished, Mr. Witte cannot be punished

again. See Kurth Ranch, 114 S. Ct. at 1498; Halper, 490 U.S.

at 450-51 & n.10.

The Government asks the Court to ignore the express

definition of “offense” and the language and policy

choices embedded in the guidelines and to focus on a

seemingly metaphysical “independent ‘offense’ for which

a defendant suffers independent ‘punishment.’ ” Gov't

Br. 25. The Government's approach is based on the asser-

tion that Congress has not changed “the nature of the

‘offense’ for which the defendant has been punished.”

That assertion, however, fails to come to grips with the

express language of the guidelines and certainly does not

authorize the Court to ignore it. Cf. Hughey v. United

States, 495 U.S. 411, 422 (1990) (plain language of the

statute controls).

19

V. THE GUIDELINES DO MORE THAN CHANNEL A

COURT’S DISCRETION.

Finally, the Government asserts that the guidelines

merely “channel . . . discretion” in a “uniform and pre-

dictable way.” Gov’t Br. 22. In Miller v. Florida, 482 U.S.

423 (1987), however, the Court rejected a similar argu-

ment, finding that Florida’s revised sentencing guidelines

violated the Ex Post Facto Clause. Id. at 432-35. Even

though the petitioner might have received the same sen-

tence under the old guidelines, the revised guidelines

made the sentence more onerous because they increased

the presumptive sentencing range and alleviated the

necessity of the trial judge’s having to give reasons for his

sentence, which would have been a departure under the

old guidelines. Id. at 432-33. The Court further found that

the revised guidelines were not simply “ ‘guideposts’ for

use in the exercise of discretion.” Id. at 435. Rather they

“directly and adversely” affected the sentence the peti-

tioner received and “created a high hurdle” that had to be

cleared before discretion could be exercised. Id.

The Government’s argument that the federal guide-

lines merely channel discretion and do not change “the

substance” of sentencing, Gov’t Br. 22, 25, flies in the face

of the reasoning in Miller. The federal guidelines used the

cocaine offenses to raise mandatorily Mr. Witte’s pre-

sumptive range of sentencing to 292 to 365 months. See

Pet. Br. 9 & n.3. Under the federal sentencing scheme in

existence prior to the guidelines, the presumptive mini-

mum sentence would have been five years in prison. 21

U.S.C. § 841(b)(1)(B). To argue that the increase in the

presumptive range of sentencing by twenty years merely

makes “more transparent” prior sentencing practice,

20

Gov’t Br. 23, contradicts the reasoning of Miller, which

concluded that such a change “directly and adversely”

affects the rights of a defendant. Miller, 482 U.S. at 435.

°

CONCLUSION

For the foregoing reasons and the reasons set out in

the Brief for Petitioner, the judgment of the Fifth Circuit

Court of Appeals should be reversed, and the case should

be remanded to that court with instructions to affirm the

district court’s dismissal of the indictment against the

Petitioner in Case No. 92-207.

Respectfully submitted,

Rot «np E. Daun II*

Federal Public Defender

Southern District of Texas

H. MicHaet SoKxo_tow

THomas S. BerG

Asst. Federal Public Defenders

440 Louisiana, Suite 310

- P. O. Box 61508

Houston, TX 77208-1508

Telephone: (713) 238-9600

“Counsel of Record for Petitioner

April 8, 1995