Petition for Writ of Certiorari — Olivares v. United States

Supreme Cou, U.S

FILED

|

02 81 8 ave 26 2002

Supreme Court of the Gnited States

DENNIS OLIVARES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Fred Warren Bennett

BENNETT & NATHANS, LLP

6301 Ivy Lane, Suite 504

Greenbelt, Maryland 20770

(301) 220-1570

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTION PRESENTED

When a defendant entirely serves and discharges

the one and only legally valid sentence he received,

does the government - after a successful appeal and

re-trial - retain the power to punish him further for

that crime, or is the government’s power to increase

the punishment at an end?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

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TABLE OF AUTHORITIES ... «occ cw cecvencce. iV

OPINIONS DELGO . vical eee ee ]

JURISUEL LY xs vee cuke eee 2

CONSTITUTIONAL PROVISIONS AND

STATUTES ENVURWHED gow ceenssuesnvacs 2

STATEMENT OF THE CASE .................. 3

BRIEF SUMMARY OF REASONS FOR

GRANTING THE WRIT ................. 5

REASONS FOR GRANTING THE WRIT ......... 6

I. The Court Should Grant Certiorari To

Address Inconsistencies In How Federal

Circuit Courts Have Interpreted This

Court’s Double Jeopardy Clause

Jurisprudence.

Pr re 6

ii

OAL nc I TOE ee me

Il. Because It Is Unique, This Case Presents

The Perfect Opportunity For The Court To

Resolve Inconsistencies That Have

Developed Since DiFrancesco.

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II]. This Case Also Provides The Opportunity

To Re-examine The Continuing Validity Of

Portions Of The Court’s Holdings In Ex

Parte Lange and Jn Re Bradley.

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CONCLUSION .....-.-----eeccreee: Poy 18

APPENDIX

Decision of the Court of Appeals for the

Fourth Circuit .......-.--ssecee ee eceeee: l

Report and Recommendation of the U.S.

District Court for the District of Maryland ... 11

, Amended Order of the U.S. District Court

for the District of Maryland ......------+: 28

iil

TABLE OF CASES, STATUTES, AND

AUTHORITIES

CASE LAW

Alabama v. Smith, 490 U.S. 794 (1989) ........... 6

Burks v. United States, 437 U.S. 1 (1978)... 02.0... 8

Ex Parte Lange, 85 U.S. 163 (1873) ........ 11,15-17

Gardiner v. United States,

114 F.3d 734 (8" Cir. 1997) .............. 10

In re Bradley, 318 U.S. 50 (1943) ........ 8, 12,15,16

Jones v. Thomas, 491 U.S. 376 (1989) ........ 16,17

North Carolina v. Pearce,

i, 28 Get et. | ee 5-9, 13,17

Pasquarille v. United States,

130 F.3d 1220 (6" Cir. 1997) .......... 10,12

Pennsylvania v. Goldhammer,

Oe Ai OE ss ooo con eaedeaneaea ns 13

United States v. Arrellano-Rios,

799 F.2d 520 (9™ Cir. 1986) ........... 10,11

United States v. Bello,

767 F.2d 1065 (4" Cir. 1985) . eae ee

l/nited States V. Benbrook,

119 F.3d 338 (5™ Cir. 1997) .. 2 .... 10,12

/nited States v. Jones,

722 F.2d 632 (11" Cir. 1983) ...------ +>: 10

[Jnited States v. Daddino,

5 F.3d 262 (7" Cir. 1993) ....----- -,. 10,11

United States v. DiFrancesco,

449 U.S. 117 (1980) ...... §. 9-10,12-14,16,17

United States v. Murray,

144 F.3d 270 (3d Cir. 1998) ...------>> 10,12

United States v. Olivares,

292 F.3d 196 (4th Cir. 2002) .... 2,10,13,14,17

United States v. Rodriguez,

112 F.3d 26 (1" Cir. db Peer ree 10,11,14

United States v. Rourke,

984 F.2d 1063 (10" Cir. 1992) ....-+--: 10,12

United States v. Silvers,

90 F.3d 95 (4® Cir. Se, Cee 11

United States v. Smith,

115 F.3d 241 (4" Cir. 1997) ........... 11, 14

United States v. Townsend.

178 F.3d 558 (D.C. Cir. 1999) ...... ee

United States v. Triestman,

178 F.3d 624 (2d Cir. 1999) .............., 10

CONSTITUTIONAL PROVISIONS AND

STATUTES

United States Constitution, AmendmentV ......... 2

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Docket No

IN THE

LUINITED STATES SUPREME COURT

OCTOBER TERM 2001

DENNIS OLIVARES,

PETITIONER.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The decision of the United States District Court for the

District of Maryland resolving Mr. Olivares’ Motion To

Vacate his sentence pursuant to 28 U.S.C. § 2255 was

rendered on the district judge’s adoption of the Report and

Recommendation of United States Magistrate Judge

Charles B. Day, and is not officially reported. The Report

and Recommendation of Magistrate Judge Day in Case

Number AW 99-0296 appears in the Appendix at pages

11-27, and the district judge’s Order adopting that Report

and Recommendation appears in the Appendix at pages

28-30. After denying Mr. Olivares’ § 2255 Motion, the

distnct court granted a certificate of appealability, pursuant

to § 2253(cK 1B). The opimon of the United States Court

of Appeals for the Fourth Circuit on direct review of the

denial of Mr. Olivares’ § 2255 Motion is reported at

United States v. Olivares, 292 F.3d 196 (4th Cir. 2002).

and is attached in the Appendix at pages 1-10

JURISDICTION

The Fourth Circuit entered a decision and order

affirming Mr. Olivares’ conviction on May 28, 2002.

(App. 1). This Court has junsdiction to review the order

of the Fourth Circuit on wnt of certioran pursuant to 28

U.S.C. § 1254(1).

t ONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger, nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a: witness against himself, nor be

deprived of life, liberty, or property, without due process

2

ee a a

of law; nor shall private property be taken for public use,

without just compensation

STATEMENT OF THE CASE

This case involves the misdemeanor crime of simple

assault. United States Magistrate Judge Victor H. Laws,

II], originally found Mr. Olivares guilty of violating 18

U.S.C. § 113(aX4) (Case No. M-98-2476) and sentenced

Mr. Olivares on July 14, 1999. Mr. Olivares was

sentenced to a fine of $500.00, a special assessment of

$10.00, and unsupervised administrative probation through

payment of the fine. (App. 2). Mr. Olivares paid the fine

and special assessment that same day, on July 14, 1999

(App. 2). As of July 14, 1999, Mr. Olivares served and

discharged the full sentence for his alleged role in the

crime of simple assault

Mr. Olivares thereafter filed a Notice of Appeal, five

days later, on July 19, 1999. (App. 2). On September 15,

1999. the district court vacated the judgment of conviction

and sentence and granted Mr. Olivares a new tnal. (App.

12-13). Although his conviction was vacated, Mr.

Olivares’ full sentence was already served and his original

fine was not returned by the Government.

Later in 1999, following a bench trial, United States

Magistrate Judge Charles B. Day found Mr. Olivares

guilty of the same offense for which Mr. Olivares was

previously convicted. (App. 13). Notwithstanding his

prior sentence of a $500 fine, which remained entirely

served, on December 1, 1999, Magistrate Judge Day

sentenced Mr. Olivares to a completely new and stiffer

sentence including, inter alia, 12 months of supervised

probation. (App. 13-14).

Mr. Olivares immediately began serving his second

harsher sentence, which was effectively placed on top of

Mr. Olivares’ first discharged sentence that remained fully

served. On July 17, 2000, a Notice of Violation of

Probation was filed and on October 5, 2000, Mr. Olivares

was found to be in violation of his probation. (App. 3).

The district court ordered Mr. Olivares to continue

probation until December 3, 2001, and as an additional

sanction, Mr. Olivares was ordered to satisfactorily

complete a thirty (30) day period of confinement with

work release at a community corrections facility. (App.

3). Mr. Olivares remains under the jurisdiction of the

district court to this day, awaiting resolution of a pending

Violation of Probation hearing.

On March 19, 2001, pursuant to 28 U.S.C. § 2255, Mr.

Olivares filed a Motion to Vacate Sentence with

Memorandum of Law. (App. 11). On March 27, 2001,

Magistrate Judge Day filed a Report and Recommendation

granting relief in part (ordering a refund to Mr. Olivares of

$200.00 paid as part of the fine imposed in this case) and

denying relief in part (denying Mr. Olivares’ claim that the

double jeopardy clause prohibited the increased

punishment after Mr. Olivares’ second trial). (App. 26-

27). On June 13, 2001, United States District Judge

Alexander Williams, Jr., issued an Order adopting the

cd

!

Report and Recommendation in toto.’ (App. 28-30).

Thereafter, Judge Williams granted Mr. Olivares a

Certificate of Appealability to the U.S. Court of Appeals

for the Fourth Circuit, pursuant to § 2253(c)(1)(B), so that

court could determine whether Mr. Olivares’ rights under

the Double Jeopardy Clause were violated. On May 28,

2002, the Fourth Circuit issued a published opinion

denying the requested relief. (App. 1-10).

BRIEF SUMMARY OF REASONS FOR

GRANTING THE WRIT

According to the Fourth Circuit in this case, the Double

Jeopardy Clause is never implicated when an individual is

reconvicted and resentenced after his original conviction

has been vacated. (App. 9-10) (Michael, J., concurring

separately). It does not matter that the defendant has fully

served and discharged his entire sentence prior to having

the sentence vacated. In reaching this decision, that court

did not follow this Court’s precedent in United States v.

DiFrancesco, 449 U.S. 117, 139 (1980), and instead relied

on an overly broad interpretation of North Carolina v.

,' United States District Judge Alexander Williams, Jr., adopted

the Report and Recommendation issued by United States Magistrate

Judge Charles B. Day. Judge Williams did not issue a separate

opinion. Therefore, upon adopting of the Report and

Recommendation, the Report and Recommendation became the

official and only opinion of the district court. Hereinafter, Mr.

Olivares will refer to the Report and Recommendation as the action

of the “district court.”

Pearce, 395 U.S. 711, 720 (1969), overruled on other

grounds by Alabama v. Smith, 490 U.S. 794 (1989).

Mr. Olivares believes that the multiple punishment

protections in the Double Jeopardy Clause are violated

when a defendant fully serves and discharges one legally

valid sentence, then is sentenced to a harsher penalty for

the same crime following a second tnal or proceeding.

Whether the first conviction is vacated or not is of no

import once the onginal legally valid sentence imposed for

that first conviction is discharged in full. By discharging

the entire sentence, the individual has achieved finality of

punishment, and the Double Jeopardy Clause steps in to

prevent a subsequent enhanced sentence on that same

charge.

To resolve this case, the Fourth Circuit clung to

“conceptual niceties” and “unmitigated fictions.” A better

foundation is needed. By granting certioran, the Court can

provide the guidance that circuit courts need to assist in

determining the proper scope of the Double Jeopardy

Clause’s bar on multiple punishments.

REASONS FOR GRANTING THE WRIT

I. The Court Should Grant Certiorari To Address

Inconsistencies In How Federal Circuit Courts

Have Interpreted This Court’s Double Jeopardy

Clause Jurisprudence.

In North Carolina v. Pearce, 395 U.S. 711, 720 (1969),

overruled on other grounds by Alabama v. Smith, 490 U.S.

6

794 (1989), this Court explained that the Double Jeopardy

Clause places no limit on our government's power to retry

a defendant who has succeeded in getting his first

conviction set aside. Regarding re-trial and re-conviction,

this Court explained in Pearce that a court “may impose

whatever sentence may be legally authorized, whether or

not it is greater than the sentence imposed after the first

conviction.” Jd. As the Court stated in Pearce, once the

first conviction is set aside the slate is wiped clean. /d.

Despite the language in Pearce cited above, the two

defendants in Pearce were only in the early stages of their

sentences when they succeeded in having their convictions

set aside. (App. 10). This Court explained in Pearce that

because each defendant did serve some time, it was an

“unmitigated fiction” to say that the proverbial slate 1s

truly clean. Jd. at 721. However, “so far as the conviction

goes, and that part of the sentence that has not yet been

served, it is no more than a simple statement of fact to say

that the slate has been wiped clean.” /d. (emphasis

added). That is because “the unexpired portion of the

sentence will never be served.” - Jd. In Pearce, the

“unexpired portion of the sentence” was the overwhelming

majority of the sentence for both defendants. (App. 10).

Building on Pearce, the question presented here is

whether Pearce foreclosed the possibility that the multiple

punishment protections in the Double J eopardy Clause can

ever be implicated when a defendant is tried a second time

on the same charges after his first conviction is vacated.

Mr. Olivares contends that there are two situations when

the Double Jeopardy Clause does limit the government’s

power to reconvict and resentence after an initial

conviction and sentence is vacated. First, when the

original and only conviction is overturned based on

insufficiency of the evidence. See Burks v. United States,

437 U.S. 1, 11 (1978). Second, when the first and only

sentence is served in full and discharged prior to it being

vacated. After a defendant discharges one entire legally

valid sentence in full, the government’s power to extract

more punishment for that offense is at an end.* Cf Jn re

Bradley, 318 U.S. 50, 63 (1943) (holding that when

defendant paid his fine in full 3 days after sentencing, he

achieved “full satisfaction” of one lawfully imposed

penalty, and therefore the judgment was executed and the

power of the court to punish further “was at an end”).

Contrary to the holding of the Fourth Circuit in this

case, Mr. Olivares respectfully submits that Pearce left

open the question of whether the Double Jeopardy Clause

limits a court’s power to resentence with a stiffer penalty

after a second conviction, when there is no “unexpired

portion of the sentence.”

After Pearce, at least one question remained: is there

a time — before a defendant completely serves his entire

sentence — when enough of the sentence has been served

. Aside from the Double Jeopardy Clause, there are other

constitutional provisions that do limit the government’s power to

reconvict and resentence following a successful appeal. For instance,

due process of law protects against vindictiveness playing any part in

sentencing a defendant who successfully challenged his first

conviction. See Pearce, 395 U.S. at 725.

so that the Double Jeopardy Clause attaches to prevent

enhanced resentencing? This Court addressed that

question in United States v. DiFrancesco, 449 U.S. 117,

139 (1980). In DiFrancesco, this Court discussed issues

at the opposite end of the spectrum from those presented

here. DiFrancesco addressed whether the pronouncement

of a sentence alone is sufficient to provide a defendant

with double jeopardy protections that would prevent a

subsequent increase in the sentence. DiFrancesco, 449

U.S. at 137-38. Unlike DiFrancesco, here we are

concerned not with the pronouncement of a sentence, but

with the completion of a sentence. Discussing Pearce, the

Court in DiFrancesco explained that “if any rule of

finality had applied to the pronouncement of a sentence,

the original sentence in Pearce would have served as a

ceiling on the one imposed at re-trial.” /d. at 135. But the

question remained: is there a rule of finality that attaches

to the complete execution of a sentence? DiFrancesco

did not answer that question directly. Instead, the Court

indicated that the key to determining whether double

jeopardy attaches so as to prevent enhanced re-sentencing

the second time around is to decide whether a legitimate

expectation of finality exists in the sentence. /d. at 139.

The decision in DiFrancesco supposes that while the

Double Jeopardy Clause does not absolutely bar the

possibility of ever sentencing a defendant to a more severe

sentence the second time around, there may be a situation

when the Double Jeopardy Clause would prevent

enhanced resentencing.

Since DiFrancesco, it has been left largely to the

federal circuit courts to determine when a legitimate

expectation of finality in a sentence arises for double

jeopardy purposes. Although this Court never expressly

developed a “test” referencing a “legitimate expectation of

finality” in DiFrancesco, every federal circuit court

following that decision has cited to DiFrancesco as

introducing the “expectation of finality” analysis.* Within

this framework, the circuit courts have at least reached a

consensus that if a legitimate or reasonable expectation of

finality develops in an initial sentence, then the double

jeopardy clause will act to prevent a court from having the

power to later enhance that sentence. That is until now.

According to Olivares, it does not matter whether a

defendant acquired a legitimate expectation of finality, or

even actual finality. If the sentence is later vacated for

whatever reason, even if finality is achieved, the trial court

can resentence to a stiffer sentence without implicating

double jeopardy. (App. 9).

, See United States v. Triestman, 178 F.3d 624, 630 (2d Cir.

1999): United States v. Townsend, 178 F.3d 558, 566 (D.C. Cir.

1999); United States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998);

Pasquarille v. United States, 130 F.3d 1220, 1222 (6" Cir. 1997);

United States v. Benbrook, 119 F.3d 338, 340 (5" Cir. 1997);

Gardiner v. United States, 114 F.3d 734, 736 (8" Cir. 1997);

United States v. Rodreguiez, 112 F.3d 26, 31-32 (1* Cir. 1997);

United States v. Daddino, 5 F.3d 262, 265 (7" Cir. 1993); United

States v. Rourke, 984 F.2d 1063, 1066 (10" Cir. 1992); United

States v. Arrellano-Rios, 799 F.2d 520, 524-25 (9™ Cir. 1986);

United States v. Bello, 767 F.2d 1065, 1070 (4 Cir. 1985);

United States v. Jones, 722 F.2d 632, 637 (11" Cir. 1983).

10

Some circuits have concluded that an “expectation of

finality” exists once actual finality 1s achieved by fully

discharging a sentence. See United States v. Silvers,* 90

F.3d 95, 101 (4% Cir. 1996) (holding that “once a

defendant fully serves a sentence for a particular crime, the

Double Jeopardy Clause’s bar on multiple punishments

prevents any attempt to increase thereafter a sentence for

that crime”); United States v. Daddino, 5 F.3d 262, 265

(7" Cir. 1993) (holding that defendant acquired a

legitimate expectation of finality in his incarceration, fines

and restitution when the second sentencing occurred after

defendant had completed period of incarceration and paid

all fines and restitution in full); United States v.

Arrellano-Rios, 799 F.2d 520, 524-25 (9" Cir. 1986)

(holding that “we are certain, however, that the

4 Prior to the instant case, the Fourth Circuit held in the most

absolute terms possible that when one legally valid sentence is

discharged in full, double jeopardy prevents subsequent enhanced

resentencing. See, e.g., United States v. Smith, 115 F.3d 241, 246

(4" Cir. 1997) (stating that “[n]o doubt exists under the court’s

decision in Silvers if a defendant has fully discharged his sentence

pertaining to certain counts, he may not be resentenced on those

counts”). Here, the court reconciled this holding with those in

Silvers and Smith by limiting those cases to situations where the

“fully served” sentence was not later vacated. While Mr. Olivares

understands this limitation, he respectfully submits that

jurisprudence in this area, at least as far back as Ex Parte Lange,

85 U.S. 163 (1873), suggests that the important fact is not whether

the sentence was ultimately vacated, but whether or not it was fully

served.

11

expectation has arisen, and jeopardy has attached, upon .

. . [the sentence’s] completion”); see also United States v.

Rodriguez, 112 F.3d 26, 31-32 (1" Cir. 1997) (rejecting

double jeopardy claim but specifically limiting the holding

by stating that “this case does not involve a petitioner who

had already fully discharged his sentence”). In other

words, once a sentence is served in full and discharged,

any “expectation” of finality gives way to actual finality,

and the Double Jeopardy Clause bars subsequent enhanced

re-sentencing.

Instead of looking at the end of a defendant’s sentence,

other circuits have asked whether an “expectation of

finality” can develop near the beginning of a sentence.

These circuit courts have decided that if a defendant’s

appeals are still pending, there can be no “expectation of

finality,” and consequently no double jeopardy protection.

See, e.g., Pasquarille v. United States, 130 F.3d 1220,

1222 (6" Cir. 1997) (no expectation of finality when

defendant challenges sentence); United States v. Benbrook,

119 F.3d 338, 390 (5" Cir. 1997) (same); United States v.

Rourke, 984 F.2d 1063, 1066 (10" Cir. 1992) (same);

United States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998)

(same); but see In re Bradley, 318 U.S. at 63 (holding

prior to DiFrancesco that a court’s power to punish was

“at an end” only 3 days after sentencing, when period for

filing appeal had not run, because the defendant paid his

fine in full, thereby satisfying one valid legal punishment).

This case provides the Court with an opportunity to

find consistency between these two extremes. Here, there

is no dispute that Mr. Olivares did execute and completely

12

discharge one legally valid punishment before he ever filed

an appeal. (App. 2). As such, arguably the power of the

court to punish further was at an end. But, after

discharging his sentence in full, Mr. Olivares challenged

the validity of his conviction. (App. 2). Did that decision

give the district court back the power it lost when Mr.

Olivares fully discharged the only legally valid sentence he

received? |

In Olivares, the Fourth Circuit avoided the question

entirely, by holding that because Mr. Olivares’ initial

sentence was vacated, it did not matter whether he served

the sentence entirely or not. (App. 8-9). In so doing, the

Fourth Circuit danced around DiFrancesco by claiming

that the “expectation of finality” analysis should not be

used when a conviction is vacated. (App. 8-9). The

rational is that while DiFrancesco addresses re-sentencing

after appeal, it is Pearce that controls the issue of re-

sentencing after re-trial. Of all the circuit court decisions

presented above, this is the most troubling as it overlooks

this Court’s unequivocal statement in DiFrancesco that:

“While Pearce dealt with the imposition of a new sentence

after retrial rather than, as here, after appeal, that

difference is no more than a ‘conceptual niceity.’”” Jd.

(quoting from Pearce); see also Pennsylvania v.

Goldhammer, 474 U.S. 28, 30 (1985) (per curiam)

(quoting the same passage again).

If the opinion in Olivares is correct, then absurd

results follow. Imagine a defendant who receives a 50

year sentence for murder. After fully serving all 50 years,

he files a Writ of Error Coram Nobis to relieve himself of

13

the collateral consequences associated with his conviction.

He prevails and the conviction is vacated. According to

Olivares, the slate is wiped clean and - assuming no

vindictiveness - the State is free to re-try, re-convict, and

re-sentence to the statutory maximum, including life in

prison. Notwithstanding Olivares, it is difficult to imagine

that many agree this person who served all 50 years was

truly given a clean slate.

II. Because It Is Unique, This Case Presents The

Perfect Opportunity For The Court To Resolve

The Inconsistencies That Have Developed Since

DiFrancesco.

This is a unique case. Because Mr. Olivares’ first

sentence consisted of a monetary fine, he was able to serve

the entire sentence prior to ever filing his appeal. On

direct appeal, the court vacated his conviction, and gave

him a new trial, but kept his money. After re-trial, Mr.

Olivares received a harsher sentence than he did the first

time through.

The unique nature of this case provides the opportunity

to correct inconsistencies between federal circuit court

interpretations of the scope of the Double Jeopardy

Clause. There are published appellate decisions

explaining that no doubt exists that once a defendant fully

serves a sentence for a particular crime, the Double

Jeopardy Clause’s bar on multiple punishments prevents

any attempt to increase thereafter a sentence for that crime.

See Smith, 115 F.3d at 246. But other published decisions

14

explain that there can be no double jeopardy clause

protection from multiple punishments while a defendant's

appeals are pending. While the first set of decisions focus

on the objective issue of “actual finality,” the other

decisions focus on the subjective nature of the

reasonableness of a defendant’s expectations. By granting

a Writ of Certiorari in this case, the Court can provide

needed guidance to the lower courts that are struggling

with the scope of the Double Jeopardy Clause’s bar on

multiple punishments.

III. This Case Also Provides The Opportunity To

Re-examine The Continuing Validity Of Portions

Of The Court’s Holdings In Ex Parte Lange and

In Re Bradley.

In Ex Parte Lange, 85 U.S. 163 (1873), the Court

discussed the origins of our Double Jeopardy Clause

jurisprudence. Part of that discussion included Sargent

Hawkins’ interpretation of the Latin, “Nemo bis punitur

pro eodem delicto,” as stating “No one can be twice

punished for the same crime or misdemeanor.” Lange, 85

U.S. at 169 (quoting 2 Hawkins’s Pleas of the Crown,

377). Parenthetically, there is no mention in Lange of an

exception to this principal based on Aristotle’s tabula

rasa.

Lange involved facts different from the instant case.

Nonetheless, in Lange this Court stated that when a

prisoner, by reason of a valid judgement “fully suffered

one of the alternative punishments to which alone the law

15

subjected him, the power of the court to punish further was

gone.” Lange, 85 U.S. at 176. The focus in Lange

appeared to be that once a defendant was “fully punished,”

— past tense — the power of the court was at an end.

Seventy years later, this Court decided /n Re Bradley on

essentially the same analysis developed in Lange. See Jn

Re Bradley, 318 U.S. at 63.

In DiFrancesco the Court divided 5-4 and the

majority’s opinion severely restricted the holding in

Lange. DiFrancesco, 449 U.S. at 140. Since then, the

continuing validity of any precedent in Lange beyond its

narrow facts is disputed. (App. 18). Nonetheless, in Jones

v. Thomas, 491 U.S. 376 (1989), Justice Scalia wrote for

a four Justice dissent and cited frequently to Ex Parte

Lange and Jn Re Bradley without mentioning any broad

limitation of those precedents. Thomas, 491 U.S. at 388-

91. Justices Stevens, Brennan and Marshall, who joined

Justice Scalia in Thomas, also dissented in DiFrancesco.

Admittedly, the facts in Thomas are much closer to those

in Lange and Bradley than they are to the facts here. But

the principals relied on by the four Justice dissent in

Thomas support Mr. Olivares’ position here. For instance,

the dissent in Thomas directly challenged the Court’s

statement there that in the multiple punishments context,

““the Double Jeopardy Clause does no more than prevent

the sentencing court from prescribing greater punishment

than the legislature intended.”” Thomas, 491 U.S. at 392

(dissenting opinion). This language in Thomas, strongly

challenged by the dissent, is the same exact language that

the Fourth Circuit repeatedly relied on here in rejecting

Mr. Olivares’ double jeopardy challenge. (App. 4, 6, 8).

This Court’s decisions in DiFrancesco and Thomas

indicate considerable disagreement exists within the Court

conceming the scope of double jeopardy protections in the

context of multiple punishments. The different approaches

taken by the majority and the dissent in DiFrancesco and

Thomas also suggests that there is disagreement over

exactly how much of the Court’s thinking in Ex Parte

Lange survived Difrancesco.

Some of these same differences in thinking about the

scope of our constitutional protections appeared in

Olivares. Here, two of three judges from the Fourth

Circuit relied on the most restrictive interpretations of the

Double Jeopardy Clause in Thomas to avoid DiFrancesco

altogether and narrow the scope of the Double Jeopardy

Clause. (App. 8-9). In a concurring opinion, Judge

Michael agreed with the outcome, but did not endorse the

overly broad use of language in Pearce and Thomas to

undercut the application of DiFrancesco. (App. 9-10).

The Court should grant certiorari to provide further

guidance on the scope of the protections against multiple

punishinents in the Double Jeopardy Clause. The vigorous

debate on this issue within the Court indicates that the

issue is alive. The Fourth Circuit’s inability to reach

consensus, along with the different approaches taken by

the other circuits mentioned earlier, suggests that the

assistance of this Court would be beneficial.

17

a

CONCLUSION

Petitioner respectfully requests that this Court grant his

Petition.

Respectfully Submitted,

Fred Warren Bennett

BENNETT & NATHANS LLP

6301 Ivy Lane, Suite 504

Greenbelt, Maryland 20770

301.220.1570

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