Petition for Writ of Certiorari — Heilbrunn v. United States

Supreme Court, U.S.

FILED

' gana z? Jan 19199

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

PAUL B. HEILBRUNN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari

To the United States Court of Appeals

for the Seventh Circuit

PETER GOLDBERGER

Counsel of Record

PAMELA A. WILK

LAW OFFICES OF ALAN ELLIS

50 Rittenhouse Place

Ardmore, PA 19003

(610) 658-2255

Attorneys for Petitioner

JANUARY 1999

A PIERRE S35 ye

QUESTION PRESENTED

Where neither party has appealed, does the Double

Jeopardy Clause protect a defendant against entry of a

criminal forfeiture a year after imposition of the

judgment containing the other aspects of his federal drug

sentence, including imprisonment and special

assessments?

}

LIST OF ALL PARTIES

The caption of the case in this Court contains the

names of all parties (Paul B. Heilbrunn and the United

States).

TABLE OF CONTENTS

QUESTIONS PRESENTED ........-..scssesseseeeseeneeeeeseseees i

LIST OF ALL PARTIES. ........--:ccsscsssssssserssescesesesrencesnees il

INDEX TO APPENDIX .......--:-:cccsessssesesseeseenseeneeeenees iV

TABLE OF AUTHORITIES ..........2-:cccceeesseeessteersereees iv

PETITION

OPINIONS BELOW. ............ccsccccsssscsssssceesereeesseeensneeesensees 1

I so. ccsssanccniventaacnsecnsenssvonoonoverccenessconasenseee l

STATUTE, RULE and CONSTITUTIONAL

PROVISION INVOLVED ..............:::0::eeeeeereeeeeeteees 2

STATEMENT OF THE CASE

a. Procedural History .............-:cccsscsesseeeseeterseeeeees 4

bh. Statement Of Facts .........ccccccccccrssrecessssssererrsereoeeess 7

c. Statement of Lower Court Jurisdiction .............. 7

REASONS FOR GRANTING THE WRIT

This case presents an important and

unresolved aspect of Double Jeopardy juris-

prudence: what constitutes a "separate

proceeding" such that a court may not add

even a statutorily-authorized additional form

of punishment after the original sentencing

has been reduced to a final judgment. .................... 9

EE BIG eichsicevvcccccesisconsasacnevsccsencnoneseqenennesstoteness 20

INDEX TO APPENDIX

A. Order of the Court of Appeals denying certificate of

appealability :

B. Entry of District Court denying § 2255 motion

C. Entry of District Court denying motion for limited

reconsideration

D. Entry of District Court denying certificate of

appealabilty

TABLE OF AUTHORITIES

CASES

Barefoot v. Estelle, 463 U.S. 880 (1983) ............-.-e+-++ 18

Berman v. United States, 302 U.S. 211 (1937) ............. 15

Bozza v. United States, 330 U.S. 160 (1947) ................ 15

In re Bradley, 318 U.S. 50 (1943) ..........ccsceceerseeeeeneenees 15

Bullington v. Missouri, 451 U.S. 43U (1981) ................. 19

Burks v. United States, 437 U.S. 1 (1978) ............... 18, 19

Hudson v. United States, 522 U.S. 93 (1997) .......... 12, 19

Jones v. Thomas, 491 U.S. 376 (1989) ................0... 14, 16

Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874) . 14, 17, 19

Libretti v. United States, 516 U.S. 29 (1995) .......... 14, 17

Menna v. New York, 423 U.S. 61 (1975) (per curiam) 17

Missouri v. Hunter, 459 U.S. 359 (1983) ..0.......ceeseeeeees 12

Monge v. California, 524 U.S. --, 118 S.Ct. 2246,

BE Ea CIID cicicietintisnicorsscctensnncitznes 18, 19

Montana Dept. of Revenue v. Kurth Ranch,

ie 8 RRR Sener 12

Pennsylvania v. Goldhammer,

474 U.S. 28 (1985) (per curiam) ..................000000. 16

United States v. Broce, 488 U.S. 563 (1989) ..........0..... 17

United States v. DiFrancesco, 449 U.S. 117 (1980) ..... 16

-jv-

RAE aaa POR Mele aad inte

Whalen v. United States, 445 U.S. 684 (1980) ............. 12

Witte v. United States, 515 U.S. 389 (1995) ............ 11, 19

CONSTITUTION, STATUTES AND RULES:

U.S. Const., amend. V (Double Jeopardy Clause) passim

U.S. Const., amend. V (Due Process Clause) ................ 6

SE I. Ie eich sihkctiiarsievetsenspnctctisihoaniancsiinitanenens 8

Oe AE ikea tnenicinccnientcvibiraansichives 15, 17

Fe et Esch distisns enc caciipesiensssinnsvncbeniniishdieaaipaian 14

Ee MEAD: sissarntiictircasinessenssicsiasvivusvencasteaonsanstobalen 2

ee iricieeitrrithctanciveissiemiacosinnicgeansteedioitunnsioben 8

ee IE Diidaiadiiecsintonssittinnesrtsitnnnminas 8

ee I si ickiictsniksisin sapicatinauittbinegciascanronsenic 18

Fe A IEEE Sesihieri.ccictnntinciinsnsnnsienicivionaiaic 6, 7, 8, 18, 20

POET AEs SER ELI ss sercovincrsnceneniccsihiosacneniaienens 8

A, CE sctiinicccinnsetinninaniitoncnatanivasiinisesguricnbidoolinessie 17

Ne I siciccisecncasnsbsiiiinasobsiciensnisesicesisieivaldibeaigetns 7

Ee 5 TD cscs heitetsiiesenitnivindystixtcveiiritioopaites 7,8

Fed. R.Crim.P. 32(6)(2) (1972 FOV.) ........0000ss0ceossscesssersees 5

Fed.R.Crim.P. 32(d)(2) (1996 rev.) ..........ccscssesssosesceees id

Fed.R.Crim.P. 35 (former vers.) ..........ccrssosssessssseseessesers 9

PO AION, Be I BY cissacissisicsssisccretincdecossstinnscetienen 8

SAK. Restle 15-1, EDD, TBS (IGT 100.) cciccinscssncssessnseresses 2

he SIE BRI ba ticenshc Sev sarittapomnntn shectictenietincdcbnanbeesieiors 7

MISCELLANEOUS:

Adv. Comm. Note, Fed.R.Crim.P. 32 (1996) ............... 14

Pa

pe

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

S CIRCUIT

PAUL B. HEILBRUNN respectfully petitions

this Court for a writ of certiorari to review the final

Order of the United States Court of Appeals for the

Seventh Circuit denying a certificate of appealability,

which was filed and entered on August 21, 1998.

OPINIONS BELOW

The Order of the Court of Appeals (per

Cummings & Evans, JJ.), denying a certificate of appeal-

ability, is attached as Appendix A. This order is not

published. The district court’s unpublished "Entry" (a

memorandum opinion) and Judgment denying the

motion to vacate conviction and sentence under 28

U.S.C. § 2255 are attached as Appendix B. The district

court’s Order denying Mr. Heilbrunn’s motion for limited

reconsideration of the Entry denying his § 2255 motion is

attached as Appendix C. The district court Entry denying

a certificate of appealability is Appendix D.

JURISDICTION

The final Order of the United States Court of

Appeals for the Seventh Circuit denying a certificate of

appealability was filed and entered on August 21, 1998.

Appendix A. On November 5, 1998, under No. A-375,

Justice Stevens granted petitioner's application for an

extension of time to file this petition to and including

January 18, 1999. This petition is timely filed on January

19, 1999, because January 18, 1999, is a federal legal

holiday (Birthday of Rev. Martin Luther King, Jr.).

Rules 13.1, 13.3, 13.5, 30.1 (1997 rev.). Petitioner

invokes this Court’s jurisdiction under 28 U.S.C.

§ 1254(1). See Hohn v. United States, 524 U.S. --, 118

S.Ct. 1969, 141 L.Ed.2d 242 (1998).

CONSTITUTIONAL PROVISION, FEDERAL

STATUTE, AND RULE INVOLVED

The Controlled Substances Act provides, in

pertinent part:

(a) Property subject to criminal forfeiture

xe *

The court, in imposing sentence on such

person, shall order, in addition to any other

sentence imposed pursuant to this

subchapter or subchapter II of this chapter,

that the person forfeit to the United States

all property described in this subsection. ...

21 U.S.C. § 853.

In 1991, at the time of petitioner’s sentencing, Rule

32 of the Federal Rules of Criminal Procedure provided,

in pertinent part, as applied to offenses committed prior

to November 1, 1987:

(b) Judgment.

*~“* * *

(2) Criminal Forfeiture. When a

verdict contains a finding of property

subject to a criminal forfeiture, the

judgment of criminal forfeiture shall

authorize the Attorney General to seize

the interest or property subject to forfei-

ture, fixing such terms and conditions as

the court shall deem proper.

In 1996, Fed.R.Crim.P. 32 was clarified to read:

(d) Judgment.

****

as

”

3

3

3

+

4

a

4

#

3

s

(2) Criminal Forfeiture. If a verdict

contains a finding that property is subject

to a criminal forfeiture, or if a defendant

enters a guilty plea subjecting property to

such forfeiture, the court may enter a

preliminary order .... At sentencing, a final

order of forfeiture shall be made part of

the sentence and included in the judgment.

The court may include in the final order

such conditions as may be reasonably

necessary to preserve the value of the

property pending any appeal.

d Fed.R.Crim.P. 32.

The Fifth Amendment to the Constitution of the

United States provides, in pertinent part:

... hor shall any person be subject for the

: same offence to be twice put in jeopardy of

i life or limb; ....

:

i

oe

STATEMENT OF THE CASE

This petition presents an issue that arose from

petitioner's guilty plea, sentencing and subsequent

criminal forfeiture based upon federal marijuana

distribution-related offenses.

a. Procedural History

The petitioner, Paul B. Heilbrunn, was charged on

November 20, 1987, by a special grand jury in the

Southern District of Indiana, in 26 counts of a 53-count

indictment naming 33 co-defendants. The indictment

alleged various marijuana distribution-related offenses.

Count | charged conspiracy, between a date prior to

September 1975 and “up to and including the date of this

indictment," which was November 20, 1987, to possess

with intent to distribute and to distribute marijuana, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2

charged conspiracy from before September 1975, until at

least November 1985, to import marijuana, in violation of

21 U.S.C. §§ 952 and 963. Count 11 charged Continuing

Criminal Enterprise (CCE), in violation of id. § 848, and

contained the indictment’s only allegation of forfeiture,

pursuant to id. § 853. Counts 3 and 4 charged possession

with intent to distribute marijuana, in violation of id.

§ 841(a)(1), while Counts 15, 17, 18, 19, 23, 25, 26, 29, 32,

and 33 charged violations of the Travel Act, 18 U.S.C.

§ 1952.!

' Although petitioner Heilbrunn was charged in some of the

remaining counts 34 through 53, under the international-law

"rule of specialty," codified in the treaty under which his

extradition was secured, he was not subject to trial or penalty

on these counts, as his extradition was not sought or granted

on those charges.

os .

Petitioner pleaded guilty to six counts including

the CCE on April 16, 1991, pursuant to a written plea

agreement. In the plea agreement, the government

promised, inter alia, that "[c]onditioned upon such full

disclosure [of his assets], the United States of America

agrees not to seek the seizure/forfeiture of any of Paul B.

Heilbrunn’s assets, pursuant to Title 21, United States

Code, Sections 853 and 881, other than those specifically

delineated in a document entitled Final Plea Addendum

Concerning Forfeitures, which will be presented to the

Court at the time of sentencing and is to be considered a

part of this Final Plea Agreement." Final Plea Agmt. %8,

at 7-8.

Petitioner was sentenced on July 2, 1991, under

the law existing prior to the enactment of the Sentencing

Reform Act (SRA) and federal sentencing guidelines, to

serve a nonparolable sentence of 24 years for CCE on

Count 11, concurrent with sentences aggregating 28

years’ imprisonment (parolable after one third [i.e., 9

years, 4 months], pursuant to former 18 U.S.C. § 4205S(a))

on Counts 3, 4, 17, 23 and 32. No final addendum

respecting forfeitures was presented by the government

at the time of sentencing, however. The prosecutor

explained only that this deviation from the plea agree-

ment was due "in part" to the death of the father of a

government agent who would have been involved with

the forfeiture. The prosecutor asked the district court to

delay entry of the final judgment until the forfeiture

addendum could be added, pursuant to Fed.R.Crim.P.

32(b)(2). Defense counsel remained silent.

? Section 881 of title 21, referred to in the agreement along

with the criminal forfeiture statute, is the federal drug law

provision for civil, in rem forfeitures.

«5.

=

Entry of Judgment was delayed for approximately

three weeks; however, the government did not file the

promised Addendum within that period. On July 24,

1991, judgment was entered without the forfeiture

addendum’s having been finalized. In fact, the forfeiture

agreement was not submitted until ten months after

sentencing (on May 7, 1992), and the final Order of

forfeiture was not entered until two months after that, on

July 2, 1992, exactly one year after imposition of

sentence.’ No amended judgment containing the forfei-

ture penalty was ever filed.

No direct appeal was taken.* On April 21, 1997,

Mr. Heilbrunn filed a motion under 28 U.S.C. § 2255 to

vacate his conviction and sentence. The motion alleged,

inter alia, that the postponed criminal forfeiture violated

his rights under the Due Process and and Double

Jeopardy Clauses.°

On December 31, 1997, the district court denied

the defendant's motion to vacate his conviction and

sentence pursuant to 28 U.S.C. § 2255, in a five-page

Pe ee ee 3

‘The delay after sentencing apparently was due first to the

unavailability of a government-selected polygrapher, and

subsequently to time occupied in polygraph examinations of

Paul Heilbrunn. The plea agreement, however, did not |

condition the government's agreement to present the final

forfeiture agreement at the time of sentencing on the ;

completion of polygraphy.

* Nor had petitioner Heilbrunn been notified by the court at

sentencing of his right to appeal. Cf, Peguero v. United States, :

No. 97-9217 (U.S., pending argument).

‘The Due Process aspect of petitioner's forteiture-related

claim is not being pursued in this Court.

‘dhe

Entry and Judgment. Appx. B. In denying § 2255 relief

on petitioner's forfeiture-related claim, the district court

did not specifically and separately address the claim's two

different constitutional aspects, but rather ruled that

"though separated in time, the forfeiture was part of the

same proceeding and was merely one aspect in which the

plea agreement was fulfilled." Appx. B6 (Entry 9 8, at 4).

Petitioner’s Motion for Limited Reconsideration

pursuant to Fed.R.Civ.P. 59(e), pointing out that in fact

no "amended judgment of conviction" reflecting the

forfeiture was ever filed, was denied by district court

Order entered January 22, 1998. Appx. C.

On March 23, 1998, defendant Heilbrunn filed a

timely notice of appeal. The district court denied a

certificate of appealability on May 5, 1998, Appx. D, and

a two-judge panel of the Court of Appeals denied a

certificate of appealability on August 21, 1998. Appx. A.

Petitioner has been incarcerated since May 24,

1989, and is now serving his sentence.

b. Statement of Facts

Between 1975 and late 1987, petitioner Paul Heil-

brunn was one of the principals in a large scale marijuana

distribution enterprise which was based in part in Indian-

apolis, Indiana, and had facets in certain southern states

and in Michigan. The primary function of the Indiana-

polis portion was organizing the transportation of mari-

juana from the place of importation to warehouses in

Indiana and Michigan.

c. Statement of Lower Court Jurisdiction Under

Rule 14.1(g) (ii)

The district court's jurisdiction was properly

invoked in this case under 28 U.S.C. § 2255, in that the

petitioner at the time of filing was (and is) in custody

pursuant to the judgment of a United States court, and

filed a motion to vacate his conviction or sentence on the

basis that they were imposed in violation of the Constitu-

tion and laws of the United States. Jurisdiction over the

underlying criminal case rested upon 18 U.S.C. § 3231.

The jurisdiction of the court below rested upon 28

U.S.C. §§ 1291 and 2253(a) and was timely invoked by

Notice of Appeal filed on March 23, 1998, from the

district court’s final judgment entered December 31,

1997, denying and dismissing with prejudice his motion

under 28 U.S.C. § 2255, and from the Order dated

January 21 and entered January 22, 1998, denying peti-

tioner’s timely motion for limited reconsideration of the

December 31, 1997, Judgment.® The notice of appeal

was timely because it was filed within 60 days after entry

of the order disposing of the timely motion for reconsid-

eration. See Fed.R.App.P. 4(a)(1), (4)(c); Fed.R.Gov.

§2255 Proc. 11.

° The motion for reconsideration was timely because it was

filed on January 15, 1998, within 10 days, excluding weekends

and legal holidays, of the entry of the Judgment denying

petitioner's § 2255 motion. Fed.R.Civ.P. 6(a), 59(e).

-8-

REASONS FOR GRANTING THE WRIT

This case presents an important and unresolved aspect

of Double Jeopardy jurisprudence: what constitutes a

"separate proceeding" such that a court may not add

even a Statutorily-authorized additional form of

punishment after the original sentencing has been

reduced to a final judgment.

Petitioner Paul Heilbrunn’s written plea agree-

ment with the government expressly ensured that no

property would be forfeited unless so ordered at the time

of sentencing. Yet the forfeiture agreement was not even

submitted to the district judge until ten months after

sentencing, by which time the judgment had long since

become final, neither party having appealed. The Final

Order of Forfeiture was not entered until a full year after

imposition of sentence, did not occur in the defendant’s

presence, and was not made part of the judgment.’

” Paragraph 8 of the district court’s Entry (Appx. B), which

rejects movant’s claim that his forfeiture violated the Double

Jeopardy Clause, contains a factual error which may have

influenced the court's determination of the issue. The

paragraph states that an amended judgment of conviction was

entered when the forfeiture of Mr. Heilbrunn’s assets was

finalized. Appx. B6 (Entry 98, at 4). This is incorrect.

There was an amended judgment filed on May 3, 1994,

reflecting changes to petitioner’s post-confinement

supervision term and special assessments sought by him and

granted by the district court in proceedings under former

Fed.R.Crim.P. 35. But this much later amended judgment,

like the original judgment, did not contain any reference toa

forfeiture penalty. No amended judgment containing the

forfeiture was ever filed.

-9-

Because this case presents the important and unresolved

issue of what constitutes a "separate proceeding,” such

that a person will be deemed to have been sentenced

"twice" for the same offense under this Court’s Double

Jeopardy jurisprudence even though all forms of punish-

ment imposed are legislatively authorized, certiorari

should be granted.

Contrary to the district court’s opinion, Appx. B,

upheld by the court of appeals, Appx. A, the subsequent

criminal forfeiture constituted a "separate proceeding"

for double jeopardy purposes. The district court ruled:

8. The plea agreement entered into

between Heilbrunn and the United States

contemplated the forfeiture of certain of

Heilbrunn’s assets. The particulars of this

forfeiture were not established and acted

on by the court until several months after

the sentencing. At that time, however, an

amended judgment of conviction was

entered. Heilbrunn’s argument that the

post-sentencing forfeiture violated the

constitutional prohibition against double

(cont’d)

It appears that the district court’s determination of

Petitioner’s Double Jeopardy claim was affected by this

misapprehension of fact. Mr. Heilbrunn sought

reconsideration of this claim by the district court on this basis;

however, reconsideration was denied. Even if there had been

an amended judgment filed at the time of the belated

finalization of the forfeiture, however, a whole year after the

initial judgment and commitment, this would not have avoided

the Double Jeopardy violation. The court would have been

without authority or jurisdiction to so amend the judgment at

that time.

-10-

jeopardy is without merit because, though

separated in time, the forfeiture was part of

the same proceeding and was merely one

aspect in which the plea agreement was

fulfilled. Heilbrunn knew without doubt

that the forfeiture would be finalized, and

nothing more than that occurred.

Appx. B6. The court of appeals, like the district court,

refused a certificate of appealability. Appx. A, D.

Under this Court’s precedent as well as applicable

statutes and rules, the criminal proceeding had ended

when judgment was entered. Because the criminal forfei-

ture against petitioner Heilbrunn was not only imposed

in a separate proceeding but also was contrary to his

legitimate expectation of finality in his sentence, it

violated his rights under the Double Jeopardy Clause,

and should have been vacated when challenged on

collateral attack.

The Fifth Amendment provides that no one may

"be subject for the same offence to be twice put in

jeopardy of life or limb." As the Court has long held, the

Double Jeopardy Clause affords various forms of protec-

tion against the government's placing a person at risk of

punishment more than once for the same offense. Thus,

the Clause protects not only against further prosecution

for the same offense after acquittal or conviction, but

also directly against multiple punishments for the same

offense if not imposed at one time. Witte v. United

States, 515 U.S. 389, 132 L.Ed.2d 351, 361 (1995) (and

cases cited). The imposition of multiple forms of punish-

ment for the same offense in a single proceeding does not

offend the Double Jeopardy Clause if the total punish-

ment did not exceed that authorized by the legislature.

sii

Missouri v. Hunter, 459 U.S. 359, 367-68 (1983); Whalen

v. United States, 445 U.S. 684, 691-92 (1980).

As stated most recently in the Chief Justice’s

majority opinion in Hudson v. United States, 522 U.S. 93,

139 L.Ed.2d 450 (1997): "The Clause protects only

against the imposition of multiple criminal punishments

for the same offense, ... and then only when such occurs

in successive proceedings ....". 139 L.Ed.2d at 458-59. In

the face of direct challenge from Justices Scalia and

Thomas, the Court has thus strongly and repeatedly reaf-

firmed the traditional view, that the district court is

prohibited under the Double Jeopardy Clause from

increasing a defendant’s sentence in a separate

proceeding even if there has been no second prosecu-

tion.* All the Members of this Court seem to agree,

however, that when the defendant has a reasonable

expectation that his sentence as originally imposed has

become final, the Double Jeopardy Clause protects

against any adverse change in the sentence.

Thus has been carried forward to this day the

insight of the Court 125 years ago that:

If there is anything settled in the juris-

prudence of England and America, it is

that no man can be twice lawfully punished

for the same offence. [T]here has never

been any doubt of [this rule’s] entire and

complete protection of the party when a

second punishment is proposed in the same

® See Hudson, 139 L.Ed.2d at 463 (dissenting opinion); Witte,

132 L.Ed.2d at 368-69 (Scalia & Thomas, JJ., dissenting); |

Montana Dept. of Revenue v. Kurth Ranch, 511 U.S. 767, 802-

03 (1994) (Scalia & Thomas, JJ., dissenting).

2%.

Bi a a I

court, on the same facts, for the same

Statutory offence.

“*s* * *&

... The protection against the action of the

same court in inflicting punishment twice

must surely be as necessary, and as clearly

within the maxim, as protection from

chances or danger of a second punishment

on a second trial.

*“* *& *

For of what avail is the constitutional

protection against more than one trial if

there can be any number of sentences

pronounced on the same verdict? Why is it

that, having once been tried and found

guilty, he can never be tried again for that

offense? Manifestly it is not the danger or

jeopardy of being a second time found

guilty. It is the punishment that would

legally follow the second conviction which

is the real danger guarded against by the

Constitution. But if, after judgment has

been rendered on the conviction, and the

sentence of that judgment executed on the

criminal, he can be again sentenced on that

conviction to another and different punish-

ment, or to endure the same punishment a

second time, is the constitutional restric-

tion of any value? Is not its intent and its

spirit in such a case as much violated as if a

new trial has been had, and on a second

conviction a second punishment inflicted?

£3.

The argument seems to us irresistible,

and we do not doubt that the Constitution

was designed as much to prevent the

criminal from being twice punished for the

same offence as from being twice tried for

it.

Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 169, 173 ©

(1874). While the broadest language of Lange was

limited somewhat by Jones v. Thomas, 491 U.S. 376, 385-

86 (1989), its fundamental principles remain sound, and

lie at the root of this Court’s double jeopardy jurispru-

dence, as applied to sentencing.

Under the applicable statute, 21 U.S.C. § 853, the

court may only order a criminal forfeiture "in imposing

sentence ...."” See Libretti v. United States, 516 U.S. 29,

38-39 (1995) ("Forfeiture is an element of the sentence

imposed following conviction ....") (emphasis deleted).

Any criminal forfeiture is part of the judgment of

sentence and is to be imposed at the time of sentencing.

See Fed.R.Crim.P. 32(d)(2) (1996 rev.) ("At sentencing,

a final order of forfeiture shall be made part of the

sentence and included in the judgment").!° When

” See Statute and Rule Involved, above.

'0 At the time of petitioner’s sentencing, in July 1991, the Rule

read differently, see Statute and Rule Involved, above, but the

1996 Advisory Committee Note makes clear that the revised

language was, in this respect, intended only to clarify existing

practice as it had stood since 1972: "A provision for including

a verdict of criminal forfeiture as part of the sentence was

added in 1972 .... Since then, the rule has been interpreted to

mean that any forfeiture order is a part of the judgment of

conviction and cannot be entered before sentencing."

-14-

judgment was entered in petitioner’s case, and the

government's time to appeal expired 30 days later, see 18

U.S.C. § 3731, this criminal proceeding ended. Berman

v. United States, 302 U.S. 211 (1937).

Thus, the entry of petitioner Heilbrunn’s criminal

forfeiture, which did not occur at sentencing but rather

an entire year afterward, and was not included in the

Judgment but in a separate order, was by all legal and

objective tests a "separate proceeding" for Double

Jeopardy purposes.'! Moreover, at that time, he had

embarked upon service of his prison sentence and was

not called back for imposition of the forfeiture in his

presence. See In re Bradley, 318 U.S. 50 (1943)

(defendant, held in criminal contempt of the court of

appeals, was illegally sentenced to both fine and

imprisonment, when he paid fine two days after

commencing confinement, court attempted to rescind

fine order, remit payment, and enforce imprisonment;

violation found).'* Petitioner's sentence was not

rendered illegal by the absence of a criminal forfeiture

component. Compare Bozza v. United States, 330 U.S.

160, 166-67 (1947) (no Double Jeopardy violation when

'' The concurring opinion in Hudson appears to equate a

second, separate proceeding, for these purposes, with a

“successive prosecution." 139 L.Ed.2d at 463. The majority

does not make this equation, which is plainly inconsistent with

Ex parte Lange, supra, and In re Bradley, infra.

'? In Bradley, while defending the district court’s attempted

change in the defendant's sentence, the Solicitor General

nevertheless confessed in this Court that the change could not

be made outside the presence of the defendant. See 318 U.S.

at 53 (Stone, ChJ., dissenting).

-15-

sentence was corrected in defendant’s presence, within

hours of its imposition, before defendant had been trans-

ported from Marshal’s custody to prison, by adding

minimum mandatory $100 fine). For all these reasons,

the subsequent addition to his sentence violated the

Double Jeopardy Clause.

As the four-Justice dissent explained in Jones v.

Thomas, and not doubted by the majority:

It is clear from [United States v. DiFran-

cesco, 449 U.S. 117 (1980),] and [Pennsyl-

vania v. Goldhammer, 474 U.S. 28 (1985)

(per curiam),] that when a sentence is

increased in a second proceeding ‘the

application of the double jeopardy clause

... turns on the extent and legitimacy of a

defendant’s expectation of finality in that

sentence. If a defendant has a legitimate

expectation of finality, then an increase in

that sentence is prohibited ....’

491 U.S. at 394 (Scalia, J., dissenting) (ellipses original;

internal citation omitted). The Court has thus viewed a

resentencing on remand, after the government’s

statutorily-authorized sentencing appeal (as in DiFran-

cesco) or after the defendant’s (as in Goldhammer), as a

"second proceeding," even though the appeal had lawfully

prevented the judgment of sentence from becoming final,

so that the defendant had no "legitimate expectation of

finality."

That the sentence alteration occurred in the same

case cannot, for these purposes, suffice to make it part of

the same "proceeding." A fortiori here, where the

judgment had become final, and the entry of the forfei-

ture order a year after sentencing violated every applic-

ah

Sn tS aid be.

able statute and rule, the sentence increase surely

occurred in a separate, second, and successive

"proceeding" within the meaning of this doctrine, thus

unconstitutionally placing petitioner "in jeopardy" of

punishment a second time for the same offense.

Sentencing went forward in this case without the

promised forfeiture agreement, and no forfeiture was

made part of the judgment at sentencing, nor even by the

time the judgment was formally entered three weeks

thereafter. The judgment became final 30 days later

upon the expiration of the government's time to appeal.

See 18 U.S.C. § 3731; Fed.R.App.P. 4(b). No later than

that point, petitioner Heilbrunn was legitimately entitled

to the expectation, based upon his plea agreement and

the fact of entry of judgment, that his sentence would

never contain a criminal forfeiture penalty. !*

'3 Petitioner did not waive this claim by his counsel's silence

when the prosecutor asked the district court to await

submission of the forfeiture addendum before entering the

judgment (to which the court did not respond), even though

the sentencing hearing went forward without the addendum’s

being ready, contrary to the literal provisions of the plea

agreement. Any implied consent expired three weeks later

when judgment was entered. Double jeopardy protection is

not waived even by a voluntary and counseled guilty plea,

where the violation, as here, is plain on the face of the record

and needs no factual development. United States v. Broce,

488 U.S. 563 (1989), explaining Menna v. New York, 423 USS.

61 (1975) (per curiam). Nor would the defendant's consent,

cither express or implied, render legal what would otherwise

be an illegal or even unconstitutional sentence. See Libretti,

133 L.Ed.2d at 293-94 (Stevens, J., dissenting). Moreover, this

kind of violation has long been recognized as cognizable in a

habeas corpus proceeding. See, e.g., Ex parte Lange, supra.

«$7.

Even if petitioner Heilbrunn was not definitively

entitled to relief from the added punishment of forfeiture

for the reasons just discussed, a reasonable jurist,

studying the law of double jeopardy as developed in this

Court, could at least have thought he was. There was

thus a "substantial constitutional question" present in his

case that required issuance of a certificate of appeala-

bility under 28 U.S.C. § 2253(c). Certiorari should also

be granted to confirm that the substantive standard for

issuance of a certificate of appealability to a § 2255 peti-

tioner is no higher than that articulated by this Court in

Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983), for

certificates of probable cause in habeas corpus cases

under prior law: whether the case presents an issue that

is at least "debatable among jurists of reason," that "a

court could resolve the issues {in a different manner]; or

that the questions are ‘adequate to deserve encourage-

ment to proceed further.” (internal citations omitted). !

There is another reason why certiorari should be

granted. In Monge v. California, 524 U.S. --, 118 S.Ct.

2246, 141 L.Ed.2d 615 (1998), this Court held that the

Double Jeopardy Clause does not bar an appellate court

from giving the prosecution a second opportunity, outside

the capital sentencing context, to prove a sentencing

enhancement that the trial court wrongly held was shown

by sufficient evidence at the original sentencing. The

Court thus held that the Double Jeopardy principle

established in Burks v. United States, 437 U.S. 1 (1978) --

that the prosecution must not be allowed a second

'4 Alternatively, the Court might consider a grant of certiorari

coupled with a summary reversal and remand on this COA

point.

-18-

chance to establish an offense if an appellate court finds

there was insufficient evidence at the first trial to prove

one or more of the elements -- has no application to

noncapital sentencing. Compare Bullington v. Missouri,

451 U.S. 430 (1981) (Burks principle does prevent second

attempt to establish aggravators necessary to impose

capital punishment).

Although the Burks principle is not the only way

in which the protections of the Double Jeopardy Clause

are implemented, the majority in Monge asserted broadly

that "the Double Jeopardy Clause [does not] exten[d] to

noncapital sentencing proceedings." 141 L.Ed.2d at 621.

This assertion cannot have been intended to be taken

literally. The instant case presents an illustration of a

double jeopardy principle that does apply to noncapital

sentencing, as this Court has long held, in a line of cases

extending from Lange to Hudson, but not mentioned in

Monge.!° Certiorari should therefore be granted to

clarify and limit the overbroad language of Monge, and

to prevent confusion and misunderstanding among prac-

titioners and lower courts.

For all these reasons, this Court should issue a

writ of certiorari to review the final Order of the court of

appeals denying a certificate of appealability from the

district court’s determination that the criminal forfeiture

in this case was part of the same proceeding as the

underlying criminal case, and therefore did not violate

the Double Jeopardy Clause.

\S The majority opinion in Monge was authored by Justice

O’Connor, who also wrote the Court’s 1995 opinion in Witte,

which clearly reaffirmed the Lange principle.

-19-

CONCLUSION

For the foregoing reasons, petitioner PAUL B.

HEILBRUNN prays that this Court grant his petition for

a writ of certiorari to review the final Order of the

United States Court of Appeals for the Seventh Circuit

denying a certificate of appealability to appeal the denial

of relief under 28 U.S.C. § 2255S.

Respectfully submitted,

LAW OFFICES OF ALAN ELLIS

By: PETER GOLDBERGER

Counsel of Record

PAMELA A. WILK

50 Rittenhouse Place

Ardmore, PA 19003-2276

(610) 658-2255

Attorneys for Petitioner

January 18, 1999.

-20-

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit ml

Chicago, Illinois 60604

August 21,1998

Submitted: August 19,1998

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

PAUL B. HEILBRUNN, ] Appeal from the United

Petitioner-Appellant, ] States District Court for

] the Southern District of

No. 98-2310 v. ] Indiana.

] No.

UNITED STATES OF ] IP 97-617-C-M/S

AMERICA, |

Respondent-Appellee. | Larry J. McKinney,

] Judge.

Petitioner filed a motion to vacate, correct, or set

aside a sentence pursuant to 28 U.S.C. § 2255. The

district court denied the motion and dismissed the action

with prejudice, and subsequently denied petitioner’s

application for a certificate of appealability. See Fed. R.

App. P. 22(b); Cir. R. 22.1.

This court has reviewed the final order of the district

court from which petitioner appeals, and the record on

appeal. We find no substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). Accordingly,

the application for a certificate of appealability is

DENIED.

-Appx. A2-

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

UNITED STATES )

OF AMERICA, ) No.

vs. ) IP97-617-C-M/S

) IP87-105-CR-01-M/S

PAUL HEILBRUNN, __)

)

)

Defendant.

ENTRY DENYING MOTION TO VACATE OR

SET ASIDE CONVICTION AND DIRECTING

ENTRY OF JUDGMENT

This cause is before the court on the defendant's

motion pursuant to his 28 U.S.C. § 2255, on the United

States’ response, on the defendant’s reply and on the

expanded record.

The court, having read and examined such pleadings

and record, and being duly advised, now finds that the

defendant’s motion must be denied and this action

dismissed. This conclusion rests on the following facts

and circumstances.

1. Defendant Heilbrunn was charged with drug and

related offenses, including engaging in a continuing

criminal enterprise, in an indictment returned in this

District on November 20, 1987. Heilbrunn engaged the

services of attorney J. Richard Kiefer ("Kiefer") to

represent him in the matter. The charges against Heil-

brunn were resolved through the submission and accept-

ance of a written plea agreement. Heilbrunn pled guilty

to two counts of possession of marijuana with intent to

distribute, three counts of interstate travel in aid of rack-

eteering and one count of engaging in a continuing

criminal enterprise. Heilbrunn was sentenced in accord

with the plea agreement and the remaining charges

against him in this District and a charge against him in

the Northern District of Indiana were dismissed. No

direct appeal from this disposition was taken.

2. Heilbrunn now brings the present action, pursuant

to 28 U.S.C. § 2255, arguing that (a) he was denied the

effective assistance of counsel, (b) the United States

engaged in bad-faith plea bargaining, (c) the criminal

forfeiture which resulted from the guilty plea violated the

plea agreement and was a violation of the constitutional

prohibition against double jeopardy, (d) there was a

violation of Rule 11(c)(1) of the Federal Rules of

Criminal Procedure, and (e) the grand jury indictment in

his case was defective.

3. Habeas corpus relief under 28 U.S.C. § 2255 is

limited to an error of law that is jurisdictional, constitu-

tional, or constitutes a fundamental defect which inher-

ently results in a complete miscarriage of justice. Borre v.

United States, 940 F.2d 215, 217 (7th Cir. 1991 ).

4. Heilbrunn was the organizer and leader of a large-

scale marijuana importation enterprise. Certain facets of

-Appx. B2-

Heilbrunn’s offenses were described in United States v.

Auerbach, 913 F.2d 407 (7th Cir. 1990), which was an

appeal involving two of Heilbrunn’s co-defendants.

5. The overarching principle which is applicable to the

challenge in this case is the requirement of due process

which requires that, to be valid, a guilty plea must be

both "voluntary" and "intelligent." Boykin v. Alabama,

395 U.S. 238, 242 (1969). See also Parke v. Raley, 113 S.

Ct. 517, 523 (1992); North Carolina v. Alford, 400 U.S. 25,

31 (1970) ("The standard was and remains whether the

plea represents a voluntary and intelligent choice among

the alternative courses of action open to defendant").

6. Heilbrunn makes the ubiquitous claim that he was

denied the effective assistance of counsel.

a. A criminal defendant has a right to effective

assistance of counsel in deciding whether to accept

or reject a proposed plea agreement. Johnson v.

Duckworth, 793 F.2d 898, 900-02 (7th Cir.), cert.

denied, 479 U.S. 937, 107 S. Ct. 416 (1986). The

standard adopted in Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), is

equally applicable to guilty pleas. Hill v. Lockhart,

474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985).

b. In order to show ineffective assistance of

counsel, Heilbrunn must establish that Kiefer

committed errors so serious that his performance

fell below an objective standard of reasonableness,

and that Kiefer’s deficient performance prejudiced

Heilbrunn by causing an unreliable result at trial,

-Appx. B3-

or a fundamentally unfair proceeding. Lockhart v.

Fretwell, 113 S. Ct. 838, 844 (1993), citing Strick-

land, 466 U.S. at 687. A defendant’s failure to

satisfy either prong is fatal to his claim. Ebbole v.

United States, 8 F.3d 530, 534 (7th Cir. 1993), cert.

denied, 510 U.S. 1182, 114 S. Ct. 1229 (1994).

c. In the guilty plea context, as recently explained

by Harvey v. McCaughtry, 11 F.3d 591 (7th Cir.

1993), the first part of the Strickland test (deficient

performance) remains the same. "A person who

attempts to satisfy the second, or prejudice,’ prong

of the test, however, ’must show that there is a

reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have

insisted on going to trial.” Harvey, 11 F.3d at 693,

quoting Hill v. Lockhart, 474 U.S. at 59.

d. Although Heilbrunn offers various specifications

in support of his ineffective assistance of counsel

claim, none warrant relief. Kiefer’s representation

of Heilbrunn was vigorous, informed and singularly

effective in light of Heilbrunn’s serious--and even

likely--exposure to a life sentence. Heilbrunn’s

arguments concerning Kiefer’s lack of investigation

or preparation are based on isolated and self-

serving circumstances which do not suggest that

Heilbrunn was deprived of a viable defense, nor of

a more advantageous sentencing structure, nor in

any way of the fundamentally fair proceedings to

which he was entitled.

e. It has been explained in Holman v. Gilmore, 126

F.3d 876, 882 (7th Cir. 1997), that:

-Appx. B4-

:

7

;

[t]he question posed by Strickland [is]

whether, taking all of the proceedings

into account, counsel made "the adver-

Sarial testing process work in the

particular case." [Strickland,] 466 U.S.

at 690. Counsel must contest the pros-

ecution’s case and advance a good

defense; if that role has been fulfilled,

a writ of habeas corpus should not

issue. See Burris v. Parke, 116 F.3d 256

(7th Cir. 1997).

Kiefer’s representation of Heilbrunn more than

Satisfied this standard.

7. Heilbrunn’s second claim is that the United

States did not bargain with him in good faith. This claim

concerns the sentence which the United States

"demanded" of Heilbrunn in relation to the sentence

which one of Heilbrunn’s co-defendant’s had received

and what modification would be sought or agreed to by

the United States. This claim lacks any discernible foun-

dation in due process, for all that occurred was that Heil-

brunn and the United States negotiated a sentencing

structure. This was mutually agreed to by the parties.

What Heilbrunn now takes umbrage at is the United

States’ reasoning process in holding that Heilbrunn

receive a certain minimum executed term in his case.

That process involved classic considerations by

prosecutors--it did not involve any impermissible consid-

eration or actual coercion--and hence the scrutiny which

Heilbrunn seeks now to bring to that process fails to illu-

minate any violation of his rights.

-Appx. B5-

8. The plea agreement entered into between Heil-

brunn and the United States contemplated the forfeiture

of certain of Heilbrunn’s assets. The particulars of this

forfeiture were not established and acted on by the court

until several months after the sentencing. At that time,

however, an amended judgment of conviction was :

entered. Heilbrunn’s argument that the post-sentencing

forfeiture violated the constitutional prohibition against

double jeopardy is without merit because, though sepa-

rated in time, the forfeiture was part of the same

proceeding and was merely one aspect in which the plea

agreement was fulfilled. Heilbrunn knew without doubt

that the forfeiture would be finalized, and nothing more

than that occurred.

9. Heilbrunn next contends that he was misadvised

or incompletely advised concerning the sentence he could

have received. The court does not find there to be

substantial basis for this claim, but the alleged error in

any event does not suggest the type of fundamental error

for which § 2255 is reserved.

10. Heilbrunn’s claim that the special grand jury

responsible for his indictment was not properly

constituted has been refuted by the United States, and

Heilbrunn does not contend otherwise.

11. On the basis of the foregoing, therefore, the

defendant's motion for relief pursuant to 28 U.S.C.

§ 2255 must be denied. Although Heilbrunn seeks an

evidentiary hearing on his claims, "[a] district judge need

not grant an evidentiary hearing in all § 2255 cases. Such

-Appx. B6-

a hearing is not required if such a hearing is not required

if [sic] ‘the record standing alone conclusively demon-

strates that a petitioner is entitled to no relief." Daniels

v. United States, 54 F.3d 290, 293 (7th Cir. 1995) (quoting

Humphrey v. United States, 896 F.2d 1066, 1070 (7th Cir.),

cert. denied, 498 U.S. 938 (1990)). That is the case here.

Judgment consistent with this Entry shall now issue. The

costs of this action are assessed against the defendant.

IT IS SO ORDERED.

s/Larry McKinney

LARRY J. McKINNEY, Judge

United States District Court

Date: 12/31/97

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

UNITED STATES )

OF AMERICA, ) No.

vs. ) IP97-617-C-M/S

) IP 87-105-CR-01-M/S

PAUL HEILBRUNN, )

—— Se

Defendant.

-Appx. B7-

JUDGMENT

The court, having this day made its Entry,

IT Is NOW THEREFORE ADJUDGED AND

DECREED that the defendant take nothing by his motion

for r2lief pursuant to 28 U.S.C. § 2255, and this cause of

action is DISMISSED WITH PREJUDICE.

The costs of this action are assessed against the

defendant.

s/Larry McKinney

LARRY J. McKINNEY, Judge

United States District Court

Date: 12/31/97

Copies to:

Alan Ellis

50 Rittenhouse Place

Ardmore, PA 19003-2276

Tim Morrison

Office of the United States Attorney

United States Courthouse - 5th Floor

46 East Ohio Street

Indianapolis, IN 46204

-Appx. B8-

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

UNITED STATES )

OF AMERICA, )

Plaintiff, )

) CAUSE NO.

V. ) IP 97-0617-C

) CAUSE NO.

PAUL B. HEILBRUNN, )_ IP 87-105-CR-01

)

Defendant. )

ORDER

This cause comes before the Court on defendant's

MOTION FOR LIMITED RECONSIDERATION OF

ENTRY DENYING MOTION TO VACATE

CONVICTION AND SENTENCE.

And the Court, having examined said pleading and

being fully advised in the premises, now OVERRULES

said Motion.

IT IS SO ORDERED this 21st day of January, 1998.

s/Larry J. McKinney

LARRY J. McKINNEY, JUDGE

United States District Court

Southern District of Indiana

Distribution to:

Timothy M. Morrison, Assistant United States Attorney

OFFICE OF THE UNITED STATES ATTORNEY

Fifth Floor, United States Courthouse

46 East Ohio Street

Indianapolis, Indiana 46204

-Appx. C2-

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

UNITED STATES )

OF AMERICA, ) No.

vs. ) IP97-617-C-M/S

) IP 87-10S-CR-01-M/S

PAUL HEILBRUNN, __)

)

)

Defendant.

ENTRY

The defendant’s request for the issuance of a

certificate of appealability is denied. The reason for this

is the court finding that there is no sound basis on which

to conclude that the defendant will be able to make a

substantial showing of the denial of a constitutional right

in connection with his appeal. 28 U.S.C. § 2253.

IT IS SO ORDERED.

s/Larry McKinney

LARRY J. McKINNEY, Judge

United States District Court

Date: 5/5/98

Copies to:

Alan Ellis

50 Rittenhouse Place

Ardmore, PA 19003-2276

Tim Morrison

Office of the United States Attorney

United States Courthouse - 5th Floor

46 East Ohio Street

Indianapolis, IN 46204

-Appx. D2-