HOWARD E. BRAMBLETT, PETITIONER V. UNITED STATES OF AMERICA No. 89-7010 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A2) is unreported. The opinion of the district court (C.A. App. 97-109) is also unreported. JURISDICTION The judgment of the court of appeals was entered on November 16, 1989. A petition for rehearing was denied on January 22, 1990. The petition for a writ of certiorari was filed on March 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's sentence to ten years' imprisonment on charges of unlawful manufacturing, dealing in, and transporting explosives relating to the operation of an explosives factory in Tennessee violated the Double Jeopardy Clause because the sentence was to run consecutively to a sentence of ten years' imprisonment imposed on petitioner after a previous conviction for explosives offenses relating to petitioner's operation of an explosives factory in South Carolina. STATEMENT This case arises from petitioner's motion to reduce or vacate his sentence pursuant to Fed. R. Crim. P. 35. Petitioner had been sentenced to ten years' imprisonment after conviction on explosives charges relating to his role in the operation of an unlicensed explosives factory in Tennessee. His conviction had been affirmed by the Sixth Circuit. He claimed that his sentence was invalid under the Double Jeopardy Clause because it was to run consecutively to an earlier ten-year sentence imposed on petitioner after his conviction on explosives charges relating to an unlicensed explosives factory in South Carolina. The district court denied petitioner's Rule 35 motion, and the court of appeals affirmed. Pet. App. A1-A2. 1. On July 2, 1984, petitioner was convicted on a four-count indictment in the District of South Carolina for conspiracy and explosives violations. C.A. App. 56. Count 1 charged him with conspiracy to manufacture and deal in explosives without a license from February 1983 until October 20, 1983, in violation of 18 U.S.C. 371. C.A. App. 44-51. The indictment alleged that it was an object of the conspiracy to operate unlicensed explosives factories in Orangeburg and Lexington Counties, South Carolina. C.A. App. 45. Nothing in the indictment mentioned any factory in Tennessee. Count 2 charged that petitioner engaged in the business of manufacturing and dealing in explosives without a license, in violation of 18 U.S.C. 842(a)(1) and 2. C.A. App. 52-53. Counts 3 and 4 charged that petitioner stored and aided and abetted the storing of explosives in Rowesville and Pelion, South Carolina, in a manner that did not conform to government regulations, in violation of 18 U.S.C. 842(j) and 2. C.A. App. 53-54. Petitioner was sentenced to five years' consecutive sentences on Counts 1 and 2, and to imprisonment for one year on Counts 3 and 4, to run concurrently with the sentences on Counts 1 and 2. The total sentence was thus ten years' imprisonment. C.A. App. 56. 2. In August 1985 petitioner was charged in an eighteen count indictment, relating to his participation in an explosives factory in Benton, Tennessee. The facts are set out in the Sixth Circuit's unpublished opinion affirming petitioner's conviction. C.A. App. 77-88. In 1982, petitioner and the owner of a farm in Benton, Tennessee, agreed to make money by manufacturing and selling explosives without a federal license. C.A. App. 79. Petitioner had extensive experience in manufacturing explosives, having set up illegal explosive factories in other parts of Tennessee, North Carolina, and South Carolina. Ibid. Operating at its peak, the Benton factory produced 100 cases of explosives per week. Ibid. In May 1983, the Benton factory exploded, killing eleven workers. Id. at 78. The indictment was brought after an investigation triggered by the explosion. Count 1 alleged that from September 1, 1982, to August 15, 1983, petitioner and 19 others conspired to traffic in explosives, in violation of 18 U.S.C. 371. C.A. App. 12-28. Of those nineteen, one individual (Robert S. Day) had been named as a co-conspirator in the South Carolina indictment. The objects and overt acts in the conspiracy count mentioned only the explosives factory in Benton, Tennessee; the South Carolina factory was not mentioned. Count 2 of the Tennessee indictment alleged that from September 1, 1982, to May 27, 1983, petitioner aided and abetted the manufacture of explosives without a license in Polk County, Tennessee, in violation of 18 U.S.C. 842(a)(1) and 2. Counts 3 through 17 each alleged a separate act of aiding and abetting the unlawful transportation of explosives from Polk County to various locations in Ohio, Illinois, and Pennsylvania, in violation of 18 U.S.C. 842(a)(3)(A) and 2. Count 18 alleged that from February 1983 through May 1983, petitioner aided and abetted the unlawful dealing in explosives in the Eastern District of Tennessee, in violation of 18 U.S.C. 842(a)(1) and 2. C.A. App. 28-40. Prior to trial, petitioner moved to dismiss the indictment, claiming that trial on the Tennessee indictment would violate the Double Jeopardy Clause because of his prior conviction on the South Carolina charges. To avoid any possible double jeopardy problem, the government voluntarily dismissed Count 1 -- the conspiracy count -- of the Tennessee indictment as to petitioner, pursuant to Fed. R. Crim. P. 48. C.A. App. 60-62, 83. The district court denied petitioner's motion as to the other seventeen counts, stating that they were "completely different" from the four counts of the South Carolina indictment. C.A. App. 83. After a jury trial, petitioner was convicted on all seventeen counts. Petitioner was sentenced to ten years' imprisonment on each of the seventeen counts, to be served concurrently with each other and consecutively to his imprisonment for the South Carolina offenses. C.A. App. 76. On August 4, 1987, the Sixth Circuit affirmed petitioner's conviction on direct appeal. C.A. App. 77-88. Although petitioner argued that the Double Jeopardy Clause prohibited his prosecution on the Tennessee charges, the court of appeals agreed with the district court that petitioner's conviction in South Carolina was for offenses "entirely different" from the instant offenses. C.A. App. 84. The court also stated that the "substantive offenses which (petitioner) aided and abetted went beyond mere agreement and were not one and the same with the South Carolina conspiracy." Ibid. 3. On January 24, 1989, petitioner filed a motion to correct an illegal sentence under Fed. R. Crim. P. 35. As the district court put it, his primary contention was that "his conviction for conspiracy in South Carolina is somehow the same offense for purposes of double jeopardy as his convictions in Tennessee for other substantive offenses that arose out of the conspiracy" (C.A. App. 105), and that his Tennessee sentence must therefore be served concurrently with his South Carolina sentence. The district court denied the motion. Relying on Blockburger v. United States, 284 U.S. 299 (1932), the court again held that the Tennessee offenses were "completely different" from the South Carolina offenses. C.A. App. 102. The court ruled specifically that: The criminal violations charged in each count of the Tennessee and South Carolina indictments constitute different acts which occurred in different places at different times and they may properly form the basis for separately indictable criminal acts. * * * The substantive offenses in counts two through eighteen of the Tennessee indictment went beyond the conspiracy and were not one and the same with the South Carolina conspiracy. C.A. App. 102-103. In an unpublished order, the court of appeals affirmed the denial of petitioner's Rule 35 motion on the basis of the district court's reasoning. Pet. App. A1-A2. ARGUMENT The decision of the court of appeals was correct and not in conflict with any decision of this Court or any other court of appeals. /1/ 1. The guarantee of the Double Jeopardy Clause against multiple punishments for the same offense protects a defendant from being punished more severely than Congress intended. See Grady v. Corbin, No. 89-474 (May 29, 1990), slip op. 7-8; Missouri v. Hunter, 459 U.S. 359, 366 (1983); Albernaz v. United States, 450 U.S. 333, 337 (1981). The general test to be applied to determine whether multiple punishments are permissible was established in Blockburger v. United States, 284 U.S. 299, 304 (1932) (emphasis added): "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Because petitioner's seventeen Tennessee convictions were for different conduct and involved different transactions from those for which he was convicted in South Carolina, there is no doubt that petitioner can constitutionally be given a sentence for the seventeen Tennessee offenses that is to be served consecutively to the ten-year sentence imposed for the offenses for which he was convicted in South Carolina. This is perhaps most clear with respect to the non-conspiracy South Carolina offenses (Counts 2 through 4 of the South Carolina indictment). The fact that petitioner was convicted for operating an unlicensed explosives business in South Carolina (Count 2 of the South Carolina indictment) could not immunize him for his participation, undertaken during an overlapping period of time, in an unlicensed explosives business in Tennessee (Counts 2 and 18 of the Tennessee indictment). Nor could it affect his criminal liability for the fifteen Tennessee counts (Counts 3 through 17) of transporting explosives from Polk County, Tennessee, to various midwestern sites. Similarly, punishment for petitioner's substantive South Carolina convictions for engaging in an unlicensed explosives business (Count 2) or storing explosives in South Carolina in a manner not in conformity with regulations (Counts 3 and 4) does not immunize him from additional punishment for any of the seventeen substantive offenses of which he was convicted in Tennessee. Imprisonment for the South Carolina conviction for conspiracy to manufacture and deal in explosive materials without a license also does not immunize petitioner from serving a consecutive sentence for the Tennessee counts. First, there have been repeated findings by the district court and court of appeals in this case that the South Carolina and Tennessee prosecutions were "completely" /2/ and "entirely" /3/ different. Petitioner advances no basis for disagreeing with the conclusion reached by both courts below concerning the facts or evidence underlying the two prosecutions. Nor would any such disagreement warrant further review of this case. Second, even if the act or transaction underlying the South Carolina conspiracy conviction were not entirely distinct from that underlying the Tennessee counts, petitioner's argument would fail. It is well-settled that a conviction for conspiracy to commit an offense and a conviction for committing that offense are separate and distinct for double jeopardy purposes. See, e.g., Garrett v. United States, 471 U.S. 773, 778 (1985) ("conspiracy is a distinct offense from the completed object of the conspiracy"); United States v. Feola, 420 U.S. 671, 693 (1975); Callanan v. United States, 364 U.S. 587 (1961); Pinkerton v. United States, 328 U.S. 640, 643-644 (1946). /4/ In terms of the Blockburger test, petitioner's South Carolina conspiracy conviction required proof of an agreement to engage in the business of manufacturing explosives, an agreement that was not a necessary element of the offenses for which petitioner was convicted in Tennessee. Similarly, the Tennessee offenses required proof that petitioner actually engaged in an explosives business and transported explosives as charged in the indictment, neither of which would have been elements of the conspiracy offense. 3. Finally, petitioner contends (Pet. 6) that evidence relating to conduct underlying his South Carolina conviction was introduced at trial in Tennessee. On this Rule 35 motion, petitioner challenges the constitutionality of his consecutive sentences, rather than that of the separate South Carolina and Tennessee prosecutions. /5/ His claim therefore does not implicate this Court's recent holding that the Double Jeopardy Clause "bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady v. Corbin, slip op. 12 (emphasis added). Even if it did, however, petitioner's illegal explosives business in South Carolina was separate and independent from petitioner's explosives operations in Tennessee. His South Carolina conduct, therefore, could not and did not establish the essential elements of any of the charges for which petitioner was tried in Tennessee. Cf. Grady v. Corbin, slip op. 12-13 ("the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding"); Dowling v. United States, 110 S. Ct. 668 (1990). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney JUNE 1990 /1/ On direct appeal, the Sixth Circuit expressly rejected petitioner's claim that the Double Jeopardy Clause barred his conviction for the Tennessee offenses after he had been convicted of the South Carolina offenses. His current contention (Pet. 4-7) is that the Double Jeopardy Clause bars imposition of a sentence on the Tennessee convictions to be served after his sentence on the South Carolina convictions. Because this contention is necessarily included in the argument the Sixth Circuit rejected on direct appeal, it appears that the trial court could have rejected petitioner's Rule 35 motion on the ground that the Sixth Circuit's decision on petitioner's direct appeal is law of the case. See, e.g., United States v. Mazak, 789 F.2d 580 (7th Cir. 1986); Paul v. United States, 734 F.2d 1064 (5th Cir. 1984); Crosby v. United States, 410 F.2d 1145 (5th Cir. 1969), cert. denied, 397 U.S. 957 (1970); Ekberg v. United States, 167 F.2d 380, 384 n.4 (1st Cir. 1948). The applicability of law of the case doctrine, however, was neither raised nor addressed in either court below. /2/ See C.A. App. 83 (reporting district court's statement on denial of defendant's motion to dismiss on double jeopardy grounds at trial); C.A. App. 102 (district court opinion on Rule 35 motion). /3/ See C.A. App. 84 (court of appeals' opinion affirming conviction). /4/ It is immaterial that the Tennessee indictment charged petitioner with aiding and abetting. Aiding and abetting a crime is distinct from conspiring to commit it. See Ianelli v. United States, 420 U.S. 770, 777 n.10 (1975). Accordingly, aiding and abetting a crime and conspiracy to commit a crime are separate offenses under Blockburger. See United States v. Cooke, 795 F.2d 527, 530 (6th Cir. 1986). /5/ A Rule 35 motion presupposes a valid conviction and is an inappropriate vehicle for collaterally attacking the underlying proceeding. United States v. Willis, 804 F.2d 961, 964 (6th Cir. 1986); Gilinsky v. United States, 335 F.2d 914, 916-917 (9th Cir. 1964).