JOHN WILLIAM RAY, PETITIONER V. UNITED STATES OF AMERICA No. 86-281 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Motion to Vacate and Remand TABLE OF CONTENTS Opinions below Jurisdiction Question presented Interest of the U.S. Statement Introduction and summary of argument Argument: The concurrent sentence doctrine should not have been invoked in this case Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. A3-A25) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 2, 1986. A petition for rehearing was denied on June 25, 1986 (Pet. App. A56). The petitionfor a writ of certiorary was filed on August 20, 1986, and was granted on November 17, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals erred by invoking the concurrent sentence doctrine to vacate one of petitioner's convictions. Pursuant to Rule 42 of the Rules of this court, the Solicitor General, on behalf of the United States, respectfully moves this Court to vacate the judgment of the court of appeals and remand the case for further proceedings. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was found guilty of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846; possession of one gram of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1); and possession of six ounces of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to concurrent seven-year prison terms on each of the three counts and concurrent five-year terms of special parole on the two substantive counts. In addition, the court imposed a $50 assessment on each count pursuant to 18 U.S.C. (Supp. III) 3013. See 2 Tr. 341-342. 1. The evidence adduced at trial showed that on May 29, 1985, petitioner's co-defendant Pablo Arturo Sandoval asked Edelmiro Molina whether Molina knew anyone who was interested in buying cocaine (1 Tr. 83). Molina said he did (id. at 84). Molina, who was an informant for the Drug Enforcement Administration (DEA), contacted DEA agent Janed Herber, informed her of the conversation, and agreed to cooperate with the DEA in its investigation of Sandoval (id. at 28-31, 84-85). Later that day, Molina and Sandoval went to petitioner's apartment (1 Tr. 87, 154). Petitioner and Sandoval left the living room of the apartment, went into the bedroom, and talked for about five minutes. Sandoval returned and sat down in the living room. Petitioner then came back into the living room and tossed a small bag of cocaine to Sandoval. In petitioner's presence, Sandoval told Molina that the bag contained a sample for sale and testing by customers. Id. at 88-89. When Sandoval and Molina left the apartment, Sandoval told Molina to call his buyer and set up a meeting (id. at 90). Molina called Agent Herber, who was posing as a cocaine buyer, and arranged to meet with her that afternoon. Sandoval drove Molina to the meeting in a truck obtained from petitioner and sold the cocaine sample to Herber for $105. Id. at 31-37, 91-95. /1/ At the time she purchased the sample, Agent Herber told Sandoval that she was interested in buying 10 ounces of cocaine (1 Tr. 37, 94-95). Sandoval and Molina then returned to petitioner's apartment, where Sandoval handed petitioner the money Agent Herber had paid for the cocaine sample. Petitioner gave some of the money back to Sandoval. Id. at 96-97. Sandoval told petitioner that the buyer wanted an additional 10 ounces of cocaine; petitioner said that he had three ounces of the drug and would have to see if could obtain the additional seven ounces. Id. at 97-98. As Sandoval and Molina left petitioner's apartment, Molina saw petitioner drive away (id. at 98). Later that day, Sandoval called Agent Herber and told her that he had six ounces of cocaine that he would sell for $1950 per ounce (id. at 41). Sandoval failed to appear at a meeting scheduled for that night; he subsequently arranged to meet Herber the next day to consummate the sale. Id. at 41-46, 101-103. The following day, May 30, 1985, Sandoval, again driving the truck obtained from petitioner (1 Tr. 48), picked up Molina and took him to Sandoval's apartment where Sandoval removed six ounces of cocaine from a drawer (id. at 104). Sandoval said that "they hadn't come up with the ten ounces, just only six" (id. at 105). Sandoval and Molina then met with Agent Herber. When Sandoval handed Herber the six ounces of cocaine, Agent Herber gave a signal, and the surveillance agents arrested Sandoval (id. at 49-50). /2/ Petitioner was arrested several weeks later (2 Tr. 193). 2. The court of appeals affirmed petitioner's conspiracy conviction and his conviction for possession of one gram of cocaine. It found that there was sufficient evidence to support these convictions (Pet. App. A11-A16) and rejected petitioner's challenges to two of the district court's evidentiary rulings (id. at A18-A24). With respect to the conviction for possession of six ounces of cocaine, the court "appl(ied) the concurrent sentence doctrine to decline review of the sufficiency of the evidence" (Pet. App. A16). The court observed that the sentences on the two possession counts were concurrent and stated that its "affirmance of the conviction on (one of the possession counts) makes review of the (second possession) conviction unnecessary" (id. at A16-A17). In order "to avoid * * * potential adverse collateral consequences," the court vacated petitioner's second possession conviction (id. at A17). The court said that its action "in no way alters the jury's verdict or the conviction" as its "effect * * * is to suspend imposition of the sentence()" (ibid.). INTRODUCTION AND SUMMARY OF ARGUMENT The concurrent sentence doctrine holds that when a defendant is convicted of several offenses and receives concurrent sentences, a court of appeals need not in every case consider the defendant's challenges to each of the convictions. If the court finds that one of the convictions is proper and that the other convictions are not likely to subject the defendant to additional adverse collateral consequences, the court may invoke the doctrine to decline to address the defendant's claims that the other convictions are invalid. The doctrine is thus a rule designed to promote judicial efficiency, sparing appellate courts the burden of adjudicating issues whose resolution will have no practical impact on the defendant. As its name suggests, the concurrent sentence doctrine applies only when two or more convictions carry sentences that are entirely concurrent. The sentence on the conviction whose validity is upheld by the appellate court must encompass all of the punishment imposed upon the defendant; no additional penalty may flow from the sentences imposed on the convictions that are not reviewed by the court of appeals. The court of appeals in this case applied the concurrent sentence doctrine with respect to petitioner's two convictions for the substantive offense of possession of cocaine with intent to distribute it. The court reviewed the conviction for possession of one gram of cocaine and upheld that conviction on the merits; the court then applied the concurrent sentence doctrine to vacate the conviction for possession of six ounces of cocaine. In our memorandum in opposition to the petition for a writ of certiorari in this case, we expressed the belief, shared by petitioner and the court of appeals, that the sentences imposed upon petitioner for those two convictions were entirely concurrent. Closer examination of the record has revealed that the district court did not simply sentence petitioner to concurrent seven-year terms of imprisonment and concurrent five-year terms of special parole on those convictions. The court also imposed a $50 monetary assessment on each count pursuant to 18 U.S.C. (Supp. III) 3013, a recently-enacted statute requiring that a monetary assessment be imposed on a convicted defendant in every federal criminal case. In view of the separate $50 assessments imposed on each of these two counts, it was error for the court of appeals to treat the sentences as concurrent. Because of the absence of concurrent sentences, the court could not properly invoke the concurrent sentence doctrine. We therefore agree with petitioner that the judgment of the court of appeals should be vacated and the case remanded so that the court of appeals may review the sufficiency of the evidence to support petitioner's conviction on Count 3 of the indictment. ARGUMENT THE CONCURRENT SENTENCE DOCTRINE SHOULD NOT HAVE BEEN INVOKED IN THIS CASE 1. The concurrent sentence doctrine may be invoked by an appellate court only when a defendant is convicted on two or more counts and receives concurrent sentences. In Hirabayashi v. United States, 320 U.S. 81 (1943), for example, this Court stated that "(s)ince the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count * * * must be sustained" (320 U.S. at 85). After determining that "(t)he conviction under the second count (was) without constitutional infirmity," the Court declined to review the defendant's challenges to the validity of the other conviction. Id. at 105; see also Andresen v. Maryland, 427 U.S. 463, 469 n.4 (1976) (citation omitted) (noting that if two of the counts for which the defendant received concurrent sentences were not affected by the defendant's constitutional claim, the Court could "apply the discretionary concurrent-sentence doctrine, and thereby decline to consider (the defendant's) constitutional claims"); Barnes v. United States, 412 U.S. 837, 848 n.16 (1973) (citation omitted) ("(a)lthough affirmance of (the defendant's) conviction on two of the six counts carrying identical concurrent sentences does not moot the issues he raises pertaining to the remaining counts, we decline as a discretionary matter to reach these issues"). /3/ The premise underlying the concurrent sentence doctrine is that consideration by the appellate court of the defendant's challenges to each of several convictions carrying concurrent sentences is unnecessary because the resolution of those claims will have no practical effect on the punishment imposed upon the defendant. If the sentence imposed on the unreviewed count adds in any way to the penalty imposed on the reviewed count, the doctrine is inapplicable. In that setting, the failure to review the conviction carrying the additional penalty will prejudice the defendant by depriving him of an opportunity to overturn the additional penalty. Cf. Benton v. Maryland, 395 U.S. 784, 799-800 (1969) (White, J., concurring); id. at 801-802 (Harlan, J., dissenting). The courts of appeals have adopted different approaches in applying the concurrent sentence doctrine. Some courts simply decline to review the conviction carrying a concurrent sentence, leaving undisturbed the district court's judgment relating to that conviction. See, e.g., United States v. Nightingale, 703 F.2d 17, 19 (1st Cir. 1983); United States v. Gordon, 634 F.2d 639, 643 (1st Cir. 1980); United States v. Lampley, 573 F.2d 783, 788 (3d Cir. 1978); United States v. Nelson, 733 F.2d 364, 371 n.17 (5th Cir.), cert. denied, 469 U.S. 937 (1984); United States v. Wilson, 671 F.2d 1138, 1139-1140 n.2 (8th Cir.), cert. denied, 456 U.S. 994 (1982); United States v. Kirk, 723 F.2d 1379, 1381-1382 (8th Cir. 1983), cert. denied, 466 U.S. 930 (1984); United States v. Fuentes-Jiminez, 750 F.2d 1495, 1497 (11th Cir. 1985), cert. denied, No. 85-6330 (June 2, 1986). Other courts vacate the portion of the district court's judgment relating to the unreviewed conviction. See, e.g., United States v. Adi, 759 F.2d 404, 409-410 (5th Cir. 1985); United States v. Butera, 677 F.2d 1376, 1386 (11th Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United States v. Durant, 648 F.2d 747, 752 (D.C. Cir. 1981); United States v. Hooper, 432 F.2d 604, 606 (D.C. Cir. 1970). All of these courts recognize that the presence of concurrent sentences is an essential prerequisite for the invocation of the doctrine. 2. We agree with petitioner that the court of appeals erred by invoking the concurrent sentence doctrine in this case. Although we believe that the concurrent sentence doctrine is a valid means of conserving scarce judicial resources, the sentences imposed by the district court in this case were not concurrent, and the concurrent sentence doctrine therefore could not properly be applied. /4/ Congress in 1984 enacted 18 U.S.C. (Supp. III) 3013, which provides that a district court "shall assess on any person convicted of an offense against the United states" specified monetary charges (18 U.S.C. (Supp. III) 3013(a)). The court must assess $25 where an individual is convicted of a misdemeanor and $50 if the individual is convicted of a felony (ibid.). /5/ The record in this case reveals that, in addition to sentencing petitioner to prison and parole terms, the district court imposed $50 assessments upon petitiooner on each of the three counts on which petitioner was convicted. The court stated that "on each one of these (counts) I am going to impose a $50 assessment as required by law, to each one of these counts" (2 Tr. 342). The unreviewed conviction for possession of cocaine with the intent to distribute thus carried a $50 assessment that was separate and distinct from -- and cumulative of -- the $50 assessment on the reviewed possession conviction. /6/ Although the amount of the assessment imposed on each count is small, it plainly is sufficient to render the sentences cumulative rather than concurrent. See Pinkus v. United States, 436 U.S. 293, 304-305 (1978) (sentences "were not in fact fully concurrent" where the prison terms were identical but "the $500 fines on each of the counts were cumulative"; the Court observed that the defendant "had at least a pecuniary interest in securing review of his conviction on each of the counts"). For that reason, the concurrent sentence doctrine is inapplicable in this case. Because the court of appeals erred by invoking the concurrent sentence doctrine to decline to review the sufficiency of the evidence supporting petitioner's conviction on Count 3 of the indictment, the judgment of the court of appeals should be vacated and the case remanded for further proceedings. 3. We do not believe that the proper disposition of the case is affected by the fact that the court of appeals followed its practice of invoking the concurrent sentence doctrine to vacate the judgment of conviction on the unreviewed count. Petitioner argues in this Court (Br. 40-43) that the concurrent sentence doctrine did not authorize the court of appeals to vacate his conviction. In order to affirm the judgment of the court of appeals, therefore, this Court would have to conclude that the court of appeals properly invoked the concurrent sentence doctrine to vacate the conviction. That conclusion is not possible on this record. Even if the concurrent sentence doctrine authorizes a court of appeals to vacate a judgment that suports a fully concurrent sentence, the doctrine plainly confers no authority to vacate a judgment when that judgment supports a non-concurrent sentence. The basis for the view that a court of appeals may vacate a judgment of conviction that carrries a concurrent sentence is the determination that "vacation of such a judgment 'does not impair any need of government, avoid the possibility of adverse collateral consequences to defendant, and furthers the general interest of the administration of justice.'" United States v. Cordona, 650 F.2d 54, 58 (5th Cir. 1981), quoting United States v. Hooper, 432 F.2d at 606; see also United States v. Adi, 759 F.2d at 409-410. Thus, the court of appeals' decision in this case was premised on its assumption that petitioner's "sentence on count three is to run concurrently with that on count two" and that therefore "the review of the count three conviction (was) unnecessary" (Pet. App. A16-A17). As we have discussed, however, the district court imposed separate $50 monetary assessments upon petitioner in connection with each of these two counts. The two counts were not concurrent in this respect because they did not subject petitioner to a single monetary assessment of $50; they instead imposed a total monetary assessment of $100. And vacating the judgment did impair a "need of the government" because it reduced by $50 the total monetary assessment imposed upon petitioner. Under the court of appeals' own theory, therefore, it was error to invoke the concurrent sentence doctrine to vacate one of petitioner's convictions. Moreover, we agree with petitioner (Br. 40-43) that the practice of vacating convictions is improper even where the sentences on two convictions are entirely concurrent. It is the responsibility of the Executive Branch to conduct criminal prosecutions and to select the charges to be filed. /7/ Just as a court may not interfere with the government's decision as to the charges to bring against a defendant, a court may not vacate a judgment of conviction unless that result is necessary to vindicate a constitutional or statutory right. Cf. United States v. Hasting, 461 U.S. 499, 505-507 (1983). Any other rule would allow at the end of the criminal process the very result that is prohibited at the beginning -- judicial interference with the government's discretion to select the charges to be pressed against a defendant. See United States v. De Bright, 730 F.2d 1255, 1257 (9th Cir. 1984) (en banc); see also United States v. Carrasco, 786 F.2d 1452, 1455-1456 (9th Cir. 1986) (district court could not dismiss the indictment on the ground that it could impose an "appropriate" sentence based on the remaining count). An appellate court's decision to vacate a judgment of conviction is fundamentally different from a decision not to review that judgment. As one court of appeals has observed, "convictions represent the expenditure of society's resources in the investigation and prosecution of criminal conduct" (United States v. De Bright, 730 F.2d at 1257). The judgments entered by district courts are presumptively valid. Indeed, one of the basic premises of our system of appellate review is that an appellate court will not affirmatively interfere with the judgment of a lower court unless it finds error in the process that culminated in that judgment. In our view, an appellate court exceeds its proper role when it vacates a judgment of conviction simply on the basis of its conclusion that the conviction is superfluous and therefore not needed in the public interest. /8/ 4. Although not directly relevant to the disposition of petitioner's case, we note that the impact of Section 3013 upon the concurrent sentence doctrine is likely to be much broader than its effect in this particular case. Section 3013 does not expressly state whether monetary assessments must be separately imposed for each count on which the defendant is convicted, but the three courts of appeals that have addressed the issue all have held that assessments must be separately imposed on each count. See United States v. Dobbins, 807 F.2d 130 (8th Cir. 1986); United States v. Donaldson, 797 F.2d 125 (3d Cir. 1986); United States v. Pagan, 785 F.2d 378, 381 (2d Cir. 1986). That interpretation is consistent with the legislative history of the statute, in which the special assessment is characterized as a charge of $25 "for a misdemeanor conviction" and $50 "for a felony conviction." S. Rep. 98-497, 98th Cong., 2d Sess. 13 (1984); see also 130th Cong. Rec. H12086 (daily ed. Oct. 10, 1984) (section-by-section analysis submitted by Congressman Rodino). If that interpretation of the statute is correct, and we believe it is, the practical effect of Section 3013 will be to abolish the concurrent sentence doctrine in all federal criminal cases. Because the monetary assessment is mandatory, it must be imposed in every case. And because Section 3013 requires separate cumulative assessments on each count on which the defendant is convicted, there will be no federal criminal case in which the sentences are truly concurrent. Thus, the monetary assessments required under Section 3013 will in every case preclude the invocation of the concurrent sentence doctrine. CONCLUSION The judgment of the court of appeals should be vacated, and the case remanded for further proceedings in light of the separate monetary assessments imposed by the district court. Respectfully submitted. CHARLES FRIED Solicitor General FEBRUARY 1987 /1/ The bag was found to contain one gram of 92% pure cocaine (1 Tr. 36-37; 2 Tr. 188). /2/ The cocaine was found to be 92% pure (2 Tr. 189). /3/ The roots of the doctrine lie in cases in which a single general sentence was imposed for more than one conviction. Claasen v. United States, 142 U.S. 140, 146-147 (1891) ("it is settled law in this Court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only"); Locke v. United States, 11 U.S. (7 Cranch) 339 (1813); see generally Benton v. Maryland, 395 U.S. 784, 788-789 (1969). /4/ In our view, a court of appeals may invoke the doctrine to decline to review -- and leave undisturbed -- a conviction carrying a concurrent sentence if "the unreviewed conviction foreseeably will have no significant adverse consequences for the (defendant)" (Benton v. Maryland, 395 U.S. at 802 (Harlan, J., dissenting)). For reasons that we discuss below (at pages 12-13), however, it is unlikely that these requirements can now be satisfied in federal criminal cases. /5/ The statute specifies higher penalties "if the defendant is a person other than an individual" (18 U.S.C. (Supp. III) 3013(a)(1)(B) and (2)(B)). /6/ The Judgment and Commitment Order signed by the district judge stated, "The Court * * * imposes a $50.00 special monetary assessment on Counts 1, 2, and 3, pursuant to 18 U.S.C. 3013." Although the cumulative nature of the assessments is not completely clear from the order, the specific terms of the court's oral pronouncement of sentence plainly resolve any ambiguity regarding the amount of the assessment. See United States v. Tafoya, 757 F.2d 1522, 1529-1530 (5th Cir. 1985), cert. denied, No. 85-5074 (Oct. 21, 1985); United States v. Moyles, 724 F.2d 29, 30 (2d Cir. 1983); United States v. McDonald, 672 F.2d 864, 866 (11th Cir. 1982). Both petitioner and the court of appeals appear to have overlooked the $50 assessments; both characterized the sentences in this case as concurrent. This portion of the sentences also was not apparent from the materials available to us at the time we prepared our memorandum in opposition to the petition for a writ of certiorari. /7/ See Ball v. United States, 470 U.S. 856, 859-860 (1985); United States v. Goodwin, 457 U.S. 368, 382 (1982); United States v. Batchelder, 442 U.S. 114, 124 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Nixon, 418 U.S. 683, 694 (1974); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457-459 (1868). /8/ The application of the doctrine to vacate an unreviewed judgment places the conviction underlying that judgment in a procedural no man's land, the contours of which are extremely ill-defined. The courts of appeals that follow this procedure generally direct the vacation of the "judgment," but also invariably state that neither the jury verdict nor the conviction is destroyed and that sentence may be reimposed at a later date in the event that a defect is discovered in the conviction affirmed by the court of appeals. Some courts of appeals analogize the procedural status of a conviction with a vacated judgment to that of a conviction upon which the district court has suspended sentence. See Pet. App. A16-A17; United States v. Hooper, 432 F.2d at 606 n.8. When the imposition of sentence is suspended, the conviction remains on the defendant's record; the district court simply decides not to impose a sentence for that conviction. See 18 U.S.C. 3578, 3651. Even where an unreviewed conviction is vacated, therefore, the conviction may remain available for purposes collateral to the criminal proceeding, such as enhancement of punishment for subsequent criminal conduct or impeachment of the defendant's credibility in a subsequent trial. Since courts adopted the practice of vacating unreviewed convictions because they believed that all potential for adverse collateral consequences would be eliminated, and the practice may not accomplish that result, no advantage is gained by embarking into these uncharted procedural waters.