FRANK J. BRADY, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-110

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that his plea agreement in a prior case in the
Southern District of Florida bars his current prosecution in the
Northern District of Indiana.  That claim is moot, however, because
petitioner has entered into a plea agreement in the Indiana
prosecution and has pleaded guilty and waived any right to continue
the instant challenge.

   1. In 1986, a grand jury in the United States District Court for
the Southern District of Florida indicted petitioner in a multi-count
indictment.  On March 27, 1986, petitioner entered into a plea
agreement with the government and pleaded guilty to conspiracy to
import marijuana (21 U.S.C. 963);  conspiracy to defraud the United
States (18 U.S.C. 371);  filing a false income tax return (26 U.S.C.
7206(1));  and possessing identification documents with the intent to
defraud the United States (18 U.S.C. 1028(a)(3)).  The plea agreement
stated, inter alia, that the government would not prosecute petitioner
for any tax or narcotics offenses arising between the period covered
in the indictment and the date of the plea agreement (Pet. App. 17a).

   On November 7, 1986, petitioner was indicted in the Northern
District of Indiana on several charges, including operating a
continuing criminal enterprise (CCE), in violation of 21 U.S.C. 848.
Petitioner then filed a motion in the Southern District of Florida,
requesting that his plea agreement in the previous case be enforced so
as to prevent his prosecution on the Indiana charges.  The district
court denied his motion on the ground that petitioner and his attorney
knew that the prosecutor interpreted the plea agreement to bind only
the United States Attorney's Office for the Southern District of
Florida, and that that interpretation was correct as a matter of law
(Pet. App. 7a-9a, 12a-13a).  The court of appeals affirmed on the same
basis (id. at 1a-3a).

   On August 18, 1988, petitioner struck a plea bargain in the Indiana
prosecution.  That plea agreement calls for petitioner to plead guilty
to the CCE count and to cooperate with the government.  Under
paragraph 9e of the agreement, petitioner acknowledged that the CCE
count involved activity for which he was prosecuted in the Southern
District of Florida, and petitioner waived his right to contest
whether the Indiana indictment violated his right against double
jeopardy.  Petitioner entered a guilty plea on September 16, 1988, to
the CCE count and was sentenced to 10 years' imprisonment.  At that
time, petitioner's attorney also agreed to dismiss the instant
petition.

   2. Under those circumstances, it is plain that petitioner's claim
is moot.  He has pleaded guilty to part of the very indictment that he
claims here was barred by his first plea agreement.  By entering his
guilty plea, and expressly waiving any double jeopardy claim,
petitioner clearly waived any right to argue that the Indiana
indictment was barred by his plea agreement in the Southern District
of Florida.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1988