Kerrigan v. U.S., 80-1531

• Decision Date: 13 March 1981
• Docket Number: No. 80-1531,80-1531
• Citation: 644 F.2d 47
• Parties: John KERRIGAN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 47

644 F.2d 47

John KERRIGAN, Petitioner, v. UNITED STATES of America, Respondent.

No. 80-1531.

United States Court of Appeals First Circuit.

Argued Dec. 1, 1980.

Decided March 13, 1981.

Paul F. Kelly, Boston, Mass., by appointment of the Court, with whom Segal, Roitman & Coleman, Boston, Mass., was on brief, for appellant.

Marianne B. Bowler, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

John P. Kerrigan appeals from the dismissal of his petition to vacate sentence under 28 U.S.C. § 2255. Kerrigan was sentenced on the basis of guilty pleas to two indictments, both charging conspiracy to transport stolen goods in interstate commerce. Kerrigan claims that he was sentenced in violation of his fifth amendment right not to be twice placed in jeopardy for the same offense. We affirm the judgment of the district court.

On December 1, 1977, a federal grand jury returned two indictments against Kerrigan. The first, No. 77-398-C, charged that Kerrigan conspired with Richard Kirkwood and Benjamin Lambert, between August 25, 1977 and September 1, 1977, to transport in interstate commerce and to sell certain specified lithographs stolen from the Pucker-Safrai Gallery on Newbury Street in Boston. ¹ The second, No. 77-399-T, charged that Kerrigan conspired with Richard Kirkwood, between September 1, 1977 and September 22, 1977, to transport in interstate commerce and to sell specified Indian jewelry stolen from the shop of Etta Goodstein in West Dennis, Massachusetts. ² Indictment No. 77-399 also charged a substantive count of transporting the jewelry in interstate commerce.

Kerrigan and his attorney arranged a plea bargain with the government, under which he would plead guilty to the two conspiracy charges, the substantive count would be dismissed, and the government would recommend a three-year sentence on each of the two counts, both to run concurrently with each other and with other state and federal sentences Kerrigan was already serving. Kerrigan appeared before two different district judges to enter his pleas of guilty. In each case, the court informed Kerrigan that the government's sentence recommendation was not binding on it, and that he could receive as much as the maximum sentence authorized by statute on each count. In each case, Kerrigan indicated that he understood. On March 15, 1978, Kerrigan appeared before the two district judges for disposition on the two counts. In No. 77-399-T, which was heard first, he was sentenced to three years, to run concurrently with the sentences he was already serving. In No. 77-398-C, he was sentenced to two years, to run consecutively to all other sentences. It is this latter sentence to which he now objects, claiming that the two charges to which he pled guilty described what was in fact only one conspiracy.

The district court referred Kerrigan's petition to a magistrate, who, after an evidentiary hearing, recommended that relief be denied. The magistrate found that Kerrigan had understood that his plea bargain was not binding on the court. The magistrate also concluded that the indictment charged two separate conspiracies, and that even if there were in fact only one conspiracy, Kerrigan had raised his double jeopardy claim too late. The district court, 491 F.Supp. 1355, adopted the magistrate's conclusion that the indictments charged separate conspiracies; it did not reach what it termed "the magistrate's waiver grounds."

On appeal, Kerrigan argues that there was in fact only one conspiracy, and that a guilty plea does not waive rights under the double jeopardy clause. For this latter proposition he relies on Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and Launius v. United States, 575 F.2d 770 (9th Cir. 1978). In Menna, the defendant pled guilty to a charge of refusing to answer questions before a grand jury, even though he had already served a jail sentence for contempt of court based on the same refusal to testify. The Court held that a double jeopardy claim is not waived by a guilty plea, where "the state is precluded by the United States Constitution from hauling a defendant into court on a charge." Menna, supra, 423 U.S. at 62, 96 S.Ct. at 242. In Launius, the defendants had pleaded guilty to a two-count information charging conspiracy to smuggle heroin and conspiracy to smuggle amphetamines. Finding that "It appeared on the face of the indictment that but one agreement was involved and hence but one conspiracy," the court held defendants' consecutive sentences unconstitutional. Launius, supra, 575 F.2d at 771.

Menna and Launius do indeed indicate that a double jeopardy claim may lie notwithstanding a guilty plea, but in neither case did the double jeopardy claim depend upon a repudiation of the allegations in the indictment to which the plea had been entered. These cases do not hold, as Kerrigan suggests, that a defendant who pleaded guilty may later contest the factual and theoretical foundations of the indictment to which he pleaded, so as to show that, in fact, he committed only a single offense. The court in Launius explicitly and correctly stated that "By pleading guilty appellants admitted the facts alleged in the information." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); Willard v. United States, 445 F.2d 814,...