U.S. v. Pimienta-Redondo, PIMIENTA-REDOND

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL, Chief Judge, COFFIN, BOWNES, BREYER, TORRUELLA and SELYA; SELYA; BREYER, Circuit Judge, with whom LEVIN H. CAMPBELL; COFFIN and BOWNES
Citation874 F.2d 9
PartiesUNITED STATES of America, Appellee, v. Juanefendant, Appellant. UNITED STATES of America, Appellee, v. Alfredo PUPO, Defendant, Appellant. . Heard
Decision Date10 January 1989
Docket NumberNos. 87-1948,D,PIMIENTA-REDOND,87-1949

Page 9

874 F.2d 9
57 USLW 2679
UNITED STATES of America, Appellee,
v.
Juan PIMIENTA-REDONDO, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Alfredo PUPO, Defendant, Appellant.
Nos. 87-1948, 87-1949.
United States Court of Appeals,
First Circuit.
Heard Jan. 10, 1989.
Decided April 28, 1989.

Page 10

Jose A. Fuentes-Agostini, San Juan, P.R., and Olga M. Shepard, Hato Rey, P.R., by Appointment of the Court, with whom Law Offices of Jose A. Fuentes-Agostini, San Juan, P.R., was on joint briefs, for defendants, appellants.

Lawrence S. Robbins, Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty., and Warren Vazquez, Asst. U.S. Atty., Hato Rey, P.R., were on briefs, for the United States.

Before CAMPBELL, Chief Judge, COFFIN, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.

OPINIONS EN BANC

SELYA, Circuit Judge.

Juan Pimienta-Redondo and Alfredo Pupo, defendants-appellants, were resentenced by the district court after we reversed their convictions for possession of marijuana with intent to distribute on one of two counts, affirmed on the second count, and remanded. United States v.

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Molinares Charris, 822 F.2d 1213 (1st Cir.1987). They argue that the revised sentences violated their due process rights and placed them in double jeopardy. We believe that the sentences were lawfully imposed and reject the appeals.

I. BACKGROUND

Pimienta-Redondo and Pupo, along with six codefendants, were charged with two counts of possessing controlled substances with intent to distribute pursuant to 21 U.S.C. Sec. 955a(a) (Count I) and Sec. 955a(c) (Count II). 1 At trial, the government presented evidence that defendants were transporting marijuana in a Honduran-registered vessel and that, with permission from the Honduran government, the Coast Guard boarded the vessel for the purpose of enforcing United States law. Molinares Charris, 822 F.2d at 1215. The district court instructed the jury that for the purposes of Count I, a vessel of a foreign nation could be " 'subject to the jurisdiction of the United States on the high seas,' " see 21 U.S.C. Sec. 955a, if the foreign nation " 'consents that the United States enforce its laws upon said vessel.' " Id. at 1216 (quoting jury instructions). The court charged the jury that for purposes of Count II, the vessel, when boarded by the Coast Guard, was within " 'the customs waters of the United States,' " see 21 U.S.C. Sec. 955a(c), if the jury found beyond a reasonable doubt " 'that there was an arrangement between the government of Honduras and the United States, allowing the United States to board and enforce its laws upon the vessel.' " Id. at 1216 (quoting jury instructions).

The jury found defendants guilty on both counts. The district court thereafter sentenced all defendants. Pimienta-Redondo received five years imprisonment on each count, and Pupo received six years on each, with all sentences running consecutively. Concurrent 5-year special parole terms and $50 special assessments were also imposed. The record reflects no contemporaneous explanation by the judge of her reasons for sentence selection.

On appeal, defendants (the present appellants included) contended, inter alia, that the crimes charged constituted a single offense. Upon reviewing the district judge's instructions, a panel of this court concluded that "the jury was told in effect that an arrangement between Honduras and the United States could be the jurisdictional basis for a conviction on both counts." Id. at 1216. Although recognizing that we had in the past construed 21 U.S.C. Secs. 955a(a)-(d) as covering separate offenses, id. at 1218 (citing United States v. Christensen, 732 F.2d 20, 23 (1st Cir.1984)), 2 we found

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this not to be "the case if the jurisdictional facts prerequisite for a conviction under subsection (c) are exactly the same for subsection (a)." Molinares Charris, 822 F.2d at 1218. We therefore held that the Coast Guard's boarding of the vessel with consent from the Honduran government could constitute the basis for a finding that the vessel was "within the customs waters of the United States" under section 955a(c), but could not, at the same time, make the vessel subject to the jurisdiction of the United States under 21 U.S.C. Sec. 955a(a). Accordingly, we reversed the defendants' convictions on Count I, affirmed on Count II, and remitted the case for resentencing. Molinares Charris, 822 F.2d at 1216-18, 1223.

On remand, the district court sentenced Pimienta-Redondo to serve ten years on Count II and sentenced Pupo to twelve years on Count II. In addition, each was given a 5-year special parole term and assessed $50. Defendants appealed anew, asserting that the sentences were imposed in violation of their due process and double jeopardy rights. A panel of this court divided on the appeals. The panel majority, without reaching the double jeopardy ground, held that appellants had been denied due process. The dissent argued that the resentencing withstood the constitutional challenges. Subsequently, the panel opinion and dissent were withdrawn in order to permit the full court to consider appellants' claims. 856 F.2d 351 (1st Cir.1988). We now proceed with our en banc opinion, which differs from the panel majority by concluding that, as a matter of federal constitutional law, the retrofitted sentences may stand.

II. DUE PROCESS

A

Relying upon North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), appellants claim that they were denied due process of law by the district court's enhancement of their sentences on Count II. In Pearce, the Court addressed the due process concerns which emerge when a defendant, having obtained reversal of a conviction on appeal, is subsequently retried for, and found guilty of, the same offense, and given a stiffer sentence by the same trial judge. Recognizing the inherent potential for abuse--that a defendant might be penalized for exercising appeal rights--the Court concluded:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

395 U.S. at 725, 89 S.Ct. at 2080 (footnote omitted).

It is important that the Pearce principle not be blown out of proportion. Pearce does not flatly prohibit resentencing, or even enhancement of sentence, after the accused has taken an appeal or otherwise taken advantage of some legal right. See Chaffin v. Stynchcombe, 412 U.S. 17, 24-28, 93 S.Ct. 1977, 1981-1983, 36 L.Ed.2d 714 (1973); Colten v. Kentucky, 407 U.S. 104, 114-20, 92 S.Ct. 1953, 1959-62, 32 L.Ed.2d 584 (1972); Pearce, 395 U.S. at 723, 89 S.Ct. at 2079; see also Wasman v. United States, 468 U.S. 559, 566, 104 S.Ct. 3217, 3221, 82 L.Ed.2d 424 (1984) (plurality opinion). Rather, the presumption envisioned in Pearce arises "only in cases in which a reasonable likelihood of vindictiveness

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exists." United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). Once this presumption blossoms, the prosecution must proffer evidence to overcome it; elsewise, vindictiveness is deemed established, and the due process clause requires invalidation of the challenged action. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081.

It follows that more than chronal proximity is required to bring Pearce into play; the presumption does not apply indiscriminately to all instances of detrimental action treading close upon the heels of a defendant's exercise of some legal right. See Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494 (involving addition of felony count after defendant asked for a jury on misdemeanor charge); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978) (discussing imposition of sentence after defendant stood trial, unsuccessfully, rather than plead to lesser offense); Chaffin, 412 U.S. at 26-27, 93 S.Ct. at 1982-83 (involving reconviction and resentencing by jury after new trial obtained); Colten, 407 U.S. at 116, 92 S.Ct. at 1960 (discussing imposition of sentence after defendant's election of de novo "second" trial in two-tier system proved unavailing); see also Wasman, 468 U.S. at 566, 104 S.Ct. at 3221. As such cases betoken, the Court has been chary of extending Pearce to precincts where, given the totality of the circumstances, the likelihood of actual vindictiveness is tiny. This case, we suggest, derives from that line.

B

We have employed the Pearce presumption to ensure against " 'a reasonable apprehension of vindictiveness,' " see Longval v. Meachum, 693 F.2d 236, 237 (1st Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1799, 76 L.Ed.2d 364 (1983), and we assume arguendo the suitability of that standard. 3 The presumption was devised as a proxy for actual evidence of vindictive motivation because "[m]otives are complex and difficult to prove." Goodwin, 457 U.S. at 373, 102 S.Ct. at 2488. But the blade has two edges: wielding it in too uninhibited a manner may serve to "block a legitimate response to criminal conduct." Id. Where the sentencing judge's motivation cannot be called fairly into question, there is no need to indulge in the conjecture, and run the risks, which the Pearce presumption necessarily entails. Absent proof of an improper motive--or some sound reason to suspect the existence of one--no reasonable apprehension of vindictiveness can flourish. See Wasman, 468 U.S. at 569, 104 S.Ct. at 3223 (where Pearce presumption inapplicable, defendant must affirmatively prove actual vindictiveness). Accordingly, on resentencing, if it is reasonably clear that the judge...

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156 practice notes
  • U.S. v. O'Neil, No. 93-1325
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 10, 1993
    ...court, not this court, is best equipped to gauge what the overall sentence should be. See generally United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc) (discussing resentencing in multiple-count case after determination that the Double Jeopardy Clause barred imposition of......
  • U.S. v. Vontsteen, No. 89-2745
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 17, 1990
    ...and no probation. Vontsteen's new sentence, viewed in context, shows no "retaliatory animus." See United States v. Pimienta-Redondo, 874 F.2d 9, 12-14 (1st Cir.) (en banc ), cert. denied, --- U.S. ----, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989) (citations omitted), where the court It is importa......
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    • United States
    • Court of Special Appeals of Maryland
    • March 28, 2016
    ...v. Sullivan, 967 F.2d 370, 374–75 (10th Cir.1992) ; Kelly v. Neubert, 898 F.2d 15, 17–18 (3d Cir.1990) ; United States v. Pimienta–Redondo, 874 F.2d 9, 14 (1st Cir.1989) ; United States v. Gray, 852 F.2d 136, 138 (4th Cir.1988) ; United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.1987) ; U......
  • Warner v. US, LR-C-96-220
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • May 13, 1996
    ...the gun count, thereby causing the gun count to be served first). 7 The Government cites, inter alia, United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.) (en banc), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), for the proposition that resentencing is appropriate w......
  • Request a trial to view additional results
156 cases
  • U.S. v. O'Neil, No. 93-1325
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 10, 1993
    ...court, not this court, is best equipped to gauge what the overall sentence should be. See generally United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc) (discussing resentencing in multiple-count case after determination that the Double Jeopardy Clause barred imposition of......
  • U.S. v. Vontsteen, No. 89-2745
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 17, 1990
    ...and no probation. Vontsteen's new sentence, viewed in context, shows no "retaliatory animus." See United States v. Pimienta-Redondo, 874 F.2d 9, 12-14 (1st Cir.) (en banc ), cert. denied, --- U.S. ----, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989) (citations omitted), where the court It is importa......
  • Twigg v. State, No. 3, Sept. Term, 2015.
    • United States
    • Court of Special Appeals of Maryland
    • March 28, 2016
    ...v. Sullivan, 967 F.2d 370, 374–75 (10th Cir.1992) ; Kelly v. Neubert, 898 F.2d 15, 17–18 (3d Cir.1990) ; United States v. Pimienta–Redondo, 874 F.2d 9, 14 (1st Cir.1989) ; United States v. Gray, 852 F.2d 136, 138 (4th Cir.1988) ; United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.1987) ; U......
  • Warner v. US, LR-C-96-220
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • May 13, 1996
    ...the gun count, thereby causing the gun count to be served first). 7 The Government cites, inter alia, United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.) (en banc), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989), for the proposition that resentencing is appropriate w......
  • Request a trial to view additional results

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