Part III: Courts and Sentencing
The following case has been heavily edited and abridged. The idea is to make it more readable. As such, it should not be relied upon as binding authority.
The question for decision is whether the Double Jeopardy Clause bars the prosecution of respondent for first-degree murder following his breach of a plea agreement under which he had pleaded guilty to a lesser offense, had been sentenced, and had begun serving a term of imprisonment. The Court of Appeals for the Ninth Circuit held that the prosecution of respondent violated double jeopardy principles and directed the issuance of a writ of habeas corpus. We reverse.
In 1976, Donald Bolles, a reporter for the Arizona Republic, was fatally injured when a dynamite bomb exploded underneath his car. Respondent was arrested and charged with first-degree murder in connection with Bolles’ death. Shortly after his trial had commenced, while jury selection was underway, respondent and the state prosecutor reached an agreement whereby respondent agreed to plead guilty to a charge of second-degree murder and to testify against two other individuals—Max Dunlap and James Robison—who were allegedly involved in Bolles’ murder. Specifically, respondent agreed to “testify fully and completely in any Court, State or Federal, when requested by proper authorities against any and all parties involved in the murder of Don Bolles. . . .” The agreement provided that “should the defendant refuse to testify or should he at any time testify untruthfully . . . then this entire agreement is null and void and the original charge will be automatically reinstated.”
The parties agreed that respondent would receive a prison sentence of 48-49 years, with a total incarceration time of 20 years and 2 months. In January 1977, the state trial court accepted the plea agreement and the proposed sentence, but withheld imposition of the sentence. Thereafter, respondent testified as obligated under the agreement, and both Dunlap and Robison were convicted of the first-degree murder of Bolles. While their convictions and sentences were on appeal, the trial court, upon motion of the State, sentenced respondent. In February 1980, the Arizona Supreme Court reversed the convictions of Dunlap and Robison and remanded their cases for retrial. This event sparked the dispute now before us.
The State sought respondent’s cooperation and testimony in preparation for the retrial of Dunlap and Robison. On April 3, 1980, however, respondent’s counsel informed the prosecutor that respondent believed his obligation to provide testimony under the agreement had terminated when he was sentenced. Respondent would again testify against Dunlap and Robison only if certain conditions were met, including, among others, that the State release him from custody following the retrial. The State then informed respondent’s attorney on April 9, 1980, that it deemed respondent to be in breach of the plea agreement. On April 18, 1980, the State called respondent to testify in pretrial proceedings. In response to questions, and upon advice of counsel, respondent invoked his Fifth Amendment privilege against self-incrimination. The trial judge, after respondent’s counsel apprised him of the State’s letter of April 9 indicating that the State considered respondent to be in breach of the plea agreement, refused to compel respondent to answer questions. The Arizona Supreme Court declined to accept jurisdiction of the State’s petition for special action to review the trial judge’s decision.
On May 8, 1980, the State filed a new information charging respondent with first-degree murder. Respondent’s motion to quash the information on double jeopardy grounds was denied. Respondent challenged this decision by a special action in the Arizona Supreme Court. That court, after reviewing the plea agreement, the transcripts of the plea hearing and the sentencing hearing, respondent’s April 3 letter to the state prosecutor, and the prosecutor’s April response to that letter, held with “no hesitation” that “the plea agreement contemplates availability of [respondent’s] testimony whether at trial or retrial after reversal,” and that respondent “violated the terms of the plea agreement.” The court also rejected respondent’s double jeopardy claim, holding that the plea agreement “by its very terms waives the defense of double jeopardy if the agreement is violated.” Finally, the court held that under state law and the terms of the plea agreement, the State should not have filed a new information, but should have merely reinstated the initial charge. Accordingly, the court vacated respondent’s second-degree murder conviction, reinstated the original charge, and dismissed the new information.
After these rulings, respondent offered to testify at the retrials, but the State declined his offer. Respondent sought federal habeas relief, arguing that the Arizona Supreme Court had misconstrued the terms of the plea agreement. The District Court dismissed his petition, the Court of Appeals for the Ninth Circuit affirmed, and we denied respondent’s petition for a writ of certiorari.
Respondent was then convicted of first-degree murder and sentenced to death. The judgment was affirmed on direct appeal, and we denied certiorari. Respondent sought federal habeas corpus for the second time, asserting a number of claims relating to his trial and sentence. The District Court dismissed the petition; a Court of Appeals panel affirmed. The Court of Appeals went en banc, held that the State had violated respondent’s rights under the Double Jeopardy Clause, and directed the issuance of a writ of habeas corpus. The en banc opinion reasoned that respondent had not waived his double jeopardy rights by entering into the plea agreement, asserting that “it may well be argued that the only manner in which [respondent] could have made an intentional relinquishment of a known double jeopardy right would be by waiver ‘spread on the record’ of the court after an adequate explanation.”
Even if double jeopardy rights could be waived by implication, no such waiver occurred here since “agreeing that charges may be reinstituted under certain circumstances is not equivalent to agreeing that if they are reinstituted a double jeopardy defense is waived.” Finally, the court stated that even were the agreement read to waive double jeopardy rights impliedly, no waiver was effected here because a “defendant’s action constituting the breach must be taken with the knowledge that in so doing he waives his double jeopardy rights.”
Because there was a “reasonable dispute as to [respondent’s] obligation to testify,” the court continued, “there could be no knowing or intentional waiver until his obligation to testify was announced by the court.” The dissenting judges emphasized that respondent’s refusal to testify triggered the second prosecution and the Double Jeopardy Clause “‘does not relieve a defendant from the consequences of his voluntary choice.'” We granted the State’s petition for a writ of certiorari to review the Court of Appeals’ decision that the Double Jeopardy Clause barred prosecution of respondent for first-degree murder.
We may assume that jeopardy attached at least when respondent was sentenced in December 1978, on his plea of guilty to second-degree murder. Assuming also that under Arizona law second-degree murder is a lesser included offense of first-degree murder, the Double Jeopardy Clause, absent special circumstances, would have precluded prosecution of respondent for the greater charge on which he now stands convicted.
The State submits, however, that respondent’s breach of the plea arrangement to which the parties had agreed removed the double jeopardy bar to prosecution of respondent on the first-degree murder charge. We agree with the State.
Under the terms of the plea agreement, both parties bargained for and received substantial benefits. The State obtained respondent’s guilty plea and his promise to testify against “any and all parties involved in the murder of Don Bolles” and in certain specified other crimes. Respondent, a direct participant in a premeditated and brutal murder, received a specified prison sentence accompanied with a guarantee that he would serve actual incarceration time of 20 years and 2 months. He further obtained the State’s promise that he would not be prosecuted for his involvement in certain other crimes.
The agreement specifies in two separate paragraphs the consequences that would flow from respondent’s breach of his promises. Paragraph 5 provides that if respondent refused to testify, “this entire agreement is null and void and the original charge will be automatically reinstated.” Similarly, Paragraph 15 of the agreement states that “in the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.” Respondent unquestionably understood the meaning of these provisions. At the plea hearing, the trial judge read the plea agreement to respondent, line by line, and pointedly asked respondent whether he understood the provisions in Paragraphs 5 and 15. Respondent replied “Yes, sir,” to each question. On this score, we do not find it significant, as did the Court of Appeals, that “double jeopardy” was not specifically waived by name in the plea agreement. Nor are we persuaded by the court’s assertion that “agreeing that charges may be reinstituted . . . is not equivalent to agreeing that if they are reinstituted a double jeopardy defense is waived.”
The terms of the agreement could not be clearer: in the event of respondent’s breach occasioned by a refusal to testify, the parties would be returned to the status quo ante, in which case respondent would have no double jeopardy defense to waive. And, an agreement specifying that charges may be reinstated given certain circumstances is, at least under the provisions of this plea agreement, precisely equivalent to an agreement waiving a double jeopardy defense. The approach taken by the Court of Appeals would render the agreement meaningless: first-degree murder charges could not be reinstated against respondent if he categorically refused to testify after sentencing even if the agreement specifically provided that he would so testify, because, under the Court of Appeals’ view, he never waived his double jeopardy protection. Even respondent, however, conceded at oral argument that “a waiver could be found under those circumstances . . . .”
We are also unimpressed by the Court of Appeals’ holding that there was a good-faith dispute about whether respondent was bound to testify a second time and that until the extent of his obligation was decided, there could be no knowing and intelligent waiver of his double jeopardy defense. But respondent knew that if he breached the agreement he could be retried, and it is incredible to believe that he did not anticipate that the extent of his obligation would be decided by a court. Here he sought a construction of the agreement in the Arizona Supreme Court, and that court found that he had failed to live up to his promise. The result was that respondent was returned to the position he occupied prior to execution of the plea bargain: he stood charged with first-degree murder. Trial on that charge did not violate the Double Jeopardy Clause. United States v. Scott, supports this conclusion.
At the close of all the evidence in Scott, the trial judge granted defendant’s motion to dismiss two counts of the indictment against him on the basis of preindictment delay. This Court held that the Double Jeopardy Clause did not bar the Government from appealing the trial judge’s decision, because “in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he was accused, suffers no injury cognizable under the Double Jeopardy Clause. . . .” The Court reasoned further that “the Double Jeopardy Clause . . . does not relieve a defendant from the consequences of his voluntary choice.” The “voluntary choice” to which the Scott Court referred was the defendant’s decision to move for dismissal of two counts of the indictment, seeking termination of that portion of the proceedings before the empaneled jury, rather than facing the risk that he might be convicted if his case were submitted to the jury.
The respondent in this case had a similar choice. He could submit to the State’s request that he testify at the retrial, and in so doing risk that he would be providing testimony that pursuant to the agreement he had no obligation to provide, or he could stand on his interpretation of the agreement, knowing that if he were wrong, his breach of the agreement would restore the parties to their original positions and he could be prosecuted for first-degree murder. Respondent chose the latter course, and the Double Jeopardy Clause does not relieve him from the consequences of that choice.
Respondent cannot escape the Arizona Supreme Court’s interpretation of his obligations under the agreement. The State did not force the breach; respondent chose, perhaps for strategic reasons or as a gamble, to advance an interpretation of the agreement that proved erroneous. And, there is no indication that respondent did not fully understand the potential seriousness of the position he adopted. In the April 3 letter, respondent’s counsel advised the prosecutor that respondent “is fully aware of the fact that your office may feel that he has not completed his obligations under the plea agreement . . . and, further, that your office may attempt to withdraw the plea agreement from him, [and] that he may be prosecuted for the killing of Donald Bolles on a first-degree murder charge.” This statement of respondent’s awareness of the operative terms of the plea agreement only underscores that which respondent’s plea hearing made evident: respondent clearly appreciated and understood the consequences were he found to be in breach of the agreement.
Finally, it is of no moment that following the Arizona Supreme Court’s decision respondent offered to comply with the terms of the agreement. At this point, respondent’s second-degree murder conviction had already been ordered vacated and the original charge reinstated. The parties did not agree that respondent would be relieved from the consequences of his refusal to testify if he were able to advance a colorable argument that a testimonial obligation was not owing. The parties could have struck a different bargain, but permitting the State to enforce the agreement the parties actually made does not violate the Double Jeopardy Clause.
The judgment of the Court of Appeals is reversed.
It is so ordered.
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Last Modified: 04/30/2021