CHARLIE JOE VAUGHN, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-1433

   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

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 5-11) is reported at
859 F.2d 863.  The order of the district court (Pet. App. 3-4) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 4,
1988.  The petition for a writ of certiorari was not filed until
January 5, 1989, and is therefore out of time under Rule 20.1 of the
Rules of this Court.  The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner's five convictions for possession of cocaine
with intent to distribute it must be merged in a single sentence where
each count charged possession on a specific and different date, where
the purity of the cocaine petitioner sold on each of the five
occasions was different, and where there was neither a charge nor
evidence of a continuing possession of only one batch of cocaine.

                               STATEMENT

   After a jury trial in the United States District Court for the
Southern District of Georgia, petitioner was convicted on five counts
of possessing cocaine with intent to distribute it and one count of
possessing methaqualone with intent to distribute it, all in violation
of 21 U.S.C. 841(a)(1).  He was sentenced to consecutive terms of five
years' imprisonment on each of the cocaine counts, five years'
probation on the methaqualone count, a special parole term of 15
years, and a $55,000 fine.  The court of appeals affirmed.  736 F.2d
665 (1984).  In March 1987 petitioner moved for correction of his
sentence under Fed. R. Crim. P. 35(a).  The district court summarily
denied the motion, Pet. App. 3-4, and the court of appeals affirmed,
Pet. App. 5-11.

   The evidence at trial, which is summarized in the government's
brief on petitioner's direct appeal (Gov't C.A. Br. 2-8), showed that
five times between March 9 and May 2, 1983, petitioner sold varying
amounts of cocaine to the two informants and an undercover agent.  The
first of the five charged acts of cocaine possession occurred on March
9, when petitioner sold an informant and the undercover agent a
package containing 7.1 grams of 87.5 percent pure cocaine at his home
in Emanuel County, Georgia.  On March 23 petitioner sold the two men
another package containing 6.9 grams of 68.8 percent pure cocaine,
which he delivered to an informant's place of business in Metter, the
county seat of Candler County, Georgia.  On April 7 petitioner
returned to Metter to give the informant and agent 14.5 grams of 62
percent pure cocaine.  Later that month, on April 27, petitioner sold
7.2 grams of cocaine in Emanuel County.  The purity of that cocaine
was never determined.  Finally, on May 2 petitioner arranged to sell
an informant two ounces of cocaine.  Agents arrested petitioner in
Stillmore, Georgia, in the midst of the negotiations and seized a
bottle and two packages of cocaine from petitioner's automobile.  The
bottle and the packages contained between 21.1 grams and 30.3 grams of
cocaine of a purity ranging from 40 percent to 50.4 percent.

   Following his arrest agents searched petitioner's residence and
found notebooks containing 25 to 30 pages of notations of what
appeared to be drug transactions, as well as other papers containing
similar records.  In a car parked outside the residence, the agents
found a plastic bag containing 1,001 methaqualone tablets.

                               ARGUMENT

   1. Petitioner contends (Pet. 6-27) that he was improperly given
multiple consecutive sentences for what he argues was a single
continuing possession of cocaine.

   Petitioner's position rests entirely on his assertion that he was
"sentenced five times for the continuous possession of the same
quantity of cocaine" (Pet. 13).  In fact, there is no evidence that
petitioner was in continuous possession of the same quantity of the
drugs.  To the contrary, the evidence of the varying purities of the
cocaine he distributed provides a firm basis for the opposite
conclusion.

   The indictment in this case charged five separate acts of
possession with intent to distribute cocaine -- on March 9, 1983
(Count 1), on March 23, 1983 (Count 2), on April 7, 1983 (Count 3), on
April 27, 1983 (Count 4), and on May 2, 1983 (Count 5).  The cocaine
that petitioner distributed on three of the four dates in March and
April was of different purity (the cocaine that petitioner distributed
on April 27 was not tested for purity), and the cocaine samples that
were discovered in petitioner's automobile upon his arrest on May 2
were not of the same purity as any of the earlier quantities he sold.
Thus, the evidence supported the conclusion that petitioner did not
simply possess one batch of cocaine over the six-week period, but that
he possessed different batches of cocaine during that period from
which he sold portions to the informant and the undercover agent.
Under similar circumstances, the courts of appeals have uniformly held
that it is proper to charge the separate possessions in separate
counts and to subject the defendant to cumulative penalties.  See,
e.g., United States v. Rich, 795 F.2d 680, 682-683 (8th Cir. 1986);
United States v. Rodriguez-Ramirez, 777 F.2d 454, 457-458 (9th Cir.
1985);  United States v. Griffin, 765 F.2d 677, 680, 682-683 (7th
Cir.), cert. denied, 431 U.S. 964 (1985);  United States v. Acosta,
763 F.2d 671, 689-690 (5th Cir.), cert. denied, 474 U.S. 863 (1985);
United States v. Blakeney, 753 F.2d 152, 154-155 (D.C. Cir. 1985);
United States v. Privett, 443 F.2d 528, 531 (9th Cir. 1971).

   The cases on which petitioner relies are either distinguishable or
contrary to his position.  United States v. Mathis, 673 F.2d 289 (10th
Cir.), cert. denied, 457 U.S. 1120 (1982), involved a single event in
which the defendant gave the undercover agent one-quarter ounce of
cocaine as a sample, sold approximately one-half pound later that day,
and immediately after his arrest for that sale was found to be in
possession of 10 grams of cocaine.  The government charged one
possession with intent to distribute, in light of the evidence that
the three different cocaine possessions were part of a single criminal
transaction, and the court agreed that the events constituted only one
crime.  673 F.2d at 292.  There is an obvious difference between
charging as multiple offenses the distribution of a single package of
cocaine, from which a sample is taken, and charging multiple
possessions -- in different locations and over a number of weeks -- of
bags of cocaine that are readily distinguishable from each othr by
purity.  The Mathis case, in which the government charged only a
single offense, is therefore not helpful to petitioner at all.

   Similarly, United States v. Palafox, 764 F.2d 558 (9th Cir. 1985)
(en banc), involved a single event.  In the course of selling heroin
to an undercover agent, the defendant was arrested after he gave the
agent a sample of the drug.  The defendant was thereafter charged with
distribution of the sample and possession of the remainder with intent
to distribute it.  The court of appeals held that only one offense was
proved;  the court explained that the defendant "should not receive
multiple punishments for steps in what in fact amounted to one
frustrated delivery of drugs." 764 F.2d at 563.  That case obviously
does not control a case such as this one, which involved transactions
separated in time and place from one another.  Indeed, the Ninth
Circuit later observed that its decision in Palafox is limited to
cases in which the distribution of the sample and the possession of
the remainder occurred at the same time and the same place.  See
United States v. Palacios, 835 F.2d 230, 233-235 (9th Cir. 1987);
United States v. Wolf, 813 F.2d 970, 977 (9th Cir. 1987);  United
States v. Rodriguez-Ramirez, 777 F.2d 454, 457-458 (9th Cir. 1985).

   The prior Eleventh Circuit cases on which petitioner relies are
likewise unhelpful to him.  In United States v. Fiallo-Jacome, 784
F.2d 1064 (11th Cir. 1986), the indictment contained two counts
charging the possession of cocaine during overlapping time periods;
one count charged possession on May 17 and the other charged
possession as a continuing offense from February through May.  The
court found that both counts seemed to charge a single offense, and
the evidence showed only one continuing possession of a single
quantity of cocaine.  784 F.2d at 1066-1067.  Here, by contrast, the
counts are not overlapping and the evidence shows multiple
transactions.  And United States v. Maldonado, 849 F.2d 522 (11th Cir.
1988), which petitioner cites in his support (Pet. 15), is entirely
consistent with the decision below.  In Maldonado, a two-count
indictment charged the defendant with possession of cocaine on a
single date but in two locations -- his automobile and his residence
-- and the court of appeals upheld the separate convictions on those
two counts.  There is no principled distinction between that case and
the instant one;  if anything, Maldonado more closely suggests a
single event than petitioner's separate and repeated transactions over
a number of weeks.

   Finally, petitioner relies on a series of Sixth Circuit cases in
support of his assertion that the circuits are in conflict on the
issue he presents in his petition.  But the Sixth Circuit cases on
which he relies are all readily distinguishable.  In United States v.
Woods, 568 F.2d 509 (6th Cir.), cert. denied, 435 U.S. 972 (1978), the
court of appeals vacated the defendant's three separate convictions
for possessing heroin with intent to distribute it because all three
packages of heroin at issue in the three counts were seized at the
same time from a single location and were virtually identical in both
weight and purity (568 F.2d at 510-511).  That case is obviously
inapplicable here, because this case involves the possession and sale
of different batches of drugs, not the simultaneous possession of one
quantity of drugs that happens to be packaged in several containers.

   The decisions of the Sixth Circuit in United States v. Jones, 533
F.2d 1387, 1392 (1976), and United States v. Reed, 647 F.2d 678
(1981), are likewise inapposite.  Jones held that possession of the
same handgun on five different dates was a single course of conduct
punishable as only one offense.  The distinction between the ongoing
possession of one item and the possession on different dates of five
separate batches of drugs of differing quality is obvious, and is
sufficient to distinguish that case from this one.  Reed involved the
simultanous possession and transportation of stolen goods.  The court
held that multiple convictions could not be upheld in that case based
on the fact that the goods had originally been stolen from different
persons.  Once again, however, that case turned on the fact that the
government sought to obtain multiple convictions based on conduct
relating to a single quantity of stolen goods;  this case, by
contrast, concerns separate transactions involving different batches
of drugs.

   2. Petitioner also asserts (Pet. 27-34) that the court of appeals
improperly placed on him the burden of establishing a single
continuous possession, rather than placing the burden on the
government to show that petitioner committed multiple drug offenses.
Petitioner has not accurately described the way the court of appeals
disposed of his claim.

   Petitioner did not raise his multiplicity claim on his direct
appeal;  he raised it only in his Rule 35 challenge to his sentence.
It was therefore proper for the court of appeals to impose on
petitioner the burden to show that he was entitled to relief from the
sentence that had been imposed after trial and affirmed on direct
appeal.  In order to establish a right to relief, petitioner would
have to demonstrate that the evidence did not support the conclusion
of the court below that petitioner had in fact committed multiple drug
violations.  Because the evidence shows just the opposite, the court
of appeals properly held that petitioner had failed to meet the burden
imposed on him in a proceeding in which he sought to raise a
collateral challenge to his convictions.  /*/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   SARA CRISCITELLI

      Attorney

   APRIL 1989

   /*/ We question whether Rule 35 even permits the type of challenge
made in this case.  Petitioner's real challenge is not simply to his
sentence, but to his convictions.  See Ball v. United States, 470 U.S.
856 (1985) (holding that it is improper to convict and concurrently
sentence someone for possessing and receiving the same firearm, and
that one of the convictions must be vacated).  Rule 35 serves only a
"narrow function" of correcting an illegal sentence and is not to be
used "to reexamine errors occurring at the trial or other proceedings
prior to the imposition of sentence."Hill v. United States, 368 U.S.
424, 430 (1962).  But even if petitioner's pleading in the courts
below had been treated as a motion for collateral relief under 28
U.S.C. 2255, the analysis of the court of appeals would have been the
same, and petitioner would have fared no better.