STATE OF ARIZONA, PETITIONER V. JOHN HARVEY ADAMSON

   No. 86-6

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Prosecution of a defendant who breaches a plea
      agreement is not barred by the Double Jeopardy
      Clause
      A. The Double Jeopardy Clause does not
         relieve a defendant of the consequences of
         his voluntary actions
      B. The court of appeals' holding is
         inconsistent with the policies of the Double
         Jeopardy Clause
   Conclusion

                          QUESTION PRESENTED

   Whether the Double Jeopardy Clause bars the prosecution of a
defendant who voluntarily breaches the terms of a plea agreement that
disposed of the original charges against him.

                     INTEREST OF THE UNITED STATES

   This case involves a claim that the Double Jeopardy Clause bars
reprosecution when the defendant voluntarily breaches the terms of a
plea agreement.  Because plea agreements play an important role in the
federal criminal justice system, and because the Court's decision here
is likely to affect federal criminal prosecutions, the United States
has a substantial interest in the outcome of this case.

                               STATEMENT

   1. On June 2, 1976, Donald Bolles, a reporter for the Arizona
Republic, was critically injured when a powerful bomb exploded in his
car.  Bolles survived for 11 days, during which three of his limbs
were amputated in an attempt to save his life.  He died on June 13,
1976.  State v. Adamson (Adamson II), 136 Ariz. 250, 253, 665 P.2d
972, 975, cert. denied, 464 U.S. 865 (1983).

   The evidence that was produced at respondent's trial established
that respondent placed the bomb in Bolles' car and lured Bolles to the
spot where it was detonated.  Respondent received $10,000 for his
efforts.  Bolles had been targeted, respondent told a companion,
because he "was giving people a lot of hard times and stepping on
people's toes." Adamson II, 136 Ariz. at 253-254, 665 P.2d at 975-976.

   2. Respondent was indicted on the state criminal charge of "open
murder" for his role in the Bolles killing.  See Ariz. Rev. Ann. Stat.
Sections 13-451 and 13-452 (repealed).  Prior to jury selection,
however, respondent and the State entered into a plea agreement (Pet.
App. A36-A46, A69).  The State agreed to amend the open murder charge
to one of second degree murder;  petitioner was to plead guilty to
that charge and receive a sentence of between 48 and 49 years'
imprisonment.  /1/ Respondent also received immunity from prosecution
for certain other crimes.  Id. at A36-A38, A40-A41.  In return,
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" (id. at A38), and to
"testify fully and completely at all times, whether under oath or
not," at "all interviews, depositions, hearings and trials" (id. at
A39).  The agreement also provided that, "s)hould (respondent) 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.  (Respondent) will be subject to the charge
of Open Murder, and if found guilty of First Degree Murder to the
penalty of death or life imprisonment." Id. at A39-A40.  Similarly,
the State and respondent agreed that "(i)n the event this agreement
becomes null and void, then the parties shall be returned to the
positions they were in before this agreement" (id. at A44).

   Before accepting the plea, the trial judge "in detail reviewed each
paragraph of the plea agreement with (respondent)," receiving
respondent's assurance that he understood the meaning of each
provision (Pet. App. A71;  see id. at A68).  Among other things, the
trial judge informed respondent that should he "refuse to testify * *
* he would be subject to the charge of open murder";  respondent
replied that "he understood what would happen if for any reason the
agreement became null and void and the open murder charges were
reinstated" (id. at A72).  The trial judge ultimately made the finding
that the plea was entered "voluntarily and intelligently with full
understanding." Adamson v. Superior Court (Adamson I), 125 Ariz. 579,
583, 611 P.2d 932, 936 (1980).  Respondent subsequently testified
against Max Dunlap and James Robison on charges growing out of the
Bolles murder.  After Dunlap and Robison were convicted, respondent
was sentenced in accordance with the terms of the plea agreement.
Pet. App. A5.  /2/

   3. In February 1980, the convictions of Dunlap and Robison were
reversed by the Arizona Supreme Court and the cases were remanded for
new trials.  State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980);
State v. Robison, 125 Ariz. 107, 608 P.2d 44 (1980).  When the State
sought to interview respondent to prepare for the retrials, however,
respondent refused to cooperate.  On April 3, 1980, he informed the
State that he believed he had fulfilled his obligations under the plea
agreement, although his attorney recognized that the State "may feel
that (respondent) has not completed his obligations" and "may attempt
to withdraw that plea agreement from him";  respondent also
acknowledged through his attorney that "if the State were successful
in doing so, (respondent) may be prosecuted for the killing of Donald
Bolles on a first degree murder charge." Pet. App. A48-A50.
Respondent nevertheless stated that he would testify in a retrial of
Dunlap or Robison only "upon the offer of further consideration by the
State of Arizona" (id. at A49), including, among other things, his
release from custody (id. at A50-A53).

   On April 9, 1980, the State attempted to interview respondent.
When he refused to cooperate, the State indicated that, in its view,
his action amounted to a violation of the plea agreement and that the
State was free to prosecute him for first degree murder.  Pet. App.
A56-A57.  The State accordingly scheduled respondent's deposition "in
an effort to resolve this question" (id. at A57).  Respondent refused
to testify in the pretrial proceedings, however, and the trial court
refused to compel his testimony.  The Arizona Supreme Court declined
to accept jurisdiction of the State's Petition for a Special Action to
challenge the trial court's ruling.  See Adamson I, 125 Airz. at 582,
611 P.2d at 935.

   On May 8, 1980, the State accordingly filed a new information
charging respondent with first degree murder.  The trial court denied
respondent's motion to dismiss the information on double jeopardy
grounds.  On respondent's Petition for a Special Action, the Arizona
Supreme Court affirmed.  The court first held, with "no hesitation,"
that the plea agreement "contemplates the availability of
(respondent's) testimony whether at trial or retrial after reversal."
Adamson I, 125 Ariz. at 583, 611 P.2d at 936.  Having concluded that
respondent violated the terms of the plea agreement, the court found
it easy to dispose of respondent's double jeopardy argument, since the
agreement "by its very terms waives the defense of double jeopardy if
the agreement is violated" (125 Ariz. at 584, 611 P.2d at 937).  /3/

   Respondent then sought habeas corpus relief pursuant to 28 U.S.C.
2254, arguing that the state court had erred in its interpretation of
the plea agreement (Pet. App. C7).  The district court dismissed the
petition.  The court of appeals affirmed (id. at C1-C12;  667 F.2d
1030), finding that respondent received "a full and fair hearing of
his claims in state court" and that the interpetation given the plea
agreement by the Arizona Supreme Court and by the district court "is
eminently reasonable" (Pet. App. C10).  /4/ This Court then denied
certiorari.  455 U.S. 992 (1982).

   4. In October 1980, respondent was convicted of first degree murder
and sentenced to death.  The Arizona Supreme Court affirmed the
conviction and sentence (see Adamson II, supra), and this Court again
denied certiorari.  464 U.S. 865 (1983).

   Respondent then filed another petition for habeas corpus, raising a
number of issues relating to his trial and sentence.  The district
court again denied the petition, and a panel of the Ninth Circuit
again affirmed.  Adamson v. Ricketts, 758 F.2d 441 (1985).  At the
rehearing en banc stage, however, respondent argued for the first time
in this habeas corpus proceeding that his trial on the first degree
murder charge violated his double jeopardy rights (see Pet. App. A127
n.1).  A majority of the en banc court accepted that argument and
granted respondent relief (id. at A1-A36).

   The court first held that jeopardy attached to the prosecution for
second degree murder when the judgment of conviction was entered and
respondent was sentenced on his plea (Pet. App. A14).  The court also
reasoned that second degree murder is a lesser included offense of
first degree murder, so that a conviction on the former charge bars
prosecution or conviction on the latter (id. at A15-A17).  And the
court found that respondent had not waived his double jeopardy rights
by entering into the plea agreement, reasoning that such a waiver can
be effective only if it involves "an intentional relinquishment or
abandonment of a known right or privilege" (id. at A18 (citation
omitted)).  "It may well be argued," the court stated, "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"
(id. at A20-A21).  Even if respondent could have made an implied
waiver of his double jeopardy right, the court continued, "the more
reasonable interpretation of the agreement is that double jeopardy was
not waived," since "(a)greeing that charges may be (reinstated) under
certain circumstances is not equivalent to agreeing that if they are
(reinstated) a double jeopardy defense is waived" (id. at A21-A22).

   The court went on to hold that, even if the plea agreement could
implicitly waive respondent's double jeopardy rights, that waiver
would be effective in a given case only if "the defendant's action
constituting the breach (of the agreement is) taken with the knowledge
that in (committing the breach) he waives his double jeopardy rights"
(Pet. App. A24).  The court reasoned that a defendant acts with such
knowledge only when he intentionally breaches his plea agreement.
Here, the court concluded, respondent "reasonably believed that a
refusal to testify did not constitute a breach of the agreement." In
such circumstances, the court held, "there could be no knowing or
intentional waiver until (respondent's) obligation to testify was
announced by the court" (id. at A25).  The court of appeals
accordingly ordered respondent freed "from the sentence and servitude
of his conviction of first degree murder" (id. at A31).

   Judge Brunetti, joined by three other judges, dissented (Pet. App.
A58-A111).  He noted that the court's analysis "render(ed) the plea
agreement ineffectual and unenforceable from the inception" (id. at
A80).  He also criticized the court for basing its holding on the
absence of an express waiver of a known right or privilege.  In Judge
Brunetti's view, a "defendant's role in bringing about * * *
successive trials remove(s) any constitutional barrier to the second
(trial)" (id. at A82).  Here, Judge Brunetti concluded, respondent's
refusal to testify was "the triggering event which * * * set into
motion the second prosecution.  (Respondent) must accept
responsibility for the second prosecution;  the double jeopardy clause
'does not relieve a defendant from the consequences of his voluntary
choice.'" Id. at A84 (quoting United States v. Scott, 437 U.S. 82, 99
(1978)).  /5/

   Judge Brunetti also saw "little doubt" that respondent breached the
agreement when he refused to participate in interviews to prepare for
the Dunlap and Robison retrials (Pet. App. A86), and he rejected the
proposition that respondent "was merely advancing a reasonable
interpretation of the plea agreement" (id. at A88).  In all, Judge
Brunetti found it "clear from the record that (respondent) knew the
circumstances confronting him and the consequences of entering into
the plea agreement.  Accordingly, his acceptance of the agreement
constituted a waiver of all conflicting rights existing at that time."
Id. at A69.  /6/

                          SUMMARY OF ARGUMENT

   1. The court of appeals' holding is premised on the proposition
that a defendant's action may trigger a new prosecution only if the
defendant intentionally and knowingly relinquished his double jeopardy
rights.  That premise, however, is flatly inconsistent with this
Court's decisions in the double jeopardy area, which repeatedly have
held that the Double Jeopardy Clause does not bar successive trials
when the defendant himself triggered the need for a second
prosecution.  Retrial is permissible, for example, when the defendant
successfully challenges his conviction on appeal or in collateral
proceedings, or when a mistrial is granted on the defendant's motion.
Similarly, the Double Jeopardy Clause is not implicated when a
defendant elects to have greater and lesser included offenses tried
separately, although he normally is entitled to have the two resolved
in one proceeding.  This principle is fully applicable in the plea
bargain context:  the courts uniformly have concluded that when a
defendant has his guilty plea vacated, a retrial on all the original
charges is permissible.

   In each of these examples, the crucial factor is that it was the
defendant's voluntary action that brought about the second proceeding.
 In none of them, however, was the defendant's conduct accompanied by
a knowing or intentional waiver of double jeopardy rights of the type
required by the court of appeals.  To the contrary, this Court has
"implicitly rejected the contention that the permissibility of a
retrial * * * depends on a knowing, voluntary and intelligent waiver
of a constitutional right." United States v. Dinitz, 424 U.S. 600,
609-610 n.11 (1976).  As the Court has noted, "traditional waiver
concepts have little relevance (in this setting)";  rather, "(t)he
important consideration, for purposes of the Double Jeopardy Clause,
is that the defendant retain primary control over the course to be
followed." Id. at 609 (footnote omitted).  It is enough that the
retrial is prompted by the defendant's actions, for "the Double
Jeopardy Clause, which guards against Government oppression, does not
relieve a defendant from the consequences of his voluntary choice."
United States v. Scott, 437 U.S. 82, 99 (1978).

   The court of appeals' holding cannot be reconciled with this
principle.  Respondent entered the plea agreement voluntarily, with
full knowledge and understanding of the proviso that the agreement
would be rendered "null and void" and the original charge
"automatically reinstated" if he failed to cooperate as he had agreed.
 In these circumstances, where it is undisputed that respondent's
breach was the triggering event that set the new prosecution in
motion, the court of appeals simply -- and improperly -- used the
Double Jeopardy Clause to relieve respondent of the consequences of
his voluntary choice.  That conclusion would not be affected even if
the court of appeals were correct in its highly implausible suggestion
that respondent's reading of the plea agreement, although erroneous,
was reasonable:  respondent voluntarily chose to stand on a
questionable reading of the plea agreement, with full knowledge that
his interpretation could be rejected by the courts.

   2. A review of the purposes of the Double Jeopardy Clause confirms
that respondent's rights were not violated by his prosecution for
first degree murder.  Because respondent's breach of the agreement led
the Arizona Supreme Court to vacate his conviction and sentence, he
did not face the risk of multiple punishment for the same offense.
Conversely, the State was not attempting to revive an unsuccessful
prosecution:  respondent had never faced trial or been exposed to
conviction on the first degree murder charge.  Once respondent's
breach returned the parties to their original positions, the State
simply sought to exercise "its right to one full and fair opportunity
to convict (an individual) who ha(s) violated its laws." Ohio v.
Johnson, 467 U.S. 493, 502 (1984).

   The court of appeals' analysis is also contrary to the principle
that a court must look to the implications "for the sound
administration of justice" of applying a double jeopardy bar in a
given context.  United States v. Tateo, 377 U.S. 463, 466 (1964).  Far
from taking those implications into account, the court of appeals'
holding would render plea agreements almost entirely unenforceable by
the government, at least to the extent that they imposed future
obligations on the defendant.  That holding would allow defendants to
disregard the terms of their plea agreements at will, secure in the
knowledge that their refusal to comply could not be reciprocated by
the government.  Such a result does nothing to safeguard the
legitimate interests of defendants.  To the contrary, far from
furthering the purposes of the Double Jeopardy Clause, the decision
below would permit defendants "to use the Double Jeopardy Clause as a
sword" to prevent the State from securing compliance with the terms of
its plea agreements.  Johnson, 467 U.S. at 502.

                               ARGUMENT

 PROSECUTION OF A DEFENDANT WHO BREACHES A PLEA AGREEMENT IS NOT
BARRED BY THE DOUBLE JEOPARDY CLAUSE

   The court of appeals offered three alternative rationales for its
refusal to enforce the terms of respondent's plea bargain.  First, it
held that a defendant cannot relinquish his double jeopardy rights
(and thus permit a new trial after jeopardy has once attached) unless
he expressly waives those rights on the record (Pet. App. A18-A21).
Second, it held that, even if an implied waiver of double jeopardy
rights may be made, the plea agreement here effected no such waiver
(id. at A22-A23).  Third, it held that, even if the agreement did
implicitly waive respondent's double jeopardy protections against a
new prosecution, such a waiver would be effective only if respondent
intentionally breached the plea agreement with the knowledge that in
doing so he waived his double jeopardy rights (id. at A23-A24).  While
these are alternative holdings, all are based on one common premise:
that a defendant's action may trigger a new prosecution only if that
action amounted to an "intentional relinquishment or abandonment of a
known (double jeopardy) right," as that standard was described in
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).  See Pet. App. A18-A19.

   The court of appeals' premise is flatly inconsistent with this
Court's decisions in the double jeopardy area, which repeatedly have
held that the Double Jeopardy Clause does not protest a defendant from
the consequences of his voluntary actions.  At the same time, the
court of appeals disregarded this Court's more general admonition that
double jeopardy principles must be applied with an eye towards "the
implications of (those) principle(s) for the sound administration of
justice." United States v. Tateo, 377 U.S. 463, 466 (1964).  And the
court of appeals failed to take into account either the nature of the
plea bargaining process or the plain meaning of respondent's bargain.
When these considerations are weighed, it becomes clear that the court
of appeals' holding is fatally flawed.

 A. The Double Jeopardy Clause Does Not Relieve A Defendant Of the
Consequences Of His Voluntary Actions

   1. This Court has consistently held that the Double Jeopardy Clause
does not bar successive trials when it is the defendant's action that
triggers the need for a new prosecution -- when, in other words, the
defendant acts in a way that returns him to the situation that
prevailed prior to the point at which jeopardy first attached.  For
example, it has long been the law that a defendant whose conviction is
set aside on appeal "may be tried anew upon the same indictment, or
upon another indictment, for the same offence (sic) of which he had
been convicted." United States v. Ball, 163 U.S. 662, 671-672 (1896).
/7/ A retrial also is permissible when the defendant has successfully
sought collateral relief, see Tateo, 377 U.S. at 465, or when he has
prevailed at trial on a motion to dismiss.  See Lee v. United States,
432 U.S. 23, 33 (1977).  And when the defendant "successfully seeks to
avoid his trial prior to its conclusion by a motion for mistrial, the
Double Jeopardy Clause is not offended by a second prosecution" --
even where the mistrial motion is prompted by prosecutorial or
judicial error.  United States v. Scott, 437 U.S. 82, 93 (1978).  See
United States v. Dinitz, 424 U.S. 600, 608 (1976);  United States v.
Jorn, 400 U.S. 470, 485 (1971) (plurality opinion);  see generally
Sanabria v. United States, 437 U.S. 54, 63 n.15 (1978).

   In other, related contexts, the Court similarly has held that
multiple prosecutions growing out of the same offense may be
permissible when the second proceeding was prompted or made necessary
by the defendant's voluntary actions.  Thus, "although a defendant is
normally entitled to have charges on a greater and lesser offense
resolved in one proceeding, there is no violation of the Double
Jeopardy Clause when he elects to have the two offenses tried
separately and persuades the trial court to honor his election."
Jeffers v. United States, 432 U.S. 137, 152 (1977) (plurality
opinion).  And the Court has held that a defendant's guilty plea to a
lesser included offense does not bar trial on the greater offense
charged along with it, if it was the defendant's effort that led to
"separate disposition of counts in the same indictment." Ohio v.
Johnson, 467 U.S. 493, 502 (1984).

   Not surprisingly, the courts of appeals have found this principle
fully applicable in the context of plea bargains.  Plea agreements
commonly provide that a defendant will plead guilty to one or more
counts of an indictment in exchange for the prosecution's agreement to
dismiss the remaining counts.  In that setting, if the defendant
successfully moves to have his guilty plea vacated, the courts have
uniformly held that he can properly be tried on all the original
charges.  Such a trial on all the charges is permissible because it
was the defendant's "own decision to plead guilty and to have that
plea set aside." United States v. Barker, 681 F.2d 589, 591 (9th Cir.
1982).  See Klobuchir v. Pennsylvania, 639 F.2d 966, 969-970 (3d
Cir.), cert. denied, 454 U.S. 1031 (1981);  Hawk v. Berkemer, 610 F.2d
445, 447-448 (6th Cir. 1979);  United States v. Johnson, 537 F.2d
1170, 1174 (4th Cir. 1976);  United States v. Anderson, 514 F.2d 583,
586-587 (7th Cir. 1975);  United States v. Jerry, 487 F.2d 600, 606
(3d Cir. 1973);  Ward v. Page, 424 F.2d 491, 493 (10th Cir), cert.
denied, 400 U.S. 917 (1970);  United States v. Myles, 430 F. Supp. 98,
101-102 (D.D.C. 1977), aff'd, 569 F.2d 161 (D.C. Cir. 1978).  Cf.
United States v. Whitley, 759 F.2d 327, 332 (4th Cir.) (en banc),
cert. denied, No. 84-6980 (Oct. 7, 1985);  Lowery v. Estelle, 696 F.2d
333, 340-342 (5th Cir. 1983);  United States ex rel. Williams v.
McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914
(1971).

   2. In each of those settings, the crucial factor was the
defendant's voluntary action that brought about the second proceeding.
 In none of them, however, was that action accompanied by a knowing,
intelligent, or intentional waiver of double jeopardy rights of the
type required by the court of appeals here.  The defendants who
requested a mistrial or pursued an appeal, for example, were not
warned by the court that in doing so they risked a retrial;  at the
same time, of course, the defendants did not explicitly relinquish
(or, indeed, advert in any way to) their double jeopardy rights.

   As this Court has stated, the permissibility of a retrial following
a mistrial or a reversal of a conviction on appeal thus does not
depend on the defendant's making a "knowing, voluntary and intelligent
waiver of a constitutional right." Dinitz, 424 U.S. at 609-610 n.11.
To the contrary, the Court has explained, "traditional waiver concepts
have little relevance" in this setting;  "(t)he important
consideration, for purposes of the Double Jeopardy Clause, is that the
defendant retain primary control over the course to be followed." Id.
at 609 (footnote omitted).  See Scott, 437 U.S. at 93-94;  Lee, 432
U.S. at 32-33;  Jorn, 400 U.S. at 484-485 n.11 (plurality opinion).
/8/ It is enough that the retrial is prompted "by the actions of the
defendant himself" (Garrett v. United States, No. 83-1842 (June 3,
1985), slip op. 3 (O'Connor, J., concurring)), for "the Double
Jeopardy Clause, which guards against Government oppression, does not
relieve a defendant from the consequences of his voluntary choice."
Scott, 437 U.S. at 99.

   The permissibility of retrial therefore does not turn on the
existence of a conventional "waiver" of double jeopardy rights.  As
long as it is the defendant's voluntary action that aborts his trial
or obviates his conviction, the principles underlying the Double
Jeopardy Clause are satisfied:  in that setting, requiring the
defendant to stand trial again "is not an act of governmental
oppression of the sort against which the Double Jeopardy Clause was
intended to protect." Scott, 437 U.S. at 91.  See Justices of Boston
Municipal Court v. Lydon, 466 U.S. 294, 308 (1984);  Tibbs v. Florida,
457 U.S. 31, 40 (1982).  This principle thus involves not so much a
relinquishment of constitutional prerogatives as a determination that
the Clause simply does not apply when retrials are triggered by the
defendants' actions.

   3. The court of appeals' holding in this case cannot be reconciled
with these principles of double jeopardy law.  It is conceded that
respondent entered the plea agreement voluntarily, with full knowledge
of its provisions -- including the proviso that the agreement would be
rendered "null and void" and the original charge "automatically
reinstated" if he failed to cooperate as agreed (Pet. App. A39-A40).
And respondent plainly understood the consequences of a breach;
indeed, in the letter announcing his refusal to cooperate, he declared
his awareness that the State might seek to nullify the plea agreement
and, if successful, might prosecute him for first degree murder (id.
at A49-A50).  Given the plain terms of the plea agreement, it would
have been wholly incredible for him to have suggested otherwise.  /9/
Cf. Taylor v. United States, 414 U.S. 17, 19-20 (1973).  In these
circumstances, where it is undisputed that respondent's breach was
"the triggering event * * * which set in motion the new prosecution"
(Pet. App. A84 (Brunetti, J., dissenting)), the court of appeals
simply -- and improperly -- used the Double Jeopardy Clause to rescue
respondent "from the consequences of his voluntary choice." Scott, 437
U.S. at 99.

   As long as respondent knew he would be subject to reprosecution if
he violated the plea agreement, it was of no consequence whether he
knew that the legal significance of what he was doing was to waive his
double jeopardy rights.  The information on the face of the agreement
-- which clearly advised respondent that he would be subject to
prosecution under the original charge if he failed to comply with his
obligation of cooperation -- was all the information he needed to make
his choice.  By consciously running the risk that he would have to
face prosecution on the original charge, respondent knowingly
abandoned the protection that the plea agreement afforded him.  An
awareness of the legal description of that protection would not have
altered in any way the nature of the choice he faced.

   That the reprosecution ultimately is attributable to respondent
also comes clear from the nature of the plea bargaining process
itself.  Plea bargains are essentially contractual undertakings that
are rendered unenforceable when either side commits a breach.  See
generally Mabry v. Johnson, 467 U.S. 504, 509-510 (1984);  United
States v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985);  United
States v. Carrillo, 709 F.2d 35, 36-37 (9th Cir. 1983);  United States
v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979);  United States v.
Gogarty, 533 F.2d 93, 95 (2d Cir. 1976).  Here, the State agreed to
forgo a first degree murder prosecution on the express condition that
respondent fulfill the terms of the agreement.  When respondent
refused to comply, his position did not differ in any essential way
from that of a defendant who seeks to withdraw a guilty plea:  in
essence, respondent simply wanted to get out of his bargain.  In doing
so, he returned the parties to the positions that they occupied before
jeopardy attached.  The Double Jeopardy Clause, after all, "represents
a constitutional policy of finality for the defendant's benefit"
(Jorn, 400 U.S. at 479 (plurality opinion));  a defendant who
pretermits prosecution by entering into an executory agreement and
then refuses to comply should not benefit from that policy.

   This conclusion would not be affected even if the court of appeals
were correct in its implausible suggestion that respondent's reading
of the plea agreement, although erroneous, was reasonable.  /10/
Respondent was entitled to a judicial determination as to whether he
had breached the agreement.  See United States v. Verusio, No. 85-1690
(7th Cir. Oct. 9, 1986);  United States v. Calabrese, 645 F.2d 1379,
1389-1390 (10th Cir.), cert. denied, 451 U.S. 1018 (1981);  United
States v. Simmons, 537 F.2d 1260, 1261-1262 (4th Cir. 1976).  He
received that determination from the Arizona Supreme Court before the
prosecution was begun on the original charges.  To be sure, that
determination came after the prosecutors had already concluded that
respondent was in breach of the agreement and had decided to reinstate
the original charges against him as a result.  But the Double Jeopardy
Clause does not relieve defendants of the burden of making difficult
decisions;  a defendant who must decide whether to seek a mistrial,
for example, often "face(s) a 'Hobson's choice'" (Dinitz, 424 U.S. at
609) between surrendering the right to have his case decided in one
proceeding and allowing a trial tainted by error to continue.
Similarly, a defendant who asserts (as respondent did) a reading of
his plea agreement that is no better than arguable "takes the risk"
that a court will find his interpretation incorrect.  Scott, 437 U.S.
at 100 n.13.  /11/ That this procedure puts the defendant to a
difficult choice between acquiescing in the government's request and
asserting a debatable interpretation of the plea agreement does not
implicate the Double Jeopardy Clause, as long as the choice remains
the defendant's to make.  See Dinitz, 424 U.S. at 609.

 B. The Court Of Appeals' Holding Is Inconsistent With The Policies Of
The Double Jeopardy Clause

   1. As the discussion above suggests, the purposes of the Double
Jeopardy Clause -- forestalling a certain sort of "governmental
oppression" (Scott, 437 U.S. at 91) -- are not implicated when the
defendant's voluntary action invites the reprosecution.  A more
detailed look at those purposes confirms that "(n)o interest of
respondent protected by the Double Jeopardy Clause" (Johnson, 467 U.S.
at 501) is affected by his prosecution on a first degree murder
charge.

   "The primary purpose of foreclosing a second prosecution after
conviction * * * is to prevent a defendant from being subjected to
multiple punishment for the same offense." Lydon, 466 U.S. at 307.
See Brown v. Ohio, 432 U.S. 161, 166 (1977).  That concern has no
bearing in this case, where respondent's breach of the plea agreement
led the Arizona Supreme Court to vacate his conviction and sentence.
Conversely, the State is not attempting to revive an unsuccessful
prosecution:  respondent has never been exposed to conviction on the
first degree murder charge, "nor has the State had an opportunity to
marshal its evidence and resources more than once or to hone the
presentation of its case through a trial." Johnson, 467 U.S. at 501.
See Tibbs, 457 U.S. at 41-42.  /12/ And a case in which the defendant
pleaded guilty prior to jury selection plainly does not involve "the
defendant's 'valued right to have his trial completed by a particular
tribunal.'" Dinitz, 424 U.S. at 606 (citation omitted).

   Equally as important, the imposition of a double jeopardy bar is
not necessary to serve what the Court has often stated as the broad
purpose of the Clause:  "ensur(ing) that the State does not make
repeated attempts to convict an individual, thereby exposing him to
continued embarrassment, anxiety, and expense, while increasing the
risk of an erroneous conviction." Johnson, 467 U.S. at 498-499.  See
Scott, 437 U.S. at 87;  Green v. United States, 355 U.S. 184, 187-188
(1957).  At the time the State initially was prepared to go to trial
in this case, respondent induced it to terminate the prosecution on
the conditions set out in the plea agreement.  Now that respondent's
breach of the agreement has returned the parties to their original
positions, the State is simply seeking to exercise "its right to one
full and fair opportunity to convict (an individual) who ha(s)
violated its laws." Johnson, 467 U.S. at 502.  See Arizona v.
Washington, 434 U.S. 497, 509 (1978).

   2. The flaw in respondent's position also is suggested by the other
prong in this Court's double jeopardy analysis, which has looked to
the implications "for the sound administration of justice" of applying
a double jeopardy bar in a given context.  Tateo, 377 U.S. at 466.
See Lydon, 466 U.S. at 308.  Far from taking such considerations into
account, the court of appeals' holding renders plea agreements --
which are, of course, an "important component of this country's
criminal justice system" (Blackledge v. Allison, 431 U.S. 63, 71
(1977)) -- almost entirely unenforceable by the government, at least
to the extent that they impose future obligations on the defendant.

   Predictability and reliance are "the foundation of plea
bargaining." United States v. McIntosh, 612 F.2d 835, 837 (4th Cir.
1979).  The approach taken by the court of appeals, however, would
make reliance on the defendant's undertakings impossible by "giv(ing)
the defendant more than the 'benefit of his bargain.'" United States
v. Anderson, 514 F.2d 583, 587 (7th Cir. 1975).  Indeed, unless the
plea agreement is drafted with extraordinary precision -- a precision
that, if the scrutiny given the agreement here by the court of appeals
is any indication, is beyond the capability of most attorneys (see
Pet. App. A20-A22, A25-A26) -- the court of appeals' holding would
allow defendants to disregard the terms of their plea agreements at
will, secure in the knowledge that their refusal to comply could not
be reciprocated by the government.  The result inevitably would be to
discourage the use of plea agreements, a development that would
benefit neither society nor criminal defendants.  See generally
McMann, 436 F.2d at 107.

   This would be "a high price indeed for society to pay" (Tateo, 377
U.S. at 466) even if the court of appeals' approach otherwise had
beneficial effects.  The court's holding, however, does nothing to
safeguard the legitimate interests of defendants.  Their expectations
are protected by the plea agreement itself -- whose terms are
enforceable as a matter of due process (see generally Mabry, 467 U.S.
at 509;  Santobello v. New York, 404 U.S. 257, 262-263 (1971)) -- and
by the Double Jeopardy Clause, which stands as an independent bar to
renewed prosecution on a greater offense when the defendant has
pleaded guilty to a lesser included offense.  See Brown v. Ohio,
supra.  The court of appeals' decision in this case thus gives
defendants no added protection against government overreaching.
Instead, the decision simply permitted respondent "to use the Double
Jeopardy Clause as a sword" to prevent the State from securing
compliance with its plea agreement.  Johnson, 467 U.S. at 502.  Giving
such a benefit to a defendant who breaches his plea agreement would be
perverse.  Respondent's maneuvers should not be rewarded under the
mantle of protecting his right to be free from double jeopardy;  to
the contrary, those maneuvers "should result in a surrender" of his
claim to the protection of the Double Jeopardy Clause.  Sanabria, 437
U.S. at 80-81 (Blackmun, J., dissenting) (emphasis added).

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   CHARLES A. ROTHFELD

      Assistant to the Solicitor General

   KATHLEEN A. FELTON

      Attorney

   NOVEMBER 1986

   /1/ Under that sentence, respondent actually would be incarcerated
for 20 years and two months.

   /2/ At sentencing, the prosecutor stated that he "wish(ed) the
record would show that it has been discussed with counsel, and I
believe counsel has discussed it with (respondent) that it may be
necessary in the future to bring (respondent) back after sentencing
for further testimony." Respondent's counsel agreed "(t)hat's our
understanding" and "(t)hat's correct." Pet. App. A96-A97.

   /3/ As a matter of state law, the Arizona Supreme Court held that
the State should not have proceeded with a new information;  the court
therefore vacated respondent's second degree murder conviction and
guilty plea, reinstated the original charge, and dismissed the new
information.  Adamson I, 125 Ariz. at 583-584, 611 P.2d at 936-937.

   /4/ The court of appeals noted that "(i)n his written refusal to
testify and list of demands, (respondent) acknowledged that he ran the
risk of reprosecution for first degree murder under the terms of the
plea agreement.  He cannot now claim immunity in what proved to be a
losing gamble." Pet. App. C12.

   /5/ Judge Kennedy both joined Judge Brunetti's dissent and
dissented separately, emphasizing that "(j)eopardy is waived in a
number of instances by the defendant's own actions, and no express
waiver or admonition is required before the court finds the waiver to
have taken place" (Pet. App. A119).  He added:  "The whole purpose of
(plea) agreements, as in this case, is to permit the defendant to
plead to lesser charges subject to the risk of facing more serious
ones if he does not keep his end of the deal.  For the court, deux ex
machina, to drop the idea of double jeopardy into the plea bargain
context is inconsistent with any reasonable interpretation of the
contract made between the defendant and the state.  The contract makes
no sense if by some legal theory it is contended defendant did not
accept it with full knowledge and understanding of its enforcement
terms." Id. at A121-A122.

   /6/ Judge Brunetti also took issue with the remedy imposed by the
court.  The majority took the position that its holding left
respondent's second degree murder conviction intact;  the court of
appeals left it to the Arizona Supreme Court to reinstate that
conviction (see Pet. App. A31-A32).  Judge Brunetti suggested,
however, that the court's chosen remedy did not appear to be
consistent with the terms of the plea agreement, since the agreement
explicitly required the parties to be returned to their pre-plea
positions in the event of a breach (id. at A109-A110).  See also id.
at A125-126 (Kennedy, J., dissenting).

   /7/ This rule does not apply, of course, when the conviction is set
aside for insufficiency of the evidence.  See Burks v. United States,
437 U.S. 1 (1978).

   /8/ In Green v. United States, 355 U.S. 184, 189 (1957), the Court
discussed the "waiver" of double jeopardy protections in terms of the
voluntary relinquishment of a known right.  The Court actually held,
however, that the defendant's action did not amount to a "waiver"
because it was not voluntary.  The defendant in Green was tried on
charges of first and second degree murder;  the jury found him guilty
only of second degree murder.  When the verdict was set aside on the
defendant's appeal, the government attempted to retry him for first
degree murder as well.  The Court held that the defendant's appeal did
not constitute a "waiver" of his double jeopardy protections against
such a reprosecution, reasoning that "w)hen a man has been convicted
of second degree murder and given a long term of imprisonment it is
wholly fictional to say that he 'chooses' to forego his constitutional
defense of formal jeopardy on a charge of murder in the first degree
in order to secure a reversal of an erroneous conviction of the lesser
offense.  In short, he has no meaningful choice." Id. at 191-192, see
id. at 193-194.

   Similarly, in Menna v. New York, 423 U.S. 61 (1975) (per curiam),
the Court held that a defendant who had pleaded guilty after
unsuccessfully seeking dismissal of his indictment on double jeopardy
grounds did not "waive" his double jeopardy claim by the entry of his
plea.  See id. at 62-63 & n.2.  The ruling in that case has no bearing
here, since the defendant in Menna took no action to return himself to
the position that he occupied prior to the attachment of jeopardy.  In
any event, the Court did not suggest that conduct having the effect of
waiving a double jeopardy claim must satisfy the requirements of
Johnson v. Zerbst, supra, in order to be valid.

   /9/ Indeed, as Judge Kennedy noted in dissent (Pet. App.
A121-A122), the essential purpose of any plea agreement is to permit
the defendant to avoid prosecution on a greater charge, subject to the
threat of prosecution on that charge if he fails to comply with the
agreement's terms.  That threat is the essential enforcement mechanism
of all plea agreements.  It belies belief that either the State or the
defendant would enter into a plea agreement without appreciating this
-- or that, as the court of appeals held to be the case here (id. at
A21-A22), either side would believe that the defendant could assert
double jeopardy as a defense to such a prosecution.

   /10/ In finding respondent's position reasonable, the court of
appeals pointed to a provision of the plea agreement stating that
respondent would be sentenced "'at the conclusion of his testimony'";
the court of appeals concluded that this provision might be read to
terminate respondent's obligations to testify at the time that he was
sentenced.  Pet. App. A25-A26.  The Arizona Supreme Court, however,
found it plain from the terms of the agreement that respondent was
obligated to testify "at trial or retrial after reversal," and
explained that at the sentencing hearing itself respondent evidenced
"a clear understanding that (he) would testify after (his)
sentencing." Adamson I, 125 Ariz. at 583, 611 P.2d at 936.  Given this
definitive factual finding that respondent "clearly underst(ood)" his
obligations, it is difficult to see how his refusal to cooperate could
have been made in good faith, no matter how ambiguous the terms of the
plea agreement.  In any event, on respondent's first petition for
habeas corpus, a panel of the Ninth Circuit found the Arizona Supreme
Court's interpretation of the agreement "eminently reasonable" (Pet.
App. C10).  And Judge Brunetti's careful analysis of the record makes
it clear that respondent's refusal to testify was entirely
unjustified.

   /11/ It may be added that, as a practical matter, a defendant who
advances a good faith interpretation of his plea agreement is unlikely
to suffer even if that interpretation ultimately is rejected by a
court.  Once the defendant's obligations are settled, the prosecution
is likely to be satisfied if the defendant is willing to comply with
the terms of the agreement (as long as the value of the defendant's
cooperation has not diminished during the period of his
recalcitrance);  after all, the government's need for the defendant's
cooperation -- which induced it to enter into the agreement as an
initial matter -- is likely to lead it to the same conclusion the
second time around.

   /12/ Similarly, there has been no implied acquittal of respondent
for first degree murder.  See Johnson, 467 U.S. at 501.  Compare Green
v. United States, 355 U.S. 184, 191 (1957).