CASSIUS v. ARIZONA

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Argument of Frederick S. Klein

Chief Justice Warren E. Burger: We'll hear arguments next in Cassius against Arizona, 74-5140.

Mr. Frederick S. Klein: Mr. Chief Justice and may it please the Court.

Chief Justice Warren E. Burger: Mr. Klein.

Mr. Frederick S. Klein: I'm sorry, Your Honor.

This case involves a challenge to the constitutionality of an Arizona statute, Title 13 of the Arizona revised statute Section 1580, which provides “a person who is convicted of committing any felony offense, whether federal or state, which felony offense is committed while such person is released on bail or on his own recognizance on a separate felony charge is guilty of the offense of committing a felony while released on bail or on his own recognizance and, upon conviction of such crime, shall be punished by imprisonment in the state prison for not more than five years.

Such penalty shall be in addition to and shall be served consecutively to any penalty imposed for the offense committed while released on bail or on his own recognizance.

For a violation of this statute to take place three events must occur.

First, a defendant must be charged with a felony, which I would call charge A, and must be released on that charge.

Second, the defendant must subsequently be charged with another felony, which I'd call charge B, which is alleged to have occurred while he was released on charge A.

And, thirdly, the defendant must be convicted of charge B.

He need not be convicted of charge A and, in fact, it doesn't make any difference what the result on charge A is as far as Section 1580 is concerned.

In this case, the petitioner, Michael Cassius, was arrested and charged with burglary of a motor vehicle.

He was released on that charge and he was subsequently arrested at the scene on an apparent burglary of a business establishment.

He was charged with a second charge of burglary and also with a charge of committing a felony while released on recognizance under Section 1580.

On January 4, 1973, a hearing was held in the Superior Court.

At which time, the defendant pleaded guilty to the second burglary charge.

The first burglary charge was dismissed.

Justice Harry A. Blackmun: Do you know why?

Mr. Frederick S. Klein: Why it was dismissed?

It was dismissed as part of an agreement to plead to the second burglary charge.

Chief Justice Warren E. Burger: Do you know whether the state had-- would it be fair to say that the state concluded it was satisfied with one guilty plea that would have a substantial sentence even though the man had apparently committed two criminal acts?

Mr. Frederick S. Klein: Well, if I--

Chief Justice Warren E. Burger: Apparently, with emphasis.

Mr. Frederick S. Klein: I realize that the fact that it was disposed of in this way, of course, denies us the opportunity to look at the substance of the first charge, but it was dismissed as part of the a plea bargain, and the--

Justice Harry A. Blackmun: Mr. Klein, is-- there are three crimes, aren't there?

Mr. Frederick S. Klein: That's correct, Your Honor.

And, the charge under Section 1580 was then submitted to the Court for trial, and the defendant was found guilty on that charge.

The defendant was sentenced to a term of one to two years imprisonment on the burglary charge.

He was sentenced to a consecutive term of one to three years on the Section 1580 charge.

The-- on appeal, the Arizona Court of Appeals held that Section 1580, as applied to this petitioner, violated his rights under the Equal Protection Clause of the Fourteenth Amendment, but the Arizona Supreme Court vacated the Court of Appeals decision and held that Section 1580 did not-- neither constituted double jeopardy, nor denied equal protection.

Justice Potter Stewart: Mr. Klein, just to go back so-- I'm not sure it's quite clear in my mind.

There was a plea bargain.

Mr. Frederick S. Klein: That's correct.

Justice Potter Stewart: Under which the first burglary charge was dismissed.

There was a guilty plea to the second burglary charge?

Mr. Frederick S. Klein: That's correct, Your Honor.

Justice Potter Stewart: And what did the bargain have to say, if anything, about the 1580 charge?

Mr. Frederick S. Klein: The-- well, the bargain provided that the defendant was not going to plead guilty to the 1580 charge, and the Trial Court was advised that the reason for this was that the defendant wished to reserve his right to challenge that statute on appeal.

Justice Potter Stewart: So there was no-- so, what was done was exactly in accord with the bargain?

Mr. Frederick S. Klein: That's correct, Your Honor.

Justice Potter Stewart: Thank you.

Mr. Frederick S. Klein: You're welcome.

Justice Harry A. Blackmun: Mr. Klein, do you know is this statute frequently used by the prosecution in Arizona?

Mr. Frederick S. Klein: In the experience of our office, it is frequently used.

However, our experience is also that, very often, this charge is dismissed as part of plea bargains but it-- I'm aware that there are a number of individuals in the state prison serving sentences under this charge.

We have presented two questions to this Court.

The first is that Section 1580 violates the Double Jeopardy Clause of the Fifth Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment.

Chief Justice Warren E. Burger: What would be your position on this issue if he had entered a guilty plea to the first charge, been sentenced, then a guilty plea to the subsequent charges?

Would you think that would be waivered or what could be your view?

You'd made the point that you haven't had the chance to test out, which is correct.

The truth of the first charge, except as there is some passive admission involved in the so-called bargain negotiation, but if he had been found guilty and had his day in Court on that first one, either by plea or by trial.

Mr. Frederick S. Klein: Well, let me turn that question around if I may, Mr. Chief Justice.

Part of our argument with reference to our equal protection claim is that the statute, because it, in a sense, presumes a defendant guilty of the first charge even though it need not be proven, contravenes the presumption of innocence.

And, if the statute were drafted, so to say, that the state must prove a conviction of both the first and the second charge, it would seem to me that there would be no infringement upon the presumption of innocence, but I'm not sure the statute as drafted does not require our conviction of the first charge and this defendant was, in fact, not convicted in the first charge.

I don't know, does that answer your question?

Justice William H. Rehnquist: What elements does the state have to prove, Mr. Klein, in 1580?

Mr. Frederick S. Klein: That's a good question, Your Honor.

Neither of the Arizona Courts which wrote an opinion in this case indicated what the elements of a 1580 charge were.

In fact, the Arizona Supreme Court said that the charges of which this defendant was convicted, burglary and 1580, had no elements in common.

Now, the state in its petition-- in its brief has argued that there are two elements.

They say that, first of all, there is an element of conviction of a felony and, secondly, that there is an element of commission while the defendant is released on a felony charge.

And, I submit that that statement is also ambiguous in terms of determining what the elements are.

Justice William J. Brennan: Well, what was the proof at the trial of this 1580 charge?

Mr. Frederick S. Klein: The proof was that the Court was asked to take judicial notice of the fact that burglary was a felony and that the defendant had entered a plea of guilty to burglary, and it was stipulated that the defendant had been charged previously and had been released on that charge and had remained released during the period of time in which the second burglary charge was alleged to have occurred.

And, the only reason there was need for that stipulation was that the Justice of the Peace who released the defendant had not issued an order or entered one into the record, and so the Court couldn't take judicial notice about it.

Chief Justice Warren E. Burger: Do you regard your client as having been free and at large by virtue of a constitutional right or by virtue of a statutory provision?

Mr. Frederick S. Klein: We regard him having been at large by virtue of a state constitutional right which also receives federal constitutional protection, although I submit that it's unclear what the parameters of that protection are.

This Court has said, for example, that the presumption of innocence would be meaningless if defendants could not be released prior to their trial because if they could not, they would be punished before they were tried.

Chief Justice Warren E. Burger: Of course, we'd all agree that the federal constitution doesn't guarantee the right to be released on bail, but merely that they may not be regard to furnish excessive bail.

Is that not correct?

Mr. Frederick S. Klein: Well, that's certainly what the Eighth Amendment protection provides, Your Honor.

I would submit, though, that the fact that a right to release is not absolute does not make it any less fundamental.

Even the right to free speech, which is one of the most nearly absolute rights, is not absolute.

You can't yell “fire!” in a crowded theater.

Justice William J. Brennan: Mr. Klein, we keep peppering you with questions.

Mr. Frederick S. Klein: Be my guest, Your Honor.

Justice William J. Brennan: I think I understand your double jeopardy approach.

Suppose Arizona, however, instead of having this statute which seems to me to be a fairly unusual one, provided that the punishment for burglary shall be x-years, but the punishment for burglary committed while on an RPR or after one being charged with a felony is y-years, y being greater than x.

Anything unconstitutional about that, drawing the distinction in punishment as distinguished from making under separate crime?

Mr. Frederick S. Klein: If I understand your question, it is if the statute had been drafted as a punishment enhancement statute rather than as a separate crime, would this violate the Double Jeopardy Clause, and my answer would be no, although there might still be some problems under our equal protection argument.

Justice William J. Brennan: And yet, the same result would be accomplished, as the state claim is accomplished here.

Mr. Frederick S. Klein: Not exactly, Your Honor.

Well, the same result that the state seeks would be accomplished, but the effects upon the defendant would be different.

For example, because it is charged as a separate offense, the defendant is subject to receive his penalties.

That is, for his one criminal act, it goes down on the record as two offenses committed one after the other, and he is not entitled to the advantageous good time credits that he would be entitled to, were he a first offender.

His parole eligibility date is--

Justice Byron R. White: But the state legislative could-- legislatively could attach all those consequences to a single crime of committing burglary while on bail just like it attaches a higher penalty, perhaps, and then--

Mr. Frederick S. Klein: Yes, but there are additional consequences, Your Honor.

The fact that it is a separate offense and not a punishment enhancement statute gives the prosecutor opportunities which the Double Jeopardy Clause was designed to prevent.

For example, there's no need to prosecute 1580 at the same time as the first felony offense.

Justice Byron R. White: Well, I know that that argument is a-- that argument would go to cases where the-- where anyone act is broken up into several crimes, and they're all prosecuted at once.

Mr. Frederick S. Klein: But, the difference is that this-- our argument is that this is the same offense, and what I'm saying is that the-- that a punishment enhancement statute, while it would serve the same objectives that the state claims to have, would not have precisely the same consequences on the defendant, and punishment enhancement statute would not--

Justice Byron R. White: That it would tell the double jeopardy argument.

Mr. Frederick S. Klein: Yes, it would, Your Honor.

Justice Byron R. White: But, you think you still have an arguable opinion?

Mr. Frederick S. Klein: Well, I think that a punishment enhancement statute could be drafted so as not to come within the equal protection arguments that we raise.

For example, as I say, the infringement upon the presumption of innocence could be done away with by requiring a conviction on the first as well as the second offense.

I think that a punishment enhancement provision could be drafted to serve the same objectives without violating either of the guarantees that we argue are-- were violated in this case.

Justice William J. Brennan: Mr. Klein, do you think Blockburger is consistent with your double jeopardy argument?

Mr. Frederick S. Klein: Yes, Your Honor, I do.

I-- the Court has devised a number of tests for determining whether two offenses are the same, and the Blockburger test is probably the narrowest or the most restrictive of these tests, but I believe that our case meets that test as well.

Justice William H. Rehnquist: Was Blockburger's said to rest by the Court on double jeopardy?

Mr. Frederick S. Klein: My recollection is that it was, Your Honor.

Justice William H. Rehnquist: You think that the-- Justice Sutherland relied on the Double Jeopardy Clause in Blockburger?

He didn't even mention it, so far as I know.

Mr. Frederick S. Klein: Well, then I stand corrected, Your Honor.

I do know that in subsequent cases Blockburger has been relied upon as a test for double jeopardy.

Justice William H. Rehnquist: Let me ask you one more question about what I guess are basically the facts.

In the proceedings before Judge Marks resolving doubts of facts and so forth in favor of the prevailing party as we do here, can it fairly be said that Judge Marks found that your client had committed the second burglary?

Mr. Frederick S. Klein: Well, the defendant pleaded guilty to the second burglary.

Justice William H. Rehnquist: He pleaded guilty to the second burglary.

Mr. Frederick S. Klein: That's correct, Your Honor.

Justice William H. Rehnquist: So, then the-- were there any contested issues of fact tried before the trial judge?

Mr. Frederick S. Klein: No, and one of the-- one of our objections to the way 1580 is drafted is that it only really requires a determination rather-- whether a defendant falls within a particular class to find by the statute.

Justice William H. Rehnquist: So, the only factual element of the crime is that at least the second burglary or the commission of the crime while on bail that your client plead guilty to.

Mr. Frederick S. Klein: Commit-- pleaded guilty to the second burglary.

That's correct, Your Honor.

Justice William H. Rehnquist: And it was conceded that he did it while on bail?

Mr. Frederick S. Klein: That's correct, Your Honor.

Justice William H. Rehnquist: So, there really weren't any factual issues and dispute in the 1580 proceeding?

Mr. Frederick S. Klein: I would say that's correct, sir.

Chief Justice Warren E. Burger: But you reserved this issue in-- on your guilty plea?

Mr. Frederick S. Klein: Yes, Your Honor.

Chief Justice Warren E. Burger: I think you said that.

Mr. Frederick S. Klein: Yes, because the-- and it was obvious in the context that the defendant's counsel believed that the statute itself was subject to challenge.

Chief Justice Warren E. Burger: Some state Supreme Courts and perhaps some Courts of Appeal have held that there is no constitutional problem about defining a certain crimes as more serious and in subject to greater punishment when they're committed, for example, within a prison, an assault on a prison guard, an assault on a fellow prisoner, a killing of a prison guard.

I take it, concede that a statute couldn't be drawn which would impose the greater punishment for the commission of a crime while on bail without regard to whether that issue of fact on the first crime, while on-- for which he was bailed, was ever tried out.

The question may be a little confusing.

Mr. Frederick S. Klein: I'm not sure I quite understand the question.

Chief Justice Warren E. Burger: You concede that a greater punishment could be imposed constitutionally for committing a crime while on bail without regard to whether or not there's even a crime--

Mr. Frederick S. Klein: You're speaking in terms of our double jeopardy argument.

Yes, we do concede that that would be different from providing for a subsequent prosecution for that crime.

Justice Thurgood Marshall: Find in your two trials.

There was only one trial.

Mr. Frederick S. Klein: Well, it's my understanding, Your Honor, that the protection of the Double Jeopardy Clause, which derives from the common law plea of former conviction, does not require two trials.

It requires a trial following a conviction, and that conviction may be on the guilty plea.

In this case, there was as guilty plea entered, and then the defendant was tried, that is as much as you can have a trial under 1580, on the 1580 charge.

Justice Thurgood Marshall: When was the trial?

Mr. Frederick S. Klein: Well, I think that depends upon whether you interpret the statute as indicating separate elements or whether you consider the Bill of Attainder.

Justice Thurgood Marshall: You mentioned a minute ago all of the difficulties in this as compared to an enhanced sentence.

I don't see but one and that is he has two convictions.

I don't see anything else.

Mr. Frederick S. Klein: Well, in terms of the fact that the prosecutor has discretion whether or not to charge 1580 and when to charge it.

If the prosecutor, for example--

Justice Thurgood Marshall: Command the results after it's done.

Mr. Frederick S. Klein: Well, the Double Jeopardy Clause is designed to protect certain interests.

One of those interests--

Justice Thurgood Marshall: I'm not talking about the double jeopardy now.

I'm talking about the difference between being convicted and given five years because you did it while you were a felon, as contrast it to two-and-a half years if you did it without being out on bail.

And, you gave a whole lot of sentencing but one, and that is you get two convictions.

That's the only--

Mr. Frederick S. Klein: Well, you have two convictions and the fact that you have two convictions gives rise to a number of collateral consequences.

Justice Thurgood Marshall: Which the legislature could've stopped.

Mr. Frederick S. Klein: But, in addition to those--

Justice Thurgood Marshall: Didn't the legislature say if you commit a felony while out on bail, you shall not be eligible for parole ever?

Mr. Frederick S. Klein: That's an issue I would rather not address myself to because we have some cases like that at the present time, but--

Justice Thurgood Marshall: But maybe your sentencing is within the power of the state legislature.

Mr. Frederick S. Klein: Within a certain limit, surely.

Justice Thurgood Marshall: There's only one limit, cruel and inhuman.

Is there another one?

Mr. Frederick S. Klein: Well, there are limitations placed upon it by the Due Process Clause certainly.

Justice Thurgood Marshall: Is it meant for this sentence?

Mr. Frederick S. Klein: On the matter of imposition of sentence.

Justice Thurgood Marshall: Yes, we all thought wide beyond the matter, but if-- I have a bit of difficulty with-- they could enhance it.

There's no problem about that.

Mr. Frederick S. Klein: Under the Double Jeopardy Clause.

Justice Thurgood Marshall: There's no problem about that, and that the only problem here is that instead of that, you get another “trail” on the same offense and that's it.

Mr. Frederick S. Klein: Yes, but in that, Your Honor, for example, if the prosecutor were dissatisfied with the sentence that Mr. Cassius received on his burglary plea and supposing that he had not, at that time, chosen to prosecute under 1580, he could then prosecute under 1580 in order to bring the punishment more in the line of his view.

Now, that's analogous with the protection double jeopardy provides in cases of former acquittal where we say a prosecutor should not be allowed to increase his chances of obtaining the conviction by re-prosecuting for the same offense.

Here, he is trying to increase his chances of getting the sentence he believes to be appropriate by being allowed to re-prosecute following a conviction.

Justice Harry A. Blackmun: Mr. Klein, I suppose the only additional element under your statutory crime is being out on bail or an RPR.

That in itself isn't criminal, is it?

Mr. Frederick S. Klein: Not to my knowledge, Your Honor.

To be out on bail is not a crime.

I'm not sure I understand your question though.

Justice Harry A. Blackmun: Well, there may be no sense in it, but I guess what I'm asking is whether the difference between burglary and the offense under the special statute is only an element which in itself isn't criminal.

Mr. Frederick S. Klein: That would be my interpretation of it, Your Honor, that it is an element, if you can call it that, which is not what we have traditionally regarded as an element of criminal responsibility.

Justice William H. Rehnquist: And yet, the legislature here has made it an element of criminal responsibility.

Mr. Frederick S. Klein: Well, at least that is, as I read it, the Arizona Supreme Court's interpretation of that statute.

Justice William H. Rehnquist: You are subject to kind of addition constraints while on bail.

The “don't commit any crimes,” etcetera, that the ordinary person is not subject to it in terms of a judicial injunction in it.

Mr. Frederick S. Klein: I would agree that you're under additional constraints, but I would not agree that the duty to obey the law is an additional constraint.

That's the same duty whether you're released on a charge or not.

Everyone has that same duty.

Justice William H. Rehnquist: Except your bail can be revoked if you don't obey the law when you're on bail, and an ordinary citizen, if he doesn't obey the law, has to go through a full criminal proceeding because his liberty could be restrained.

Mr. Frederick S. Klein: Well, in the sense that the conditions of his bail can be established in the same way, I'm not sure that I would quite agree, but the reason that a condition of good behavior is put into bail agreements is precisely so that the Court, if it has reason to believe that an individual has not been behaving himself while released, so that it can re-examine the conditions of his release.

Justice William H. Rehnquist: And, to that extent, he's in a different spot than the person who has never been arraigned in the first place.

Mr. Frederick S. Klein: In a different position, but not with regard to his duty to obey the law.

He has the same duty.

Justice William H. Rehnquist: Different consequences attached to a breach.

Mr. Frederick S. Klein: Well, a person who commits a crime is subject to the loss of his liberty.

That's true whether you're released or not.

Justice Thurgood Marshall: Well, Mr. Klein, in the case like this, does the man have bail-- I mean, is bail revoked to him?

Mr. Frederick S. Klein: Section 1580 does not provide for that, Your Honor.

There are provisions in Arizona law for revocation of bail.

Justice Thurgood Marshall: Is there-- it's not in this case, but do they have a statute on a parolee committing a crime?

Mr. Frederick S. Klein: Not to my knowledge, Your Honor.

Justice Thurgood Marshall: Just curious.

Mr. Frederick S. Klein: If I may, I think I'd like to reserve whatever time I have remaining.

Chief Justice Warren E. Burger: You may.

Mr. Klein, you may surely.

Mr. Schafer.

Argument of William J. Schafer

Mr. William J. Schafer: Mr. Chief Justice and may it please the Court.

I am William Schafer, an Assistant Attorney General for the State of Arizona, and I represent respondent.

Before I begin the discussion of the merits, I think I should answer one question that was raised during Mr. Klein's argument because it did occur to me and I did attempt to do some research to find out the extent of it.

The question was asked if Section 1580 is frequently used.

My research has indicated that Section 1580 is not frequently used except for one county in the State of Arizona, and that is Mr. Klein's County, Pima County.

And, there, I have been very reliably informed that it is used almost every time that it is available.

I believe there is some kind of an unwritten policy that it will be used whenever it does apply in a particular case.

The other counties, however, do not use it on any kind of a regular basis whatsoever.

Justice Potter Stewart: It is used in Pima County regularly the way it was here to make two separate offenses and in this case with consecutive sentences or is it just used to make one conviction on an aggravated offense?

Mr. William J. Schafer: Your Honor, I believe, in Maricopa County, it is not used on any regular basis whatsoever.

It was a difficult time trying to find that out.

I believe it has been only used once or twice really.

And, that does lead into another question, I suppose, that if not been asked directly, has been indirectly and that is, is this used as part of an ordinary plea bargain?

Now, my experience has also told me, in my attempt to find out here, that is not the case.

However, I could be corrected.

There was a plea bargain here.

Obviously, from the reading of the transcript in this case from the very beginning, it appeared as though there was a plea bargain struck and, conceivably, there could be more to the plea bargain and what we can piece together here because, at the very end, we also find out that Mr. Cassius did work with the police and his estimation cleared up 15 burglary cases, I believe.

So, conceivably, there was more to the plea bargain but, in direct answer to your question and perhaps a little of my own there, I do not believe that wherever this statute has been used, it has been used as something to plea bargain to or down from. Other than Maricopa and Pima, I have not been able to find, I believe, any instance of where this statute has been used.

Justice William H. Rehnquist: Arizona is a state, isn't it, Mr. Schafer, where the County Attorney of the individual county has the primary discretion to determine prosecution policy?

Mr. William J. Schafer: Yes, it is, Your Honor, and I have to smile at that because we just argued that issue before the Arizona Supreme Court last week and, unfortunately, the Arizona Supreme Court refused to take that issue but, by refusing to do it, they indicated “yes.”

He has almost a sole responsibility within the county.

Chief Justice Warren E. Burger: How many counties?

Mr. William J. Schafer: Fourteen, Your Honor.

Chief Justice Warren E. Burger: At least you don't have 80 or 90 different prosecution policies.

Some states do that.

Mr. William J. Schafer: No, we do not and, if you go beyond Maricopa and Pima, the occasions for using such a statute probably arise very seldom.

It seems odd that from the very beginning almost, the petitioner and respondent, myself here, have really been arguing essentially the same test and, perhaps, the same case or at least based upon the same case since we started.

Apparently, we both read those cases-- that case.

We both read the test and we come out really with different results, and the test and the case I refer to are the same evidence test which is called by various other names but that's the one that typifies the best to me.

In the Blockburger case, there was a question earlier whether the Fifth Amendment was the ground on which Blockburger rested, and I could've answered that question by saying I believe I do not recall the Fifth Amendment being mentioned in that case.

However, in--

Justice Harry A. Blackmun: Not even anything else, not even the word “constitution” appears, does it?

Mr. William J. Schafer: I can't say that, Your Honor, but I do remember I think the second or third time reading it that I suddenly found the Fifth Amendment was not in that case.

However, there is a later case which I cite in the brief, Gore, which does go back to Blockburger and it does have, almost next to the last page, a reference in the majority opinion that if this were not the rule or if this rule were to be changed, then all sorts of cases would also have to be changed and the contention was raised there, whether this was in violation of the Fifth Amendment.

We both do start out with the Blockburger test.

We both rely on that same evidence test.

I think we begin to diverge, however, on something that came up very early here this afternoon, and that is as to whether that test really pertains to the actual evidence that was introduced to prove two violations or whether what the Court was concerned with in Blockburger and all of the cases after that, was as to the elements of the particular charges and not necessarily the actual proof that was put in at the trial.

Now, our contention is that which either of those two avenues is selected here, both have been satisfied in this case under the same evidence test.

It is difficult here, of course, because of the guilty plea to go back and determine actual proof.

We cannot really do that.

Chief Justice Warren E. Burger: I suppose you'd agree, perhaps your friend might even agree, that if there'd been a guilty plea to both burglaries but with an agreement that contemplated the aggregate punishment the same as was actually entered here, that that would be eliminated to deal with his argument.

Mr. William J. Schafer: The double jeopardy argument, Your Honor?

Yes and that gets back, I'm sure, to the enhanced punishment analogy.

Chief Justice Warren E. Burger: And the presumption of innocence argument which he separated from his double jeopardy.

Justice William J. Brennan: Well, it still has the conviction though under 1580.

That's the problem here.

Mr. William J. Schafer: I was going to say if you mean, Your Honor, by the first or the two burglary convictions, I separate the first burglary conviction.

I will discuss and the discussion in the brief really concerns only, and I hate to call it, but it's the second burglary and the 1580.

And, I believe we can really separate out that first burglary conviction and if the question pertains to enhanced punishment, I think we can refer to that second burglary and the 1580 and, in a sense, the legislature could draft a statute.

Justice William J. Brennan: Sorry, it wasn't in the first but I think the first burglary charge was dismissed.

There was no conviction.

Mr. William J. Schafer: No, Your Honor, I'm prefacing my remarks to show I thought the question involved a guilty plea to that first burglary.

Justice William J. Brennan: I thought you referred to the first burglary conviction.

There's only one burglary conviction, isn't there?

Chief Justice Warren E. Burger: There's the first burglary.

Mr. William J. Schafer: No, that's right.

I hate to call it first and second.

Yes, the initial burglary that started this entire case--

Justice William J. Brennan: The charge.

Mr. William J. Schafer: Charge.

Justice William J. Brennan: That was dismissed afterwards.

Mr. William J. Schafer: Yes.

Justice William J. Brennan: In the plea bargain.

Mr. William J. Schafer: Right.

Justice William J. Brennan: Yes.

Mr. William J. Schafer: And that, eventually, was eliminated entirely.

Justice William J. Brennan: Yes.

Mr. William J. Schafer: As I say, we contend the--

Justice Potter Stewart: But the-- there was a second burglary conviction and that he was convicted of burglary while on bail on a felony charge.

Mr. William J. Schafer: Yes, that is true, Your Honor.

Justice Potter Stewart: There were two burglary convictions.

One on the guilty plea and one on the judge's finding on agreed facts.

Mr. William J. Schafer: No, Your Honor.

Justice Potter Stewart: Isn't that right?

Mr. William J. Schafer: No.

Mr. Cassius was initially charged with a burglary and he was released OR.

Justice Potter Stewart: Right.

Mr. William J. Schafer: Approximately a month-and-a half after that occurred, he was then caught in a building and he was charged with another burglary.

Justice Potter Stewart: Right.

Mr. William J. Schafer: And, at the same time, he was charged with what I'll call 1580.

Justice Potter Stewart: And that was for committing a burglary while he was on bail on a felony charge.

Mr. William J. Schafer: Yes, committing the burglary upon which he was found caught in the building.

Justice Potter Stewart: Right.

Mr. William J. Schafer: Now, when we get to the plea bargain and to the--

Justice Thurgood Marshall: Could he also be charged with the first burglary?He had been.

Justice Thurgood Marshall: Could it have been three?

Mr. William J. Schafer: He had been charged with the first--

Justice Thurgood Marshall: But could he have been convicted?

Mr. William J. Schafer: He could have been, Your Honor.

Justice Thurgood Marshall: He could have had three convictions.

Mr. William J. Schafer: He could have.

Justice Potter Stewart: But whether or not he was convicted on the first charge, from which he was released on his OR, has nothing to do with the issues in this case.

Mr. William J. Schafer: That's why I was prefacing my remarks to Mr. Chief Justice that I separate that entirely, and I've attempted sedulously to avoid referring to that in the brief because I think it makes it confusing and I don't think it has anything really to do with the issues here.

What I'm talking about is that second burglary and the 1580.

And, when I talk about the Blockburger test in the same evidence test, I am talking about those two particular offenses, and I would choose to talk in this case and I think this is justified by the case law from this Court as to the elements that are involved in those crimes, and whether after considering those elements we can truthfully say that those two particular offenses require proof of different elements.

Therefore, they are two offenses and there may be two punishments.

Now, Mr. Klein has said-- he said in his reply brief, which I got shortly before I came here, that there are no cases and nowhere in the State of Arizona is there anything that will tell us what the elements of a 1580 crime are.

That's not quite right.

There is a statement, and I believe they laid out in the Court of Appeals opinion-- the Arizona Court of Appeals, what one element is and what the other element is of a 1580 violation.

There are no other cases on 1580 in the State of Arizona that either of us have been able to find, I believe.

However, the Court of Appeals opinion does say that the elements of that crime are conviction of a felony and that felony being committed while the person was on bail or OR.

And, I believe, over and above, whether there are any cases delineating what those elements are, the statute itself is quite clear as to what the elements are that are required to be proved when a prosecutor goes to Court, and I don't think there's any doubt when you read that statute it says there has to be a conviction.

The petitioner would say that that is not an element, but that is simply a standard of proof that has been inserted into the statute by the legislature, but there is no indication of that whatsoever, other than perhaps someone believing that.

It is, we contend, an element of proof in that statute.

Justice William J. Brennan: Then, I take it, you are arguing that these are separate and distinct crimes.

Mr. William J. Schafer: Yes, we are.

Justice William J. Brennan: That this is not an enhancement of punishment statute.

Mr. William J. Schafer: Yes, we are, Your Honor, and I draw an analogy to enhancement of punishment statute in the brief, but I have to admit and concede that this creates a separate offense, whereas, the enhancement of punishment statute would not.

And, along with my analogy of the wording of the statute and the elements contained within the wording itself, I don't believe I can conscientiously say this does not create a separate offense.

It seems to and it seems quite clear that the Arizona legislature meant to create a separate offense if we go upon the wording of the statute.

Justice William J. Brennan: Well, is it separate or two?

Mr. William J. Schafer: Well, separate from the under--

Justice William J. Brennan: Well the second, at least looking at page 4, the criminal complaint, the first count, he committed a burglary.

He was convicted and sentenced on that.

The second one is he also committed a burglary and was sentenced on that, the same burglary.

Mr. William J. Schafer: Excuse me, are you on page 4 of the petition--

Justice William J. Brennan: Page 4 of the appendix.

Mr. William J. Schafer: The appendix.

Justice William J. Brennan: He was charged.

As raised, I believe, the second count is that he committed a burglary while on bond and the first one is he committed a burglary.

Mr. William J. Schafer: Yes.

Justice William J. Brennan: And it's the same burglary referred to in both.

Mr. William J. Schafer: It is.

Justice William J. Brennan: So, he's convicted twice of the same burglary.

Mr. William J. Schafer: Well, that's the petitioner's contention, Your Honor.

Our answer--

Justice William J. Brennan: No, as phrased, where the charge reads.

Mr. William J. Schafer: Well, I was going to say our answer to that is that the phrasing of the charge really does not indicate the separateness of those two offenses.

Justice Potter Stewart: In fact, it's quite a bad pleading, isn't it, because, if you look at the language of the statute on page 3 of the petitioner's brief, the offense doesn't occur until after the conviction on the first burglary?

Mr. William J. Schafer: Yes, that's correct.

Justice Potter Stewart: So, they can't really be charged that way because it would-- I mean, if you think about accurate and not just the pleading.

Mr. William J. Schafer: Yes.

Justice Potter Stewart: There is no second offense under-- there is no offense under 1580 until there's a conviction of the felony.

Mr. William J. Schafer: That's correct, Your Honor.

That's what we argue, and that is--

Justice Potter Stewart: That's what the statute says very clearly, on page 3 of the petitioner's brief.

Mr. William J. Schafer: And--

Justice Potter Stewart: So, this indictment-- this complaint, rather, is-- couldn't be right because they couldn't charge him under count two until he'd been convicted under count one, if you take the statute's literal words to mean what they say.

Mr. William J. Schafer: That's correct, Your Honor.

Justice William H. Rehnquist: Mr. Schafer, when the Supreme Court of Arizona vacated the Court of Appeals opinion did it indicate any doubt as to the construction that had been placed on the statutory language by the Court of Appeals?

Mr. William J. Schafer: No, it did not, Your Honor, and there is no indication in the Supreme Court opinion itself as to what it thought those elements would be. Reading the opinion, however, I assume we can-- or I could at least read it and get from it the same two elements that the Court of Appeals did, but now I'd have to say there is no indication.

Justice Thurgood Marshall: This is no separate crime.

This is an additional crime, isn't it?

Mr. William J. Schafer: Well, I might say it is an additional crime, Your Honor.

I--

Justice Thurgood Marshall: But, it's not enhancement.

Mr. William J. Schafer: No, it is not enhancement.

Justice Thurgood Marshall: Now, I'm in trouble.

Mr. William J. Schafer: Well--

Justice Thurgood Marshall: It's additional crime, but it's not enhancement.

Mr. William J. Schafer: When I use the word “enhancement,” as I think as it's been used here so far this afternoon, that really gets back to the ordinary enhancement statute and--

Justice Thurgood Marshall: Well, if it is enhancement, it is.

If these two sentences would have run concurrently, you wouldn't-- nobody would be here.

The fact that you're here is because the two sentences are consecutive.

That's why we're here.

Mr. William J. Schafer: I would assume that that has a great deal of validity to it, Your Honor, yes.

Justice Thurgood Marshall: And, indeed, they have to be under the statute.

Mr. William J. Schafer: Yes, it's required under the statute.

Justice Thurgood Marshall: That doesn't give you any difficulty.

Mr. William J. Schafer: No, it doesn't give me any difficulty.

In fact, I use that to verify my belief in my argument that what the legislature really had in mind was to make two offenses out of this, and I can call them separate, I can call them distinct, but it's two offenses.

And, that's why I say I really cannot say that, to me, this is an enhancement of punishment statute because that's not what an enhancement of punishment statute is.

Justice Thurgood Marshall: Well, I'm not-- I don't know what it means in this case but, it seems to me, I still don't understand why a man is so bad and vicious that you have to give him two sentences and he ends up with five years all together for burglary.

He could have given him five on the one, couldn't he?

Mr. William J. Schafer: He could have received up to 15 on the burglary and up to 5 on the 1580 charge.

Justice Thurgood Marshall: Why would the same judge who's going to give him a certain number of years, why does he have to split it up?

Mr. William J. Schafer: Well--

Justice Thurgood Marshall: And then give him less.

Mr. William J. Schafer: The simple answer there would be that the statute simply requires it.

There are no two ways about that under the wording of the statute.

It does require it to be consecutive.

Now, there's something interesting there, however, in the transcript of the sentencing before Judge Marks.

One of the arguments that is made by Mr. Cassius' attorney is that the judge take that into consideration, that it has to be consecutive sentences and, of course, it was known by everyone that there could've been up to 15 on the burglary and 5 on the 1580.

There's no indication by Judge Marks that he actually did take that into consideration in the sentence he gave, that the only thing he does indicate that he took into consideration Mr. Cassius' willingness to work with the police, but that is a possibility that that could be taken into consideration and it might and well in a number of cases by the trial judge.

Chief Justice Warren E. Burger: Well, he gave a very long portion of the allowable penalty, did he not?

Mr. William J. Schafer: Well, yes.

I don't want to say that because I know nothing about this case, but it seems that way.

Chief Justice Warren E. Burger: Well, the maximum penalty was what all together?

Mr. William J. Schafer: Twenty.

Chief Justice Warren E. Burger: Yes, and what did they impose?

Mr. William J. Schafer: One to two and one two three, and the one to three was consecutive.

Chief Justice Warren E. Burger: Well, but he's got a two-year minimum as against a possible 20-year maximum.

Mr. William J. Schafer: And, on the surface at least, it would seem that that-- yes, that that is slight, obviously, compared to what he could have done at the time.

He, unfortunately, does not go any further in the transcript.

Chief Justice Warren E. Burger: Do judges in Arizona ordinarily give some explanation about their sentencing process?

Mr. William J. Schafer: I think I can answer that.

No, they ordinarily do not.

However, every once in a while you will run into one who will in this sense and, here, I expected something because Judge Marks did go further and say about the boy's working with the police.

Chief Justice Warren E. Burger: The implication I drew from that when I saw that reference was that this is precisely a mitigating factor in his imposition of the sentence.

Mr. William J. Schafer: I also--

Chief Justice Warren E. Burger: To comply with the statute which require the separate penalty for each one, I take it, he would have had the power to suspend one of the sentences, wouldn't he, under Arizona law?

Mr. William J. Schafer: Yes.

I also have to say that that conclusion popped into my mind, but I thought about it later and perhaps thought that that might have been due to what Mr. Cassius' attorney had said at the time, but there's just no indication that that's actually what happened.

Chief Justice Warren E. Burger: Well, if it's easier for one of us up here to attribute thought process as to a State Court judge than it is for you when you have to continue working with him.[Laughter]

Mr. William J. Schafer: I'm sure it is.

There is, besides the same evidence test that we have both discussed, there is another test that is referred to in all of the pleadings in this case and that's the same transaction test, and it has been mentioned here, at least inferentially, a couple of times this afternoon.

In the brief, and I think this is borne out by a whole host of cases, none of which I can put my finger on directly, but the same transaction test has generally, we contend, been used in those situations not of double punishment but of successive trials.

That is not the situation we have here, although it does get fuzzy at times again because we're concerned with the plea as well as with what went on later.

The same transaction test, however, although confused in many cases, confused in the sense that I'm not sure exactly what they were going for, does appear to apply only in those situations where there are-- is more than one trial, and that is not the situation we have here.

We have everything done here at the same time.

It's conceivable that we could cut hairs and say that the plea and then the subsequent trial to the Court in the sense was another trial.

It was, but not--

Justice Byron R. White: But on your idea that these are different offenses, the state could try the burglary first and the burglary while out on bail later.

Mr. William J. Schafer: Yes, that--

Justice Byron R. White: And the same transaction test would say no.

Mr. William J. Schafer: That generally is true, and that's one reason why I mentioned the same transaction test in--

Justice Byron R. White: But, there are some cases in the Court, including perhaps Blockburger or any of it or Gore, that would say that even if that's the same offenses, the fact that you're imposing two punishments does not violate the Double Jeopardy Clause.

Mr. William J. Schafer: I believe what Your Honor is alluding to are--

Justice Byron R. White: Well, assume a single act violates three different statutes.

Mr. William J. Schafer: Yes.

Justice Byron R. White: And you impose punishments.

You try them all the same time and punish-- and impose three punishments for the identical act.

Mr. William J. Schafer: Yes, that is just about Gore.

And, in the Gore case, there were actually six separate violations.

Justice William J. Brennan: You have a single-sale of narcotics.

Mr. William J. Schafer: Yes.

Justice William J. Brennan: But that violates three, four, five statutes.

Mr. William J. Schafer: Yes.

Justice William J. Brennan: You have separate counts for the violation under each statute.

You try them all together.

He's convicted on them all.

You can impose consecutive sentences.

Mr. William J. Schafer: Yes.

Justice William J. Brennan: That's with Gore.

That's what Blockburger was, and I gather your argument here really is there's a single burglary but it violated two statutes.

Mr. William J. Schafer: Well--

Justice William J. Brennan: They were disposed of in the same proceeding, therefore, no double jeopardy violation.

Mr. William J. Schafer: Essentially, except I would add one more thing perhaps to that.

I would not quite say just a single burglary.

There was a burglary which was the triggering mechanism for the second charge which was 15--

Justice Potter Stewart: With all these-- excuse me.

Mr. William J. Schafer: But--

Justice Potter Stewart: With all respect, I don't understand this at all, if we're going to take the statute as it's read.

You can't have the-- an offense under 1580 until and after there's a conviction on the first burglary.

Mr. William J. Schafer: Correct.

Justice Potter Stewart: Isn't that correct?

Mr. William J. Schafer: Correct.

Justice Potter Stewart: You can't try them all together.

Mr. William J. Schafer: Well, you--

Justice Potter Stewart: If you take the words of-- if you look at page 3 of the petitioner's brief and see what that statute says, it says a person who is convicted of committing any felony offense while released on bail.

So, how could you have a violation of this 1580 until and unless there was a conviction?

Mr. William J. Schafer: I agree, Your Honor.

That is the wording of the statute.

Justice Potter Stewart: Well, does that make sense?

Justice William H. Rehnquist: Couldn't the conviction occur at his trial for the offense?

Mr. William J. Schafer: That's essentially what happened here, I believe.

Justice Potter Stewart: It's a very odd way to--

Justice Thurgood Marshall: Well, couldn't you charge--

Mr. William J. Schafer: Well--

Justice William J. Brennan: Couldn't it be disposed as it had gone to trial?

Couldn't the-- a jury had been tried-- charged?

If you find him guilty of a burglary, then you also may find him guilty of the violation of 1580.

Mr. William J. Schafer: That's a possibility.

Justice William J. Brennan: In a single trial?

Mr. William J. Schafer: Yes, that's a possibility.

The other possibility would be that they would do what is analogous to enhance punishment, at least in Arizona.

Try the one charge and then turn around and do the other one at the same time.

It's deceiving to say at the same time, but it would be in the same afternoon.

Justice William J. Brennan: Yes.

Mr. William J. Schafer: But that is the wording of the statute.

Chief Justice Warren E. Burger: But they can't reach count 2 or the second question under 1580until they have crossed the bride on count 1, that is did he perform the act of the burglary.

Mr. William J. Schafer: Was he convicted of the burglary?

Yes, that' a conviction.

Chief Justice Warren E. Burger: If they found that he did the act which points to a conviction.

Justice Potter Stewart: A component of the offense is a conviction, is it not?

Mr. William J. Schafer: Yes.

Justice William J. Brennan: But you draw no distinction between the result of a plea of guilty and any other type of conviction, do you?

Mr. William J. Schafer: No, I do not, Your Honor, and--

Justice Harry A. Blackmun: Well, I thought Justice Stewart's inquiry of you was that you can't even indict for a 1580 until you have the first conviction.

I take it, you can under Arizona practice.

Mr. William J. Schafer: Your Honor.

Justice Potter Stewart: They did in this case, didn't they?

Mr. William J. Schafer: They did in this case and that has never been challenged yet, within my knowledge, either in the Arizona Supreme Court or in any other Court that I'm aware of.

I do know, as I started out by saying, that they do this in that one particular county consistently and, Mr. Klein can correct me but, I am pretty sure that they do it this way consistently in Pima County.[Attempt to laughter]

If there are no further questions, I will close.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Schafer.

You have nothing to do more.

Do you have anything further, Mr. Klein?

Rebuttal of Frederick S. Klein

Mr. Frederick S. Klein: Very briefly, Your Honor.

Chief Justice Warren E. Burger: You have three minutes.

Mr. Frederick S. Klein: The statement to which Mr. Schafer was referring in the Court of Appeals opinion or statements, I believe, appear on pages 34 and 35 of the appendix, and I think that it would be difficult to read this statement as in accord with the decision of Arizona Supreme Court.

The statement in the Court of Appeals opinion is that the state argues that the elements of 13-1580 are different, i.e. one, conviction of a felony and, two, such felony having been convict-- committed during a designated period.

We f--

Justice Potter Stewart: What page?

Mr. Frederick S. Klein: This is page 35 of the appendix, Your Honor.

That's correct.

We find such argument specious.

The conviction element is a judicial act, not appellant's, leaving only the burglary as the act of appellant.

And, the Arizona Supreme Court, while not stating what the elements of 1580 were, said that the-- there were no elements in common between burglary and 1580.

Now, I think there is a point of agreement between counsels in that the statute requires proof of a conviction before one can be found guilty of 1580.

Our contention is that that is a requisite form of proof of the element of commission.

Justice Harry A. Blackmun: But, Mr. Klein, isn't the fact that under this very charge, had this first appellant gone to the jury, could the Court-- trial judge have instructed the jury “you must find him guilty first of the burglary before you address the second count.

If you find him guilty of the burglary, you may then address the second count and find him guilty of that.”

Mr. Frederick S. Klein: I don't believe so, Your Honor, because if the jury had found the defendant guilty, it would still be within the Court's power to overturn that verdict and, therefore, it would not be a conviction.

Justice Potter Stewart: A jury verdict of guilty is not an element conviction.

Mr. Frederick S. Klein: That would be--

Justice Potter Stewart: There's a lot that could happen between--

Mr. Frederick S. Klein: That would be my feeling.

Justice Potter Stewart: That verdict and a judicial conviction.

Justice William H. Rehnquist: And, yet, the Arizona Court of Appeals is clearly in accord with Justice Brennan's comment, isn't it?

Mr. Frederick S. Klein: I don't believe they are, Your Honor.

I believe that they would be in accord with my view point that a conviction must be proven, but that the element involved-- that conviction is merely a form of proof of commission.

If there are no further questions, I thank Your Honors.

Chief Justice Warren E. Burger: Very well, Mr. Klein.

You appeared here at our request by the appointment of this Court.

Mr. Frederick S. Klein: That's correct, Your Honor.

Chief Justice Warren E. Burger: We thank you for your assistance to the Court and, of course, your assistance to your own client.

Thank you, Mr. Attorney General.

The case is submitted.

Unknown Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.