WHALEN v. UNITED STATES

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

THOMAS W. WHALEN, Petitioner v. UNITED STATES

No. 78-5471

November 27, 1979

The above-entitled matter came on for argument at 2:25 o'clock, p.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEVIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

SILAS W. WASSERSTROM, ESQ., Public Defender Service for the District of Columbia, 451 Indiana Avenue, N.W. Washington, D.C. 20001; on behalf of the Petitioner.

ANDREW J. FREY, ESQ., Office of the Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondent.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: Mr. Wasserstrom, you may proceed whenever you are ready.

ORAL ARGUMENT OF SILAS J. WASSERSTROM, ESQ., ON BEHALF OF THE PETITIONER

MR. WASSERSTROM: Mr. Chief Justice, and may it please the Court:

My name is Silas Wasserstrom and I represent the Petitioner Thomas Whalen.

Petitioner was tried in the District of Columbia Superior Court on a seven-court indictment charging rape, robbery, burglary and three counts of felony murder predicated on these felonies. He was also charged with one count of second degree murder, that is murder with malice.

All of these charges grew out of a single incident and involved one victim.

Two of these counts -- robbery and felony murder premised on it -- were dismissed by the trial court.

QUESTION: You put a great deal of emphasis on the fact that there is only one victim?

MR. WASSERSTROM: Well, I just want to make clear, Your Honor, that the issue here is one that involves consecutive sentences where where there is a single victim. Certainly if there had been more than one victim, our position would be very

I am not trying to argue the fact that it was one victim is dispositive. It is clear to the Court that it is a case involving a single victim.

Two more of these counts, those charging burglary and felony murder burglary, were dismissed by the Court of Appeals for reasons not --

QUESTION: You say one victim, and therefore for only one crime.

MR. WASSERSTROM: That is not our position, Your Honor. Our position is that if the murder in this case is proven by the Government in a way that does not depend on proof of the underlying felony, then we would not claim that there was any double jeopardy violation in punishing consecutively for the felony and for the murder. And we said in our brief that we are not challenging on double jeopardy grounds consecutive sentences for rape and the second degree murder count here. Our position is not that simply because there is one victim there can only be one sentence. Our position turns on the fact that here to prove the felony murder the Government relied on the underlying felony.

QUESTION: Is that strange?

MR. WASSERSTROM: No, it is not strange at all.

QUESTION: It doesn't seem so to me.

MR. WASSERSTROM: No, it isn't strange at all. What would be strange, in our position, would be to punish the person consecutively, however, for the felony murder as well as for the underlying felony.

QUESTION: What is strange about that?

MR. WASSERSTROM: Well, it is strange for a number of reasons.

First, the felony murder statute in the District of Columbia, and most felony murder statutes do, is to impose a rule of strict liability with respect to murder occurring in the course of a felony. The District of Columbia statute, for example, makes the penalty for such a murder -- first degree murder -- it makes the murder first degree murder and it makes the penalty for that murder 20 years to life, mandatory sentence 20 years to life. And that can be for killing which is otherwise blameless, the killing was just unforeseen, unforeseeable, unintended.

QUESTION: Because of the legislative judgment that -- necessary only if a felony were so dangerous to society, that if life is taken in the course of commission of a felony, you should be treated just as if you had the intent to murder.

MR. WASSERSTROM: Well, Congress might have wanted to do that, but it is obvious that Congress didn't want to do that here. That is a separate argument. This is an argument we made, that Congress didn't intend consecutive sentences in this case; and we made that argument based on the legislative history and the structure in felony murder statutes.

The double jeopardy argument is a different one. It is that to prove felony murder, a murder which carries 20 years to life, whereas the underlying felony without a killing would carry no mandatory sentence and would be punishable by provision if the judge chose to impose it. Our argument of double jeopardy is that when a felony murder can only be proved by proof of the underlying offense, that is the felony, then the felony is a lesser included offense of the felony murder.

QUESTION: But that that just stands Blockburger on its head, doesn't it?

MR. WASSERSTROM: Well, that's --

QUESTION: Because Blockburger wasn't originally a constitutional test, it was a test for determining legislative intent.

MR. WASSERSTROM: Well, that is the Government's argument, Your Honor. But there is really no question but that this Court has since Blockburger adopted it as the constitutional test for --

QUESTION: In what case?

MR. WASSERSTROM: Well, Brown v. Ohio, for example, the Court said: "The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger."

QUESTION: Well, that doesn't say anything about double jeopardy, does it, --

MR. WASSERSTROM: Well --

QUESTION: -- the quote you just made?

MR. WASSERSTROM: Well, what else would preclude it?

QUESTION: Brown v. Ohio was a double jeopardy case, was it not?

MR. WASSERSTROM: It was a double jeopardy case; yes.

QUESTION: But the quote you just made said nothing about double jeopardy.

MR. WASSERSTROM: Well, double jeopardy was the only constitutional provision that could conceivably forbid consecutive --

QUESTION: Further consecutive sentences.

MR. WASSERSTROM: Moreover, in Brown this Court was clear in stating that: "When the greater offense" -- when two offenses are related to a greater and lesser included offense they are "the same for purposes of double jeopardy." Here we submit the rape underlying the Petitioner's conviction for first degree felony murder is a lesser included offense of the murder for the simple and compelling reason that to prove its case of first degree felony murder, the Government necessarily had to prove the underlying rape. This being so, Brown, Blockburger teach that the rape and the felony predicated on it are the same for double jeopardy purposes. And thus, the consecutive sentences imposed here were unconstitutional.

QUESTION: You say Brown, Blockburger. I take it what you mean is Brown, since Blockburger wasn't a constitutional case.

MR. WASSERSTROM: No, Block -- our position, Your Honor, is this: that Blockburger establishes a test.

QUESTION: For legislative intent.

MR. WASSERSTROM: Well, it establishes a test which was originally formulated as a test for determining legislative intent. It has since been adopted by this Court as the constitutional test for defining same offense.

QUESTION: In Brown. Although --

MR. WASSERSTROM: Brown has been treated -- it has been treated as a constitutional test in several other cases.

QUESTION: Yes, but Brown was a State case where presumably the State courts of Ohio were perfectly competent to determine what the intent of the Ohio legislature was.

MR. WASSERSTROM: Well, that is all the more reason it would seem then, the fact that this Court never struck down the decision of that court.

QUESTION: So it didn't turn on legislative intent.

MR. WASSERSTROM: Well, it turned on the fact that the Ohio court interpreted its two statutes -- the two statutes it issued there -- joyriding and grand grand larceny as bearing a greater and lesser included offense relationship. That was determinative to this Court in Brown, the fact that -- one was a lesser included offense than the other, and this Court held that they were the same for purposes of double jeopardy.

QUESTION: Suppose a man and his wife were taking a walk, or a young man and his girl friend, and the attacker rapes the woman and then murders the man in the process of his trying to come to her defense and her aid. Double jeopardy?

MR. WASSERSTROM: If they had consecutive punishments for the -- if the Government can prove any kind of intent with respect to the murder and prove the murder based on that theory --

QUESTION: A felony murder and he committed a homicide in the course of carrying out a felony -- committing a felony.

MR. WASSERSTROM: Well, I would concede that that would be more difficult problem. There is I would concede a --

QUESTION: Well, why would you? I would think your --

MR. WASSERSTROM: Well --

QUESTION: -- position would be clear as a bell on that, that's double jeopardy.

MR. WASSERSTROM: Well, I think it would be double jeopardy --

QUESTION: Under what case would be?

MR. WASSERSTROM: It would be under the same principle, Your Honor, Brown v. Ohio and Blockburger as now incorporated as the constitutional test.

The murder in that hypothetical you postulate, apart from the felony --

QUESTION: Suppose he went on to murder the woman too, then, chose to eliminate the only surviving witness?

MR. WASSERSTROM: Well, I think that in most --

QUESTION: Is it still double jeopardy?

MR. WASSERSTROM: Well again Your Honor, in most situations, such as the case here, the murder can be proved on a theory other than that of felony murder.

QUESTION: I am just assuming --

MR. WASSERSTROM: And where it can be proven on that theory.

QUESTION: The hypothesis is that both are felony homicides and therefore under the statute, felony murders?

MR. WASSERSTROM: Well, certainly if he eliminated -- if he killed the woman to eliminate her as the only witness it would surely be a premeditated murder and if the State were able to prove it as such and, if it did, then double jeopardy might not --

QUESTION: Yes, but you can't try him for double jeopardy -- you can't try him over in some other lawsuit -- the Chief Justice suggests -- what if it is tried as felony murder and the only proof it is of intent is another felony, is it the underlying felony.

MR. WASSERSTROM: If the Government proceeds on the felony murder statute as to each of the two?

QUESTION: Yes.

MR. WASSERSTROM: Then each felony murder would be punishable consecutively, but not consecutively to the underlying felony.

QUESTION: So your theory does say that even if there are two victims it would be double jeopardy?

MR. WASSERSTROM: It would be double jeopardy to punish consecutively for the rape and the felony murder, not to punish consecutively for the felony murders.

QUESTION: Then certainly that doctrine if it were followed by this Court would put a premium on eliminating the witness.

MR. WASSERSTROM: Well, in D.C. for example, Your Honor, if you eliminated two witnesses your penalty for two counts of felony murder would be 40 years to life, which means that you would be eligible for parole after 40 years. I don't think that, facing that kind of penalty, that is going to induce criminals to want to murder wantonly without thinking about it.

QUESTION: And could I ask you, was the issue below that double jeopardy -- I have a difficult time finding any discussion of the double jeopardy provision in the opinion.

MR. WASSERSTROM: Well, the opinion ignored this Court's opinion.

QUESTION: So there is not a mention of double jeopardy in the opinion, is there?

MR. WASSERSTROM: Except to the extent that in the murder doctrine --

QUESTION: Well, I know, but that is a separate doctrine. That is a sort of semi-judicial legislative doctrine. But there is not a mention of it.

Did you present it?

MR. WASSERSTROM: Your Honor, I am not absolutely sure exactly what our brief said in the Court of Appeals below concerning --

QUESTION: Well, I will give you a clue. I am; and you did present it.

MR. WASSERSTROM: I know we presented it. The argument had not been decided.

QUESTION: Well, it wasn't even discussed.

MR. WASSERSTROM: No.

QUESTION: And --

MR. WASSERSTROM: Your Honor, I do know we filed a supplemental memorandum after Brown and Harris were decided, bringing those cases to the Court of Appeal's attention. We also petitioned for rehearing en banc in this case, making the argument from those cases, the double jeopardy argument; and that petition was denied.

So it was presented to the Court of Appeals and in their opinion they simply ignored the double jeopardy problem.

QUESTION: Well, perhaps we should remand it for reconsideration, in the light of some cases that we don't see mentioned.

MR. WASSERSTROM: Well, that is not generally done when a court simply makes a mistake of law.

QUESTION: You say where the case has been called to their attention.

MR. WASSERSTROM: These cases Your Honor -- I don't know -- they were not called to their attention in the initial brief, because it hadn't been decided. They were called to their attention in the supplemental filing we made and we called it to their attention in a petition for a rehearing en banc. So the court was aware of them when it issued this decision.

It seems to us, Your Honors, that both the Court of Appeals and the Government speak of the felony murder rule as one which permits the jury to infer the requisite intent of first degree murder from the commission of the underlying felony and in this respect they fail to understand the fundamental nature of that doctrine.

In the District of Columbia that felony murder statute does not merely create a permissive presumption that the accused harbored a particular mental state with respect to the killing. The jury is not instructed that it may infer that the defendant had the mental state required for first degree premeditated murder from the fact that the killing occurred in the course of a felony.

QUESTION: We are talking now about the intent of Congress in passing this Act?

MR. WASSERSTROM: No, I am just talking right now Your Honor about the way the felony murder statute in fact operates. The Government and the Court of Appeals both treat it as though it simply creates a presumption and that the jury then makes its own determination of whether there was in fact premeditation and deliberation.

QUESTION: So you are not quarrelling with the Court of Appeals construction of the statute. You are saying the Court of Appeals mis-describes the way --

MR. WASSERSTROM: I think the Court of Appeals mis-described in the course of its opinion; yes.

QUESTION: Are you quarreling with --

MR. WASSERSTROM: And that misunderstanding may have led the court to gloss over what would otherwise be, or should have been an apparent double jeopardy problem.

QUESTION: But you are not quarreling with the Court of Appeals construction of the statute.

MR. WASSERSTROM: Well, we are quarreling with their construction of the statute as intended to permit consecutive punishments here, or to authorize --

QUESTION: But since the Court Reorganization Act of 1970, the Court of Appeals for the District of Columbia is the last word as to what a statute such as this means, as if a State court says this is what it means.

MR. WASSERSTROM: Well, Your Honor, we would submit that although the District of Columbia may since Court Reorganization bear certain of the hallmarks of a State and State court decisions may not be reviewable in the way they were prior to Court Reorganization, where there is a constitutional guarantee at stake -- and we submit that even our legislative argument is grounded in the Constitution, the Government itself concedes that where multiple punishment is imposed and the legislature did not intend it be imposed there is a violation, a substantive violation of the accused's double jeopardy rights.

QUESTION: Do you suppose Congress had in mind the thought that it was bad enough to have the crime of rape occur but they didn't want to do anything to encourage homicide, the killing of the victim, and that therefore two penalties were provided?

MR. WASSERSTROM: Well, Your Honor, there is a penalty for rape and there is a penalty for felony murder. It is our position that Congress did not in fact provide in any sense that these punishments be impossible consecutively. In fact our position is that the legislative history and the structure of these statutes indicates if anything that Congress did not intend to permit the courts to cumulate punishments for felony murder and the underlying felony.

I don't think there is any question that the felony murder statute, is one of the interests that is protected by that statute is the interest in saving human life. But it does so in a way and is structured in such a way, that it seems apparent another interest to be protected in that rule -- in that statute is the same interest that is protected by the underlying felony. Congress didn't after all make it first degree murder to kill under any circumstances in any way. It didn't impose a rule of strict liability for any killing, and impose a mandatory sentence of 20 years to life. It is only if the killing occurs in the course of the felony that such a penalty is authorized.

It is our position that that indicates very strongly that what Congress meant to do by the felony murder statute was to punish the person, hold him culpable both for killing and for committing the underlying felony during which the killing occurred.

The Government to a great extent I think gets mileage out of the facts of this case. This case appears clearly to involve a rape and a murder -- or killing, rather, which was in fact done with a culpable mental state. And the jury so found, the jury found him guilty of second degree murder.

QUESTION: What would have been the penalty if there had been just a murder, just the homicide and nothing else?

MR. WASSERSTROM: Just the second degree? The penalty would be up to 15 years to life but, again, unlike first degree murder a judge can give any sentence he wants in the District of Columbia, including probation for second degree murder. That is the startling thing. Perhaps not just in the District of Columbia, although I think it may be more extreme here. And that is the startling thing about felony murder statutes. They make murder first degree murder. They make a killing, rather, first degree murder. In the District of Columbia at least, that killing carries a mandatory penalty of 20 years to life. No matter what the judge wants to do the defendant convicted of first degree murder is going to spend 20 years of his life in jail. Any other form of homicide, second degree, manslaughter, the judge can give a sentence of probation. That is true also with respect to any of the underlying felonies can be the predicate for felony murder.

It seems also that the structure of the statute reveals that Congress intended to punish in part for the felony, because the statute imposes a rule of strict liability where the killing occurs in the course of six enumerated serious felonies and requires that for it to be first degree murder, a felony, as any other felony the murder has to be purposeful. This in our view also indicates that Congress when it enacted the penalty provisions -- when it enacted the felony murder statute and structured it the way it did -- clearly intended that the punishment for the felony murder would incorporate the notion of liability for the underlying felony as well. This is why in our position if a court punishes a defendant consecutively for a felony murder and for the felony on which it is promised, in a very real and palpable sense it is imposing double punishment for that felony.

QUESTION: Well, do you think that argument withstands analysis in the case of intentional rape that results in death where there is carnal violation of the woman plus the death? Aren't there two separate interests there?

MR. WASSERSTROM: Well, I think there are two separate interests but -- my position is that the interest protected by the felony murder statute is an interest in human life plus an interest protected by whatever the underlying felony charge is.

QUESTION: Well, say in the --

MR. WASSERSTROM: When you punish, you are protecting both those interests. When you punish for rape, you are punishing twice for the rape.

QUESTION: I simply don't follow you. Perhaps I am wrong and you are right on the analytical aspect of the thing but it seems to me that -- you know, you can conceive of a system of justice which regarded penetration of a woman in a rape case as being a more serious offense than the taking of life.

MR. WASSERSTROM: Well, this Court did hold however that, for example, the death penalty would be inappropriate for rape.

QUESTION: Right. But I am saying in an analytical sense you can have your scale of values however the legislature chooses to draw that.

MR. WASSERSTROM: Well, Your Honor, for example it certainly does -- it does punish rape more severely than it does manslaughter.

QUESTION: Yes.

But again, I think the Court should be on mind that the felony murder statute doesn't work only where there is a rape. It works with any one of six enumerated felonies to impose a rule of absolutely strict liability. That is a person who burns down a house he believes to be vacant but in the course of the fire a derelict who happens to be sleeping in it is killed, is punishable by a mandatory sentence of 20 years to life. Now, that sentence obviously has to be based not only on the fact that a killing occurred, because that killing was unforeseen and unintended, but on the fact that it was during the course of an arson.

QUESTION: Is the double jeopardy analysis that you think the Court has adopted based on the actual facts necessary for a conviction in each particular crime, or in the abstract on what facts might be used to convict for each particular crime?

MR. WASSERSTROM: Well, I don't think that is an easy question. I think the position -- what test this Court has adopted --

QUESTION: Well, I don't either.

MR. WASSERSTROM: Well, the position that I think the Court has adopted and the position which we take in our brief is that at the very least when the indictment itself reveals that one offense is a lesser included offense than the other, it will have to be proved in order to prove the other, then it should be treated as a lesser included offense, and the same offense, for purposes of the double jeopardy clause.

QUESTION: So --

MR. WASSERSTROM: That it seems to me --

QUESTION: Is that an answer to the question of whether if for double jeopardy purposes you analyze the facts of each particular case to decide whether there is double jeopardy and if one fact has to be proved twice or one offense contains a fact that the other does, it is double jeopardy? Or is it an abstract thing that you might have to in a hypothetical situation prove one fact twice?

MR. WASSERSTROM: Again, Your Honor, if you look at the indictment in this case, for example, you can see by looking at the indictment that to prove the felony murder the Government is going to have to prove the felony -- I mean the rape, to prove that rape was premised on a felony murder, they are going to have prove the rape.

Now, again, in many cases a murder that is part in some sense of a felony or that occurs during a felony, it may very well be provable as a murder, as a homicide on some theory other than felony murder. And where the Government does that it is not relying on the felony --

QUESTION: But that isn't this case.

MR. WASSERSTROM: No, the defendant here was convicted of second degree murder.

QUESTION: So as far as first degree murder is concerned, this case involves felony murder and felony murder only. Am I right?

MR. WASSERSTROM: That is correct, Your Honor.

QUESTION: And if he were to get a new trial he could not be tried for anything higher than felony murder.

MR. WASSERSTROM: Well, he was never charged with premeditated murder. This is not the case where there is any kind of implied --

QUESTION: He was being charged in a second degree case.

MR. WASSERSTROM: But here he wasn't charged with first degree murder. He was only charged with second degree murder and he was convicted of second degree murder.

Of course we are not challenging the conviction. All we are asking for is remand for re-sentencing with respect to the rape and the felony murder premised on it.

He stands convicted right now of second degree murder, incidentally. That conviction was never set aside.

QUESTION: He was convicted of second degree murder.

MR. WASSERSTROM: He was and he stands convicted. The Court of Appeals made a point of not setting that -- I don't know if it made a point, but it didn't set aside that conviction. It vacated the sentence on that count. Our double jeopardy argument would not preclude a court on remand from sentencing consecutively for rape and for second degree murder. So the defendant still would be, in our view, subject to a penalty of up to 30 years to life. This would be because the second degree murder was proved without reference to the underlying felony.

QUESTION: But he can't just re-sentence for a felony murder and --

MR. WASSERSTROM: And the underlying felony.

It is our position that --

QUESTION: Didn't this Court hold almost precisely that in Harris v. Oklahoma?

MR. WASSERSTROM: Well, it is argued that Harris is dispositive, Your Honor. The Government takes the view that Harris is different because that involves successive prosecutions as opposed to consecutive sentences imposed after a single trial.

QUESTION: And the Government's argument is that the test should be quite different.

MR. WASSERSTROM: The Government argues that the meaning of same effect for purposes of double jeopardy clause varies from context to context.

QUESTION: Right.

QUESTION: But it just says you can punish as many times you want to the same act, if you just have one trial.

MR. WASSERSTROM: That is the Government's view, yes.

QUESTION: Yes.

MR. WASSERSTROM: Well, that is another way I think of saying the same offense means nothing, really, in the context of the single trial other than what the legislature wants it to me. But the legislature --

QUESTION: It has also been argued there is no violation of the Blockburger rule. We have got a lot of arguments but one of them is that there is no violation of Blockburger.

MR. WASSERSTROM: Well, the Government argues that there is no violation of Blockburger on the theory that here anyone of several felonies --

QUESTION: That is right.

MR. WASSERSTROM: -- could have been charged. And you can argue that position carries to its logical extreme -- or you can just -- well, carries to its extreme, entails completely absurd results, as I think we showed in our brief. I think that even offenses that have always been traditionally considered almost paradigmatic cases of a greater offense and a lesser included offense would in their view be different, not be the same for double jeopardy purposes.

Also, as we argue in our brief, it seems to me that the decisions of this Court, or a plurality opinion of this Court in Jeffers as well as the dissenting opinion in Jeffers, both indicate that in deciding whether two offenses -- whether one offense is a lesser included offense than the other, you look to the indictment. You don't just look to the statute in the abstract and see what could have been charged. You at least look to the indictment -- if you don't look to what happens in trial, you at least look to the indictment. And if you look at the indictment here you know from looking at it that the felony murder did -- the felony murder premised on the rape was just that, premised on the rape.

QUESTION: Do you think Iannelli fits that analysis?

MR. WASSERSTROM: Well, I think that Jeffers and Iannelli read together certainly do. The way Jeffers talked about Iannelli and the way Jeffers emphasized -- I think it was Footnotes 15 and 16 of Iannelli -- I think the court was making just about this point.

I have very little time left. I would just say that I think our brief adequately covers our argument that even if the double jeopardy clause doesn't apply here to absolutely bar consecutive punishments, that is even if the Government's position is accepted, any kind of reasonable interpretation of the relevant statutes would have led the Court of Appeals to conclude that Congress did not here intend consecutive punishments. The legislative history of the penalty provisions to the felony murder statutes which were enacted in 1962 show quite clearly that those members of Congress who addressed themselves to this question felt that for a fatal felony murder the defendant's effective sentence should not be greater than the sentence for pre-meditated first degree murder, that is 20 years to life. In the Government's view, every time a felony murder is proved the defendant would be subject to a penalty considerably longer than 20 years to life sentence which the congressmen thought was sufficient.

QUESTION: And you spell that out of the legislative history, do you, of the --

MR. WASSERSTROM: All the congressmen that spoke to the issue indicated that they thought 20 years in prison for the single felony murder was enough time to be eligible for parole. It doesn't mean that he is going to be paroled, but it means he would be eligible after 20 years.

It is also, we argue, implicit in the structure of the statute. But more importantly, it is our argument that if double jeopardy doesn't operate to bar absolutely punishment for two offenses that are the same, under Blockburger, at the very least it creates a very strong constitutionally-based presumption that where two offenses are the same, under Blockburger, consecutive punishment should not be imposed unless the legislative intent that they be imposed is unmistakably clear.

QUESTION: What if the Supreme Court of Ohio in Brown had said: "We have heard your double jeopardy argument, we know we are bound by the United States Constitution amendment, we find them unconvincing, and we find the legislative intent to be against you, do you think this Court would have had any power to reverse other than on a constitutional basis?

MR. WASSERSTROM: Well, it is our position this would be a constitutional basis, a constitutionally-based presumption. Because we are --

QUESTION: It is not we are to avoid a constitutional question.

MR. WASSERSTROM: No, because if the Court is wrong when it imposed are sanctions consecutive punishment, then there is in fact a substantive violation of the defendant's double jeopardy rights.

So where do you have a mistake in this area? You have a violation of a specific constitutional guarantee.

Interestingly enough, I think this position is is the position taken in the Yale Law Journal note which the Government relies on so heavily in its brief, to try to argue that, the question of whether two offenses are the same should be entirely for the legislature.

I see my time is up. Thank you, Your Honor.

MR. CHIEF JUSTICE BURGER: You are very welcome.

Mr. Frey, if you do not want to provide your argument between now and tomorrow, we will rise.

MR. FREY: If it is all right with the Court, I would be happy to begin now.

MR. CHIEF JUSTICE BURGER: Very well. You may open tomorrow.

ORAL ARGUMENT OF ANDREW L. FREY, ESQ., ON BEHALF OF THE RESPONDENT

MR. FREY: Mr. Chief Justice, and may it please the Court:

From one standpoint this appears to be a case that deals with an arcane and esoteric corner of the law. It lends itself to subtle linguistic disputes regarding the meaning of such terms as "same offense" and "lesser included offense" as well as to elaborate efforts to plumb the depths of the mysterious Blockburger test. It has produced from Petitioner and intricate analysis of snippets of dictum in Brown v. Ohio, in Jeffers, and in Simpson.

And I can't deny that we too have engaged in our brief in a serious effort to analyze comprehensively this complex and interesting talk.

There is however a danger in all of this the Court will lose sight of the forest for the trees.

So let me draw back for a minute to make one point. It seems to me both futile and absolutely devastating to Petitioner's contention that the double jeopardy clause bars Congress from imposing cumulative punishments for rape and felony murder because the two offenses are the same. Suppose Congress had enacted a statute that stated as follows: "Anyone who kills another person in the course of committing a rape shall be sentenced to a maximum term of life imprisonment and to a minimum term in the discretion of the sentencing court of not less than 20 nor more than 35 years."

Now, it seems to me beyond argument, given the power of the legislature to define offenses and to set punishments for them, that the double jeopardy clause would have no bearing whatsoever on the validity of such a statute. And that is exactly what the Court of Appeals construed the statute in this case to mean.

Now, it is true Congress expressed its will by means of two separate statutes, which must be read together to give the result of my hypothetical statute, but surely the double jeopardy clause cannot be construed to require that the legislature employ a particular form of words or that it do something in one section rather than two. Such a reading would trivialize this important constitutional provision. This is precisely the conclusion that this Court reached in Gore where it said about, after analyzing the hypothetical statute such as I have given, is it conceivable that such a statute would not be within the power of Congress. And is it rational to find such a statute constitutional but to strike that on the Blockburger doctrine as violative of the double jeopardy clause or here to strike down the two separate statutes as violative of the double jeopardy clause?

Now, let me turn back from the forest to the trees. Petitioner's argument rests upon the notion that because proof of felony murder requires the proof of the underlying felony, the latter is a lesser included offense of the felony murder and therefore is the same offense and therefore may not be made the subject of multiple punishments. He says the Blockburger test is a constitutional test under the double jeopardy clause for the permissibility of multiple punishments. There are several difficulties with his argument.

The first difficulty is that rape and felony murder are not in fact the same offense under the Blockburger test, which depends upon the elements of the two offenses. Obviously, one need not kill in order to rape or rape in order to kill.

QUESTION: Under the Blockburger test there didn't have to be successive prosecutions for these two offenses.

MR. FREY: I don't think that the Blockburger test is the exclusive criterion for successive prosecutions, although I think that if they fail the Blockburger test there could not be successive prosecutions.

QUESTION: Well, do you think there could be successive prosecutions here?

MR. FREY: Well, not under Harris v. Oklahoma; but I have no problem squaring that result with the position that we are contending for here, because it is a very different matter as to what punishments the legislature may prescribe and as to when the courts and the prosecutor may --

QUESTION: Would that be whichever prosecution came first?

MR. FREY: I think that would be true under Brown, whichever prosecution came first.

MR. CHIEF JUSTICE BURGER: We will resume there at 10:00 o'clock tomorrow morning.

(Whereupon, at 3:00 o'clock, p.m., the arguments in the above matter were recessed, to reconvene at 10:00 o'clock, a.m., on Wednesday, November 28, 1979.)

November 28, 1979, Wednesday, Washington, D.C.

The above-entitled matter came on for further argument at 10:48 o'clock, a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR.., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

SILAS J. WASSERSTROM, ESQ., Public Defender Service for the District of Columbia, 451 Indiana Avenue, N.W., Washington, D.C. 20001; on behalf of the Petitioner.

ANDREW J. FREY, ESQ., Office of the Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondent.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will resume the arguments in Whalen v. the United States and at this point Mr. Frey, I want to inform you and Mr. Wasserstrom that we will enlarge your time two minutes and since with our aid by questions Mr. Wasserstrom used all his time, we will allow you two minutes for rebuttal.

Mr. Frey.

FURTHER ORAL ARGUMENT OF ANDREW J. FREY, ESQ., ON BEHALF OF RESPONDENT

MR. FREY: Mr. Chief Justice, and may it please the Court:

Preliminarily I would like to point out in response to a question that Mr. Justice White asked my colleague yesterday, the Petitioner did argue in his opening brief in the Court of Appeals that the sentence violated the double jeopardy clause.

QUESTION: On his sentences.

MR. FREY: On his sentences, yes. So I think he did preserve the constitutional --

QUESTION: Yes, he preserved it. The Court of Appeals never addressed it, really.

MR. FREY: It didn't address it in constitutional terms, no.

QUESTION: Mr. Frey, to get back perhaps to as you say fundamentals, my understanding of the reading of the double jeopardy clause of the Fifth Amendment is that nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

Was the Petitioner here tried separately twice?

MR. FREY: No.

But there is of course language scattered about in opinions of this Court going back as far as Ex Parte Lange which suggests that the double jeopardy clause may have some bearing on punishment as well as on successive trials.

QUESTION: It squarely held that the double jeopardy clause permitted dual punishment for one offense, didn't it?

MR. FREY: That it permitted it, or prohibited it?

QUESTION: Prohibit it --

MR. FREY: Well, the Ex Parte Lange --

QUESTION: -- for a single offense.

MR. FREY: Ex Parte Lange is a --

QUESTION: It didn't have to hold that, but it did hold that.

MR. FREY: Yes, I think it rested its holding that to impose a sentence that the legislature had not authorized on the defendant violates the double jeopardy clause.

QUESTION: Mr. Frey, why don't you suggest that Lange is just another brand of two trials. Lange involved two sentencing proceedings.

MR. FREY: Well --

QUESTION: And there isn't any case that I know of that speaks about double punishment that didn't involve two different proceedings.

MR. FREY: Well, let me say -- well, there are of course Blockburger line of statutory cases which did not involve two separate proceedings.

QUESTION: They didn't involve the punishment.

MR. FREY: Well, Blockburger involved punishment and not successive trials.

I think the point that I am making which -- and I agree with you -- but this case involves a single sentencing proceeding following a single trial. It does not involve multiple trial such as North Carolina v. Peace involved. Nor does it involve bringing the defendant back after he has been once sentenced for re-sentencing.

And our contention here is that the double jeopardy clause has -- imposes no restrictions on the sentencing court. It establishes no test that must be satisfied in imposing sentence in a single sentencing proceeding following a single trial.

Now, we have said in our brief that the double jeopardy clause restricts the sentencing court to imposing a sentence that has been authorized by the legislature. And we say that because there is language in this Court's opinions, going back to Ex Parte Lange, that suggest that. But I think that is an essentially trivial proposition which I would not have ascribed to the double jeopardy clause myself, but to the due process clause.

QUESTION: Well, the Court applied that doctrine in North Carolina v. Pearce, didn't they?

MR. FREY: Yes, but of course was a case involving two trials and two sentences.

QUESTION: No, it was also a case involving a subsidiary issue in that case, wasn't it. It involved precisely the Ex Parte Lange doctrine, as I remember. I haven't re-read it, and I didn't write it.

MR. FREY: I am not sure what you are referring to, but the question was whether the defendant once having been sentenced to a particular sentence for a particular crime could have in place of that sentence following a re-trial, a higher sentence imposed. And the Court indeed said that the double jeopardy clause didn't bar that.

QUESTION: They barred part of it though.

MR. FREY: It barred not giving the credit --

QUESTION: They had to give a credit.

MR. FREY: That is correct.

QUESTION: And the reason was the double jeopardy clause.

MR. FREY: But for purposes of this case it seems to that those --

QUESTION: Ex Parte Lange --

MR. FREY: Well, in Ex Parte Lange what happened was a sentence was imposed that legislature had not authorized; and not only that, but the judge when he went to correct it in Ex Parte Lange and he said, "Well, I will eliminate the fine and I will just leave you with the jail sentence," the fine had already been paid and there was no way for returning it. So even though the judge said he was only sentencing him to prison in Ex Parte Lange, in fact he had to pay a fine and go to prison.

QUESTION: Is that in the opinion, that they couldn't get it back?

MR. FREY: I believe it is. That is my recollection the last time I looked at it.

QUESTION: Was Ex Parte Lange a case from a State court or from this Court?

MR. FREY: No, it was a Federal case.

QUESTION: That could well be under the supervisory power of this Court, that you just don't impose sentences in excess of those authorized by law.

MR. FREY: Well, it could well be. I don't think you need to resort to the supervisory power. It seems to me that in a Federal case if a sentence is imposed that Congress has not authorized, then all you do is apply the sentencing provision of the statute to reverse the sentence.

QUESTION: You don't need a constitutional docket.

MR. FREY: But I would have to say that in a -- if you had a State case in which the defendant in which the sentence was authorized by statute was five years imprisonment and the trial judge said, "Well, this is such a heinous version of this crime that I am going to give you ten years imprisonment," I have two comments about what would happen when this case got up here.

The first is that nobody would really suggest that that was a double jeopardy case.

And the second is that I think everybody would agree -- I certainly would -- that that violates the due process clause.

QUESTION: Now, in North Carolina v. Pearce it was not a Federal case but a State case.

MR. FREY: That is true.

QUESTION: And in --

MR. FREY: Due process --

QUESTION: And in holding that the double jeopardy clause absolutely requires that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense, in that case the court directly applied the doctrine of Ex Parte Lange, as a double jeopardy doctrine.

MR. FREY: Well, I am not --

QUESTION: That is not just casual verbiage. That is the holding of the court.

MR. FREY: Well, I have not sought to maintain the position that the double jeopardy clause has nothing to do with sentencing. The position I am maintaining is that the double jeopardy clause has nothing to do with a single sentencing proceeding following a single trial.

Now, there is a petition before you that we filed in a case called United States v. DiFrancesco which involves the right of the Government to appeal a sentence. Now, that involves an issue under the double jeopardy clause -- I can see that. And I suppose if the judge sentenced somebody to three years imprisonment for an offense where he could have sentenced him to 10, then after the three years were up he called him back in and said: "I have changed my mind, I think you deserve more," that I think would involve a double jeopardy question.

But this does not involve a double jeopardy question. I simply don't see where it comes from.

QUESTION: Mr. Frey, can I address your theory with a thought that has been running through my mind.

You remember a year or two ago -- I think you argued the case, it came from the Seventh Circuit -- there were two gun control statutes. One provided I think a three-year sentence and the other a one-year sentence which overlapped. And the Seventh Circuit had held that since it was basically the same crime you can only impose the lesser sentence. And I think you persuaded us to reverse and say, well the Government can choose between the two and we can impose -- go under the section that allowed the longer sentence.

I take it your view now would be that they could apply both, even though they are precisely the same offense they could impose 40 years.

MR. FREY: I didn't argue that case.

QUESTION: Of course the Government didn't have to in that case.

Is that correct? And similarly, if in the confusion of legislative process they had enacted the same provisions 14 different times throughout the Criminal Code they can impose -- cumulate all 14 sentences even though they are the same offense.

MR. FREY: I don't think that --

QUESTION: There would be no constitutional problem, that is what you said.

MR. FREY: I don't think that that need trouble the Court because that kind of case is always dealt with as a matter of legislative intent. We are not suggesting that the intent of the legislature should be ignored by the Court and in your hypotheticals, and I think it is certainly true in title IV and title VII of the --

QUESTION: You are saying there is no constitutional problems.

MR. FREY: No constitutional problem under the double jeopardy clause.

Now, it may be that if Congress passed the same statute a thousand times and the defendant had to face a thousand charges and a thousand sentences there might be some problem under the due process clause.

QUESTION: I am saying in the trial. I think you have agreed there couldn't be separate trials.

MR. FREY: That is right.

QUESTION: Because in one trial Congress -- you could cumulate punishments as often as you want.

MR. FREY: Yes. That is absolutely our position.

Now --

QUESTION: I understood in your opening that you suggested that this statute and its history shows that Congress clearly intended to give punishments for each of the offenses.

MR. FREY: Well, we do argue that, although of course we have also argued that that is not a matter that this Court ought to reach. But our constitutional argument, Mr. Chief Justice, does not depend directly on the fact that in this case Congress did authorize. Our constitutional argument is that you simply don't have a double jeopardy inquiry in this kind of case. All you have is your conventional inquiry into legislative intent which can be aided by the Blockburger test or anything else.

QUESTION: Was Brown v. Ohio a double jeopardy case?

MR. FREY: It definitely was.

QUESTION: And isn't that quite similar to this one?

MR. FREY: There were two trials there.

QUESTION: There were two trials. But if one begins with the doctrine of Ex Parte Lange, I understand the dichotomy that you assert in your brief --

MR. FREY: Well, let me address the point that Petitioner raised. He said that it would somehow inconvenient or undesirable to have different tests for successive prosecutions and for multiple punishments following a single prosecution. Now, I am not sure that I understand what he means, because of course we are suggesting that in the punishment context there is no test, you simply do what you would always do in determining the propriety of a particular punishment under the statutes.

The test that is difficult --

QUESTION: You do it under the compulsion of the double jeopardy clause.

MR. FREY: I think you do it under the compulsion of ordinary rules of law.

QUESTION: It wasn't done in North Carolina and this Court held that it had to be done under the double jeopardy clause.

MR. FREY: In North Carolina v. Pearce?

QUESTION: Yes.

MR. FREY: This Court held it had to be done under the due process clause.

QUESTION: Double jeopardy.

MR. FREY: Oh, you are talking about the crediting clause.

QUESTION: Yes.

MR. FREY: But that -- I can't --

QUESTION: It wasn't done as a matter of course in that State. And this Court said that the Constitution, i.e. and specifically the double jeopardy clause required that North Carolina do it.

MR. FREY: But that was not a single-sentencing proceeding following a single trial. I mean X just -- I have not attempted to deny that the double jeopardy clause applies in the situation in North Carolina v. Pearce. But my point here is that this is a very different situation. We are not talking about punishments being imposed twice on the defendant except in a very hypothetical sense, which is derived from -- well, let us look at Brown v. Ohio for a moment.

Because the Court said in Brown, and I think it was clearly in passing, that the Blockburger test is the test for determining the propriety of multiple punishments under the double jeopardy clause.

Now, I think you would have to agree that Brown did not involve any multiple punishment issue except a derivative of a successive prosecution issue. And elsewhere in the same opinion the Court says that the role of the double jeopardy clause is not to restrict the legislature but to make sure the courts and prosecutors don't exceed their legislative authorization.

Now, we have a case here where if you accept the statutory construction of the District of Columbia Court of Appeals it is clear that the sentence imposed on this Petitioner did not exceed the legislative authorization. And what Petitioner wants to do is to say even though Congress meant to allow this man to receive this sentence for the crimes that he committed, the double jeopardy clause somehow and in some mysterious way by virtue of the Blockburger test and by virtue of the fact that a lesser included offense is the same offense, bars this.

Now, I cannot see that it is appropriate to take a dictum -- and let me say also that the statement in Brown about the Blockburger test being the test for -- constitutional test for multiple punishments sprung full blown like Palace Athena from nowhere. There is nothing in the prior decisions of this Court that ever suggested that the Blockburger test was a constitutional test for multiple punishments in a context such as we have in this case. Indeed, in Iannalli which was I think two term before Brown, the Court expressly said that the Blockburger test is the test for ascertaining legislative intent. Indeed, it said that about Wharton's rule in a case where the substantive offense necessarily involved conspiracy, the Court said that is a test for ascertaining legislative intent.

Now, I certainly submit to the Court that the dictum in Brown is at this point subject to reexamination and ought not to stand in the way of adopting a rule that is consonant with the purposes of the double jeopardy clause and doesn't apply in an area where it doesn't really fit. And what is being done with the Blockburger test if Petitioner has his way, is to pervert the test from its original purpose which was to follow the legislative intent into a test which is being used to thwart the intent of the legislature.

QUESTION: But you wouldn't -- you are not arguing against using the Blockburger test as to when there can be separate trials.

MR. FREY: We are not opposed to using that. We think it is appropriate but I might note that as Harris v. Oklahoma indicates and, indeed, as in re Neilson indicates you may go beyond the Blockburger test. That is a very murky area. I think Justice Brennan has adopted a position which is quite clear as to that is the same transaction test.

QUESTION: I have never had more than two others agree with me.

MR. FREY: I understand that, the Court has not adopted it. But the Court --

QUESTION: You are not urging it either, I take it. We are not urging it.

MR. FREY: But I find far less difficulty as an analytical matter to find that in the double jeopardy clause that I do to find the result the Petitioner --

QUESTION: No case, Harris or any other case has suggested the Blockburger test is the test you use in connection with punishments -- double punishment.

MR. FREY: Excuse me. In connection with punishment?

QUESTION: Yes. It hasn't suggested that. The cases that involved Blockburger involved two proceedings.

MR. FREY: Well, that is correct, except -- that is correct, every case that involves Blockburger, except there is a reference I believe in the opinion in Simpson to the statement in Brown. And Simpson was a single proceeding. But, again, it was dictum. Simpson was a case which did exactly what we think the Court ought to do, that is it looked at the intent of the legislature.

Now, let me make just one point in passing, and I did want to make myself clear, because when I talk about whether the Blockburger test is or is not satisfied in this particular case with these offenses I don't want to be thought of as endorsing the Blockburger test as an appropriate test in the context of a single sentencing following a single trial. But if we must have the Blockburger test because the Court feels bound by what was said in Brown v. Ohio or independently concludes that it is appropriate in this circumstance, it shouldn't be restricted to necessarily included offenses. That is robbery, which is a necessarily included offense of armed robbery, the kind of situation which you cannot commit the greater offense without at the same time committing the lesser.

Now, what we have here is what we have called in our brief "compound and predicate felony

QUESTION: Under that approach, isn't some felony a necessary element of proof?

MR. FREY: Absolutely. That is why we have said what we have here is a compound felony and a predicate felony. The compound felony consists of showing a predicate felony, which it can be one other class.

QUESTION: Which is an essential element of the compound felony.

MR. FREY: One or another, that is right.

QUESTION: Yes. But some predicate felony is an essential element, is it not?

MR. FREY: Well, I think we have said at one point in one of our papers in this case that you can't by sheer force of logic decide whether the Blockburger test is satisfied or not satisfied.

QUESTION: One of the virtues I always thought the Blockburger test had was it was logically very, very easy to apply.

MR. FREY: Explain to me why -- I mean our position is very straightforward. You don't have to commit rape in order to commit felony murder.

QUESTION: You do if the predicate felony is rape.

MR. FREY: The Blockburger test has always looked at the provisions under which sentence is being imposed and the element set forth in those provisions in the statute. And if you look at the rape statute you will of course not find a killing.

QUESTION: And also if you look at the felony murder statute you can't find a basis for convicting unless you also convict him of a felony.

MR. FREY: But the felony is not necessarily rape.

QUESTION: Not necessarily rape, no --

MR. FREY: I don't know how to resolve that conundrum except I want to make one point which is very important. Obviously we don't care very much in practical terms about what happens with felony murder and the underlying felony, because felony murder carries a sentence of life imprisonment with a minimum of 20 years. We are not talking about a lot that is at stake in the particular context of the felony murder statute.

It is of course important that the double jeopardy clause be understood in a consistent and rational way. And it is very important to us as applied to the firearms statutes. That is Section 924(c). Now, there you have a statute which is exactly parallel to the felony murder statute. You must have a Federal felony and the use or the unlawful carrying of a firearm in the course of that felony. So whatever the Federal felony is, highjacking, bank robbery -- although there are some problems with bank robbery -- assault, homicide, you must prove that felony in order to prove the violation of 924(c).

QUESTION: How many felonies were involved in here, in this case that are within the six felonies that make a felony murder?

MR. FREY: I am not sure whether the burglary in this particular --

QUESTION: There was a burglary involved here.

MR. FREY: He was convicted of a burglary and he was convicted of a purposeful killing. And even if the burglary were not --

QUESTION: But his original conviction was for burglary, rape and felony murder; is that correct?

MR. FREY: Two counts of felony murder. And the burglary was reversed not because of any failure of evidence but because of the Court of Appeals view of ex parte ban in permissible amendment of the indictment.

But as the case now stands, he stands convicted only of rape and of felony murder based on the rape. That is all we have here.

Our position is that there is nothing in the Constitution that prohibits if Congress wants to say 15 years for the rape and 20 years additional for the felony murder. There is absolutely nothing in the Constitution.

QUESTION: Well, you certainly are making it much more difficult to win your case to suggest, as you do, that you could convict of rape in a separate trial.

MR. FREY: Excuse me.

QUESTION: Aren't you -- convict of rape in a separate trial?

MR. FREY: I don't believe I have suggested that; no.

QUESTION: Well, you have said that this -- that the Blockburger test is not violated here.

MR. FREY: Well, I also said --

QUESTION: Or did you just misstate yourself on that?

MR. FREY: No, the Blockburger test is not violated here, but the Blockburger test is not the exclusive test for determining the permissibility of multiple prosecutions.

QUESTION: What other test is there? Would the Blockburger test -- would it or would it not bar a separate trial for rape?

MR. FREY: In this case?

QUESTION: Yes.

MR. FREY: It would not be the Blockburger test that would bar it.

QUESTION: Why wouldn't it?

MR. FREY: Because we don't think these offenses pass the Blockburger test.

QUESTION: You don't need to win on that to win your case but --

MR. FREY: No, we don't. But let me make clear my position. A separate trial would be barred under Harris v. Oklahoma. That is not because the Blockburger test is not satisfied here. Harris v. Oklahoma makes no mention of the Blockburger test. Harris v. Oklahoma cites only successive prosecution and not multiple punishment cases, and the case it cites is in re Neilson. And in Brown v. Ohio there is a footnote which points out that in re Neilson was a case where the two offenses, cohabitation and adultery, satisfied the Blockburger test. In order to be guilty of cohabitation you did not have to be married; you simply had to live with two women at the same time. In order to be guilty of adultery you did not have to live with two women at the same time. The court nevertheless held that successive prosecutions were barred even though the Blockburger test or each equivalent was satisfied by the two statutes.

So all that I am saying is that there is a murky area which I take it includes this area of compound and predicate offenses in which successive prosecutions would be barred.

But multiple punishments present no problem. Let me give you an example: Suppose Congress passed a statute and said that for robbery the punishment would be five years imprisonment; and for armed robbery, the punishment would be the punishment for robbery plus a period of ten years imprisonment.

QUESTION: You say supposing Congress didn't write the statute that way.

MR. FREY: No, but they are saying that --

QUESTION: There is no doubt about the fact they could say if you rape somebody, you get ten years; if they get killed while you are raping them, they get get 20 years. They didn't say that.

MR. FREY: Well, that is exactly what the Court of Appeals construed the statutes to mean. And if the double jeopardy clause means that Congress has to put it one statute and can't have it in two, I just cannot believe that the double jeopardy clause addresses something as insignificant as how many statutes Congress chooses to put something in.

And let me make another point. To go back to Justice Stewart's reference to Ex Parte Lange and the bar in multiple punishments, multiple punishments for a single crime are an every day occurrence in the Federal courts. The defendant can be imprisoned, he can be fined, he can suffer a forfeiture, he can be sentenced to a term of special parole. Now, a fine followed by a term of special parole for exactly the same offense sounds like two punishments for one offense. But if it is imposed following a single trial and a single sentencing proceeding, nobody I think would suggest that there is anything the least bit wrong with it. And I simply cannot bring myself to believe that the double jeopardy clause, to come back to 924(c), means that Congress cannot say if you use a firearm in the commission of a Federal felony you are to receive a consecutive sentence of two years imprisonment, or whatever it may be, beyond the sentence imposed for the underlying felony. That is exactly what Congress has done. And if Petitioner is right, the double jeopardy clause prohibits that. I simply don't think it reaches --

QUESTION: There is a difference in the statutory language in 924(c) which says shall in addition to the punishment provided for the other offense should get another two years. The felony murder statute does not say that in addition to the punishment for rape there should be an addition of ten years. It simply doesn't read that way.

MR. FREY: No, it doesn't say that.

QUESTION: It provides a separate punishment scheme of its own.

MR. FREY: It provides a punishment for murder and elsewhere there is a punishment for rape. And there is a statute that says --

QUESTION: There is no statute that says that when rape is committed in connection with a felony murder, you can get both the sentence for rape and the sentence for felony murder. There is no statute that says that.

MR. FREY: There are two statutes that say after the D.C. --

QUESTION: Well, the same way that my hypothetical example of 34 different statutes on the same offense would authorize 34 punishments -- precisely that same thing.

MR. FREY: You are only raising a question that goes to the intention of the legislature. You may say that you are not satisfied that the legislature has sufficiently clearly expressed its intention. But the point that I am arguing here is: May the legislature -- may it constitutionally provide for punishment separate, punitive punishment --

QUESTION: We should not reach unless we are satisfied under Bolckburger and all the rest that clearly are -- there clearly was an intent to impose multiple punishment under two separate provisions.

MR. FREY: Well, let me turn to that point.

While it is ordinarily true that the Court will not decide a constitutional question if it can settle the case on statutory grounds, that is exactly the situation that existed in Pernell v. Southall Realty, exactly. There was a statute Pernell v. Southall Realty. The statute provided under the construction of the District of Columbia Court of Appeals for the elimination of a jury trial in certain kinds of eviction actions or something. And the issue came up here as a Seventh Amendment issue and the Court in an opinion by Mr. Justice Marshall recognized that it might be able to avoid reaching the constitutional issue by construing the statute differently. But it said in the most unequivocal terms that a decision of the District of Columbia Court of Appeals construing a statute of local application will not be reviewed by this Court on statutory grounds, even to avoid reaching a constitutional issue. Rather, that court will be treated as the highest court of State.

QUESTION: Wasn't there a companion case to Pernell which had been written by Justice Stevens in the Seventh Circuit which it said quite unequivocally that even though Congress had denied the right to a jury trial, the right to jury trial was constitutional and therefore notwithstanding the right to -- the congressional intent would have to fail when the constitutional provision was involved?

MR. FREY: Well, I am not sure, although I have no doubt that if the Constitution required a jury trial Congress couldn't do away with it, if that is the question.

QUESTION: Actually we held that because of the constitutional issue, we construed the statute to avoid the constitutional issue.

MR. FREY: But in this case I think it is clear that you can't, and I am sorry I didn't have time to explain why.

QUESTION: Your first argument is that we should accept the construction of the statute put upon it by the District of Columbia Court of Appeals.

MR. FREY: That is correct.

QUESTION: Just as we would the construction put on a State statute by a State court.

MR. FREY: And after all, there are 50 other States that this case could as easily have come from and you would have had no choice to reconstrue the legislative intent. So it is hardly a very damaging precedent.

QUESTION: And that construction you say doesn't violate any constitutional right.

MR. FREY: Absolutely.

QUESTION: But then that leads you to the question of whether or not it does.

MR. FREY: I think the Court has to decide the question or whether or not it does. And obviously I think it should decide that it doesn't violate the Constitution here.

Thank you.

MR. CHIEF JUSTICE BURGER: Mr. Wasserstrom.

REBUTTAL ARGUMENT OF SILAS J. WASSERSTROM, ESQ., ON BEHALF OF PETITIONER

MR. WASSERSTROM: Mr. Chief Justice, and may it please the Court:

To begin with, it is argued that if Congress did not intend consecutive punishment here, did not authorized such punishment, then when the lower court makes a mistake of that sort it is making a mistake which results in the denial of the defendant's constitutional rights. And therefore this Court should, and must, review that legislative -- that determination of legislative intent, it is not like other kinds of errors in construing legislative intent.

On the constitutional issue itself though, it is our position -- and we submit it is borne out by this Court's decision in the companion case of Pearce v. North Carolina, the case of Rica v. Alabama, in that case the defendant pled guilty and sentenced to a term of imprisonment. Two and a half years into his term he successfully challenged his convictions in a petition for quorum novus relief in the State courts. He then was tried on the same charges that he had pled to and he was convicted. The judge imposed a sentence and ordered that credit not be given for time served. He imposed a 25-year sentence and ordered that no credit for the 2-1/2 years be given for time served.

Now, this Court pointed out that the judge could have given a 27-1/2-year sentence with credit for time served. That would have been within the statutory maximum permitted for the offenses of which he was convicted. Nevertheless, this Court vacated and ordered that credit be given -- it didn't vacate it, but ordered that credit be given for time served because by failing to give credit for time served, the defendant was twice punished for the same offense, even though he could have been punished to the same extent with credit for time served.

That decision was a unanimous decision of that Court.

QUESTION: It was a second sentencing proceeding.

MR. WASSERSTROM: Certainly when a defendant moves to have his sentence set aside, he waives any kind of double jeopardy claim he might have with respect to the fact that a second sentencing proceeding occurs. So that case could not have turned on the fact that --

QUESTION: We held he didn't by appealing waive any right that he might have as to a larger sentence. The United States --

MR. WASSERSTROM: This has nothing to do with a larger sentence. It may well be as this Court held in Pearce that a longer sentence after appeal is illegal because of due process considerations. Pearce is not a double jeopardy case; it is a companion case, however. Rica v. Alabama is a double jeopardy case, it relies on Ex Parte Lange. And the Court made it clear that the double jeopardy clause forbid the State from giving him a sentence which did not give him credit for time served even though it could have given an equivalent sentence with credit for time served.

Thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

Whereupon, at 10:40 o'clock, a.m. the case in the above-entitled matter was submitted.)