BIFULCO v. UNITED STATES
Legal provision: 21 U.S.C. 846
Argument of Steven Lloyd Barrett
Chief Justice Warren E. Burger: We'll hear argument first this morning in Bifulco against the United States.
Mr. Barrett you may proceed whenever you're ready.
Mr. Steven Lloyd Barrett: Mr. Chief Justice and may it please the Court.
This case comes to the Court upon writ of certiorari to the United States Court of Appeals for the Second Circuit.
The petitioner was convicted of violating the Federal Drug Conspiracy Law 21 U.S.C., Section 846.
He was sentenced to four years imprisonment, and $1,000 fine, and five years special parole.
The petitioner subsequently filed per se a collateral attack on his sentence alleging that the inclusion of special parole for the crime of conspiracy was not authorized and Second Circuit held that special parole was a lawful component of sentence of conspiracy and affirmed the denial of petitioner's application.
The issue in this case which is currently the subject of disagreement among the circuits is whether as the Second Circuit held Section 846 includes special parole or whether as we assert the statute specification of imprisonment and fine precludes special parole.
The statutory language of Section 846 is set forth in our brief, at page 3, and it's states, “Any person who attempts or conspires to commit any offense defined in this Subchapter is punishable by imprisonment, or fine, or both which may not exceed the maximum of punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.”
We submit that the penalties intended to conspiracy are stated plainly on the face of the statute, imprisonment and fine.
In our argument this morning, it will be shown that Congress used the precise specification of penalties for the very purpose of providing imprisonment without special parole for the crime of conspiracy and I'll be looking at four issues bearing on this matter.
First, I will examine the statutory scheme and Section 846's place in that scheme, to show that throughout the statute, special parole maybe imposed only when it is separately authorized from imprisonment and fine.
Second, I will look at the legislative history to elucidate Congress's intent that a specification of imprisonment of fine in a statutory section cannot alone authorize the inclusion of special parole.
Third, I will discuss the Government's analysis of Congress's intent and show that that position cannot be sustained.
And finally, I will consider the appropriate disposition of this case under the doctrine of lenity.
Justice William H. Rehnquist: Mr. Barrett I think it's -- in your legislative history discussion you will also take up the time sequence at which the statute was drafted and the time at which special parole was introduced as a concept under the statute.
Mr. Steven Lloyd Barrett: Yes I will Mr. Justice Rehnquist.
Turning first to the statutory scheme, special parole exists as a punishment quite distinct from the punishment of imprisonment.
It's provided as an additional and separate penalty to be served after full service of a prison term.
Now, special parole is subject to no maximum limit so that it can and often does exceed the prison term in length.
This is important because of the -- revocation -- revocation rule which is then upon revocation special parole a new and additional prison term is substituted in the amount of the entire special parole term without credit for time served.
Now, it's therefore a substantial penalty and Congress authorized its inclusion selectively by a separate provision in each statutory paragraph to finding a crime to which special parole would be applied.
Now, quite a number and indeed the majority of the drug crimes provide for imprisonment without specification or without mention of any special parole and significantly the crime of the continuing criminal enterprise which is the most serious trafficking offense in the Federal Drug Law does not specify a special parole term.
And similarly there is no specification of special parole in the offenses involving trafficking by persons who are registered under the drug law.
Generally the parole -- special parole authorizations occur in the distribution and possession offenses to find in Section 841, but even here there is selectivity.
Two of the six -- two of the six punishment sections in Section 841 do not provide for special parole.
Now, in practice, there is never been any question that a drug section which does not make any mention of special parole is not entitled to include as sentenced special parole with one exception, and that of course the Section 846 which is the issue that's presently before the Court.
From the standpoint to the statutory scheme, we -- we feel at this unique treatment quoted in Section 846 which some -- which some circuits at least have given Section 846 makes no sense like the other sections throughout the drug law which do not make -- mention of special parole and which special parole does not apply, Section 846 describes it's punishments in terms of imprisonment and fine exclusively.
Unlike these other section, Section 846 is a separate criminal section under which sentences are imposed.
The purported distinction for it's -- Section 846 which the Government offers to justify the inclusion of Section -- of special parole in Section 846 notwithstanding the absence of special parole authorization is that the conspiracy section refers to the statutory section of the object offense to set the limits of punishment applicable to the particular conspiracy.
And the Government contends that this reference results in the incorporation into Section 846 of any special parole that would be required in the object defense section where sentence is imposed under that section.
We feel this argument by the Government misperceives the significance and the function of Section 846 specification of imprisonment and fine.
Section 846 refers to the object offense sections to set the amount, but not the type of the punishment authorized, Section 846 itself sets the type of punishment.
The accuracy of this reading is supported by the House Report which accompanied the bill which is ultimately enacted by the Congress and -- and in that report, in a description of the operation of the conspiracy section and the -- and the penalty for conspiracy, the House Committee I believe it's the Interstate and Foreign Commerce, stated -- described the punishment as imprisonment and/or fine which may not exceed the maximum amount set for the object offense and -- and as this statement indicates the imprisonment and fine close of Section 846 defines the type of punishment which is to be imposed for that section.
A proof that Section 846 is -- referencing structure which is again the basis of the Government's distinction, a proof that it is referencing structure does not justify any special treatment is clear from another section of the drug law.
Now, that's the section that's numerically proceeds Section 846 -- Section 845.
It's set forth in Footnote 25 of our brief at page 20 and that's the distribution to minor section.
Now, Section 845 like Section 846, uses reference to another sections sentencing limits but there's a very significant distinction of the face of the two statutes.
Whereas Section 846 as I've indicated specifies, in one clause, imprisonment or fine or both, Section 845 has two clauses.
The first clause specifies a reference for imprisonment and fine, and that in that sense reassembles Section 846, but there is a separate second clause which provides for the incorporation of special parole.
I have more to say that Section 845 in my legislative history discussion but for the present it bears noting that Section 845 shows that the characteristic that I've identified in the drug law, and that is -- that before special parole is included in the section, there must be a specific -- special parole authorization in the individual section.
That Section 845 shows that that -- that characteristic or that rule applies to sections which used referencing and that therefore Section 846 should not be treated unusually, it should be treated like all the other sections throughout the drug law which do not makes specific reference to special parole, it should be in other words no special parole should be authorized.
And looking out the legislative history, the legislative history confirms that's the specification of imprisonment and fine in Section 846 was intended to define a punishment which would not include special parole.
In particular, two points are established in legislative history.
First, as the sections which like this conspiracy section used referencing to another section to establish the amount of penalty available, Congress recognized the need for a separate special parole authorization in a section employing the reference if that section was to include special parole.
And the second thing that the legislative history demonstrates is that Congress added special parole clauses to other sections which employed this referencing, but it did not so add a special parole clause to Section 846.
Justice William H. Rehnquist: Well, is it fair to infer from your argument that before Congress introduced the concept to the special parole into this rewriting of the drug law, 846 clearly manifested the intent that one who was -- attempted or conspired to violate the law should be punished in the same manner as the one who committed the substantive offense.
Mr. Steven Lloyd Barrett: I don't think so.
I -- I think that that is happenstance of the way the -- the initial bills were drafted, but I think that there are -- are two important reasons why we should not find that the original formulation of the bills before the inclusion of special parole indicates an intent to have -- if I could use the Government's word in this congruence between the two sections, the conspiracy section and the operative section.
The -- the first reason why has to do with the -- the structure of the new drug law.
In the former law, conspiracy was within the -- the specific substantive sections and in every bill considers for the new law, conspiracy was withdrawn from the substantive section and established in its own section.
Now, we feel that -- if you look trough other penal sections throughout the United States Code, you find that when conspiracy is separated from the substantive offense, generally the sentences provided are disparate rather than congruent.
And that you find congruence in a sense in -- in cases in which the conspiracy section is allowed to remain within the substantive offense section.
Now, I'm not suggesting that when Congress, the 91st Congress removed conspiracy from the substantive offense section.
In this case, it was intending to create this word -- sentences or necessitates the finding of these current sentences.
What I'm saying, is that it was originally in a situation where congruence was necessitated and it was thereafter placed in a situation were traditionally congruence was not found and I think to that sort of refutes the thought that Congress was thinking specifically in terms of establishing congruence.
Justice William H. Rehnquist: Well, it could have just dropped 846 and punished on the general conspiracy statute if it wanted to do that in the --
Mr. Steven Lloyd Barrett: The general conspiracy statute would have required a specific term of five years.
No, it's -- the general conspiracy section would not have allowed any flexibility or differentiation between of various conspiracy sections.
I don't think that that would have accomplished their purpose.
I think that there's one of the -- there's one point I wanted to make in response to your question Mr. Justice Rehnquist and that is that as to this -- this question of whether the -- the initial bill intended to have the similar treatment and that is to use to the language in every bill which the 91st Congress considered in Section 846 or in -- in the predecessor to the Section 846 and in no bill that Congress specify that punishment for conspiracy was subject to punishment equal to that of the substantive section.
It always used the term which may not exceed.
Now to be sure, using a term which may not exceed allows for the possibility that the sentences will be the same, but Congress is free also to use their equal to and equal to connotes something quite different than which may not exceed.
And -- and my point again in this, is that I think that reflects that Congress was not thinking specifically of setting up this equality.
Equalization was not on there mind when they drew this section.
Justice William H. Rehnquist: But of course you have to prove more than just the Congress didn't mandate equality.
You have to prove that it didn't authorize equality?
Mr. Steven Lloyd Barrett: Well, let me -- let me say this, the -- the suggestion that you've made is that in the initial bills the -- before special parole is added there happened to be this relationship say that -- that the same kind of term was specified.
The basis of -- of a conclusion from that fact that Congress intended just to be the case was specifically the language and a structure of these two sections.
Why not if you use that same standard of an analysis, say that after special parole was added, and after the one section had special parole and another one didn't, since your -- your analysis is based on the construction of the statutes as they exist or after special parole existed taking the statute as on their face, there was not this congruence any longer.
Justice William H. Rehnquist: Well, why -- why couldn't you equally well say that Congress had thought in 1840s -- in 846, it had made attempt or conspiracy punishable in the same -- up to the same manner as it had the substantive offenses and there was simply no need to tinker with it.
Mr. Steven Lloyd Barrett: I'm -- I'm not sure I'm following the thrust of your question.
Justice William H. Rehnquist: Well that 8 -- 846 was already in -- in existence saying that an attempt or conspiracy could be punished in a manner not to exceed that which could have -- substantive offense could be punished for.
Mr. Steven Lloyd Barrett: Right.
Justice William H. Rehnquist: And after -- then came the special parole terms.
Mr. Steven Lloyd Barrett: Right.
Justice William H. Rehnquist: And wouldn't it be a permissible inference that Congress simply thought, well, we've already said in 846 that attempt and conspiracy are punishable in the same way 846 is, why fool around with it?
Mr. Steven Lloyd Barrett: Okay.
I -- I think that -- that would not be a permissible inference in this case.
First of all, they did not only say in Section 846 that attempt and conspiracy are punishable the same way as substantive offenses.
They said two things, they said it's punishable -- they said primarily, that it's punishable by imprisonment and fine.
In order words, if you're taking a section, if you take Section 846 and cross out the provision that it's punishable by imprisonment and fine, and just have the -- you just what's left being the person who violates the conspiracy section is punishable not to exceed -- is subject to punishment not to exceed the etcetera, you'd have your result and it would -- and -- and you'd be perfectly correct in -- in make the inference that this section would trace the substantive section, but that's not what Section 846 did.
846 specified imprisonment and fine.
Now, the -- the key reason, the reason why that's of such this significance is because of the way Congress dealt with Section 845.
Now, Section 845 in the -- in the initial bills -- Section 845 and 846 reassembled each other before special parole that is, in that both of them specified imprisonment and fine.
Both of them had referencing, and both of them specified that the reference applied to imprisonment and fine.
In that sense then, both of them were subject to a very similar consequence, and that is that, they did not specify special parole, but the sections to which of both of them could refer might specify special parole because special parole had been -- had been entered into the bills at the time when both Section 845, the distribution to minors and 846 the conspiracy section still did not have those sections.
Now what Congress did in H.R. 18583, was that it added a separate -- separate clause to the distribution to minor section whereas originally it specified only that Section 845 is punishable by a term of imprisonment or fine, or both up to the twice that authorizing this - the substantive offense section, now it had a separate section that said at least twice any special parole term authorized by the substantive section.
And this indicates that Congress felt that the imprisonment and fine specification was not adequate to bring in special parole.
Justice William H. Rehnquist: But 845 was a substantive offense, wasn't it?
Mr. Steven Lloyd Barrett: Yes, but I -- I -- I'm not sure that that really makes much distinction -- difference in that the -- the key similarity between 845 and 846 is they both use reference.
That I think is what's key -- the -- the analysis that we've offered, and I -- I think that the question of substantive and conspiratorial distinction is not as important as the fact.
That both these crimes are structured -- both these sections are structured identically.
They both use reference and --
Justice John Paul Stevens: Mr. Barrett isn't there this difference?
In 845, they were not merely incorporating by reference but they were changing the -- what was incorporated, namely they were authorizing twice the special parole term that the other statue would offer.
Mr. Steven Lloyd Barrett: I don't think --
Justice John Paul Stevens: So they had to refer to it specifically.
Do I not -- do I not correctly understand that, that 845 --
Mr. Steven Lloyd Barrett: (Voice Overlap) I -- I --
Justice John Paul Stevens: -- said that when you sell to a young person well you get twice as long a special parole term, so how could they have done without --
Mr. Steven Lloyd Barrett: Well, the -- the statute has provided -- Section 845 has provided, would very well easily have been interpreted twice the special parole because of the fact that it originally provided for a term of imprisonment or fine or both up to twice that authorized.
As that providing --
Justice John Paul Stevens: Well but --
Mr. Steven Lloyd Barrett: -- if they were going to double the special parole term.
If you -- if you're going to assume that the imprisonment clause of Section 840 -- I'm sorry.
Justice John Paul Stevens: I was going to say, I'm a little puzzled by it anyway, because I thought -- I didn't think there was a maximum limit on the special parole term anyway.
Mr. Steven Lloyd Barrett: That's right.
Justice John Paul Stevens: And, so one short of -- I wonder of what they really -- what the really means is that the minimum special parole term should be twice as long.
Otherwise (Voice Overlap) --
Mr. Steven Lloyd Barrett: There is a mandatory minimum.
Justice John Paul Stevens: -- make any sense.
Mr. Steven Lloyd Barrett: No there is a mandatory minimum of special parole.
Justice John Paul Stevens: So doesn't -- isn't the effect of this to double the mandatory minimum?
Mr. Steven Lloyd Barrett: Yes.
But that's -- that's -- the effect to that would -- would automatically occur if you double the punishment.
In other words --
Justice John Paul Stevens: I'm trying to remember, is there in substantive offenses, is there a mandatory minimum term of imprisonment?
Mr. Steven Lloyd Barrett: Yes.
A mandatory minimum term imprisonment, no.
Justice John Paul Stevens: Well then see -- then you did have to deal separately with the special parole term.
Mr. Steven Lloyd Barrett: Not really, if you said that the -- a person who was subject -- who had violated the distribution to minor section is subject to twice the punishment applicable in the object defense.
Justice John Paul Stevens: But in the object defense, there's no ceiling anyway, was there?
Was there max -- is there maximum (Voice Overlap) --
Mr. Steven Lloyd Barrett: But twice this -- twice the punishment.
In other words, when twice the punishment of -- when -- when simply say twice the punishment of imprisonment, what you mean in context of the statute is that if a person is subject of 10 years, twice means he's subject to 20 years, but there is no requirement as far as the minimum.
He may still get the same minimum.
When you say twice as far as special parole however, because there's mandatory minimum and no maximum, what you mean is twice the mandatory minimum --
Justice John Paul Stevens: Right.
Mr. Steven Lloyd Barrett: -- and still no maximum.
Justice John Paul Stevens: It would seem to me in drafting there would be more occasions to spell it out in 845 than there is in 846.
I'm not saying you're necessarily wrong but --
Mr. Steven Lloyd Barrett: Yes.
I -- I understand the point.
I -- I think that if the same --
Justice John Paul Stevens: May I ask you another related question, because the -- the text of the -- the entire text to the statute isn't in front of me which I can't find it.
In the terms of imprisonment under the substantive offense, there is a mandatory -- is there a mandatory minimum?
Mr. Steven Lloyd Barrett: No.
Justice John Paul Stevens: There is not I see, okay.
Mr. Steven Lloyd Barrett: Okay.
I want to just add one of a -- one other point to your earlier question and -- and that is that if you look at the language of Section 846, which is again at page 3 of our brief.
It speaks of final imprisonment or both which may not exceed the maximum punishment prescribed for the offense.
Now, maximum punishment prescribed for offense really doesn't mean anything when you're talking about special parole.
It only means something when you're talking about fine or imprisonment, because those terms are established as maximum terms.
In other words, if -- if Congress is going about -- when it -- when it changed Section 845, if it was making the change so that -- for artistic reasons, let's say, so that it was clearer that what you're talking about is doubling -- mandatory doubling the special parole and permissibly doubling the authorized term of imprisonment, they should've made a similar change in attempt and conspiracy because really on its face, speaking of a maximum punishment, does not make very much sense in Section 846 when you're referring to special parole which of course has no maximum punishment.
Justice Potter Stewart: Well, then perhaps you explained it, and I just didn't get.
What's the meaning Section 845 which imposes upon the sentencing judge, the duty of imposing a special parole term of at least twice the term authorized by Section 841 (d) and if there is no maximum what is -- what is twice that?
Mr. Steven Lloyd Barrett: Twice the mandatory minimum in which special parole is always provided as a mandatory minimum term, always.
In other words, the statute always says, that you shall receive at least two years, or three years, or four years, special parole.
It never specifies the maximum term.
So in other words, any term from two years to life is always a legal or in fact is a mandated special parole term.
Justice Potter Stewart: Special parole?
Mr. Steven Lloyd Barrett: Right.
Justice Potter Stewart: And so it's twice than the minimum under 845?
Mr. Steven Lloyd Barrett: Right.
Justice Potter Stewart: I see.
Mr. Steven Lloyd Barrett: I -- I (Voice Overlap) --
Justice John Paul Stevens: May ask you another question just to help me --
Mr. Steven Lloyd Barrett: Sure.
Justice John Paul Stevens: -- sort this thing out.
In either the substantive offense or the conspiracy offense in your view could a judge put a first offender on parole right away or probation right away?
Mr. Steven Lloyd Barrett: Yes.
I -- I believe so.
Justice John Paul Stevens: Then in other words that authority would be encompassed under 846 and in other word, that would be just generally included (Voice Overlap) --
Mr. Steven Lloyd Barrett: I would think that -- it's in first (Voice Overlap) --
Justice John Paul Stevens: -- imprisonment -- fine -- imprisonment or fine that would include prohibition in (Voice Overlap) --
Mr. Steven Lloyd Barrett: Yes.
Justice John Paul Stevens: Why would it include prohibition but not parole, special parole?
Mr. Steven Lloyd Barrett: Because I think that that is at 18 U.S.C. 3651 the probation statute provides that a term imprisonment may be probated, but parole is a -- is a different thing in probation.
Justice John Paul Stevens: I see.
Mr. Steven Lloyd Barrett: And my -- my special (Voice Overlap) -- that's the really three concepts here, the probation, there's parole, and the special parole.
And they really are very, very different.
Justice Potter Stewart: And special parole is peculiar to this legislation isn't it?
Mr. Steven Lloyd Barrett: Yes.
Unique to this legislation -- it's never been found -- we didn't find it in any other state legislation, any of the federal legislation.
And -- and I think that -- that perhaps you should be thinking in terms, that even though it's called special parole, you could call it anything want, it -- it really does not have that close relationship to parole.
Parole is -- served as part of the present sentence it's a -- you -- you have the fixed term imprisonment.
You serve part in jail and part in parole.
Special parole waits until that parole term is finish.
Now, in fact Mr. Bifulco right now is serving parole.
He has been released from jail, he is on parole.
Once he successfully completes his parole term, in other words he maxes out on the -- the original prison term then he has to start the five years special parole on top of it.
There is no concurrence that --
Justice William H. Rehnquist: Could you call it imprisonment?
Mr. Steven Lloyd Barrett: You could call it as potential imprisonment in that -- in that if it's revoked it's imprisonment, but you can't call it imprisonment, no certainly not.
I would be factious, certainly not.
It's certainly a very distinct punishment form imprisonment because to the fact that the way it is served, because of the fact that unlike imprisonment which is -- which in only one case has a mandatory minimum, special parole always has a mandatory minimum and because it -- it's subject to hold different kind of revocation, it's quite to distinct punishment.
Justice Thurgood Marshall: What's the difference between special parole and regular parole?
Mr. Steven Lloyd Barrett: Okay.
You get a five year term of imprisonment and the parole board initially they -- they look at the parole guidelines and they set your -- how much time you have to spend in jail of that five years and -- and when your consideration for parole is.
Let say the parole board says that you have to serve three years in jail and after that your eligible parole.
Justice Thurgood Marshall: I know that as a matter of the term and I'm talking about does he report to his parole officer (Voice Overlap) --
Mr. Steven Lloyd Barrett: Oh, (Voice Overlap) The -- the statute doesn't specific, my -- my understanding is that -- yes.
You -- you are under the control of the parole officers just as you would be.
Justice Thurgood Marshall: Well, that's why I want to know, what the difference?
Does he report twice a week instead of once a week or --
Mr. Steven Lloyd Barrett: I don't -- I don't -- I don't -- well, it's not specified in the -- the statute -- my understanding is that not subject to the way the parole officer wants set it up.
I -- I don't think that in that sense there's a distinction in terms of what you have to do to serve, in other words is think special (Voice Overlap) --
Justice Thurgood Marshall: So the word, “special” means what?
Mr. Steven Lloyd Barrett: Special means different --
Justice Thurgood Marshall: I -- [Attempt to Laughter]
Mr. Steven Lloyd Barrett: -- what extra.
I was speaking about the legislative history and I think I've covered really most of the points that I wanted to.
The -- the main point I wanted speak of course was that that Section 845 made this change, and 846 did not make this change.
And I think that that indicates Congress's intentions, and I think that in fact if you look at H.R. 18583 which is the bill that was enacted by Congress, the intent of Congress with respect to these two sections is very, very clear in that -- in that bill they amended the parole revo -- in a parole revocation section there is a reference prior to H.R. 18583.
There is a reference to special parole imposed under this act.
Now, in conjunction with changing 845, by adding the second -- special parole clause, Congress changed the term imposed under this act to special parole imposed under Section 841 or 845.
No mention of Section 846 there.
So 845 is included and 846 is excluded in terms of -- of this particular reference.
Now, that's in Section 841 (c) which is at page 3 of our brief.
We show that in light of Congress's act -- activity as to other sections it cannot be maintained that Congress' failure to add special parole as anything but intentional and it was -- the very purpose of keeping special parole out of a Section 846 sentence.
If I could try to paraphrase Mr. Justice Frankfurter in the Youngstown Sheet and Tube versus Sawyer case, it's one thing to say that Congress intended special parole to apply to conspiracy despite not having so specified where Congress did not address itself to the need for separate special parole authorization.
But it's quite impossible when Congress didn't specifically address itself to the need for specific and specials -- to specific special parole authorization to find in Section 846 the grant of special parole authorization which Congress consciously withheld.
We feel therefore, that the legislative history teaches the same lesson that statutory scheme does.
And that is that Congress retain in Section 845's precise specification of penalties, imprisonment and fine for the purpose of providing for imprisonment without a special parole term for the crime of conspiracy.
My time is almost up, I -- I'm -- I just did want to say -- speak very briefly on the doctrine of lenity, because we feel that -- we feel in this case that the statutory language and legislative materials lead to an inescapable conclusion as the Congress' intent, but should this Court remain unconvinced and fine some merit in the Government's position, we feel that there are nonetheless sound reasons for disclosing this case by excluding special parole from this convict's sentence.
The absence of special parole in Section 846 and -- and Congress's addition of special parole to other sections which was structured like Section 846, provokes to the very least some doubt in our favor and the most that the Government can prove we feel is -- is that there is ambiguity in this case.
That it -- it cannot -- it cannot erase the express terms of the statute.
Where Congress' unwavering retention trough all these bills of the expression of imprisonment and fine or both, and therefore in -- in accordance with this Courts long preference for the resolution of ambiguity in criminal statutes in favor of lenity and particular in term of -- in light of this Court's determinations that lenity applies in sentencing cases.
Chief Justice Warren E. Burger: Do you think the doctrine of lenity applies with the monolithic uniform sense to drug crimes and all other crimes or do you think there is a difference?
Mr. Steven Lloyd Barrett: I don't there's difference Mr. Chief Justice on the basis of the crime.
But I --
Chief Justice Warren E. Burger: (Inaudible)
Mr. Steven Lloyd Barrett: No, I don't -- I -- I think it's with in this Court discretion.
And I would submit that, that lenity should be used in this case but in this Court's discretion.
I -- I think so that the key to the operation of lenity is not the question of the crime committed, but the question of the ambiguity in a statute.
And I think that the statute -- well I -- I definitely think the statute is clear, but I think at the very, very least our -- our points show that there's some ambiguity here.
Justice John Paul Stevens: Mr. Barrett before you sit down, could you tell me this, it's your view that the special parole term is not authorized at all.
Now, the contract of you could either be that it's authorized but not mandated, or that it's mandated and entered the substantive offense it's mandated.
Now, do you know in the cases that have gone against to you, which view have they taken for that?
Mr. Steven Lloyd Barrett: I've never seen expressed the view that special parole is anything but mandatory.
Justice John Paul Stevens: It would -- if it applies (Voice Overlap) --
Mr. Steven Lloyd Barrett: If it applies, it applies only mandatorily as -- with -- with imprisonment.
I -- I've never seen any suggestion that it can be in this (Inaudible).
Thank you very much Mr. Chief Justice.
Chief Justice Warren E. Burger: Very well.
Argument of Harlon L. Dalton
Mr. Harlon L. Dalton: Mr. Chief Justice may it please the Court.
Like petitioner we began by focusing on the statute itself and in particular on the statute as whole and determine what can be -- what -- what guidance can be drawn from the structure of the statute.
Sections 841 through 845 of Title XXI define various drug related substantive offenses and fits penalties for committing them.
Section 846, the attempt and conspiracy section, makes unlawful an attempt or conspiracy to commit one of those substantive offenses and -- however, Section 846 does not itself define the conduct which if attempted or planned with constitute in offense nor does it create sound penalty or sentencing scheme.
Instead Section 846 looks to the substantive offenses and takes from them, borrows from them, draws from them the penalty schemes that are included in those substantive offenses.
Thus, whether the one looks at Section 846 as active or passive as a referencing statute or as a conduit, the language doesn't matter.
The reality is that Section 846 derives its meaning, its very meaning and derives its penalty structure from the substantive offenses, and imposes the same penalties in the same combinations as would apply to a substantive offense that was the object of a particular conspiracy.
The fact that Section 846 refers to punishments “not to exceed” the maximum punishments set in the substantive offenses does not detract from this view.
True, Congress could have in -- could have stated that conspiracy sentences must be equal to sentences imposed for substantive offenses, but as a practical matter the difference between equal to and not to exceed the maximum -- the -- the difference doesn't exist, those -- those phrases are as a practical matter is synonymous because the Drug Abuse Act does not create fixed sentences or determine sentences rather fixes maximums, maximum terms of imprisonment, maximum fines and in the case of special parole, minimum -- minimum term, so that the talk in terms of equality really is to talk strange language because there is no fixed sentence that must be imposed even for substantive offenses.
In other words, if Section 846 says, upper limits that same statement can be said of the substantive offenses which create upper limits for the -- for the imprisonment and fine that can be imposed under them.
Now, the legislative history of -- of the Drug Abuse Act, we believe underscores this -- this congruence between sentencing for conspiracy and sentencing for underlying object offenses.
The -- as Mr. -- well, the predecessor statutes -- the statutes that preceded the Drug Abuse Act, all provided for (Inaudible) for congruence between sentences imposed for conspiracy and sentences imposed for substantive offenses.
In 1969, the administration introduced a comprehensive bill which was designed to make many changes in existing law, to consolidate existing law, to change the penalty scheme.
However, and indeed that bill in every one of its incarnations, they'd create a separate sections for conspiracy which should not in the case prior to 1970 or 1969.
But at no point the Congress change the basic congruity between sentencing for conspiracy in substantive offenses.
In fact in response to your question Mr. Justice Rehnquist, petitioners in their reply brief I believe at page 7 conceive that this initial draft, the initial bill that was introduced in Congress in 1969, created punishments for conspiracy that would “identical quoting from their brief to sentences that would be imposed for related substantive offenses”.
Now, at no point during Congress's consideration of -- of that bill, was there any indication that Congress desired to alter that identity between -- the sentencing identity.
Indeed, the spokespersons for the administration who spoke to the bill both before the passive to special patrol -- special parole introduced and after indicated that the concept of co-terminus sentencing was to be retained.
Turning to Section 845, that's the distribution to minors provisional statute, it's quite correct as -- as to Mr. Justice Rehnquist pointed out I believe that Section 845 is a substantive provision and to that extent it is different and kind in Section 846.
It's also correct as Mr. Justice Stevens pointed out that Section 845 is not a simple referencing statute, it changes the nature what it is referenced.
It provides for at -- for up to twice imprisonment and fine and at least twice the special parole.
And in for that reason, there is some sense that -- that there is greater need for specificity in drafting.
But beyond that, the history of Section 845 is radically different from the history Section 846.
During the course of -- of -- of the passage of the -- the comprehensive bill on route to becoming the Drug Abuse Act, Congress rewrote virtually every word of Section 845.
Congress altered its language and indeed its -- its substance and during the course of that those alternations took the opportunity to effect to conformity changes to which petitioner refers.
Specific with the first after Section 845, specified that the purchaser must be eight -- under the age of 18.
It specifies that there must be a three-year deferential between the ages of purchaser and seller.
In other words, the -- the seller must be at least three years older than the purchaser.
That initial draft tried to differentiate between narcotics distribution and other kind -- distribution of other kinds of controlled substances.
Most importantly that that initial draft provided for an enhanced -- enhanced imprisonment that is twice the imprisonment but did not provide for an enhanced fine.
Now, the second draft of -- of section -- of what became Section 845 occurred after the concept of special parole was introduced, after a series of hearings were held in both houses of Congress.
That second draft however, did not plug in the concept of special parole.
It -- it tinkered a little bit with -- with that distinction that I mentioned between narcotics and other kinds of drug distribution offenses.
In the third and final draft of the -- of the statute, the narcotics are the controlled substances distinction was dropped.
The age of -- that purchasers must be to come within the statute was raise to 21.
The disparity between purchaser and seller was removed.
Fines -- the fine that would be impose if a distribution were to an adult was enhanced along with imprisonment, and at that time Congress effected a conformity change with respect to -- to special parole.
Similarly, the history of the second offender provisions which petitioner comments on in -- in his brief are radically different from -- it is radically different from the history of Section 845.
The second effective provisions under went major rewrites by Congress.
They were revised not only in terms of their language and content, but their structure as well and during the of course of those provisions the -- the conforming change was made in the repeat offenders sections as well.
In contrast Section 846, as it appears in Title XXI today, reads the same, line for line, word for word, coma for coma, as the section that was introduced in the initial Government bill back in 1969.
There was an aborted effort at some point to change the word “attempt” to “endeavor,” but that was the single, the sole effort to change even one (Inaudible) of title of that section.
As result, Congress -- the conspiracy and attempt section became law without Congress have a really focusing on it's -- on its precise language.
Nevertheless, there is -- there -- there can be no question of the intent of Congress to maintain the traditional congruence coterminous between sentences for conspiracy and underlying substantive offenses.
I've already discussed the -- the structure -- the very structure of statute and the legislative history.
In addition, simply logic dictates that conclusion.
It's inconceivable that Congress considers special parole a needed and appropriate penalty or response to substantive offenses which can -- in fact involve isolated transactions by single individuals, and yet discarded that same remedy for those who act in consort to achieve the same end.
Congress fashioned the -- the remedy of the special parole in order to impose -- post incarceration -- in order to maintain control over the post incarceration conduct persons who -- who engage in drug distribution and in order to serve as a deterrent to repetition of criminal misconduct and it defines common sense to -- to assume, or to believe, or conclude absent some evidence that Congress sought to achieve those -- those objectives only with reference to completed drug distribution offenses.
Indeed petitioner cited no -- no reason, policy and no reason in logic, why Congress would have wanted to -- would have a purpose to -- propose to treat conspiracy differently than substantive offenses.
Now, petitioner suggests and I should I understand the argument, but that if one looks at the -- the pattern of -- of substantive offenses to which Congress has assigned the penalty of special parole one can conclude that Congress could not have intended to assign that same penalty to conspiracy.
I think this a non sequitur.
First of it -- the question isn't whether given the fact that Congress has a assigned special parole to one substantive offense it sure logically would have assigned it to another substantive offense.
The question is whether given the fact that Congress has assigned special parole to particular substantive offense it intended for conspiracy to engage in that precise offense to be similarly punished.
But in any event, there is a clear and logical sensible pattern to the -- the man in which Congress assigned special parole even among the substantive offenses.
Of the nine offense defined in Sections 841 through 844, the four most serious -- most serious that is in terms -- in the sense that they involve trafficking in narcotics and in other easily abusable drugs, those four most se -- the serious offenses mandate in petitioner special parole term.
Now, it's true that the continued criminal enterprise section which is Section 848 does not impose a special parole term, but that's section has a 10-year mandatory minimum term of imprisonment.
It authorizes to a maximum of life imprisonment.
It authorizes fines up to $100,000 and it provides for forfeiture of -- of profits from any continual criminal enterprise and of any property that is somehow associated with the enterprise.
And so in view of that clearly severe set of penalties that the fact that special parole is not among them is valid at the moment.
Petitioner points to two other sections alluded to them in his argument today that petitioner deems equally serious to the ones for which Congress imposed special parole and yet which you don't.
One of those sections, Section 841 (d) I believe was not even part of the Drug Abuse Act as passed in 1970.
It was added less than two years ago, less than 15 months ago.
And it -- by the way, it penalizes possession of piperidine with intent to manufacture phencyclidine which is I guess a more commonly known as angel dust.
That Section 841 (d) was part of an experimental statute as I say passed to some less than two years ago, that was designed to experiment with ways to deter abuse of piperidine and the section includes both criminal and non-criminal ways of trying to deal with this problem and that statute including Section 841 (d) on which the petitioner relies will expire in -- in 1981 by its own terms absent further implementing legislation.
The other section on which petitioner relies to suggest that that there is little rhyme or reason to the -- the pattern in which the Congress impose special parole is Section 843 which again is different in kind than the sections to which special parole applies.
It's a reporting section that has to do with -- parties who are -- are licensed or authorized to dispense narcotics or drugs rather in do so in a flagellant fashion.
And Congress could quite logically chose to treat those kinds of offenses differently than kinds of offenses that are -- which the Court is concerned.
Justice John Paul Stevens: Mr. Dalton --
Mr. Harlon L. Dalton: Yes.
Justice John Paul Stevens: -- do you agree that the -- in a conspiracy case the -- the special parole term must be imposed?
Mr. Harlon L. Dalton: Yes.
Yes, I'm not sure that that the way that we framed our question was necessary -- to the question presented in our petition would necessary indicate that, but yes we do.
Justice Potter Stewart: And it's a -- do you agree with your brother that that's been a view of a every court that has agreed with your position?
Mr. Harlon L. Dalton: Yes, it has.
All five of the Sixth Circuits have agreed with our position.
Justice Potter Stewart: And your position has been unanimously endorsed in the circuits, hasn't it?
Mr. Harlon L. Dalton: With exception of the -- the Third Circuit --
Justice Potter Stewart: (Inaudible)
Mr. Harlon L. Dalton: -- no the Third Circuit in fact in that case --
Justice Potter Stewart: And then as the District Court --
Mr. Harlon L. Dalton: -- in California which --
Justice Potter Stewart: -- of California (Inaudible)
Mr. Harlon L. Dalton: Exactly which did not go to Ninth Circuit --
Justice Potter Stewart: It is not, and the Ninth Circuit has rule (Voice Overlap) --
Mr. Harlon L. Dalton: That's correct.
In sum logic and common sense combine with the structure in the history of the Drug Abuse Act to dictate that special parole must be imposed as part of offense for conspiracy whenever that penalty would be imposed for the substantive offense which is the object of the conspiracy.
That's clearly Congress's intent, and this Court can give effect to that intent by concluding that the phrase imprisonment or fine or both is merely illustrative and does not limit the penalties incorporated by Section 846.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.