Missouri v. Hunter - Oral Argument

ORAL ARGUMENT OF PHILIP M. KOPPE, ESQ. ON BEHALF OF PETITIONER

Chief Justice Burger: We will hear arguments first this morning in Missouri against Hunter.

Mr. Koppe, you may proceed whenever you are ready.

Mr. Koppe: Mr. Chief Justice, may it please the Court:

This case represents the culmination of a six-year struggle by the State of Missouri to enforce the multiple punishment provisions of Missouri's armed criminal action statute, a statute which makes it a separate offense punishable by a separate sentence to commit a felony with the use, aid or assistance of a dangerous or deadly weapon.

For the last three years, anyway, it has been an uphill battle.

In a series of decisions beginning in January of 1980, the Missouri Supreme Court has ruled that the double jeopardy clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, insofar as it prohibits multiple punishments for the same offense, prevents the state from convicting a defendant for both armed criminal action and the predicate or underlying felony.

The court reached its conclusion even though it also concluded that the legislature intended multiple punishments under both statutes and even though those punishments were assessed in a single proceeding.

Twice this Court has directed the Missouri Supreme Court to reconsider these rulings, first in light of Whalen versus United States, then again in light of Albernaz versus the Government.

On both occasions, however, the Missouri Supreme Court declined to take advantage of the opportunity to change its ruling.

As the result of the Missouri Supreme Court's adherence to what we regard as an erroneous conclusion, the Missouri Court of Appeals in this case reversed the Respondent's 15-year concurrent sentence for armed criminal action, leaving intact a concurrent 10-year sentence for the predicate felony, which was robbery in the first degree.

Unaffected by the court's holding and not involved in this case was a consecutive five-year sentence that the Respondent received pursuant to an assault conviction arising out of the same transaction.

The issue presented by this case, then, is strictly a legal one, devoid of any procedural complexities or factual disputes.

And that question is simply whether or not the State, without offending the double jeopardy clause, may impose cumulative punishments for conduct arising from the same act or transaction for both a compound or greater offense, in this case armed criminal action, and also the predicate or lesser included offense, in this case robbery in the first degree.

Unidentified Justice: Mr. Koppe, has your Supreme Court ever addressed that question under the state constitution?

Mr. Koppe: The court did, Your Honors, and it found that the state prohibition against double jeopardy prohibited only retrial after acquittal.

So this issue was decided solely on the basis of federal constitutional grounds.

Unidentified Justice: Is that case you referred to a Supreme Court of Missouri case?

Mr. Koppe: That's correct.

Both cases are Sours versus State.

We refer to them as Sours I and II.

Sours II was on remand after this Court's decision sending the case back following Whalen.

Unidentified Justice: Where is that in the opinion?

Is that in the opinion of the court?

Mr. Koppe: That is not in the opinion of the Court of Appeals, Your Honor.

It is in the opinions of the two Sours cases.

Unidentified Justice: But it's not in the opinion that's before us?

Mr. Koppe: Right.

The Court of Appeals--

Unidentified Justice: Did they pass on this point?

Mr. Koppe: --The Court of Appeals in deciding this particular issue I think decided it in about a single paragraph.

It felt--

Unidentified Justice: Where is that?

I didn't find that, even.

Mr. Koppe: --The opinion, the full opinion is set out in the petition.

Unidentified Justice: I know.

That's all right.

If it's in there, I look at it.

I'll look for it.

You don't have to look for it.

Mr. Koppe: Okay.

The Court of Appeals did not treat this issue with any degree of specificity.

It simply cited the two Sours cases and the Haggard cases, the cases that were decided by the Missouri Supreme Court en banc.

It felt it was bound by those cases.

So in order to fully understand the reasoning behind the Supreme Court's decisions, you must look to Sours I and II, a case called State versus Haggard, where the court reconsidered this issue following Albernaz, and most recently in a case called State versus Kane, all of which are cited in our brief.

All four of those opinions are essentially the same.

They basically state that since the legislature, whether intentionally or otherwise, has made the predicate offense, in this case robbery but the underlying felony, in a sense a lesser included offense of the compound offense, that that is prohibited by the double jeopardy clause because it is the same offense within the meaning of Blockburger.

According to the Missouri Supreme Court, when you apply the Blockburger test you come up short, because both statutes do not require proof of an element that the other one does not.

Unidentified Justice: Mr. Koppe, your Court of Appeals chose to vacate the longer of the two concurrent sentences, didn't they?

Mr. Koppe: That's correct.

Unidentified Justice: Is there anything in state law that compels that result, rather than vacating the shorter?

Mr. Koppe: Well, the Court of Appeals reached that decision because in the two Sours cases and in Haggard that was the procedure.

There really wasn't any explication of why they did that until after this case was decided.

In State versus Kane, which actually followed Hunter and is the last word on the subject, the Supreme Court indicated that the reason it would vacate the armed criminal action conviction was because what the state legislature had attempted to do was pass an enhancement statute.

However, the court reasoned that the enhancement failed because of the way the statute was phrased, and the court expressly said that in Kane.

And I think that case illustrates more than anything precisely what this case is about.

We're not really arguing constitutional principles in any real sense; we're arguing phraseology.

Basically, the State's position here is that the State of Missouri could have done precisely the same thing, assessed precisely the same punishment in a single statute--

Unidentified Justice: Mr. Koppe, I hate to bother you, but the third page of the opinion in the second full paragraph, talking about double jeopardy, as I read it says:

"Under these decisions, Appellant's conviction for armed criminal action is vacated and the sentence for that conviction is set aside. "

Mr. Koppe: --That's correct, Your Honor.

Unidentified Justice: Well, is that here?

Are you appealing that?

Mr. Koppe: That is correct, yes.

Unidentified Justice: That's the issue.

Mr. Koppe: That's the issue.

Unidentified Justice: The issue is whether they can set it aside?

Mr. Koppe: That's correct, on federal double jeopardy grounds, on the theory that that constitutes convictions for the same offense within the meaning of Blockburger.

Unidentified Justice: But he cites two state cases, right?

Mr. Koppe: That's correct.

Basically, the Court of Appeals felt bound by the earlier decisions of the Missouri Supreme Court, which we cite and discuss in our brief.

Those are Sours versus State, two opinions, and State versus Haggard.

So in order to determine really the basis for the reversal, you have to look at those cases.

And essentially--

Unidentified Justice: May I ask, you said that in one of those earlier cases, not Sours but the other one, I think it was, that the Supreme Court of Missouri said that the legislature had attempted to enact an enhancement statute.

Mr. Koppe: --That's correct.

Unidentified Justice: Which is certainly the way I would have read it, very frankly.

But it failed because of the language of the statute.

But the legislative intent was simply an enhancement statute, rather than to create a second offense.

Mr. Koppe: Correct.

What the court said, and I know I've cited it in my brief, but basically, when explaining why they were vacating what they had held to be the greater offense, was that the attempted enhancement which they had tried failed because of its phraseology or the way it was phrased.

They expressly make that statement, and I think that that to me demonstrates an illustration of again what this case really hinges on.

It hinges on phraseology, because our argument is that the State in this case could have passed a single statute and assessed exactly the same punishment for this particular conduct.

And the Missouri Supreme Court in effect so held.

The Missouri Supreme Court flatly stated in the Kane case that there was nothing unconstitutional with giving the defendant an additional amount of punishment because of his use of a weapon to commit a crime.

However--

Unidentified Justice: But we are bound by their interpretation of their own statute, namely that the legislature didn't pass an enhancement statute, they passed a statute which imposed a separate penalty for a separate crime.

That's what they concluded the legislature did.

Mr. Koppe: --Well, when they concluded that, Your Honor, you have to look at the cases they discussed, and they discussed the two types of cases.

There are cases, for example, emanating from states like Delaware, Michigan, Maryland, of which this Court is aware, which also make it a separate offense.

Then there are other states which have simply added punishment to the sentence for the particular felony involved, and the court considered that the latter type of statutes was the true enhancement statute.

Unidentified Justice: But you're urging us to say that not only may the legislature pass an enhancement statute, but it may do exactly what the Supreme Court of Missouri said it did and said it couldn't, namely impose a separate penalty.

Mr. Koppe: Well, of course, the reason--

Unidentified Justice: Aren't you saying that the double jeopardy clause does not prevent a legislature from doing that?

Mr. Koppe: --That's correct, that's correct.

And simply what the Supreme Court was saying was, what the Missouri Supreme Court was saying is, if the state legislature had done it in a slightly different fashion, if it had taken all the punishment and put it in a single sentence... excuse me, a single statute... there wouldn't have been a constitutional violation.

And what we're saying is, if they had put all the punishment in a single sentence it certainly would have been a less roundabout way of doing it, but the fact that they chose to do it in separate statutes raises no... or shouldn't raise a constitutional question.

Now, it does because they held that the double jeopardy clause prohibited the legislature in this state from doing it in this fashion.

And in arguing the point in his brief, counsel for the Respondent in this case basically says that the role of the double jeopardy clause in single prosecution cases prevents a state legislature or Congress from assessing punishment over two statutes, that it has to do with the distribution of punishments.

And that is essentially what the case is really about.

The Missouri Supreme Court never actually said it in that fashion, but that's really what their decision comes down to.

And what we're arguing basically is that this is simply a matter of form over substance, that this really doesn't raise any significant constitutional issue, because the sole question here is one of legislative intent.

We are not dealing with a successive prosecution case.

If we were dealing with a situation where the State had attempted not only to assess multiple punishments under two statutes but to impose those statutes in two separate proceedings, then you would have an altogether different issue.

Then you would have a Harris versus Oklahoma problem, Illinois versus Vitale, a Brown versus Ohio.

But in this case the question is what is the role of the double jeopardy clause insofar as it prohibits multiple punishments for the same offense.

And of course we felt that the issue was resolved, had been resolved once and for all in Albernaz versus United States, where this Court in its last two sentences of the opinion says:

"The question of what punishment are constitutionally permissible. "

--talking about the prohibition against multiple punishments for the same offense...

"The question of what punishments are constitutionally permissible is not different from the question of what punishment the legislative branch intended to be imposed. "

"Where Congress intended, as it did here, to impose multiple punishment, imposition of such sentences does not violate the Constitution. "

Now, the Missouri Supreme Court on remand in State versus Haggard seemed to indicate that these sentences, if they meant what they said and if binding on the court, would prevent the vacation of the armed criminal action statute.

But essentially what they said was, this is dicta, we don't have to follow this opinion.

Now, of course, the Delaware Supreme Court on remand in a similar case also felt it was dicta, but also thought that it was an evolving rule that it was therefore obligated or should follow.

Our argument of course is that it is not dicta and, notwithstanding the concurrence in the case which said that this statement was not supported by either precedent or logic, we think it's supported by both.

To be sure, I think the opinions of this Court indicate that in the double jeopardy area... in some of its opinions I think it's been described as not exactly being a model of clarity.

Justice Rehnquist referred to it as the Sargasso Sea.

And it is true that the various opinions have different emphasis.

There are dicta running throughout the opinions.

Just when you think you've figured out what the opinion holds, there is a footnote that makes you wonder.

But nevertheless, this Court in Whalen and again in Albernaz for really the first time took some time to attempt to explicate the rationale that underlies the double jeopardy clause in single prosecution cases, and basically indicated that its role, its sole role there, was to enforce the legislative intent because it recognized that the legislative function to define crimes and prescribe offenses is not circumscribed by the Fifth Amendment.

Unidentified Justice: Mr. Koppe, what if there is a conviction for first degree robbery and armed criminal robbery, which there were in this case?

Mr. Koppe: Correct.

Unidentified Justice: And on appeal the conviction for first degree robbery is affirmed and the armed criminal conviction is reversed on evidentiary grounds or something, so there'll be a new trial.

The armed criminal... the first degree robbery conviction stands.

Now there's going to be a separate proceeding about the armed criminal action.

Mr. Koppe: Correct.

Unidentified Justice: Is it barred?

Mr. Koppe: Well, I think that Brown versus Ohio indicates that there are some instances where separate trials would not be precluded.

I think this would be one of them.

Normally, if the state can proceed with both cases, it must.

I think the rule in Brown, and I will paraphrase it and hope I don't mess it up too badly, but basically is that where a defendant is tried and convicted of a crime which includes within it various incidents, the defendant cannot be then tried again for a crime which contains one of those incidents.

Unidentified Justice: Yes.

Mr. Koppe: Where it is possible at the original proceeding to charge him with both... and of course in some cases it may not be possible.

In Jeffers, for example, the Court I think ruled that the defendant had elected to be tried only on one, and in fact--

Unidentified Justice: Mr. Koppe, how do you answer Justice White's question?

I still don't understand your answer to Justice White's question.

Mr. Koppe: --I'll try again.

Unidentified Justice: Can he be tried the second time under your view of the double jeopardy clause?

Mr. Koppe: If he's tried for both at one proceeding and one is set aside.

Unidentified Justice: And the Supreme Court reverses the enhanced offense, the armed conviction, then they send it back for trial.

Can they try him?

Mr. Koppe: In that instance I think they can, right.

Unidentified Justice: So there would be two trials for the same offense.

Mr. Koppe: There would be two trials.

Unidentified Justice: But then so your rule isn't limited to multiple punishments for single trials.

Mr. Koppe: Well, it isn't limited... I mean, it is except in those situations that would be exceptions to the Brown rule.

In other words, there are exceptions--

Unidentified Justice: In those cases you would agree that for the same offense there can be successive prosecutions?

Mr. Koppe: --Correct, that would be our position.

However, the chances of that happening it seems to me would be very rare.

Unidentified Justice: Why?

Mr. Koppe: I'm not aware of its happening.

Unidentified Justice: Why would they be rare?

Mr. Koppe: But regardless, that's correct.

In other words, we're not asking for immunity from the successive prosecution rule in Brown, but Brown does admit of some exceptions.

That's all we're saying.

Unidentified Justice: You're only asking for the immunity from that rule where one of the convictions for the same offense has been affirmed.

Mr. Koppe: Right.

Unidentified Justice: May I ask... excuse me.

Go ahead.

May I ask a different question.

Supposing you have a man who is convicted of both offenses, as is true here.

When you have other collateral consequences, such as parole or maybe aggravating circumstances for a death penalty or something like that, is this treated as having been convicted of two felonies or one?

Mr. Koppe: For purposes... in the State of Missouri--

Unidentified Justice: Yes.

Mr. Koppe: --state law would make no distinction here.

For example, there are various possible collateral consequences.

The most obvious is the recidivism statute.

However--

Unidentified Justice: And this would be two felonies for that purpose?

Mr. Koppe: --Well, it would not be, for this reasons.

There are three categories under the Recidivism Act.

The first is a prior offender, which requires only one prior.

The third category is dangerous, which requires only one prior dangerous.

The middle category is persistent, which does require two.

However, the statute expressly states that you may not use more than one arising out of the same transaction.

But that really gets to the argument that I was making.

If there is some constitutional problem with the state labeling... and I'm saying this is what we're talking about, is labels.

If there is some constitutional inhibition based on the state's labeling of conduct which the state might otherwise have characterized as one offense, labeling that as two, it would be because of possible collateral consequences.

But what I argue in my brief under subsection D is this: that we could make this a single crime, punishable by a single extended sentence, and still bring into account those collateral consequences.

For example, take the recidivism statute.

At the present time Missouri does not allow you to use two for purposes of the Persistent or Dangerous Offender Act if they arise from the same transaction.

Suppose, however, that the state were to tomorrow amend the statute and make no distinction.

Then you might say that the defendant, by receiving two convictions for this particular course of conduct, is in a worse position, and he would be.

But what I'm saying is, under the Blockburger rule what the State of Missouri could do is go back and rewrite the statute and make it a single offense punishable by a single extended statute... excuse me... extended sentence, but then say: Nothing to the contrary withstanding in the statute on the Persistent and Dangerous Offender Act, a conviction which is enhanced because of the defendant's use of a weapon may serve to implement the provisions of the Persistent and Dangerous Offender Act.

Another possible collateral consequence would come into effect, for example, if the defendant was reconvicted and took the stand.

The argument would be, well, now you have two convictions instead of one that he could be impeached with.

Present Missouri law would allow only impeachment on the basis of actual convictions.

However, once again the state could simply make it a single sentence and include as part of the punishment the fact that, nothing withstanding in any other statutes be... a sentence which has been enhanced because of the defendant's use of the weapon, that enhancement may be used to impeach his credibility.

So essentially what I'm saying is, you can accomplish... anything that you can accomplish in two statutes, you can accomplish in one.

And so if there's going to be any inquiry with respect to the punishment imposed here, it would be whether or not the total punishment, the total punishment, whether you're talking about direct punishment or collateral consequences, whether that punishment would be excessive or whether that punishment would be cruel and unusual.

But this... you know, that involves some other provision of the Constitution, the Eight Amendment.

That is not the Fifth Amendment.

Our argument is basically that when you're talking about the Fifth Amendment in single prosecution cases that the role of the double jeopardy clause acts as a restraint on courts and prosecutors and protects a defendant against receiving more punishment than what the legislative branch intended he receive.

Now, when we made this argument in the Supreme Court basically what they said, among other things, was that, well, you have created a rule which has immunized the legislative branch from the double jeopardy clause.

And we think really that that begs the question, because if the protection, as we argue, is designed to ensure that a defendant does not receive more punishment than what the legislature imposed, it really doesn't make any sense to say, well, you've immunized the legislature from the scope of the clause, because basically what we've said is that the clause is designed to protect a defendant from courts and prosecutorial overreaching.

And in this case, unlike many of the others that this Court has had to decide in this area, there is no question about the legislative intent.

Not only does the statute, like its federal counterpart... not only does the statute indicate that the punishment shall be in addition to the punishment for the underlying felony, but the Missouri--

Unidentified Justice: You want us to interpret the Missouri statute contrary to what the Missouri court interpreted it?

Mr. Koppe: --No, Your Honor.

What I'm asking is that this Court--

Unidentified Justice: I thought that's what you just said.

Mr. Koppe: --interpret it precisely the way the court has interpreted it.

What I was starting to say was, not only does the statute--

Unidentified Justice: Well, you put "precisely" in and you agree?

Mr. Koppe: --Right, because what I was saying is, not only does the statute on its face state that the punishment is to be in addition to, but the Supreme Court--

Unidentified Justice: And here is a state supreme court passing upon one of its statutes, without mentioning the federal Constitution or any other thing, and you want us to upset that, and take your word for what the statute says over the Supreme Court of Missouri.

Mr. Koppe: --Well, I was trying to make one point.

I'll make two.

Unidentified Justice: Please.

Mr. Koppe: What I was starting to say was, not only does the statute, the armed criminal action statute, state that the punishment is to be in addition to, but it has been construed in that fashion at least on four occasions by the Missouri Supreme Court.

Now, with respect to your question, again getting back to the Court of Appeals' opinion, the Court of Appeals' authority was state cases, but those state cases, the two Sours cases and the Haggard cases, were decided solely on federal constitutional grounds.

And what I am saying is, in order to determine exactly what the federal question was you need to look at these cases, these two Sours cases and the Haggard cases.

Obviously, if you look no farther than the Court of Appeals opinion you might be somewhat puzzled, because it doesn't mention the Constitution.

But the statutes that those cases... excuse me... the cases--

Unidentified Justice: I didn't know I was required to look anyplace else for the interpretation of a state law than to the state court.

Mr. Koppe: --Well, it isn't the interpretation of the state law that we're arguing about.

It is... the Supreme Court in the State of Missouri and the Respondent, for that matter, all agree on the interpretation of the state statute.

We all agree that the legislature intended that the defendant receive punishment under both statutes.

The question, however, is can the state constitutionally enforce that intent.

Unidentified Justice: May I ask you another question about that.

I guess the language that troubles the Missouri Supreme Court is the language,

"is also guilty of the crime of armed criminal action, and upon conviction. "

and so forth.

If they took those words out it would be clearly just an enhancement statute.

And you mentioned the difficulty of six years of straightening out the Supreme Court.

I just wonder why you didn't go back to the legislature and say, all you have to do is strike three or four words out of this statute and our problem is solved, because it's perfectly clear that an enhancement statute is constitutionally unobjectionable.

Mr. Koppe: Well, in the first instance, it is our position that in a sense it is an enhancement statute.

Its effect is exactly the same--

Unidentified Justice: So in other words, the effect could be the same and for prosecutorial purposes for the State of Missouri you'd be perfectly happy not to define it as a separate offense, but make it perfectly clear that it is not only the functional equivalent of an enhancement statute, but it should be amended to be nothing more than an enhancement statute.

Mr. Koppe: --That's correct.

Unidentified Justice: And if you did that you'd avoid the problem that Justice White identified.

Mr. Koppe: We would have avoided the problem altogether.

The problem, of course, is in attempting to get the legislature to pass a particular act in a particular form.

Unidentified Justice: All it is, just a clarifying amendment, really.

Mr. Koppe: Well, as simple as it sounds, I think as this Court perhaps knows--

Unidentified Justice: It's easier to deal with the Missouri Supreme Court?

Mr. Koppe: --it's easier said than done.

Unidentified Justice: There are even more people to convince in the legislature than on the Supreme Court.

Mr. Koppe: That may be true, Your Honor.

Unidentified Justice: And it wouldn't help you out very much about past convictions, either.

Mr. Koppe: That's the whole point.

If you said, well, what would be the impact, I mean, if we didn't have in excess of 100 cases where the defendants lost their armed criminal action convictions, in a sense it really wouldn't be that big of an impact.

The fact remains, however, that this statute has been in effect for some six years and, as this Court knows from simply the cases that are presently pending in certiorari--

Unidentified Justice: Of course, the funny thing about this case is that without the enhancement you had a life sentence available to the trial judge anyway.

In this particular case you didn't even need the enhancement statute.

Mr. Koppe: --That's true.

Unidentified Justice: It's sort of a tempest in a teapot.

Mr. Koppe: And if in fact the court had vacated the ten-year sentence, there wouldn't have been a problem.

Unidentified Justice: They could have done that consistently with the Missouri court's understanding of the federal Constitution, even if that may be wrong.

Mr. Koppe: That's correct, that's correct.

But again, what it comes down to and what we're saying is, admittedly if the legislature had done this a little different way there wouldn't have been this problem, we wouldn't be here; this Court would be listening to another case.

The fact remains, the legislature did it this way, and so the question is whether in single prosecution cases the Fifth Amendment's prohibition against multiple punishments serves as some literary critique on how the legislature chose to enact the enhancement statute.

In other words, we're saying that this is an enhancement statute.

It may not be fashioned in the way that you would normally think of as an enhancement statute, but it accomplishes precisely the same thing.

It accomplishes no more than they could have accomplished in a single statute.

Unidentified Justice: Put the other side of that same argument is, if one construed the Blockburger rule in the old-fashioned way... and I understand that the Albernaz case supports you very strongly... and said, well, you just make it an enhancement statute when you do, that rule of law would have provided no obstacle to the trial judge giving this man a life sentence, no obstacle to the appellate court setting aside the shorter sentence instead of the longer sentence, and no obstacle to the legislature giving you exactly what you want.

Mr. Koppe: Right.

Unidentified Justice: So the constitutional rule is no problem, except when they draft a kind of a strange statute like this.

Mr. Koppe: Right.

And of course, at the time the statute was enacted I think the legislators, if they considered this question at all, thought that the Blockburger rule had been satisfied because in the abstract, in the abstract... and I think Justice Rehnquist's opinion in Whalen goes into great detail on this... in the abstract it does satisfy the test.

However, as applied in any given situation, obviously whatever felony you prove up is not going to require any additional elements.

But in the abstract, as in Whalen, for example, which involved felony murder and I think a rape, the underlying felony did not have to be rape.

It could have been something else.

And likewise, the homicide didn't require a rape.

So in the abstract it did meet the statute, and of course that's what the Missouri Supreme Court said at first, and then they basically altered their method of applying the Blockburger rule.

But what we're saying is that the Blockburger rule is, as this Court said it was in Ianelli, in Whalen and in Albernaz.

In single prosecution cases, anyway, it's simply a rule to define legislative intent.

And basically what we're saying is, it can't be both.

It can't on the one hand be a rule... not consistently.

It can't on the one hand be a rule which seeks to ascertain legislative intent and then, when it finds it, turns it inside out and defeats that intent.

And of course, that's what the Supreme Court of Missouri used Blockburger for.

It applied Blockburger not as rule of statutory construction, but as a constitutional litmus test.

Unidentified Justice: When you emphasize what you call the clarity of the intent of the Missouri legislature, you are aiming, I take it, at the opening left in Whalen, where the Court said,

"In the absence of a clear indication of contrary legislative intent. "

And you say there is a clear indication of contrary legislative intent here.

Mr. Koppe: Right.

And there's also a statement in Whalen that we rely on which says, in discussing the Blockburger test, after stating that it is a rule of statutory construction, it says, and where the offenses are the same under that test... and that's what the Missouri Supreme Court said here... where they are the same, cumulative sentences are not permitted unless elsewhere specifically authorized by Congress.

Well, you substitute the words "state legislature" for "Congress", and again that holding supports us in its entirety.

But again, the Missouri Supreme Court elected not to follow that particular language on the belief that the conclusion urged by the state would mean that the conclusion urged by the state would mean that the legislature would have been immunized from the scope of the double jeopardy clause.

And that we say really begs the question.

Thank you.

Chief Justice Burger: Mr. Gardner.

ORAL ARGUMENT OF GARY L. GARDNER, ESQ. ON BEHALF OF RESPONDENT

Mr. Gardner: Mr. Chief Justice, may it please the Court:

The question is whether the multiple punishment for the same offense protection of the double jeopardy clause prohibits the imposition of punishment which the legislature intended under two statutes that are the same offense, as that constitutional phrase is defined in Blockburger.

Unidentified Justice: Why isn't it... why do you think this issue was not decided in Albernaz?

Mr. Gardner: Because in Albernaz the two statutes under which punishment was imposed were separate offenses.

That is, they each did not have an element... they each did not have a different element.

The two statutes under which punishment was imposed in this case--

Unidentified Justice: Well, that should make it even more of a violation.

Mr. Gardner: --More what, sir?

Unidentified Justice: Make it even more of a violation of the double jeopardy clause.

Anyway, you think the offenses are just different.

Here they're--

Mr. Gardner: Here they are the same; in Albernaz they were separate offenses, in the sense that in this case there's no element in the underlying felony which is not in the greater felony.

Because that is the case, Albernaz is not controlling.

It did not require the Missouri courts to uphold the imposition of punishment under each of the two statutes.

The Missouri courts have made three determinations about armed criminal action and first degree robbery.

They first determined what the elements of those two crimes are; secondly, they determined that they are the same offense; and thirdly, they determined that the Missouri General Assembly intended for punishment to be imposed under each of the two statutes.

These three determinations are binding upon this Court.

The double jeopardy clause does not tell a state court what the elements of its state statutes are.

Because it does not, it is not a substantive rule of law.

The double jeopardy clause does not tell a state court whether two of its state statutes are separate offenses or the same offense.

It only tells a state court what test to use in making that determination, and that test is the Blockburger test, and the double jeopardy--

Unidentified Justice: --And the Blockburger test is that the defendant can't receive two sentences, or is it that he can't be sentenced to more than he could have gotten on one conviction?

Mr. Gardner: --It is that he can't receive two sentences under two statutes which satisfy the test.

Unidentified Justice: Here he got concurrent sentences.

Under each conviction, as I understand it, he could have been given life; is that right?

Mr. Gardner: That's right.

Unidentified Justice: And instead of which, he got 10 on one, 15 on the other, but to be concurrent.

Mr. Gardner: That's right.

The clause prohibits the imposition of punishment under two statutes, whether the punishment is concurrent or not, when the two statutes are the same offense.

Unidentified Justice: Mr. Gardner, the Solicitor General has filed a brief indicating that multiple punishment only occurs if the punishment exceeds the statutory maximum for a single offense.

Would you like to comment on the position taken by the Solicitor General?

Mr. Gardner: The statutory maximum in each of these offenses is life imprisonment.

Perhaps the only time, under the Solicitor General's suggestion, there would be multiple punishment would be, I think, when there are two consecutive life sentences.

But it does not matter whether the sentences are concurrent or consecutive or less than the statutory maximum.

What matters is when sentences are imposed under two statutes that satisfy the Blockburger test, regardless of the length of the sentence.

The three determinations... the third determination that the Missouri Supreme Court made which is binding on this Court is that the Missouri General Assembly intended for punishment to be imposed under each of these two statutes.

The double jeopardy clause does not tell a state court whether its state legislature intended for punishment to be imposed under two statutes--

Unidentified Justice: Would you be making the same argument if he got ten years on each to run concurrently?

Mr. Gardner: --Yes, sir, I would.

I would make the same argument if he got three and five--

Unidentified Justice: Well, where's the multiple punishment if he serves only ten years?

Where's the multiple punishment?

Mr. Gardner: --The multiple punishment is in the imposition of the sentences.

Unidentified Justice: Do you suggest that it may have an effect on his parole, for example, a negative effect?

Mr. Gardner: Well, the armed criminal action statute prohibits parole for three calendar years.

So--

Unidentified Justice: If he's got two of them instead of one, even though they're concurrent, would that impair his, or affect his parole in Missouri law?

Mr. Gardner: --Assuming there wasn't that restriction on parole eligibility, I don't think it makes any difference how the two sentences affect his parole.

Parole eligibility, collateral consequences, the length of the sentence, are all essentially unimportant to the violation.

The violation occurs when sentence is imposed under two statutes that satisfy the test.

Unidentified Justice: Mr. Gardner, I understand you apparently want to come within the language in a prior case that talks about multiple punishment for the same offense.

I wonder if you really aren't arguing that the double jeopardy clause prohibits multiple convictions for the same offense.

That seems to be the heart of your argument.

Mr. Gardner: The Missouri Supreme Court I think felt that, because it vacated both the conviction and the sentence.

I want to say that the reason the Court chose to vacate the armed criminal action conviction and sentence rather than the underlying felony sentence was purely a matter of remedy.

It did not feel that the Constitution compelled the vacation of one sentence rather than the other.

It had no aversion to the crime of armed criminal action.

It chose to vacate the armed criminal action sentence because in over 95 percent of the cases it saw the shorter of the two sentences was imposed on armed criminal action.

This is one of the few unusual cases where the longer of the two sentences was imposed by the jury and the judge on armed criminal action.

Unidentified Justice: Under your view would you concede, then, that the legislature could enact sentence enhancement provisions for a single conviction?

Mr. Gardner: Yes, it could.

The Missouri General Assembly's intent in enacting the armed criminal action was to authorize the imposition of punishment, the imposition of additional punishment for the use of a weapon to commit a felony.

The Missouri Supreme Court recognized that intent, it recognized the wisdom of that intent.

But it directed the General Assembly how to constitutionally carry out that intent.

Unidentified Justice: What policies do you think are advanced by prohibiting multiple convictions or multiple punishments under your view?

Mr. Gardner: Well, the policy is that there shall be no multiple punishment for the same offense, and when we have two statutes that--

Unidentified Justice: Why?

What are the interests at stake?

Why not?

Mr. Gardner: --The Constitution assumes that out of a multiplicity of statutes, some of them may only differently describe the same offense.

Unidentified Justice: What was the concern of the framers of the Constitution in putting in a double jeopardy clause?

Mr. Gardner: One of their concerns was to ensure that there was no multiple punishment for the same offense.

Unidentified Justice: Where does it speak about punishments in the double jeopardy clause?

Mr. Gardner: Well, the clause itself doesn't... the clause itself says a person shall not be twice put in jeopardy for the same offense, and this Court has said that one of the three parts of that clause is that there shall be no multiple punishment for the same offense.

Unidentified Justice: Where do you find evidence of the concern of the framers for preventing multiple punishment for multiple convictions?

Mr. Gardner: I think the first draft of the Fifth Amendment reflects more clearly than the final draft that that was their concern.

I think some of the comments of the representatives at the convention reflect more clearly that the concern was for multiple punishment for the same offense.

Unidentified Justice: You say the convention?

Mr. Gardner: I meant, Your Honor, when the states gathered to ratify the Bill of Rights.

Unidentified Justice: Weren't they ratified in separate legislatures throughout the 13 states?

Mr. Gardner: I think they were, Your Honor.

I'm thinking of a representative from New York.

Unidentified Justice: In the New York debate?

Mr. Gardner: Yes.

Punishment may not be imposed under two statutes that are the same offense, even if the legislature has authorized it, because the double jeopardy clause is a restraint or a limitation upon the power of the legislature.

The clause limits the power of the legislature to authorize punishment under two statutes that are the same offense.

It does not limit the power of the legislature to define a crime or to fix the punishment for that crime.

The Missouri General Assembly defined the crime of armed criminal action as the use of a weapon to commit a felony.

The Missouri Supreme Court did not find that crime to be unconstitutional.

The Missouri General Assembly fixed the punishment for armed criminal action at three years to life imprisonment.

The Missouri Supreme Court did not find that punishment to be unconstitutional.

But the General Assembly authorized the punishment for armed criminal action to be in addition to the punishment for the underlying felony.

This is the portion--

Unidentified Justice: I gather your position would be, had the sentence for armed criminal action been less than that imposed for the robbery that it would still be... the sentence for the armed criminal action would still be unconstitutional?

Mr. Gardner: --That's my position, Your Honor.

The only portion of the statute which was held to be unconstitutional was the multiple punishment provisions.

Sentences for armed criminal action alone exist in Missouri.

Men have been sentenced to serve a number of years in the penitentiary upon only a conviction for armed criminal action.

But sentences for both armed criminal action and the underlying felony do not exist.

Because the intent to punish additionally for the use of a weapon may be constitutionally carried out in an enhancement statute does not mean that the manner in which this intent was carried out in the armed criminal action statute becomes constitutional, and it does not mean that the multiple punishment for the same offense protection doesn't exist.

Unidentified Justice: Well, carried to a logical extreme, I suppose if there had been a sentence imposed on the armed criminal action conviction, but suspended, he never had to serve a day under it, you'd still say it was unconstitutional?

Mr. Gardner: If a sentence was imposed, it would be.

Unidentified Justice: I hate to be technical, but you keep talking about punishment and the double jeopardy clause does not say punishment.

"Shall not be held to answer. "

Mr. Gardner: Well, Your Honor, one of the three protections of the clause is that there shall be no multiple punishment for the same offense.

Unidentified Justice: Where is that in the Constitution.

Mr. Gardner: That is what this Court has said to be--

Unidentified Justice: My question was, where was it in the Constitution.

Mr. Gardner: --It comes from the Fifth Amendment.

Unidentified Justice: The Fifth Amendment says "called to answer", doesn't it?

"Shall not be held to answer. "

isn't it?

Mr. Gardner: The multiple punishment--

Unidentified Justice: Well, you read your copy.

Now we'll read mine.

Mr. Gardner: --It does.

The multiple punishment words are not in the Fifth Amendment.

Unidentified Justice: Right.

Mr. Gardner: This Court has said that the Fifth Amendment means that.

Unidentified Justice: Right.

Mr. Gardner: The Blockburger test is a rule of constitutional magnitude which prohibits the imposition of punishment under two statutes that are the same offense, even if the legislature intended it.

It is not solely a rule of statutory construction which, because it serves the discerned legislative intent, may be overcome by a clear indication of a contrary legislative intent.

It is both a rule of constitutional magnitude and a rule of statutory construction, but in its role as a rule of statutory construction it is secondary to and derivative from the constitutional magnitude rule.

Unidentified Justice: Would you say it's a rule of statutory construction even in the case where the state supreme court is responsible as the final arbiter of what a statute means?

Mr. Gardner: Only in a certain very limited sense.

The clause does not tell a state court what the elements of its statutes are.

The clause does not tell a state court whether it's... but it tells the state court what test to use once it has found those elements to determine whether those two statutes are the same offense or separate offenses.

The clause does not tell a state court whether its state legislature intended for punishment to be imposed under two statutes.

But it does require the state court to use a certain presumption in determining that intent.

Unidentified Justice: Why do you say that, if it's over and above the constitutional import of the statute?

I would think that the state court would be perfectly free to use whatever canons of statutory construction it felt were desirable, so long as it didn't trench on the interpretation of the constitutional aspect of the provision.

Mr. Gardner: The canon that I'm referring to as the presumption that it's required to use is merely the canon that the state legislature acts with the Constitution in mind.

Unidentified Justice: Well, I take it, though, Mr. Gardner, if your Supreme Court had taken this very statute, this very one, and said, well, we construe that statute to mean that if there's also a conviction for armed criminal action, that's merely a basis for enhancement of the sentence imposed for the underlying felony, if they had done that, you couldn't... you wouldn't be here, I gather?

Mr. Gardner: Yes, sir, I mean that.

If they had done that--

Unidentified Justice: You would not be here.

Mr. Gardner: --we would not be here, neither the state nor I.

Unidentified Justice: What if the Supreme Court of Missouri were to write an opinion saying, we know perfectly well that our legislature doesn't give a damn about the United States Constitution and we know that it's going to try to violate it every chance it gets, and so we're going to construe all of its acts that way, realizing that it may well have intended to trench on constitutional prohibitions.

As a rule of statutory construction, the Supreme Court of Missouri is perfectly free to follow that rule, isn't it?

Mr. Gardner: It is not free... I think Whalen is the answer to the question.

It is not free to construe, in the absence of an express declaration of legislative intent.

Unidentified Justice: But Whalen was this Court sitting as interpreting the intent of Congress, and I would think the Supreme Court of Missouri would have the same relationship as to intent to the Missouri legislature as this Court has to Congress.

Mr. Gardner: I think a state court is not free to construe that its state legislature intended for punishment to be imposed under two statutes that are the same offense in the absence of an express declaration of that intent.

Unidentified Justice: Let me read you what the Court said in Whalen, that Mr. Justice Rehnquist has just referred to: 692...

"where two statutory provisions proscribe the same offense, they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. "

Now, what bearing does that have on your case?

Mr. Gardner: In this case we have the presence of a clear indication of a contrary legislative intent, the part in the armed criminal action statute that authorized guilt of armed criminal action and punishment in addition to the underlying felony.

But the overcoming of this presumption that the legislature does not intend to punish under two statutes that are the same offense does not mean that it is constitutionally permissible to do so, because the clause is a restraint upon the power of the legislature to make that authorization, to authorize punishment under two statutes that are the same offense.

Unidentified Justice: Well then, do you think that statement that I have just read from Whalen is an erroneous statement of the law?

Mr. Gardner: It is not erroneous, Your Honor.

It only goes so far.

It doesn't state the entire law.

It applies directly to the situation where two statutes are the same offense and there's no express declaration of Congress' intent to punish under each.

As far as that is concerned, the statement is correct.

But where you have an express declaration of an intent to punish under each, the statement doesn't state all of the law.

The rest of the law is that the authorization cannot be made because the clause is a restraint upon the power of the legislature to make that authorization.

Unidentified Justice: Having said that, don't you run into the last two sentences of Albernaz?

Mr. Gardner: I sure do.

Unidentified Justice: Are they wrong?

Mr. Gardner: They're correct in the context of Albernaz only.

Unidentified Justice: Well, I thought Albernaz, the last page of Albernaz, just embraced what Justice Blackmun said in Whalen.

Mr. Gardner: It did.

He's the author of those two phrases from Whalen.

However, you must keep in mind the facts of Albernaz and the difference between those facts and the facts of this case.

Unidentified Justice: One of the last two sentences of Albernaz is plainly wrong, of course.

It says: The question of what punishments are constitutionally permissible is not different from the question of what punishment the legislative intended to be imposed.

"That's plainly wrong insofar as it ignores the Eighth Amendment, for example, isn't that true? "

Mr. Gardner: That's correct.

Unidentified Justice: And surely that sentence wasn't necessary to the decision in that case, was it?

Mr. Gardner: Which makes the Albernaz opinion not controlling authority for the Missouri Supreme Court.

It makes the two sentences in Albernaz a general expression of law which must be understood in the context of that case, that is the two statutes for separate offenses.

It is correct when you have separate offenses, because of course there's no prohibition for punishing under two statutes that are separate offenses.

It's just not correct when you have the same offense, as you have in this case.

Missouri claims that in the single prosecution context the Blockburger test is solely a rule of statutory construction, limited to assuring that the courts do not impose more punishment than the legislature has authorized.

On the other hand, it claims that in the successive prosecution context it's a rule of constitutional magnitude which prohibits the imposition of punishment under two statutes even if that is what the legislature intended.

It makes this claim because it believes that in the successive prosecution context the clause embodies a policy other than that of avoiding multiple punishment.

Of course, in a reprosecution after an acquittal the clause embodies a policy of not permitting the state an opportunity to convict those who have already been found to be not guilty.

But in a reprosecution after a conviction the clause embodies no policy other than that of avoiding multiple punishment.

In Brown against Ohio this Court stated that it was avoiding multiple punishment which came about as the result of a reprosecution after conviction.

It specifically disavowed it was avoiding the repetition of proof or having the defendant undergo two trials.

Missouri's request for you to declare the Blockburger test to be solely a rule of statutory construction lays the foundation of the eventual abolition of the protection against reprosecution after conviction, in addition to the abolition of the protection against multiple punishment for the same offense.

In addition to Albernaz and Whalen, Missouri has cited other decisions of this Court which it claims to be controlling authority which should have required the Missouri courts to affirm the armed criminal action convictions.

One of those is Brintley against Michigan.

In Brintley against Michigan this Court dismissed an appeal for want of a substantial federal question.

That case is not controlling authority for the same reason that Albernaz is not controlling authority: The two statutes in Michigan were construed to be, by the Michigan court, to be separate offenses, not the same offense.

Therefore, in dismissing the appeal in Brintley against Michigan this Court was merely applying an established principle to a particular fact situation, the principle being the punishment may be imposed for two statutes that are separate offenses, the particular situation being the two Michigan statutes being construed to be separate offenses.

In conclusion, to declare the Blockburger test to be solely a rule of statutory construction is to abandon to the legislature this Court's constitutional duty to determine the meaning of the constitutional phrase "the same offense".

If it is solely a rule of statutory construction, then it is the legislature that determines the meaning of the constitutional phrase "the same offense".

By merely declaring its intent to punish under two statutes that otherwise would be the same offense, the legislature can make those statutes to be not the same offense.

By declaring the multiple punishment provision of the armed criminal action statute to be in violation of the double jeopardy clause, this Court can bring the legislative power to the judgment of the superior power of the Constitution and yet still recognize the power of the legislature to define crimes and fix punishment.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Koppe?

Mr. Koppe: If I haven't exhausted my rebuttal time.

Chief Justice Burger: You have three minutes.

Mr. Koppe: Thank you.

Well, just one thing I did mean to add, and that simply is I think, as I argued in my opening remarks, this issue is simply a case of form over substance, and I think the punishments assessed in this case illustrate this better than anything else.

Basically, what the Respondent says is that the double jeopardy clause as applied to single prosecution cases prevents the legislature from distributing punishment it might otherwise have assessed over two statutes.

Now, what possible rationale could there be for that?

Look at this particular case.

If the state legislature had done the statute the way the Missouri Supreme Court says they should have, what they would have done was allowed the assessment of an additional term of years onto the original robbery sentence.

If they had accomplished that, what the Defendant would have received was a ten-year sentence for robbery, enhanced by 15 years, making a total of 25 years.

But since the statutes assess the punishment separately, the judge was given the discretion to run those sentences concurrently.

The Defendant received the benefit of those concurrent sentences and wound up with 15 years.

He's actually in a better position than he would have been had--

REBUTTAL ARGUMENT OF PHILIP M. KOPPE, ESQ., ON BEHALF OF PETITIONER

Unidentified Justice: But under the other statute you propose he could have also imposed the same sentence.

Nothing in the statute... none of these statutes limit the discretion of the judge, except he has to give at least three years under one and five years under the other.

Mr. Koppe: --That's true.

Unidentified Justice: So really, he could have done... he had total freedom under either this statute or the substitute you propose.

Mr. Koppe: Well, except that his freedom was constrained by what the jury returned.

He could not have assessed a penalty in excess of whatever it was the jury... the jury in this instance decided the punishment.

He had the discretion--

Unidentified Justice: Well, but the jury had to find him guilty of robbery in order to find him guilty of armed criminal--

Mr. Koppe: --Right, and the jury assessed the punishment under both statutes, and the judge's discretion was limited to either running the sentences concurrently or consecutively.

He also had the discretion, of course, to reduce the sentences, discretion that is very rarely utilized.

Unidentified Justice: --Do you rely at all on the clarity of the statement of the intent of the legislature to define two separate... to have an enhancement situation where he can add to the penalty?

Does it make any... would it make any difference if you had two statutory provisions buried in different parts of the criminal code, nobody found until a particular trial, and the prosecutor thought he'd like to get a severe punishment in a particular case and so he tried to prosecute under both statutes, but there was nothing to show what the legislature thought?

Then say, the Court might say, well, as a matter of state law, as Justice Rehnquist suggested, we construe the intent of the legislature to be we want double punishment whenever there are two descriptions of the same offense that can be found in the code.

That would be permissible, I suppose?

Mr. Koppe: I think that would be permissible and I think some states, in reliance on this Court's opinion in Albernaz, have done precisely that.

For example, looking at the punishment scheme to find legislative intent.

But this Court's inquiry is--

Unidentified Justice: So there is no real requirement of any... there is no federal requirement about the way the state legislature must express its intent.

Whenever there are two descriptions of the same offense, multiple punishment is constitutionally permissible.

Mr. Koppe: --That would certainly be our position.

In response to Judge Rehnquist's question, I don't think the court was... the state court is constitutionally compelled to use the Blockburger rule, and in this case they didn't have to use any rule.

The intent was clear, and we submit this does not raise a Fifth Amendment issue--

Unidentified Justice: But your position would be the same, even if the intent were not clear, is what I'm trying to suggest.

Mr. Koppe: --Well, if the intent were... if the intent were--

Unidentified Justice: As long as the state supreme court says that's the rule in this state.

Mr. Koppe: --That's correct.

In other words, we wouldn't take the position if the Supreme Court had said we find no intent to punish under both statutes--

Unidentified Justice: No, of course not.

Mr. Koppe: --and yet but we're going to allow that.

We... I don't agree that wouldn't raise a Fifth Amendment problem.

I think it would.

I wouldn't be here arguing that they could punish under both statutes unless there was this intent found by the highest state court.

We have it here, and therefore I submit that this is... raises no constitutional question under the Fifth Amendment.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.