BALL v. UNITED STATES
Legal provision: Omnibus Crime Control and Safe Streets, National Firearms, Organized Crime Control, Comprehensive Crime Control, or Gun Control Acts, except for RICO (q.v.) portion
ORAL ARGUMENT OF JO S. WIDENER, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: We will hear arguments next in Ball against United States.
Ms. Widener, I think you may proceed whenever you are ready.
Jo S. Widener: May it please the Court, I am here this morning on behalf of Truman Lewis Ball to ask the Court to vacate one of his convictions and one of his sentences under the cases of United States against Batchelder and Blockburger against the United States.
This is a direct appeal from two convictions suffered by Mr. Ball, one for 922, receipt by a convicted felon of a firearm, and 1202, possession of a firearm by a convicted felon.
The government proved three incidences of possession in this case, all of which occurred at or about the same time.
The first was when Truman Ball reached into a bag of beer and came out with that gun.
The second was when he had the gun in Clarence Music's yard and waved it at him.
The third was when they arrested him, when the police officers arrested him at Gary Music's house and saw the gun in his back pocket.
There are a few other critical facts to this case as well.
Mr. Ball is now in prison, where he has been for the last 15 months.
He is serving a three-year sentence on the 922 receipt.
At the same time, he is on probation for the 1202 conviction.
He has two years' probation, and he is fully subject to the conditions of that probation at the time that he is in prison now serving those three years.
This is under the case of Burns against the United States, which is a case we have not cited in our brief.
The citation to it is 287 US 216.
Any time between now and the next nine months, if Mr. Ball should get into any sort of confrontation there in the prison or any trouble at all, if he should infringe upon any prison regulation at all, he is subject to having his probation revoked.
At whatever time he has that probation revoked, he is then subject to having an extra two years imposed upon him, two years that he will have to serve.
That, of course, will be concurrent with the sentence that he is now serving, but it will still mean to him that after he has served his three years on the 922 offense, he will yet have one more year or at least up to one more year, somewhere between three months and one year, of a sentence to serve because of the 1202 concurrent sentence that is now imposed upon him.
In other words, he is worse off today because he has a probation to serve than he would be if he simply had two years to serve on that sentence and it was running concurrently, because if he had two years to serve, it would be over in two years.
However, now we have no certainty that it will be over in two years, and we have no certainty for the next nine months.
We say that this is not an adverse collateral consequence of this concurrent sentence.
We say that this is a direct, immediate consequent to Mr. Ball that he is suffering under today, and therefore this case ought to be reviewed.
Unidentified Justice: Ms. Widener, the government says you didn't make these arguments in the Court of Appeals, and therefore we shouldn't consider them.
Jo S. Widener: Your Honor, we would argue that we did make these arguments.
We asked for both the conviction and sentence to be vacated.
That was the opening sentence in our brief, and we also asked in our notice of appeal that... our notice of appeal was taken from the judgment of the District Court, including the finding of guilty and also the sentence that was imposed upon each of these... on each of these two convictions.
Unidentified Justice: I don't think anyone doubts you appealed to the Court of Appeals for the Fourth Circuit.
The question is, what arguments did you make to that court?
Were they the same as you are making to us?
Jo S. Widener: Yes, Your Honor, they were exactly the same as we are making hare.
The only difference is, we left out the two words "and convictions", and the reason we did that was because under the Burton case we suffered some great danger that we would not be heard at all, as Burton had not been heard on his direct appeal.
Nevertheless our arguments here are exactly the same.
We are still arguing Blockburger and we are still arguing Batchelder, which we argued in the Court of Appeals.
The Batchelder case we did not argue specifically in the Court of Appeals, but this was because we were faced with the Burton construction of the Batchelder case.
Burton had already decided what Batchelder meant for the Fourth Circuit, so we were locked into that.
The facts here are indistinguishable from the case of Batchelder.
There a convincted felon bought a gun from an ATF agent while Mr. Batchelder was tending bar in Bellview, Illinois.
When he... and the Court said in Batchelder that when Mr. Batchelder reached across that bar and took that gun from the ATF agent, at that moment he was guilty of both.
He was guilty of 922, receipt, and he was guilty of 1202 just by that single act.
Here we have the exact same facts.
When Mr. Ball reached into that bag of beer, he was guilty of both receipt and possession by that act, and Batchelder said that Congress had intended in passing these two statutes to have two independent statutes each fully enforceable on their own terms, and Batchelder also confirmed that this very conduct violated both statutes.
When a single act violates two statutes, as we have in this case, we look to... the courts always look to the case of Blockburger against the United States to determine whether there is one offense or whether there are two offenses.
The first question to ask under the Blockburger analysis is, did Congress intend to cumulatively punish for this offense?
Unidentified Justice: Isn't that really the first and last question?
I mean, Blockburger was a case of statutory construction.
The ultimate question in a case like this is just the one you meant.
Did Congress intend to cumulatively punish in the circumstance?
If the answer is yes, the other Blockburger questions are just irrelevant.
If the answer is no, they are also irrelevant.
Jo S. Widener: Yes, Your Honor, I think that is true.
Blockburger is a statutory construction, but there are some... there is sort of a procedure to go through under Blockburger.
The first is to look at the statute, as I understand it, the statute and the legislative history, to see what can be gleaned there, and if there is no clear intent indicated either in the legislative history or in the statute itself, then one resorts to the test of Blockburger to determine what Congress's intent was in passing those two statutes.
So, yes, you are correct, as I understand it, that it is a statutory construction problem.
The Circuits... the Courts of Appeals that have considered this question, all except the Tenth Circuit say that there is... there was no cumulative punishment intended by Congress when they passed these two statutes.
When I say all of those Circuits that have considered it, that means the Third, the Fifth, the Seventh, the Ninth, the D.C. Circuit, and the Fourth Circuit.
These Circuits base their analysis, all except the Third, which is underneath a case which the government conceded, but the other Circuits all base their analysis on the Batchelder case, where the Court in Batchelder had said that the government could prosecute on either.
The Circuits then interpreted this to mean that the government could not prosecute all the way to judgment, to conviction, to sentence on both of those statutes at the same time.
These same Circuits say when the government has not chosen either one or the other but has chosen instead to proceed on both statutes, that the remedy there is to vacate one conviction and one sentence.
This is all except the Fourth Circuit, of course.
The Fourth Circuit says that the remedy is to make the sentences run concurrently.
But even if the Circuits' reasoning is wrong under Batchelder, still looking to the statutes themselves and to the Congressional history, there is no explicit clear statement in any of that indicating that Congress intended to cumulatively punish under these statutes, and the most recent case of Missouri against Hunter teaches us what kind of language should be there if, or we should look for to determine that intent, language such as "in addition to".
There is no such language in either of these statutes.
In the absence of--
Unidentified Justice: Ms. Widener, does conviction alone constitute punishment?
Jo S. Widener: --Yes, Your Honor, we say that conviction alone does constitute punishment.
In this case, Mr. Ball's two convictions can be used subsequently if he should get into any other trouble and have to ever be on the witness stand again, those two convictions can be used to impeach his credibility.
Those two convictions could possibly be used against him in a recidivist situation.
Unidentified Justice: Well, has this Court specifically held that a second conviction with a concurrent sentence is to be treated as punishment for purposes of the double jeopardy clause?
Jo S. Widener: Your Honor, I could find no specific holding as to that effect.
Nevertheless, when I looked back through the cases, it seemed to me that in all cases except for the line of cases under Prince, that the remedy when there is a double jeopardy question has been to reverse the judgment or to vacate the conviction.
Always the entire judgment was considered, and not just the vacating of the sentence, as the Fourth Circuit has done here.
Unidentified Justice: Well, I think in our Ohio against Johnson case, last spring, I thought we said there could be two convictions so long as there weren't two punishments.
Jo S. Widener: Your Honor, we would argue that a second conviction in this case is an additional punishment on Mr. Ball, and because of the effect of his concurrent sentence here, he is also suffering additional punishment, and very realistically may suffer an extra year on his punishment.
Unidentified Justice: If you are arguing sentencing, there is no doubt, at least in my mind, that you are correct, but to say that the conviction as well amounts to a punishment I think is more debatable.
Jo S. Widener: I think that under the cases of Sylburn against Ohio and Street and that line of cases in which the Court looked to whether or not there were adverse legal consequences of convictions, I believe the Court has said that these consequences do exist, and in this case, this man is a man who is not well educated.
He is not someone who can defend himself from these convictions and from the effect that they are going to have on his life.
They will affect him in his employment situation.
They will affect him every time he is put on the witness stand.
He in a further prosecution... it is unrealistic to suggest that he, pitted against a well educated and well trained prosecutor, could possibly convince a jury that these two... that he should not have two convictions here, that he should only have one conviction.
Nor could he convince a sentencing judge in the future that he should not have two convictions here, he should simply have one, because the very fact of those two convictions existing on that paper seem to indicate to a judge that he is guilty of both.
Unidentified Justice: Perhaps even if your Blockburger analysis is right, the answer is, he may not be sentenced on both convictions, but he can be convicted on both of them, and in that case your argument that he couldn't convince people that he shouldn't have had two convictions would be true because he ought not to be able to convince people that he shouldn't have two convictions.
Jo S. Widener: Well, Your Honor, I would, I guess, fall back on the argument that since Congress has not told us specifically what to do in this situation, it has not told us when this conduct violates those two statutes, whether we should convict or sentence under both.
We do know, however, that it has not authorized two convictions for either of these statutes.
The only punishment that it has authorized here is a conviction and punishment under either of those statutes.
I do not believe that without a clear statement that more than one statute is violated or what to do in the case when more than one statute is violated, that you could impose an extra punishment on him which in this case his conviction would be an extra punishment.
Unidentified Justice: As I read the government's brief, they are really arguing a sort of harmless error without calling it that.
At Page 5 of their brief they make a statement which is directly contrary to the one you have just told us, and I would like to see which is correct.
The government says here, the additional conviction will not increase the defendant's prison term, and will not impose any other adverse consequence upon him.
Now, in your earlier argument, I believe, you said that is not so.
Jo S. Widener: Yes, Your Honor.
That is not so.
He is subject to not only a sentence of three years that he is serving right now, but under what the Court of Appeals did when they made these sentences run concurrently, he is also subject to the terms of his probation right now.
So that in addition to his three-year sentence, should for any reason, and of course prison is not a place where you are not easily to bump into someone else and get into some sort of trouble, if in the next nine months he should get into any small infraction of prison regulations, he would then be subject not only to whatever penalty they would enforce upon him for doing that in the prison, but he would also be subject to having his... to being called back before Judge Williams in the District Court and having his two-year probation, which he is now serving, having that revoked, and--
Unidentified Justice: Well, we will wait to see what your friend has to say about that when his turn comes.
Suppose both violations are charged in the indictment, and the case is tried that way, and it goes to the jury on both charges, and he is convicted on both, but the judge then says, well, he has been convicted on both, but I know from reading the Supreme Court cases, at least the way I read them, I shouldn't sentence on both, so I am going to impose a single sentence for possession or for receipt, and that is all he imposes.
Would you have gone to the Court of Appeals?
Jo S. Widener: --Well, I certainly should have, Your Honor, because we do argue that these convictions themselves were a problem.
The reason that it could not be argued in the Court of Appeals--
Unidentified Justice: Well, you can't punish them.
The only rule that seems to come through is that he can't be punished for both.
Jo S. Widener: --But Your Honor, there is a real--
Unidentified Justice: The question the government may have to elect which to proceed on before trial.
Jo S. Widener: --I beg your pardon?
Unidentified Justice: Are you arguing that the government should have to elect which statute to proceed under before trial?
Jo S. Widener: No, we are not arguing that.
It does not affect our position one way or the other whether they--
Unidentified Justice: When does the limitation on the conviction come, when the judge instructs the jury and you tell the jury you can only convict on one of these?
Jo S. Widener: --Yes, Your Honor.
Unidentified Justice: Is that what you think should happen?
Jo S. Widener: Under Melanovich, or indeed, if he does not instruct the jury that way, he should not allow two convictions to be imposed on these two statutes.
Unidentified Justice: Because you think that is the intent of Congress?
Jo S. Widener: Yes, Your Honor, I do.
I don't think there is anything anywhere that would indicate that when the same conduct violates those two statutes, he should be convicted under both because of the adverse consequence of that extra conviction, that it is something that is going to follow him around forever.
Unidentified Justice: Well, assuming you are right, but there are still concurrent sentences, and you must at least convince us that the two convictions instead of one will have an adverse consequence on your client.
Jo S. Widener: Well, Your Honor, I believe that the convictions will have, because of the concept of recidivism statutes, where he now under this record has at least his third conviction because of this excessive conviction.
Therefore in many states he would be subject as of this moment to ten years.
In some states it is a life sentence for the third offense.
Unidentified Justice: On that basis, the whole concurrent... that approach would undermine the entire concurrent sentence doctrine, if there ever was one.
Jo S. Widener: Well, Your Honor--
Unidentified Justice: Because your argument would almost always be true.
Jo S. Widener: --Well, certainly under these facts it is true in this particular case.
Of course, if a man had a death sentence and a concurrent sentence, that would not be true.
Then it may not be a rule that should be implied.
The D.C. Circuit has an interesting way of applying the concurrent sentence rule.
They determine that if, in order to promote judicial economy and not to have to consider a sentence, they look at the two interests involved.
Since there is no interest that the government actually has to protect, and the government here has conceded that in their brief, that they really have no fundamental objection to this rule that we are talking about right now.
Since the government has no interest to protect, and since the possible adverse legal consequences to the defendant are very real to him, the D.C. Circuit, without review, vacates these sentences and convictions on the theory that they could be reimposed at some later time if it was shown, for example, that the first sentence was reversed on appeal.
Of course, if the first sentence was reversed on appeal, and they look at the second sentence here, there would be nothing to prevent the prosecutor from reprosecuting under that first sentence at that point.
Unidentified Justice: I can see how you could reimpose a sentence, but I don't see how you could reimpose a conviction if it were vacated.
I would think that would take a new trial.
Jo S. Widener: Yes, Your Honor, that's what I mean.
A new trial could be taken.
This is the D.C.--
Unidentified Justice: That is hardly much solace to the government, that they have a chance to try the person again for something which he has already been convicted of.
Jo S. Widener: --Of course, in most situations that is not going to arise, however, because the court under the concurrent sentence doctrine determines one sentence is valid before they determine not to look at the other sentence, so the chance of having the first sentence that has already been determined to be valid reversed is very minimal.
And that is why I would take issue with the D.C.'s policy there, because if there was ever any time to have to reimpose that second sentence that they vacated, of course, that could be done by retrial, but it is a very slim possibility.
Since I am beginning to eat into my rebuttal time, I think that I will try to reserve the rest of my time for rebuttal.
Chief Justice Warren E. Burger: Very well.
ORAL ARGUMENT OF ANDREW J. PINCUS, ESQ., ON BEHALF OF THE RESPONDENT
Andrew J. Pincus: Mr. Chief Justice, and may it please the Court, I would like to first briefly discuss our waiver argument with reference to the colloquy that Justice Rehnquist had with my opponent.
Unidentified Justice: Would you raise your voice a little, Mr. Pincus?
Andrew J. Pincus: I am sorry.
I would like to first briefly discuss the waiver argument with reference to the colloquy that Justice Rehnquist had with my opponent.
In the Court of Appeals there was no request that one of the convictions be vacated.
The only reference to the convictions was that there was an appeal from the convictions, but this relief was not requested, and there was no discussion of the possibility of adverse consequences as a result of the additional conviction and the other issues that are before this Court.
Therefore, we believe that the waiver argument is valid, and that it provides grounds for the Court to dispose of the case without reaching the merits.
Unidentified Justice: May I ask you a question about that?
They did ask to have one of the sentences vacated, didn't they?
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: And the Court of Appeals did not do that.
It made it run concurrently, but it didn't vacate.
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: So then isn't the issue of whether the second sentence should be vacated something we rust decide?
That was argued.
Andrew J. Pincus: Well, Your Honor, the relief that is requested here and the thrust of petitioner's argument--
Unidentified Justice: They ask that you set aside the conviction, right.
Andrew J. Pincus: --is the conviction.
They don't seem... in the Court of Appeals they didn't make any distinction as to why vacating a sentence would provide some additional relief that making these sentences run concurrently, which was their alternate remedy, would not.
Here they seem to distinguish the remedy provided by vacating one of the convictions on the--
Unidentified Justice: I understand that she asked for that, but it is true that she also makes the argument that the second sentence on which he is on probation is a burden that would be set aside if we went farther... if we did what the Court of Appeals was asked to do.
I will put it that way.
Andrew J. Pincus: --Yes, Your Honor.
We take issue with the contention that the second sentence would be a burden.
We think that the import of the Court of Appeals mandate was that the petitioner not serve more than three years in prison, and we think that any decision by the District Judge--
Unidentified Justice: Well, do you think that putting him on probation on the second sentence complies with the mandate of the Court of Appeals or does not?
Andrew J. Pincus: --We think that the concept of being on probation while someone is in prison is a difficult one.
We think certainly the district... any deprivation of probation that results--
Unidentified Justice: But don't you think in kind of a real world sense, would he not be better off if he were not on probation on the second sentence, if it were just not there?
Is it not--
Andrew J. Pincus: --Of course, we think there would be no difference if the second sentence was a committed sentence rather than suspended in favor of probation, and we think that under the mandate, the petitioner could move under Rule 35 for an alteration of the sentence to make it--
Unidentified Justice: --What happens when probation is revoked?
Does he just serve the unexpired portion of his sentence, or doesn't he start his whole sentence from scratch?
Andrew J. Pincus: --Well, he could serve the whole sentence from scratch, but we--
Unidentified Justice: If that happened then the revocation of probation would cause him to serve a longer period of time in the penitentiary than the one sentence.
Andrew J. Pincus: --But we think that the District Court couldn't order that longer sentence under the Court of Appeals mandate, that the clear import of the Court of Appeals decision was that the petitioner not serve more than three years in prison, and that any result vis-a-vis the suspended sentence that had that effect would be improper.
And we would in fact support a Rule 35 motion to alter the second sentence to make it a committed sentence to avoid that slim possibility.
Unidentified Justice: Well, what possible interest does the government have in sustaining both convictions?
Andrew J. Pincus: Your Honor, as we say in our brief, the government's interest is not very great with respect to the convictions in this case.
The government's concern is that a decision by this Court, for example, that a conviction that carries no adverse consequences constitutes punishment could adversely... could conflict with the justification for the concurrent sentence doctrine.
Unidentified Justice: Well, I thought... you agree that Congress didn't intend to have... for a defendant to be punished under both statutes.
Andrew J. Pincus: Yes, well, we didn't intend cumulative punishment.
Yes, Your Honor.
Unidentified Justice: Well, would you say it would satisfy all the interests you had if the judge... would you object to an instruction by a judge to a jury that you can convict under one of these statutes but not under the other... but not under both?
Andrew J. Pincus: Well, Your Honor, I think we would object.
Unidentified Justice: Why would you object?
He certainly can't sentence consecutively under both.
Andrew J. Pincus: Well, there may be--
Unidentified Justice: What possible interest do you have in having a sentence imposed under both statutes if they must run concurrently?
Andrew J. Pincus: --Well, part of the problem is that our position depends upon the facts of the case.
There are... under these two statutes there are situations in which multiple punishment would be appropriate, for example, if multiple firearms were involved.
That isn't true in this case, but that might be true in another case.
Unidentified Justice: That is a different problem.
You could also get into a situation where perhaps one section of the statute is held unconstitutional at some later date, and if you got another conviction on another one stockpiled, you could pull it out at that time.
Andrew J. Pincus: Yes, Your Honor, and we feel that there is no harm to the defendant if there is an additional conviction where it carries no adverse consequences.
Unidentified Justice: Let's assume it did carry some adverse consequences.
Namely, let's just assume you agree that having two convictions on the record instead of one would affect parole decisions or later the possibility of being prosecuted as a recidivist.
Do you say that those consequences are just nonexistent, or just too remote, or what?
Andrew J. Pincus: In this case, we contend that they are nonexistent.
They might be existent in another case.
Here the parole board has--
Unidentified Justice: If we disagree with you, then you lose the case?
Is that it, on that, if it does have some adverse consequences?
Say we agree with your opponent.
Andrew J. Pincus: --Well, the adverse consequences also would have to rise to the level of multiple punishment.
For example, a consequence in another proceeding would not constitute multiple punishment in this proceeding.
In other words, the fact that the petitioner might be subject to punishment under a habitual offender statute for a different crime wouldn't constitute multiple punishment for this crime under the Court's decisions in Kryger.
Unidentified Justice: If you have two sentences, you have two sentences in this case.
I don't know why that isn't multiple punishment.
Andrew J. Pincus: Your Honor, because the defendant will be serving--
Unidentified Justice: You've imposed two sentences.
How do you... that is not one.
It is two.
Andrew J. Pincus: --But the defendant won't be serving any additional time in prison.
Unidentified Justice: That may be so, but he has still got two sentences, and two sentences have adverse consequences outside this proceeding.
Mr. Pincus, suppose there had been two indictment, one on each of these counts, instead of one indictment with two counts, or one information with two counts.
He is convicted on the first one.
Do you think there would be available to him a double jeopardy or some ether defense on the second indictment, the second one brought to trial?
Andrew J. Pincus: In a successive prosecution.
Unidentified Justice: Yes.
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: Well, then, why doesn't that answer the question here that has been posed by several Justices?
Andrew J. Pincus: I am sorry, Your Honor, the multiple punishment question?
Unidentified Justice: No, the multiple prosecution for the same conduct.
Andrew J. Pincus: Well, because in your hypothetical--
Unidentified Justice: Do you concede the same conduct is the basis of each of the charges?
Andrew J. Pincus: --Yes, Your Honor, but in this case both of the counts were tried in one prosecution, so there is no successive prosecution problem.
That portion of the double jeopardy clause isn't implicated here.
Unidentified Justice: Mr. Pincus, your brief on Page 19, the fourth paragraph, gets me... do you still agree with that language, that you don't object to this, that you don't object to the plan that the petitioner has put forth?
Andrew J. Pincus: Well, Your Honor, our problem is, we wouldn't object if the district judge in this case had, after the jury returned its verdict, vacated one of the convictions subject to the condition that if the unvacated conviction was ever overturned, the first conviction would be reinstated.
Our problem is that a decision by this Court holding that the vacation of the conviction was required would conflict under the double jeopardy clause, for example, would conflict with the rationale of the concurrent sentence doctrine, because it would rest on the notion that the mere fact of a conviction without any adverse consequences was sufficient prejudice or sufficient punishment to require elimination.
Unidentified Justice: Well, you agree this is additional punishment?
Andrew J. Pincus: No we don't, Your Honor.
We don't believe that this is additional punishment.
Unidentified Justice: Does the government in this case distinguish between conviction and sentence?
Andrew J. Pincus: Our view of punishment, Justice Rehnquist, is additional time in prison or an additional fine, the facts that have been relied upon in this Court's cases discussing the cumulative punishment rule.
There is no additional time in prison, and no additional fine in this case, and we don't believe--
Unidentified Justice: I don't think you understood my question, at least gathering from the way you are answering.
I asked you if the government distinguishes between conviction on the one hand and sentence on the other, a conviction upon which no sentence is imposed.
Is that punishment?
A judgment of conviction returned, but there was no sentence imposed?
Andrew J. Pincus: --No.
we don't believe that that would be punishment.
Unidentified Justice: You don't ever get to the question of whether a second sentence might require no additional time in prison.
If there is no sentence at all imposed on the conviction, your position, I take it, is that that is not punishment.
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: Mr. Pincus, what about the recidivist statutes?
Andrew J. Pincus: Well, Your Honor, the two recidivist--
Unidentified Justice: Under a recidivist statute, if you had two convictions, you go.
If you only have one, you don't go.
Andrew J. Pincus: --Your Honor--
Unidentified Justice: You wouldn't consider that punishment?
Andrew J. Pincus: --Well, most recidivist statutes adopt the rule that the two statutes cited by the petitioner adopt, which is that if the two convictions are imposed in a single proceeding, they count as only one conviction for the purposes of the habitual offender statute.
Therefore, the petitioner is not prejudiced under those statutes, because the two convictions only count as one.
Unidentified Justice: Does that cover all recidivist statutes?
I think I have seen them that don't have that in them.
Andrew J. Pincus: No, Your Honor, I don't believe it covers all of them, but I think it covers most of them.
Unidentified Justice: I didn't think so.
So on those it does not cover, he has a problem.
Yes or no?
Andrew J. Pincus: Well, Your Honor, I don't think that he would have a problem, because I don't think that that it is still any prejudice that he has incurred right now from the two sentences.
Unidentified Justice: I take it... excuse me.
You do concede there are two sentences here.
Andrew J. Pincus: Yes, Your Honor, two concurrent sentences.
Unidentified Justice: The government's interest, I take it, is in maintaining the conviction.
If the Court of Appeals had ordered the District Court to vacate either one of the sentences but leave the conviction standing, you would be quite satisfied.
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: So you don't really mean that the concurrent sentence would have to stand.
Andrew J. Pincus: No, our concern is not with petitioner's concurrent sentence.
Unidentified Justice: So if the District Court, after a jury convicts on both sentences, says I will enter a sentence on one of the counts and suspends sentence on the other, you would be satisfied?
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: Counsel, I take it you take the position then that the double jeopardy clause just doesn't speak to the question at all of double convictions as opposed to punishments--
Andrew J. Pincus: Yes.
Unidentified Justice: --when they are handled in the same prosecution.
Is that your position?
Andrew J. Pincus: Yes, Justice O'Connor.
That is our position.
Unidentified Justice: All right, so then is it simply a matter of legislative intent whether there should be two convictions?
Andrew J. Pincus: There could be a question on legislative intent, although--
Unidentified Justice: Is that what we would look to?
Andrew J. Pincus: --Yes, Your Honor, I think you would, although--
Unidentified Justice: And what does Batchelder tell us about that, in your view, with respect to these two statutes?
Andrew J. Pincus: --Batchelder teaches that there are two separate statutes that can be independently applied, and we think that if that was Congress's intent, that would indicate the two convictions would be appropriate.
Unidentified Justice: It did speak in terms of the prosecution making a choice, however.
What do you think that meant?
A choice for purpose of prosecution and conviction, or only for sentencing?
Andrew J. Pincus: Your Honor, that portion of Batchelder speaks to the argument that was raised is that case that the government could not choose to elect between the two statutes because of the different penalty provisions, and this Court rejected that argument and said the government was free to choose.
We don't think that Batchelder says that the government was required to choose.
Unidentified Justice: Mr. Pincus, in the light of your answer to an earlier question, it seems to me that the government has refined the position it has taken on Page 19 of its brief, where you say,
"For the reasons discussed above, a rule barring entry of two convictions for these offenses is not required. "
"We have no fundamental. "
--what you mean is the imposition of two sentences.
Andrew J. Pincus: Well, Justice Rehnquist, except that the petitioner's request is that there be a bar on the entry of two convictions.
Unidentified Justice: Are you saying you have no objection to that?
Andrew J. Pincus: We have no objection to the District Court... to Justice White's suggestion that the District Court enter sentence on only one of the convictions.
Unidentified Justice: I don't think you are getting the distinction between conviction and sentence.
My question was addressed to the difference between convictions and sentences.
Well, go on to something else.
I would like to follow up on that, if I may.
You seem to have agreed with Justice White that you had no objection to vacating one sentence, leaving the conviction standing, refining the position that Justice Rehnquist indicated.
But I don't understand how you square that with your saying what really is at issue here is preserving the concurrent sentence doctrine, which I gather hasn't been applied since 1965 by this Court anyway.
That is what we are fighting about.
If we vacate one sentence, you are not preserving your concurrent sentence doctrine, and you, I think, said that is perfectly satisfactory to the government.
Yes, but you would agree to that, I take it, on the assumption that you are carrying out the intent of Congress.
Andrew J. Pincus: Yes, Your Honor.
Unidentified Justice: I don't know how you ascertain that.
The intent of Congress was two convictions and one sentence.
That is what they clearly intended.
Rather ridiculous, I think.
Andrew J. Pincus: Your Honor, we think that does end up splitting hairs, but that is one of the reason why we think that the petitioner... the remedy requested by the petitioner just isn't appropriate.
There jus isn't any... there isn't any inquiry that can be made and it will just lead to litigation over this coast of weather Congress intended two convictions or on conviction, and it--
Unidentified Justice: Just in terms of the practical consequences of a conviction, we had a case argued a short while ago where a man on his employment application answered no to whether he had been convicted of a felony, and he was later discharged because he made a false answer.
If you had this person as your client, and he was asked to fill out an employment application, how many times he had been convicted of felonies, what would you tell him to do, put one or two?
Andrew J. Pincus: --I think he would have to put two.
Unidentified Justice: And that might not be... that would not be prejudicial at all to him, I don't suppose.
Andrew J. Pincus: Your Honor, it might be prejudicial.
We don't think that it is punishment that the double jeopardy clause reaches.
The petitioner her did violate two... was found beyond a reasonable doubt to have violated two offenses, and we don't think that it is unfair that he be subjected to the consequence that flow from that.
Unidentified Justice: Well, in any event, when you say the double jeopardy clause... when you talk about multiple punishments, you are just talking about legislative intent, aren't you?
You are not talking about the double jeopardy clause.
Andrew J. Pincus: The legislative intent is the inquiry, Justice Rehnquist, but in order for there to be... for the double jeopardy clause to supply a remedy, if you will, there has to be some kind of a double punishment that it would reach.
It may be that even though Congress... that even though the legislative intent isn't clear, the effect still doesn't rise to the level of punishment that the Constitution provides a remedy for, such as a conviction that doesn't have an adverse consequence.
Unidentified Justice: I thought in Alvernaz and Missouri against Hunter, we finally dispelled the notion that there was a double jeopardy inquiry under the Constitution, where you are talking about a decision on the part of the legislative body to impose multiple punishments for different offenses.
That is strictly a statutory question.
Andrew J. Pincus: Yes, Your Honor, we agree with that.
Unidentified Justice: Well, then, why do you refer to the double jeopardy clause?
Andrew J. Pincus: Because in order for that clause to provide a remedy, there has to be some... even if there is a deviation from what Congress intended, there still would have to be some kind of a multiple punishment in order for a petitioner, for the petitioner in this case to rely on a clause as supplying some kind of an affirmative remedy.
I just want to reiterate our argument based on the concurrent sentence doctrine, because we believe that really the principle underlying that doctrine supports our position in this case, because the doctrine really as it is now applied by the Courts of Appeals is based on the notion that a conviction with no adverse consequences will not prejudice a defendant, and therefore the conviction can be affirmed even though it is unreviewed.
If petitioner is punished in some way by the second conviction, then it conflicts with this notion that there is no prejudice, and therefore could undermine the concurrent sentence doctrine, which we believe is a useful tool used by the Courts of Appeals to avoid reaching issues that don't really have to be decided.
Unless the Court has any further questions, we urge that the judgment be affirmed.
Chief Justice Warren E. Burger: Very well.
Do you have anything further, Ms. Widener?
ORAL ARGUMENT OF JO S. WIDENER, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL
Jo S. Widener: Just a few things, Your Honor.
We believe that the concurrent sentence doctrine has no application here at all.
Blockburger says that for a single offense there should be a single sentence.
A concurrent sentence is an improper remedy to impose.
Therefore, this case really has no effect on the concurrent sentence doctrine at all, because this is an improper remedy under Blockburger.
The government has conceded that there is a single offense here.
They conceded in the case of United States against Taylor that there should only be single sentence imposed here.
In United States against Martin in the Seventh Circuit, they conceded that their should only be a single conviction.
We would ask the Court thus to vacate petitioner's sentence and conviction.
Chief Justice Warren E. Burger: Thank you, counsel.
The case is submitted.