TAYLOR v. UNITED STATES

Print this transcript Transcript: 

Argument of Bruce D. Livingston

Chief Justice Rehnquist: We'll hear argument next in No. 88-7194, Arthur Lajuane Taylor v. United States.

Mr. Livingston.

Mr. Livingston: Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the statutory interpretation of 18 U.S.C. 924(e), which provides for a mandatory minimum term of imprisonment of 15 years without parole to persons found in violation of Section 922(g) of that Title and who have three previous convictions for a violent felony.

A violent felony under that statute is defined as a crime punishable by a term of imprisonment exceeding one year and for purposes of this case is burglary, arson, or extortion, involves use of explosives or otherwise presents a risk of serious... serious potential risk of physical injury to another.

In the district court, for purposes of facts of this case, the court relied upon four felony convictions, two of which we do not contest, but two of which were burglary second-degree under Missouri law, which we contend were not within the definition of violent felony under this statute.

The Eighth Circuit affirmed that holding and affirmed a 15-year sentence, holding that anything labeled burglary under any state law fell within the definition of violent felony.

The sole issue, as far as we can ascertain, is whether the definition should give effect to the statutory language and limited definition to burglaries which present a serious potential risk of physical injury or whether a definition which was repealed from the predecessor statute, the 1984 act, should be given effect as the government argues.

As applied to Petitioner, if those second-degree burglaries are found to present a risk of injury, then he would have been properly sentenced.

Otherwise, he should be given a new sentence, reversed and remanded so that he would be given a maximum term of five years.

In the abstract, the term "burglary" in the statute is ambiguous.

There are a large number of definitions for that term starting, first, I think, with the common law definition which is the breaking and entering of a dwelling place in the night time.

There are numerous other definitions, though.

Only about five... as many as... forms of common law burglary, maybe six or seven states have that definition.

And there are many, many varying definitions of burglary among the other states.

Unknown Speaker: I... I take it that something might not qualify as burglary under Roman numeral ii, but might qualify as presenting a serious potential risk of physical injury to another?

Mr. Livingston: I believe that's correct.

Insofar as there may be a vagueness problem with the term burglary, it is possible, I believe, to find some crimes which could be labeled something other than burglary, or maybe be burglary and, if you ruled out the definition entirely, you could still get it under a catch-all definition as conduct that presents a risk of physical injury to others.

Unknown Speaker: You haven't challenged the statute as being vague, have you?

Mr. Livingston: No.

I... I think this statute can be construed without any constitutional problems.

I didn't raise the issue below.

It does strike me, though, as burglary without being defined when it has a number of definitions so that it is difficult to ascertain an ordinary--

Unknown Speaker: There would to be some... some conduct that any fool would know is burglary, wouldn't there?

Mr. Livingston: --Well, not... it depends whether any fool was in Maryland, Virginia or Missouri.

Unknown Speaker: Well, I know, I know.

But isn't there some... isn't there some core meaning to burglary that all... every state would recognize?

Mr. Livingston: No.

I... I don't believe there is.

At least not... insofar as the government seeks to have you take their definition as one which would be any concept of burglary, because that definition really is a distillation or conglomeration of the broadest thing.

If you take statutes--

Unknown Speaker: Well, I'm not... I'm not suggesting you take... take right now... take the government's.

I'm just wondering if... I'm just going into the possible argument about vagueness, which you have given up anyway, I take it.

Mr. Livingston: --That's right.

I don't propose that this case turn on vagueness.

The... the question is what definition of burglary is appropriate in the statute and there's a long history of case law in this Court which would allow you, when you are not presented with a clear definition of what burglary... should be taken as the proper definition that Congress intended, you can take the common law definition.

However, I think there are other definitions.

The government-suggested definition, which includes really all state burglaries, it is drafted so broadly that it appears to me somebody in legislative staff or the Justice Department back in 1984 said, how can we come up with a definition that includes them all even though they are very different from state to state.

Unknown Speaker: There... there is a common law definition of burglary, isn't it the--

Mr. Livingston: There certainly is and that's the--

Unknown Speaker: --Of breaking and entering in a dwelling place at night with intent to commit a felony?

Mr. Livingston: --That's right.

So--

Unknown Speaker: And you say the second-degree burglary in Missouri would... would not meet that definition?

Mr. Livingston: --Because there is no requirement under that statute that the breaking and entering had occurred in dwelling house or at night.

Unknown Speaker: Or that it be... does second-degree burglary in Missouri require the entry be unlawful?

Mr. Livingston: It depends on whether you are looking at my... Petitioner's convictions, which under a repealed Federal statute, or the present-day statute.

They have changed the definition since the time Petitioner was convicted in 1963 and 1971.

The statute he was convicted under was a breaking and entering statute.

The statute in present day is framed as entering or remaining unlawfully.

So it would appear to include shoplifting, which would be entry in a building with intent to commit a crime.

Unknown Speaker: But at the time he was convicted, it required breaking and entering?

Mr. Livingston: That's correct.

Among the--

Unknown Speaker: Excuse me, it was entering or... and it's the government's proposed definition, too, isn't it?

Entering or remaining surreptitiously?

Mr. Livingston: --Surreptitiously.

Unknown Speaker: Does the surreptitiously go only with the remaining or does it go with the entering, too?

Mr. Livingston: I would--

Unknown Speaker: Most shoplifters don't sneak in.

I mean they sort of walk in and then... I don't think it would cover--

Mr. Livingston: --I don't believe that the unlawful part needs to be tied to entry.

And in that respect, I think--

Unknown Speaker: --Well, then any... any crime you commit in a building would be burglary?

Mr. Livingston: --Essentially that's right and that's the way California, in fact, has it.

Shoplifting is burglary in California.

Breaking into a vending machine in a building in which you were allowed to be, or even not within a building in some states, is burglary.

You may recall the movie Cool Hand Luke.

He broke into parking meters, and that would be burglary in Texas.

The states have a wide variety of--

Unknown Speaker: xxx.

Mr. Livingston: --Excuse me.

Unknown Speaker: Were the parking meters inside a building in Texas?

Mr. Livingston: No.

No.

Texas has a burglary statute... coin-operated machines--

Unknown Speaker: Setting out along the sidewalk or--

Mr. Livingston: --I think that's right.

Or what about the vending machines at roadside rest or in a gas station?

There are places where you don't need to be within a building, which I think further highlights the problem of the government's definition.

In... I'm not sure whether it's North or South Dakota, but I've cited in my brief, breaking... or not breaking, just taking, say, a carpenter's tools out of the open back end of a pick-up truck would be burglary.

Unknown Speaker: --But I thought the government's definition picked up on the definition that was left out in those two or three-year periods, and that requires a building, doesn't it?

Mr. Livingston: That's right, which would again... I don't know why it hasn't been raised by other people before, but it seems to me that, again, highlights the problem of a potential fact case-bound inquiry that that test requires, because many of these statutes do not require a building.

Auto burglary is a problem.

Unknown Speaker: Well, but then--

Mr. Livingston: In many places that's counted as burglary.

Unknown Speaker: --then they wouldn't be covered.

I don't understand the problem.

Mr. Livingston: Well, that's right, but that... that's just another example.

The government tries to say that their test is an easy test for this apply... Court to apply.

Not only did Congress just make a mistake and we should supply the definition for them today, but they are also saying this is an easy test that this Court should take as a matter of policy, when, in fact, there are many burglary statutes which will not be easily applied because they include conduct that may include a building or may not.

And you still will have to investigate the underlying offense.

Unknown Speaker: Well, excuse me.

The principle would... well... that depends on one comes out on the other issue.

But you... you... you maintain that the way we have to decide whether your client has been convicted of burglary or not is not... let's assume we decide that burglary has to be in a building.

As I understand it, your contention is that we would not look to the particular offense that he committed to see if in fact he was in a building, but we would look to see whether the element of the crime... the elements of the crime of which he was convicted under state law... one of the elements was being in a building.

Mr. Livingston: Well, if you--

Unknown Speaker: Now, that wouldn't require any case-by-case analysis.

And that's--

Mr. Livingston: --That's right.

If you... if you held that a building was required, which hasn't been in my definition, but if... if it was... it could be a structure, so--

Unknown Speaker: --We would just... we would just look to the state's statute.

Mr. Livingston: --You would look to the element of the state, and I think that that is the best way to take it.

Unknown Speaker: Right.

Mr. Livingston: That's my test.

So I would have no problems with that.

Unknown Speaker: So under your... your own test, we're not confronting a problem of... of uncertainty here if we... I mean there may be other problems with the government's position, but it's not... it's not the difficulty of doing case-by-case analysis.

Mr. Livingston: Well, it is if you limit yourself to buildings.

All I was saying is the government... the way I read the government's test, which seems to vary in their brief, but in at least one place the government's test says building... I believe that's in the repealed 1984 definition.

And because that test includes the word building, there are any number of state burglary statutes all across this great land which do not require entry into building in order to fall into that statute and be a conviction.

So, okay.

If you... if you are taking my test and not the government's test and just adding in the word burglary into my test, which I didn't put into the brief, then that's fine and I would agree and they would be entitled to not consider my convictions as burglary.

Unknown Speaker: Would you tell us once more what your test is?

Mr. Livingston: My test would be that you take the government's proposed test from the '84 definition--

Unknown Speaker: Well, but... I mean, don't incorporate by reference.

I mean, just tell us from the beginning--

Mr. Livingston: --Entering--

Unknown Speaker: --what your test is.

Mr. Livingston: --taking crimes that are punishable by a term exceeding one year.

Any crime that consists of entering or remaining unlawfully in a building with intent to commit a crime that is a Federal or state offense and which has as an element necessary for conviction, conduct that presents a serious potential of risk of physical injury to another.

In... by way of example, the present-day first-degree burglary statute in the higher aggravated forms of burglary in almost every state... not all of them, I don't want to mislead you... but many states, most of them have higher degrees of burglary.

And those are targeted at the so-called violent or aggravated crimes.

Unknown Speaker: Well, let me interrupt you just a... just a minute, Mr. Livingston.

Doesn't your definition kind of meld together the burglary in Section 2 and the catch-all?

Mr. Livingston: Yes, it does.

I believe--

Unknown Speaker: Well, what... what is the justification for that?

They're phrased in the disjunctive.

Mr. Livingston: --Well, this Court, first of all, does not always rely on something like "or".

For example, the mail fraud case not too long ago... I think it was McNally... you had an "or" and you related... the requirement that there be property or money taken in the mail fraud cases you related to artifice or scheme to defraud.

So that alone I do not think is dispositive.

More important, the plain language of the statute says "otherwise".

"Otherwise" clearly makes an inference that although Congress didn't define what burglary, we sure do know that whatever burglary they were talking about, it had a potential risk of physical injury to others.

Unknown Speaker: So you say it's in... incorporated in the definition of burglary by the word "otherwise" is the requirement that there by a serious potential risk of physical injury to others.

Mr. Livingston: That's right.

Unknown Speaker: So you are not really melding it together then in your view.

You... you are simply construing the statute.

Mr. Livingston: That's right.

And... and the legislative history, I think, thoroughly supports it.

I know not everybody thinks the legislative history is important, but the comments we have from the people in the House, who were voting on this and fighting not to include any property crimes at all because we just want to get bad people and are burglaries really that bad... that was the gist of the debate in the House.

And they finally got convinced by the people in the Justice Department and the Senate that, well, perhaps, some of these burglaries should stay and be enhancing offenses, and so let's get the violent ones.

I think that's really what happened in this case, although the final enacted version of the statute is not clear because there was no committee report.

Unknown Speaker: Of course, that--

--I'm sorry.

It seems... the way you put it awhile ago, you would require the burglary that justifies enhancement with... it would have to have as an element of the offense--

Mr. Livingston: That's right.

Unknown Speaker: --the conduct.

Which is different than what is stated in... in Roman numeral ii here.

Mr. Livingston: That's right.

Roman numeral ii has the word conduct, which could be--

Unknown Speaker: And it... and it would qualify, if it's conduct, that it might endanger others even if it's not a part of the offense.

Mr. Livingston: --That's right and if... I think it is within this Court's prerogative, certainly, to construe it that way and examine the underlying conduct in a case-by-case basis.

As a matter of policy, I'm not sure that's what you want to do and force the district courts to be burdened that way.

And I think you have a body of case law which supports interpreting it otherwise.

Normally, Federal criminal statutes are construed in a uniform way.

The intent of Congress is presumed to be that they will be applied from some definition.

And although they may make a reference to state law, that the state definitions themselves should not control it, that it will be a Federal definition applied to the state crimes.

Just as convictions in this statute have been previously interpreted I think in the Dickerson case.

They--

Unknown Speaker: Is it... is it your position that one looks to the conduct involved in the particular crime for which the defendant was convicted or in the statutory... to the statutory elements of the crime?

Mr. Livingston: --No.

My proposed test is that it is the elements of the crime itself.

As... I'm just willing to... to understand, yes, it does say conduct and it's not positively clear that they were saying, well, there could a categorical approach.

It could be conduct in an element or it may not be and so--

Unknown Speaker: Even... even in that event, we're still going to have to decide, not case by case but certainly element by element, which particular things in burglary statutes create a serious potential risk of physical injury to another.

For example, does nighttime do it for those burglary statutes that require entering a building by night?

Or, for that matter, does the requirement of a building that belongs to another, is that alone enough?

And it may well be that after applying your test, we could very well end up right where the government's test is, by your root, determining that every element the government would... would include in its test, is indeed the sort of element that creates a serious potential risk of physical injury to another.

Mr. Livingston: --I think you could.

But I think after you consider the statutes that are out their and realize that you will be including crimes like shoplifting, which, believe it or not, really is a burglary... felony burglary offense out in California, that those kinds of crimes simply are not violent conduct.

And I think if you frame a test that way, you are not doing justice to the words that Congress chose when they said violent felony.

We're talking about felonies where there is somebody there and they could get hurt.

Unknown Speaker: Why don't you urge the common law definition of burglary?

Mr. Livingston: Well, I... I think because a common law definition of burglary could still involve places where there is nobody home and there is no risk of injury.

Unknown Speaker: Well, but I... I think that the common law theory of burglary was that if you broke into a dwelling at the... nighttime, the people could come home while you were there even if they weren't there when you came.

That there was a risk.

It didn't have to be a risk which materialized.

Mr. Livingston: Well, I think that the risk of a response or someone returning alone is not enough to find the serious potential risk of injury to another.

If... if you decide that a... somebody could return is enough, then you really by implication, I think, have to extend that to almost every crime that there is.

Somebody could investigate.

The police could always stumble upon a numbers runner or a prostitution ring or, you know, somebody else could come upon the crime while it's happening.

Whether or not it's a burglary or anything else, I think just the mere risk of investigation--

Unknown Speaker: Well, how about an attempted robbery with a phoney gun?

Mr. Livingston: --Well, attempted robbery with a phoney gun falls under the first definition.

Any crime against the person is already covered under the statute.

Subdivision 1, which is printed in the briefs, says

"any crime that has as an element the threatened or actual use of force against the person of another. "

So, we've already got all of those crimes in Subdivision 1.

And that extends from all the robberies to murder, rape, kidnapping, any number of other things.

The only question, really, with respect to Subdivision 2 is what property crimes--

Unknown Speaker: But that seems to me to call into question your definition of burglary, and it's... it's just not clear to me what cases would fall under your definition.

Would the statute have to have an element that the person be present in the burglarized premises?

Is that the logical import of your--

Mr. Livingston: --That... that's one of them.

I set forth a number, and I believe really that number three is duplicated because it says threatening somebody and that means somebody's there also.

So there is somebody occupied.

I also include the presence of a weapon, which, you know, you may be able to say, well, how can a weapon be dangerous if there's nobody there to be shot?

But I think that states an awful lot about the burglar's state of mind.

This isn't just somebody who's sneaking around, casing joints where he can get in and out when nobody is there.

This is somebody who's going in and he is ready willing and able to kill them, harm them or maim them, or do whatever is necessary if somebody returns.

And that's when I think you take that minimal risk which is always there of somebody investigating.

That gets heightened to a serious risk if they have a gun or a dangerous weapon.

Unknown Speaker: --Well, Mr. Livingston, in your view I guess these other provisions in the statute for arson and extortion would likewise have to have built into them some other element that one wouldn't usually find.

I mean, you can have arson if somebody goes out and sets a haystack on fire where there's no one around.

Or you could have extortion based on the threat of disclosure of information, not some physical--

Mr. Livingston: That's right.

And as--

Unknown Speaker: --violence.

And so it's more than just burglary here.

Mr. Livingston: --Uh-huh.

Unknown Speaker: I assume that because Congress included those three words that they should have at least their common ordinary meaning so far as we can determine them, and they wouldn't necessarily include, I think, the elements as you've described them.

Mr. Livingston: Well, I don't think that that is a... a fair way to go when you consider the language at the end of the statute.

And it's just--

Unknown Speaker: Well, I think it's a pretty logical explanation.

Congress had different proposals in front of it.

Some people thought it ought to be limited only to crimes where there was risk of physical injury, and other members of Congress thought that burglary should be included in the list, arson and extortion.

And they amalgamated the two in... in the way that we see here, which I think can logically be read to include burglary, arson and extortion regardless of the risk of physical injury.

Mr. Livingston: --I would just have to respectively disagree with respect to that because of the "otherwise" clause and the fact that it really states serious potential physical risk of injury to others.

Unknown Speaker: Mr. Livingston, the "otherwise" clause doesn't necessarily mean... doesn't refer necessarily back to burglary arson or extortion.

It may only refer back to the immediately preceding phrase which is "involves use of explosives".

And, indeed, one is lead to believe that that's what it refers back to since it also uses the word "involves".

So the thing reads, is burglary, arson or extortion, involves use of explosives or otherwise involves conduct that presents a serious potential risk of injury.

It seems to me that all the "otherwise" is attached to is the use of explosives, not the... not the three crimes that are specifically named.

Mr. Livingston: Well, I suppose I will have to agree that that's a possibility, as is Justice O'Connor's interpretation.

But the fact of the matter is, is that the language is not clear.

What we have here is an ambiguous criminal statute and the rule of lenity which this Court has consistently upheld as recently as yesterday, mandates that this Court construe the statute in favor of the defendant.

Unknown Speaker: That doesn't mean you construe it like you suggest.

The common law definition would get your client off the hook, wouldn't it?

Mr. Livingston: As a fall-back position, we have indicated in our briefs--

Unknown Speaker: Well, that's--

Mr. Livingston: --that that would be an acceptable alternative, although I think--

Unknown Speaker: --Well, you want to win your case on any ground, I suppose.

Like the common law--

Mr. Livingston: --We are interested in winning the case, Justice White.

[Laughter]

Unknown Speaker: --So, the common law definition would win it for you, I take it?

Mr. Livingston: I believe so, although it depends whether or not you then look to the statutes themselves to determine it or whether you look at the underlying conduct.

I can't--

Unknown Speaker: Well, what... what precisely--

Mr. Livingston: --really... pardon?

Unknown Speaker: --What precisely, again, was the conduct of which your client was convicted?

Mr. Livingston: Well, that's a big problem in this case because we really don't know.

In 1971 I was able to... I was able to locate the police report from 1971.

But that... and that was a commercial structure, a gas station, at 3:00 in the morning that was unoccupied and the defendant was unarmed.

He got caught... or his friends got caught crawling out of a window with a case of oil.

[Laughter]

But the 1963 conviction, we don't know.

The government was... didn't produce any evidence of the police reports or the case files.

I called and was unable to locate it and the probation office report indicates the same, that they were unable to locate those files.

Unknown Speaker: All you know is that it's second-degree burglary under Missouri law.

Mr. Livingston: It's second-degree burglary and we also know that there was $15.25 in restitution ordered to be made to Wilkin's Food Shop, wherever that may be.

But... so, I would assume with Wilkin's Food Shop being involved, that that particular count wouldn't be common law burglary.

But there were two other counts... because that was a three-count conviction... and we really don't know what was involved in those counts.

I believe I would like to save the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Livingston.

Now, Mr. Lazerwitz.

Argument of Michael R. Lazerwitz

Mr. Lazerwitz: Thank you, Mr. Chief Justice, and may it please the Court:

The Armed Career Criminal Amendments Act of 1986 defines the term "violent felony", which may trigger a mandatory minimum sentence, to include any felony that is

"burglary, arson or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of injury to another. "

Congress, however, did not further define the term burglary, as it did in the predecessor 1984 statute.

The narrow question presented here is whether Petitioner's Missouri burglary convictions are violent felonies under the 1986 act.

But in order to resolve that question, the Court must first decide what Congress meant by the term 2 of Section 924(e)(2)(B).

But as it turns out, getting to the bottom of the first inquiry, effectively resolves the second issue of statutory construction and ultimately the question presented in this case.

In our view, the pertinent language of Section 924(e), 1986 version of the statute, the broad contemporary definition that was explicitly contained in the 1984 act.

Unknown Speaker: Well, you'd have us read into this as the definition the definition that was actually contained in the earlier act, I gather.

Mr. Lazerwitz: Yes, Justice O'Connor, and although that--

Unknown Speaker: That's a little hard to do, faced with the fact that they didn't reenact it.

Mr. Lazerwitz: --Well, it... it strikes you at first--

Unknown Speaker: You'd use normal principles of... of use of legislative history, or what not... I would assume you would say, whatever it means, one thing we know it doesn't mean... that is, what they defined it as in... in 1984 and took out.

Mr. Lazerwitz: --Well, in fact, although at first glance it seems like our position is cockeyed, it turns out to be just the opposite, because even--

Unknown Speaker: xxx.

[Laughter]

Mr. Lazerwitz: --I will explain.

And Petitioner essentially concedes the point in his proposed definition.

The first thing we have to do... first of all, we could make believe that there were no '84 definition.

We have a statute now.

Congress uses the term burglary.

Well, what does that term mean?

This Court has long held that when a term has an ordinary contemporary meaning and Congress doesn't otherwise define it the Court will presume that Congress intends that meaning.

Today, and in 1986, the term burglary does have a core, shared meaning in this country and that is the unlawfully entering or remaining in someone else's building with the intent to commit a state or Federal offense.

Unknown Speaker: That... that was the '84 definition?

Mr. Lazerwitz: Yes.

And just to clarify one point--

Unknown Speaker: Well... well wait a minute Mr.... you... you say it does have commonly accepted meaning.

I mean, is that meaning commonly accepted other than having been adopted by Congress in 1984?

Mr. Lazerwitz: --That is the core definition of burglary that is in place in 41 states today and, agreed, there are many states that have a broader definition.

But this is what, in terms of the common denominator, so to speak, of what burglary is today.

There's no doubt that some states, many states, will punish as burglary, breaking into a car, breaking into a vending machine.

Unknown Speaker: And I take it nine would not punish some of those things as burglaries but--

Mr. Lazerwitz: Well, there are... there are... as we counted and... there are five states that have retained the common law definition of burglary.

And just to take care of that point now, one of the reasons why this Court shouldn't adopt the common law definition is it would effectively write the burglary predicate offense out of the statute.

And we certainly know that Congress didn't want that because the whole point of the act, at least in '84, was to get burglars in Federal prisons if they commit enough crimes.

Unknown Speaker: --Why would it write the burglary part of the thing out?

Mr. Lazerwitz: Because there are five states that have burglary.

If burglary means the common law definition--

Unknown Speaker: And if... and if you do not do it case by case, but you look to the elements of the offense rather than to the actual offense that occurred.

Mr. Lazerwitz: --Yes.

And we... and--

Unknown Speaker: It assumes that.

Mr. Lazerwitz: --Yes, but... and under subsection... we're not... we're not here to quibble with... we essentially agree with Petitioner, that you have to look at what the man was convicted of and that, by definition, is the... the statutory offense.

Unknown Speaker: I see.

Mr. Lazerwitz: And that is the problem with the common law definition, apart from the fact that it doesn't make much sense to presume that Congress intended to adopt a definition that has been discarded for so many years.

Unknown Speaker: Well, if you adopt a common law definition, you're really narrowing the kind of burglary that it was reached by this act.

Mr. Lazerwitz: Yes, and the--

Unknown Speaker: And I... and the... and this... this new act was intended to expand the coverage of the act.

Mr. Lazerwitz: --Yes, and that's... and again, back in '84 the generating force of this act was the congressional finding that career offenders are responsible for a grossly disproportionate number of crimes.

And career offenders have a penchant for committing burglaries and robberies.

And burglaries are the breaking and entering of... well, the entering unlawfully of someone else's building with an intent to commit an offense.

Unknown Speaker: Well, you've left out the definition of breaking and... I mean, in the definition of breaking and--

Mr. Lazerwitz: Well, I'd like to--

Unknown Speaker: --entering.

I mean, in the definition of breaking and entering.

Mr. Lazerwitz: --to return to... to return to--

Unknown Speaker: You just say entering or remaining surreptitiously.

Mr. Lazerwitz: --I'd like to clarify one point that wasn't as clear in our brief as it should have been.

The word "entering" in a burglary provision is a term of art.

It doesn't mean walking into a public building.

And here's an example.

Suppose a witness intends to commit perjury on the witness stand.

He walks into the Federal courthouse intending to commit an offense.

He may become a perjurer that day, but he is not a burglar.

And that is not what Congress had in mind, and that is not what most states have in mind.

California does.

My adversary is correct.

California punishes as burglary shoplifting.

Unknown Speaker: Can you just... in your definition, is there any unlawful aspect required for the entry?

Mr. Lazerwitz: It has to be unauthorized and it would distinguish between the shoplifter and the person who lawfully enters into a store and stays behind after hours and then commits the offense.

And that was the point of--

Unknown Speaker: Well, which one didn't enter lawfully?

Mr. Lazerwitz: --They both entered lawfully, but the... our position is that if you lawfully enter a building and commit an offense inside, you have not committed burglary, except... and the limited exception is if you stay after hours, which then makes your staying unauthorized and then you commit an offense.

And that is--

Unknown Speaker: That is not the literal reading of the definition you propose, though, because the definition you propose is entering with intent to commit a... a felony.

Mr. Lazerwitz: --Yes, but the word entering in the context of a burglary provision--

Unknown Speaker: Well, how do we know this?

I mean, certainly you don't get that out of the language.

Your perjury example, I think is an excellent hypothetical.

Mr. Lazerwitz: --We get--

Unknown Speaker: It falls squarely within the text of your proposed definition.

Mr. Lazerwitz: --You get that--

Unknown Speaker: We'll have another lawsuit on... on that one.

Right?

Mr. Lazerwitz: --Pardon?

Unknown Speaker: We'll have another lawsuit on that one after we--

Mr. Lazerwitz: Well, it's one of those hypotheticals that, of course, will never come up and if... but--

Unknown Speaker: --Well, no, but the shoplifting example comes up.

Mr. Lazerwitz: --Yes, Justice Stevens.

Unknown Speaker: Say somebody goes into the department store lawfully but with an intent to steal something.

Mr. Lazerwitz: There's no doubt that those are potential predicate offenses, but not in the government's view and we don't prosecute those people and we would not include those as predicate offenses.

Unknown Speaker: I know you don't prosecute them, but... maybe that's what happened to this particular... defendants in Missouri.

Mr. Lazerwitz: No, we... we'd--

Unknown Speaker: I mean, maybe... I don't... I don't know the Missouri definition.

But if the Missouri definition is... is in exactly the same words as yours, how do we know it didn't include the perjury--

Mr. Lazerwitz: --Well--

Unknown Speaker: --or the shoplifting?

Mr. Lazerwitz: --Well, we know it for two reasons.

One, the repealed Missouri statutes that are attached as appendices to Petitioner's brief, all show that the offense was breaking and entering.

Now, breaking and entering in a burglary statute means you're not supposed to be there.

Unknown Speaker: Well, but--

Mr. Lazerwitz: And today--

Unknown Speaker: --that may be.

But supposing the state... you... one of your arguments is that about 40 or 41 states have very similar statutes.

And say all we know about the other state statute involved... it may not be true in this case... is that it has the same text as your definition, and he was convicted of it.

How do we know that that court didn't decide all he did was walk in intending to commit perjury or shoplifting?

How do we tell without getting into the case-by-case business that everybody seems to agree we don't want?

Mr. Lazerwitz: --Well, it's one thing to say you don't want to get into the case-by-case, but it's another thing to say you don't... just want to look at the statute which is not our position.

Unknown Speaker: Well, the statute as construed by the highest court of the state, but it's never had this particular question.

Mr. Lazerwitz: In a particular case, you look at how does the government prove or attempt to prove that this person needs the... deserves the predicate... excuse me... the enhanced sentence.

The government would... typical example would be the government would have certified copies of convictions.

Unknown Speaker: Right.

Mr. Lazerwitz: We'd have the charging documents if... if we could find them.

We'd have probation reports.

Would put on... would present evidence.

Unknown Speaker: Well, let me just make... be sure... I--

Mr. Lazerwitz: And if a judge were concerned that this person were convicted of burglary, although all he did was walk into a store and steal a box of Twinkies--

Unknown Speaker: --Well, let me go back if I may because I thought earlier we'd all agreed that it's an elements of the offense test.

And supposing you have in the other state a definition of burglary that clearly includes robbing a parking meter out in the... in some public area.

That's burglary in Texas, but it also covers a lot of other stuff.

And in the particular case you've got a defendant... if you look at the record, you find that he really broke and entered a home in a classic common law burglary.

Do you use that or not to enhance?

Mr. Lazerwitz: --If the statute could be... if the statute--

Unknown Speaker: The statute is broad enough to cover parking meters, the facts of the case where a home.

Mr. Lazerwitz: --No doubt about it.

Unknown Speaker: No doubt about it?

What's the answer?

Which way?

Mr. Lazerwitz: You would count it.

Unknown Speaker: Oh, you do count it?

Mr. Lazerwitz: Yes.

Unknown Speaker: So you don't look at elements of the offense, you look at the actual facts.

Mr. Lazerwitz: You look at the elements of the offense of which he was convicted.

There are many burglary statutes--

Unknown Speaker: And if your record shows nothing but conviction, murder two pursuant to statute certain number so and so, that's not enough to answer the question.

You've got to go behind that?

Mr. Lazerwitz: --Yes.

You would.

And that happens every day.

In fact, we have cases that are on appeal that involved these types of issues.

You have to--

Unknown Speaker: So it's not an element of the offense test, it's a particular fact in the charging papers?

Mr. Lazerwitz: --It's elements of what you... it's the elements of the offense as applied to what he was convicted of.

There's... there is no other way around it, given the way that the burglary statutes today are written.

Most states read them... there is no doubt that many states criminalize as burglary conduct that we think Congress intended to cover and... and--

Unknown Speaker: Supposing the charging papers in this case say burglary of department store, Hecht's, at such and such an address, period?

Mr. Lazerwitz: --Well, here we know what he did.

Unknown Speaker: Yeah, but lots of times you don't.

I mean,--

Mr. Lazerwitz: Well, if we don't know, then that's going to be a problem in a particular case.

Unknown Speaker: --I see.

Okay.

Well, I thought Petitioner's counsel said we don't know what was done on one of the prior convictions--

Mr. Lazerwitz: Well--

Unknown Speaker: --except that there was an order for restitution to a store for $15.

Mr. Lazerwitz: --There are two answers to that, Justice O'Connor.

We do know what happen because petitioner, himself, conceded what he did.

And you find it in the Joint Appendix at 11 and 12, which is a filing that he made in the district court.

He told us, one, that we know from... actually we know from the police reports that were in evidence that there was a break-in into a service station.

The second offense, the '63 burglary was in Petitioner's own words which he said to a probation officer,

"I went with a friend, and he broke into his girlfriend's house to pick up his clothes. "

Now, that might sound innocuous, but that's a burglary.

That's, in fact, a more serious burglary than the service station.

Unknown Speaker: Mr. Lazerwitz, what is the current status of any efforts to get Congress to amend or enact a definition of burglary?

Mr. Lazerwitz: As you know, the Senate has passed an amended version last year, and the House is having hearings starting next month.

And that's as far as we know.

Unknown Speaker: And the proposal would do what?

Reenact the old definition?

Mr. Lazerwitz: It would be to... yes, to insert the definition that was taken out back into the statute to avoid the problems that this Court is seeing.

Unknown Speaker: Mr. Lazerwitz, I am afraid that in the course of this discussion, we not only have not come closer together, we seemed to have walked further apart.

I am no longer sure that... that the two sides agree on the basic approach to applying this statute.

That is, I think, that your adversary would probably say that what he means by applying the statute generically is, if the burglary statute did not require that there be found as an element of the offense the particular item that's included in the definition... building or at night or whatever... I think he'd say that you can't count it.

And why isn't that a better way?

Why isn't that a better way to do it?

Mr. Lazerwitz: That's not the way the statute's written.

That's Subsection 1.

Unknown Speaker: Why isn't it written--

Mr. Lazerwitz: That's Subsection 1, that's not Subsection 2.

Subsection 1 speaks of elements.

Subsection 2 speaks of any crime that involves... that is burglary, involves use of explosives or otherwise involves conduct.

Unknown Speaker: --No, but that... but... but you... you look to the definition of the crime and if the definition of the crime involves conduct that presents a serious potential risk of injury, then that's it.

Mr. Lazerwitz: Well, that's--

Unknown Speaker: And... and if that element has to be found in order to convict of the crime, then... then it's okay.

If it doesn't have to be found, then it's not okay.

Mr. Lazerwitz: --Well, that... that effectively reads burglary out of the statute.

And that is one thing that we don't think Congress... you can read the statute that way.

Congress--

Unknown Speaker: Why?

Why?

Because all state burglary statutes are so expansive and include so many things in them that--

Mr. Lazerwitz: --No, because Congress specifically inserted the word burglary into the statute as a result of what was the legislative compromise.

Unknown Speaker: --I'm saying--

Mr. Lazerwitz: And so now we have to figure out what burglary means.

Unknown Speaker: --I'm not sure you are understanding what I think is a difference between the two of you.

I agree that burglary is a crime under the statute.

You don't have to prove separately that there was a danger to another person.

We accept your definition, let's say.

It requires that it be in a building.

What I believe your adversary is saying is that means if you have a state which has a definition of a statute that says it is burglary if it's done at night or in a building, you would not be able to use that for purposes of this statute because it was not necessary in order to obtain that conviction, to prove that the defendant was in a building.

You might have proven, instead, that it was at night.

Now, why isn't that a very sensible way of applying this statute?

Mr. Lazerwitz: It's not a sensible way because, first of all, it's not what Congress had in mind and it effectively would take out of the... would narrow the statute's reach in such a way that would make it ineffective as opposed... with respect to burglaries.

And that's not the way... and it's... again, there's a difference between Subsection 1 and Subsection 2.

In Subsection 1, Congress is speaking about elements necessary for a conviction.

That's not the language in Subsection 2, which is broader.

And that's our position.

And if the Court is concerned about a case-by-case inquiry, I really think that's not such... it's not such an onerous burden.

This is what happens in sentencings all the time.

Unknown Speaker: What's... what's the provision of Missouri law?

How does it read that makes it a burglary to break into your girlfriend's house to get your clothes?

Mr. Lazerwitz: That's common law burglary.

If it's not--

Unknown Speaker: Yeah... I know, entering... entering to commit a felony--

Mr. Lazerwitz: --Yes.

Unknown Speaker: --is common law.

Picking up your own clothes is a felony?

Mr. Lazerwitz: Well, apparently in this case, the guy wasn't... he wasn't authorized to be in the house and maybe they weren't his clothes.

Unknown Speaker: Anyway, he was... he was--

--Well, I thought... I thought you... I thought you said he was convicted of entering his girlfriend... for helping entering his girlfriend's house to pick up his clothes.

Mr. Lazerwitz: Well, that's what his story was but obviously the police must have found out it was different and he was convicted of it.

Unknown Speaker: At least he was convicted of burglary under the state law.

Mr. Lazerwitz: Yes.

We can't go behind the conviction on what Petitioner had said.

Just to clarify one point, or to stress one point, the Court should not be swayed by this sort notion that district courts are going to be inundated with sentencing hearings and making difficult choices.

This is what goes on all the time.

This is a burden the government has in every case with enhancement, and especially under the guidelines where criminal history and particular conduct is so important.

Unknown Speaker: But then... part of your argument against using the common law burglary definition, I thought, was you wanted to avoid all these inquiries.

But that's not... your reason on the common law... objecting the common law burglary is that it's just too narrow and Congress want something broader.

That's basically--

Mr. Lazerwitz: Well, there are a couple of reason.

One, it's... it's not only too narrow but it doesn't make any sense.

And, in fact, Petitioner, as a background point, raises this.

But no one is seriously arguing--

Unknown Speaker: --But his reason for not agreeing with it is he wants to avoid... he wants to rely on elements of the offense and he agrees that that wouldn't fit in the common law burglary because most states copy, except five.

Mr. Lazerwitz: --Well, under his elements of the offense test, if that were adopted, it would accomplish the same result, in our... in our view, because if you look at most state burglary statutes, they do cover things other than buildings.

Unknown Speaker: Well, why do you say the common law definition makes no sense?

It certainly made sense to the common law judges.

Mr. Lazerwitz: Yes, but we are no longer... that's not the way things have been in this country for years.

Unknown Speaker: You say 41 states have rejected it?

Mr. Lazerwitz: Yes.

Unknown Speaker: Well, but I think the Court has adopted common law definitions at times when perhaps common law had been superseded in places by... by statute.

Mr. Lazerwitz: Well, in Parron and Bell and even in the Reagan case from 1895, the Court has said, listen, when common law no longer applies or obtains in society, we are not going to infer that Congress used it.

And that's... it couldn't be more apparent than here where everyone agrees that there are so few states that have common law.

Now, with the elements of the offense test, we certainly reject that approach because it would accomplish the same thing and read the statute in such a way that it's not written and also ignore... I haven't harped on the legislative record, but it is important because the legislative record shows that Congress had something particular in mind.

Unknown Speaker: Can you explain to me again why the language of your proposed definition does not cover entering the courthouse with the intent to commit perjury?

Mr. Lazerwitz: Because the word entering means, entering without... without authorization, without privilege.

Unknown Speaker: And... unlawfully entering... you are in effect... you are adding... you have not given us an accurate definition of what your real position is then.

The word entering could be unlawfully entering--

Mr. Lazerwitz: Well--

Unknown Speaker: --unconsented entering.

Mr. Lazerwitz: --The... the word "entering" is a... is a loaded term.

But to make it more--

Unknown Speaker: But that's what you're saying, isn't it?

Mr. Lazerwitz: --Yes, that... when we say entering... when Congress used the term "entering", Congress meant entering without permission, without authorization.

There is no... and that... that's not a startling proposition.

The model penal code has a--

Unknown Speaker: It's not startling except it isn't the position I understood your brief to advocate.

That's why I'm startled.

Mr. Lazerwitz: --Well, I want to make it clear that we are not advocating that the perjurer is a burglar.

And there--

Unknown Speaker: Or the shoplifter then?

Mr. Lazerwitz: --Or the shoplifter.

And we would not, if we were presented with the California predicate offense in that... of that type, we would not include it.

And as far as I know, we haven't seen anything like that.

In a similar vein, a lot of states criminalize breaking and entering into a car as burglary.

Again, that wouldn't satisfy the definition that Congress had in mind.

That's not the type of offense that Congress wanted as a predicate offense.

Unknown Speaker: Have you cited us any cases in which a definition is used in a statute after the Congress has repealed it, or would this be a novel application?

Mr. Lazerwitz: We didn't cite any case and I don't know of a particular one, but I don't think this is an example of Congress repealing the definition.

And I say that because Congress... there's no doubt that Congress changed the definitions of the statute.

It reworked the entire statute when it included drug offenses and what is now violent felony.

But, at the same time, it inserted the word "burglary".

And that is a telling point, because if Congress where repealing entirely its treatment of burglary, it wouldn't have put burglary back in.

And it wouldn't have done so because, if in fact Petitioner is right... the words "burglary, arson, extortion" are essentially superfluous, because the burglaries that he's concerned about would fall within the catch-all phrase.

But Congress did just the opposite.

They... Congress put in the word "burglary, arson and extortion"... words... and for the Court's information, three predicate offenses that were first voiced to the House in the hearings from the Justice Department.

Unknown Speaker: And what's your position on the use of the ending phrase "or otherwise involves conduct"?

You say that just modifies explosives?

Mr. Lazerwitz: The way I have been thinking about it is the "or otherwise" modifies the... the verbs "is" a crime, "is" burglary, "involves" use of explosives, or--

Unknown Speaker: Well, then that suggests that burglary must somehow involve conduct that presents a serious potential risk of physical injury, don't you think?

Mr. Lazerwitz: --No, I don't think so because I don't think the word "otherwise" can bear that type of weight.

And one way of looking at is... there are several ways.

The most natural reading is that Congress has decided that certain generic offenses... burglary, arson, extortion... do present the type of conduct that presents a danger.

And that goes back to what the court was discussing before.

Congress can be seen as essentially preempting the inquiry that was raised before.

How do we know whether if it's a building, it's potentially violent?

How do we know whether someone is inside?

Does that make it potentially violent?

If the Court wants to give the phrase "or otherwise" an aggressive reading, which we don't urge at all, but even if the Court wants to, I think the most that you can get out of is Congress had decided that burglaries, as we define them, as excluding the breaking of a car, the breaking of a Coke machine, the shoplifter, that--

Unknown Speaker: That would also shed some light on what Congress meant by burglary.

If we are in doubt about what the definition of burglary is, it would suggest that the definition of burglary would have to involve conduct that presents a serious potential risk of physical injury to other... to another.

Mr. Lazerwitz: --Well, I don't think so and frankly, the... the phrasing "or otherwise", while we don't even think that it should be given an aggressive reading, is because look what it does.

It actually takes away a negative inference.

And if Congress... Congress put back in the statute burglary, arson, extortion, it didn't want courts to decide whether a particular burglary is violent or not.

And so it... it included certain predicate property offenses, but said, look, we also want to include other types of offenses.

Other offenses... for example, vandalizing a train track, that would be conduct that otherwise presents a potential violence to person.

The Tylenol poisoning case, that type of conduct would fit within the catch-all.

And so Congress' using of that phrasing doesn't suggest at all that it meant to modify the word burglary, which would be an awfully cramped reading of... of that phrase.

And "otherwise", in any event, as used as an adverb means in different circumstances, differently, in other circumstances.

Unknown Speaker: Is there any other statute besides the '84 statute that defines burglary... I mean Federal statute?

Mr. Lazerwitz: One example would be in Section 2118(b) of Title 18, which is the offense of burglarizing a place of business that's licensed to dispense controlled substances.

And there again, Congress defined the offense as entering unlawfully this place of business with the intent to steal controlled substances.

Unknown Speaker: Where do you get the... where do you get the... to what do you refer in saying there are 41 states that have a core meaning to burglary?

Is that in the model penal code--

Mr. Lazerwitz: No, we--

Unknown Speaker: --somewhere or you counted them up?

Mr. Lazerwitz: --No, we counted them up and perhaps it would have been wise to give you a statutory appendix, but we looked at each one of them--

Unknown Speaker: But each one of them isn't... isn't the '84 definition.

Mr. Lazerwitz: --No.

There's no doubt.

Unknown Speaker: Because... because... what... the '84 definition just covered mere entering.

Mr. Lazerwitz: Again, Congress' using the term "entering" didn't mean the shoplifter and there's been indication... I know of no cases where we prosecuted--

Unknown Speaker: Well, do the 41 states you talk about cover mere entering or does it require--

Mr. Lazerwitz: --Very few.

Unknown Speaker: --unlawful entering?

Mr. Lazerwitz: Very few require mere entering.

California is by... is certainly in the minority and I'd refer you the discussion of the model penal code which is cited in our brief.

Unknown Speaker: xxx.

Mr. Lazerwitz: Oh, excuse me.

That would... that would give you an example of the... the few states that do criminalize the--

Unknown Speaker: Is the model penal code definition what you're--

Mr. Lazerwitz: --Yes,--

Unknown Speaker: --looking for?

Mr. Lazerwitz: --it's essentially the same.

Unknown Speaker: Yeah.

May I ask you again, if we... if we modify the definition on page 28 of your brief by adding 41 states would fit that definition?

Mr. Lazerwitz: Every one of them.

Unknown Speaker: Every one of them would?

So... and if that's an element then I... then the only states in which you would lose under my suggestion... you just look at the element of offense... are in the other nine states.

Mr. Lazerwitz: Well, your... but I was concerned with your statement about its got to be a building.

There are lots of... there... not every--

Unknown Speaker: Well, your definition has got to be a building.

Mr. Lazerwitz: --Right, but in... but in--

Unknown Speaker: Well, isn't that true of all 41 states?

Mr. Lazerwitz: --A building plus any other type... lots of other structures are covered.

And under the--

Unknown Speaker: Oh, so those definitions are broader than this--

Mr. Lazerwitz: --Oh, yes, there are lots of... I don't want to mislead you, Justice--

Unknown Speaker: --How many... how many... do you know off the top of your head how many states have a crime of burglary that is defined in this way and no more broadly?

Mr. Lazerwitz: --That would probably be in the minority.

Unknown Speaker: Oh.

So this is not... this is not at all typical then?

Mr. Lazerwitz: I... again, as I said in the beginning, it is the common denominator.

It is what the... what you will... what the man on the street... what a Mr. Taylor would think is burglary.

And that's what Congress had in mind.

Unknown Speaker: Well, how do we know that?

Well, but you could also say they all cover going in with an armed gun in the middle of the night when there are people there.

Then you say all 50 states have adopted that definition--

Mr. Lazerwitz: Well, again--

Unknown Speaker: --because they all include it.

Mr. Lazerwitz: --Congress took this definition from the National Commission of the Reform of the Criminal Laws in the early 1970s.

That's were this definition came from.

And that is what's been developed as the consensus of burglary.

The fact that other states criminalize broader conduct doesn't... you can't fault Congress for... for adopting a more narrow definition.

And... I mean, that's our position we... and that's one of the reasons why we disagree with the Eighth Circuit here.

It just doesn't matter what the state calls it, it's what is actually going on.

Because we don't think a guy who breaks into a car should be subject to an enhanced penalty if he does it three times.

Unknown Speaker: Mr. Lazerwitz, I... I gather from what you've said that the way... the way the Department interprets this statute to come under the portion that says "involves use of explosives", it isn't necessary that the statute be a statute prohibiting a crime with the use of explosives.

That is, you could get somebody if they were convicted of... oh, I don't know... mayhem by the... but in the facts of the case they did it by use of explosives.

Mr. Lazerwitz: If he were convicted of mayhem and the elements of mayhem didn't include the use of explosives, no, I don't think we would... that would... we could charge him with that predicate.

Unknown Speaker: And you would do that for the last clause also,

"otherwise it presents a serious risk of physical injury to another? "

Mr. Lazerwitz: We--

Unknown Speaker: That risk of physical injury must be in the statute... not the exclusive thing in the statute?

Mr. Lazerwitz: --No.

It's got to be what he's convicted of, yes.

Unknown Speaker: Okay.

Mr. Lazerwitz: We don't think, for example, if you're charged with armed robbery and you plead to simple larceny that we can walk into a district judge and say, look, although he is convicted of simple larceny he really used a gun.

That's not fair because that's not what he stands convicted of.

And that's how we... that's how we've been applying that... the statute.

If there are no further question, thank you.

Unknown Speaker: Thank you, Mr. Lazerwitz.

Mr. Livingston, you have four minutes remaining.

Rebuttal of Bruce D. Livingston

Mr. Livingston: Thank you, Mr. Chief Justice.

I would just like to point out a couple of quick items in my remaining minutes.

First, I note... Note 8 of the government's brief, they indicate several places where there are the use of the common law burglary or other statutes different than their interpretation for the term "burglary".

Second, I think this is a plain language case.

More than anything, although the legislative history supports us, in a response to Justice Scalia's question about the comma or about "or otherwise" modifying "involves use of explosives", I think that the comma after "involves use of explosives" and before "or otherwise" precludes that interpretation and it's just as likely that it could be interrupted to modify the entire portion of the statute.

Unknown Speaker: May I ask you one question that's very important to me?

That... in your view of elements supposing your client had been charged with a crime, whatever the definition we end up with, that fit the definition but the statute in the state involved permitted conviction for a broader category.

Do you say you look at the charging papers or you look at the statute?

Mr. Livingston: I say you look at the statute.

Unknown Speaker: So you would say in all those cases that it doesn't count, even though they can prove without any question that the elements of the offense were present in the particular case, if the statute didn't require them to be in every case?

Mr. Livingston: If the statute didn't require them to be in every case, then, under my interpretation, it would not be an enhancing offense.

You've still got the guy.

He's serving his time now.

It's just a--

Unknown Speaker: No, I understand.

Mr. Livingston: --question of whether he gets the extra time.

Unknown Speaker: But you... you and the government do differ on this point in--

Mr. Livingston: That's right.

Unknown Speaker: --I just want to be sure.

Mr. Livingston: I also would like to address Justice White's question about expanding the act.

I think it is important, and we made the point in our reply brief, and I think the legislative history definitely supports us in this regard, that although the change from 1984 to 1986 expanded the act... which it undeniably did; it added all of the various crimes... it used to just be robbery and burglary and they expanded it to get murder, rape, mayhem, whatever else.

But there was a great deal of debate about excluding property crimes and, specifically, burglary.

And what we have here now is a definition where I believe--

Unknown Speaker: Your claim is that it narrowed the reach of the burglary predicate offense.

Mr. Livingston: --Only to those burglars which would be like the first-degree burglary statute in Missouri which really have that serious potential risk of injury.

I also think that it's very clear that the government definition that's proposed is not an ordinary or contemporary definition.

It's a subset.

Somehow or other it will reach the various burglary crimes across this country, but it is not the burglary crime themselves.

They are very different.

And it clearly omits any consideration of the very, very narrow burglary crimes which we... it's our position... are really what Congress was intending and that's the aggravated burglaries and the violent burglaries, the higher degrees of burglary.

Nothing in the government's definition addresses that distinction and all of those other statutes that are out there and are also called burglary.

Unknown Speaker: Are arson and extortion defined in this statute, or can we look forward to those cases coming up later?

Mr. Livingston: They also are not defined.

We have stated in our brief that extortion, particularly is problematic.

I think you might be able to somehow, when you're defining what's a risk of injury, maybe arson seems to be a kind of crime that has a risk of injury, and I wouldn't contest it.

It is not an issue here to day anyway.

Extortion, Justice O'Connor's example, is a very good one of the kind of extortion that doesn't present a risk of injury and I think it's very appropriate that that not be an enhancing offense.

It's not the same as, hey, give me some money or I'll shoot or kill your child.

That's the kind of extortion that was meant, not, hey, I'm going to tell some nasty stories about you if you don't give me some money.

That's not a risk of injury, and I would think there's a difference between those two kinds of extortion.

I see my time is up.

Chief Justice Rehnquist: Thank you, Mr. Livingston.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until monday next at ten o'clock.