Transcript

IN THE SUPREME COURT OF THE UNITED STATES

EDDIE RICHARDSON, Petitioner v. UNITED STATES

No. 97-8629

February 22, 1999

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:04 a.m.

APPEARANCES:

WILLIAM A. BARNETT, JR., ESQ., Chicago, Illinois; on behalf of the Petitioner.

IRVING L. GORNSTEIN, ESQ., Assistant to the Solicitor General, Department of Justice; on behalf of the Respondent.

PROCEEDINGS

11:04 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 97-8629, Eddie Richardson v. the United States.

Mr. Barnett.

ORAL ARGUMENT OF WILLIAM A. BARNETT, JR. ON BEHALF OF THE PETITIONER

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

The Fifth and Sixth Amendments to the United States Constitution require that a jury in a Federal criminal case unanimously agree as to each fact which is necessary to constitute an offense. The jury is a finder of fact.

The prosecutor's decision in the case --

QUESTION: And -- and what is the principal authority for that proposition?

MR. BARNETT: Pardon me, Your Honor?

QUESTION: What is the principal authority for that proposition? Winship?

MR. BARNETT: Winship.

The prosecutor's decision to charge in this case --

QUESTION: Yes, but I had thought in -- in Schad there was some indication that different jurors can be persuaded by different pieces of evidence so long as they all agree on the bottom line. I -- I think there's some indication that jurors don't have to view each piece of evidence unanimously --

MR. BARNETT: Well, the --

QUESTION: -- if they agree on the bottom line.

MR. BARNETT: The question I guess is what is the bottom line, and the bottom line in --

QUESTION: Guilt or not guilt of the charged offense.

MR. BARNETT: Yes, but the offense is defined. And with respect to the definition of the offense, there are certain constituent facts which the jury, as the finder of fact, is required to find beyond a reasonable doubt. In the continuing criminal enterprise statute, those constituent facts are that the primary elements are that the defendant be -- have committed a crime which is a felony under the Federal narcotics statutes --

QUESTION: And if it's part of a continuing series of violations, and it doesn't say how many or what. I mean, I'm not sure that you can pin this statute down as you would seek to do it.

MR. BARNETT: Well, if you cannot pin it down --

QUESTION: Well, Congress didn't seem to pin it down.

MR. BARNETT: Congress --

QUESTION: Now, in RICO you've got a much more precise scheme spelled out than here. Congress just said a continuing series of violations.

MR. BARNETT: Well, you're correct, Your Honor. In the RICO statute, it specifically states that there have to be at least two and that they have to fall within a certain time period with relationship to each other.

QUESTION: Right.

MR. BARNETT: On the other hand, just because Congress called it a series of violations, in this case instead of defining it as three or more violations or some other specific definition, nevertheless, the word series is a conclusion. It's a conclusory statement of fact. The word series means nothing without a context, without an object of the preposition. What is it a series of?

And they have defined that specifically in the continuing criminal enterprise statute as violations of the Federal narcotics laws. Those violations are very specifically defined throughout the -- the statutory framework, each and every one, and each and every one has well defined elements which have been defined and judicially interpreted over the years.

To suggest that the Congress, by using the word series of violations, suggested that the jury did not have to focus in on what it is that the series was comprised of --

QUESTION: Well, there was ample evidence here of, if you will, a continuing series.

MR. BARNETT: Well, a series is made up of the constituent elements. So, in order to find a series, you would have to find that they -- and it then occurred at one time, a second time, a third time, a fourth time --

QUESTION: Well, there was plenty of evidence to support the findings necessary. Your complaint is just about the instruction, is it not?

MR. BARNETT: That's correct, Judge. This is not a sufficiency of the evidence case.

QUESTION: Mr. Barnett --

QUESTION: The statute requires in section 1 that you violate a provision of the chapter and commit a felony.

MR. BARNETT: That's correct, Your Honor.

QUESTION: You're not alleging that there was a defect in -- in the findings as to that part of the statute, are you? You're just addressing subclause 2, which is the continuing series.

MR. BARNETT: I'm not -- I'm not suggesting there's a defect in the statute at all.

QUESTION: Pardon me. A defect in the proof under the statute.

MR. BARNETT: I'm not suggesting there was a defect in the proof here. This is not a case about the proof. It's a question as to whether or not the jury was properly instructed that it had to unanimously find that each of the elements had been --

QUESTION: My own questions are imprecise. Are you saying that there is an insufficient finding on the part of the jury with reference to paragraph 1 of the statute as well as to paragraph 2?

MR. BARNETT: Insofar as it is implicitly included in the series, yes, I am. I know that the Government has taken the position that that issue has been waived. On the other hand, by our request for an instruction that the jury find with respect to the series, defined as at least three, that it find unanimously that each of the three has been proved, I would suggest that we preserve that issue.

And the instruction given by the court to the effect that it need not -- the jury need not find unanimously with respect to any of the underlying predicate offenses in the event that -- well, in effect, told them they wouldn't have to agree with respect to that first offense. And that was -- at least I'm arguing here today that was legally wrong and violative of the Constitution.

QUESTION: Well, what do you mean violative of the Constitution?

MR. BARNETT: The Due Process Clause requires sufficient specificity so that a man understands what it is he's charged with.

QUESTION: Well, that's the indictment. There's nothing wrong with the indictment here. The indictment gives him notice of what he's charged with.

MR. BARNETT: Yes, but during the course of the trial, a man must be able to meet the charges that are being made against a man. When it is set forth in a scattershot fashion so that he's, in effect, asked to hit a moving target in -- in cross-examining witnesses as to specific events when they don't give testimony with respect to specific events and it's a generic type of testimony, then it puts him in an untenable position -- excuse me.

QUESTION: Supposing in this case, there had been evidence of six other convictions -- criminal enterprises that met that definition, and the judge had charged the jury that you must find that the person committed three of those offenses. Now, do you think that the law requires that the jurors agree on which three of the six were committed?

MR. BARNETT: Yes, I do, Judge, and the reason for that is because if they do not agree -- if you cannot get the jurors to agree unanimously as to any one of those elements, you have to drop it out. So, if you have six, but you can only get unanimous agreement on two, for instance, you haven't proved a series of six.

QUESTION: What about if you have thousands? Because wasn't that the Government's case? To talk in the abstract about agreeing on the particulars versus the conclusion is one thing, but here the Government says where we have a continuing series that involves thousands of separate transactions and they didn't --

MR. BARNETT: But --

QUESTION: Was the prosecutor wrong in saying that that was the series? He said every $10 bag of crack, every $20 bag of heroin, each one of those sales was a transaction in this series, and he said that the proof supported literally thousands of -- and from the thousands, the jury is supposed to pick out three or four? That just seems to make no sense to me.

MR. BARNETT: Well, with respect to that series of thousands that he's talking about, the testimony that came in was from essentially three witnesses --

QUESTION: First, did the Government charge that -- that that was the -- that's the continuing enterprise that they were dealing with, one that involved thousands of transactions? Are you challenging that that was an accurate characterization of the series that the Government charged?

MR. BARNETT: The way it was charged was as a -- a conspiracy, and off the top of my head, I can't remember if they said this involved thousands of transactions. But you can certainly make the -- the inferential jump from the terms of the indictment and the way the conspiracy was described to -- to conclude that, yes, this was a case involving thousands of transactions.

QUESTION: And the judge is supposed to tell the jury, this case involves thousands of transactions, but you have to pick out three and agree on those. If that's so, then -- then doesn't the judge have to list all the thousands, every runner who testified? They didn't remember their individual sales, but they were able to say, yes, we sold on an average of so much a week, so much a day.

MR. BARNETT: Well, the --

QUESTION: Well, I guess nobody made the Government charge thousands, did -- did they?

MR. BARNETT: No.

QUESTION: They could have charged just 10.

MR. BARNETT: And they --

QUESTION: They're just being greedy here. They could have charged five, maybe three. Right?

MR. BARNETT: That's true.

QUESTION: And they could have provided a lot of evidence for -- for just those three or those five.

MR. BARNETT: They also could have charged predicate acts as substantive crimes, which they chose not to do, which interestingly, the -- the RICO statute, which has been referred to here -- routinely the Government charges the predicate acts as substantive crimes. And the convictions on those underlying substantive crimes become the basis for finding the predicate in the RICO charge.

But in this statute, the Government has taken the position that because the word series of violations is not as specific as in RICO, they don't even have to charge any predicate offenses. And -- and I'm not quarreling with that. The case law is clear that they do not, but if they do not, they should at least be required to point to three offenses and say, you've got a series. If you can agree on the three offenses, and particularly one within the statute of limitations, then you've got a series --

QUESTION: Why should they be able to do -- why should they have to do that more or less than they have to point to the five people?

MR. BARNETT: The five-person requirement, as I view the statute, is significantly different from the underlying offenses. The -- the basic criminality of the continuing criminal enterprise statute is contained within the fact that there are narcotics violations which have occurred. There is nothing else in the statute that's criminal. Hanging around with five other people or making a lot of money is not criminal in and of itself. Those -- and in the structure of the statute, those are subsidiary to the primary element that the violation be part of a continuing series. They are --

QUESTION: But, I mean, in terms of your -- in terms of knowledge of the defendant, in terms of your knowledge as a defense attorney, when you see the indictment, does it list the five people by name? Does it have to?

MR. BARNETT: No.

QUESTION: No. All right. So, what do you do if you want to know who they are?

MR. BARNETT: You can file a motion for a bill of particulars.

QUESTION: Exactly. And so, I -- I suppose that that's just what you would do in respect to the offenses as well, if you lose this case. And you may win it, but -- but -- but -- but if you'd lose it, it wouldn't be a problem of notice. It would be the same problem, wouldn't it? You'd say I don't know who they are and file a bill of particulars. And -- and -- so, I don't see there's a notice problem.

MR. BARNETT: Well, the notice problem comes in when you have thousands of transactions because you, in effect, have to defend against something having occurred on any one --

QUESTION: Suppose there are thousands of people, thousands of people. Indeed, there may have been in this case.

MR. BARNETT: Well, in that event -- well, let me back up a second.

QUESTION: If -- if you're worried about that, isn't your move to move for a bill of particulars?

MR. BARNETT: But even a bill of particulars wouldn't have done any good in this case if they gave us a list of thousands of offenses and didn't say these are the three that we're talking about. The question --

QUESTION: In other words, you want -- you want to have to prepare for less. That's the guts of your argument, isn't it?

MR. BARNETT: Well, yes, that's true.

QUESTION: Because if you got a list of a thousand names, you -- you would have exactly the same problem that you've got right now.

MR. BARNETT: That's correct.

QUESTION: So, what you're really saying is, I have a right to -- to prepare, in effect, the -- the narrowest and most -- and hence most manageable case possible. That's -- that's basically your argument.

MR. BARNETT: Well, instead of -- well, I think that it's fair to, instead of allowing the Government to take a scattershot approach, when the ultimate argument they are going to make to the jury is that you don't have to look at anything in particular here, you just have to take a look at the thousands of offenses and come to a sense as opposed to a finding of fact that something has occurred on such and such day three times in a row, but instead have a sense that this is a bad man, that -- that this activity is going on, but without pointing to the specifics. Because if you don't have an agreement on a specific -- if you don't have an agreement on enough specifics to make a series, then you don't have agreement on a series. The series is --

QUESTION: That's not necessarily -- excuse me. Go ahead.

Isn't there an intermediate position? I'm trying to -- could it not be true that there are three or four witnesses who could testify that I sold heroin on a such and such a street corner over and over again for 5 years? I can't remember any specific date or any specific transaction, but I did it over and over again. And then there's another witness who says, as I guess in this case, he sold white heroin, somebody sold brown heroin, somebody sold cocaine.

They might not remember the specific details, but did you argue that they at least ought to be compelled to find that there were -- they agreed on which series took place? In other words, if they agreed that the witness who testified that there were transactions in brown heroin for 6 months in a row, I can't remember any specific transaction, that that would be enough for a series if they all agreed on that particular series? But here you've got several series.

And did you argue that they have to at least agree on which ones were proved beyond a reasonable doubt, or did you just make the argument you got to pinpoint the time and date of particular sales?

MR. BARNETT: Are you referring to my argument in the court?

QUESTION: In the district court.

MR. BARNETT: In the district court?

QUESTION: What did you -- did you ask the judge to say -- give you an instruction that it was something not quite as specific as they've got to tell me the time, date, and amount of heroin sold on such and such -- you know, on such and such a transaction? It seems to me there's a big difference.

MR. BARNETT: The instruction that we requested was --

QUESTION: Would have required time and date and place of three or four specific transactions.

MR. BARNETT: Well, the way it was phrased was that -- it wasn't quite that specific or well thought out --

QUESTION: No.

MR. BARNETT: -- I have to say. It's you must unanimously agree on which three acts constituted the series of violations. And that was as specific as we got in our requested instruction.

The court's instruction was that the -- the jury need not have -- you do not, however, have to agree as to the particular three or more Federal narcotics offenses committed by the defendant.

QUESTION: What was the sentence before the however?

MR. BARNETT: Oh. You must unanimously agree that the defendant committed at least three Federal narcotics offenses. You do not, however, have to agree as to the particular three or more Federal narcotics offenses.

QUESTION: We don't really know that the Government -- I guess we can ask the Government when it comes up, but we don't really know that the Government concedes that the jury has to decide upon a particular series. I suspect the Government's view will be that if nine jurors believed without a -- beyond a reasonable doubt that -- and all nine of them believed beyond a reasonable doubt that this defendant engaged in a series of drug transactions, it doesn't matter which series each of the jurors had in mind so long as all -- all of them believed beyond a reasonable doubt that there was some series.

MR. BARNETT: I think that logic --

QUESTION: You don't like that either.

MR. BARNETT: Oh, no, I certainly don't.

QUESTION: That's even worse I suppose. Right?

(Laughter.)

MR. BARNETT: And I think that logically follows from what the Government's position is.

QUESTION: You might ask what the other three jurors --

(Laughter.)

QUESTION: How do you -- what do you think about the robbery statute, whoever by force and violence or by intimidation takes money from a federally insured bank? How does the Government have to proceed there if they have -- where they're not -- there are some people who think that force and violence but not intimidation this particular defendant used and some think it's intimidation but not force or violence? Now, does the -- do you have to have unanimity on each of those if they say, we're certain of one thing, he did it one way or the other, but we're not certain? Some of them think it's force and violence; some of them think it's intimidation. That sounds familiar. That's called Schad.

MR. BARNETT: Yes. It's very --

QUESTION: All right. Now, all right, fine. So -- so, what's the difference?

MR. BARNETT: Well, the -- there's a difference between the characterization and the act, the legal characterization of what the criminal act which has occurred is, and whether the jury can distinguish between two different legal characterizations of the same actus reus may lend itself to this morally equivalence analysis which is set forth in Schad. If they're morally equivalent, does it make any difference whether it's taking by force or taking by intimidation? We think not. Therefore, the jury just has to unanimously agree, but they are unanimously agreeing on a particular set of facts, an actus reus, an act by the defendant which has a particular victim, and with respect to that, they are finding the guilt.

QUESTION: What about Justice -- I think it was Justice Scalia's hypothetical in his concurring opinion in Schad that a person is charged with first degree murder and there's evidence that the -- the killing was committed in the course of a felony? There's also evidence that -- that the defendant intended and deliberated. Does the -- do the jurors have to pick between those two theories of first degree murder?

MR. BARNETT: Well, as in Schad, the -- the -- the same -- well, that was the case in Schad, although it was a State court case. But that -- once again, that is not a question as to whether a particular actus reus has occurred. That's a --

QUESTION: What's -- what's an actus reus?

MR. BARNETT: The -- the criminal act, the specific set of --

QUESTION: What the defendant did?

MR. BARNETT: Yes, what he did. That has to do with what he was thinking when he did it.

And the analysis in Schad pretty much extrapolated from the moral equivalence argument which applies -- what I would say applies to the legal characterization of the act, would also apply to a certain extent to the mens rea involved, which -- which is what was suggested in Schad and what -- what this Court found.

But in this case, we're talking about the other hypothetical posed by Justice Scalia, which is can you indict a man and convict him for either assaulting Mr. X on Tuesday or Mr. Y on Thursday? Just -- the jurors may unanimously --

QUESTION: He'd be entitled to a severance certainly.

(Laughter.)

MR. BARNETT: There's a -- there's a difference between the jurors unanimously agreeing that a -- a crime has occurred on such and such a date and -- and the jurors unanimously calling something that happens a crime. Now, 12 jurors can each think to themselves a man has done, let's call it, a crime and one because he thinks he committed a murder, one because he thinks he committed a robbery, one because he thinks he committed a rape. And they don't unanimously agree that he did any of those things, but each one of them says this man committed a crime and they're unanimous on that. That is not unanimous agreement on a specific crime with which this man is charged.

QUESTION: And you would say that -- that that rule applies in the hypothetical where six jurors think the dope was sold at high school 1, six jurors think the dope was sold at high school 2. They don't disagree necessarily with the findings of the other six, but they just focus on a -- on a different high school.

MR. BARNETT: Well, when you say they don't disagree, Your Honor, I think --

QUESTION: They don't come to any conclusion. They don't -- they don't negate that finding. They just say I -- in going around the jury table, six say, I'm convinced he sold it at high school number 1; six jurors say, I'm convinced he sold it at high school number 2. Isn't that just the mode of committing a series of -- of transactions?

MR. BARNETT: No, I would not say that's a mode. That's the essence of the transaction, what transactions have occurred. And do you have 12 people unanimously agreeing that the transactions have occurred, or do you have 12 people agreeing that transactions occurred and we're all willing to call whatever transactions we think occurred a series?

QUESTION: You think my hypothetical is the same as your example of assaulting X on Tuesday and Y on Wednesday?

MR. BARNETT: Yes, I do.

QUESTION: Well, the trouble that -- the trouble is I don't think you can differentiate it from -- from Schad by saying that Schad was essentially a case on characterization. You said, well, it's a case about characterization because it wasn't a case in which anything turned on -- on distinctions of what you called the actus reus. But it seems to me that -- that it did.

Take the -- the homicide example, the homicide in a case which -- in a State which defines homicide in -- in unitary terms. In -- one alternative for proving a homicide would be to prove as a fact that the defendant went through a certain thought process, i.e., deliberation and premeditation. Another alternative for proving that homicide -- the same -- the same victim -- would be to prove as a fact that the defendant was engaged in robbery at the time he killed. The distinction between those two cases is not a distinction in characterization. It's a distinction between two different facts, the fact of thought, the fact of robbery. And -- and I don't see how you can distinguish Schad as a characterization case. Am I -- do I misunderstand your argument?

MR. BARNETT: No, you don't misunderstand my argument, but I -- I think that with respect to that distinction between the mental state required to commit a first degree murder and that required to commit a felony murder and the fact that the crime which has occurred is a murder -- there has been a man killed -- takes it out of the situation where we don't know whether the jury agrees that the transaction occurs on Tuesday or the transaction occurs on Thursday.

QUESTION: We don't know whether the jury agrees that there was a certain thought process or whether the jury agrees that there was a robbery.

MR. BARNETT: That's correct, but with respect to the thought process/robbery dichotomy, the moral equivalence test suggests that it doesn't matter which one they agree on.

QUESTION: The moral equivalence test isn't going to help you in -- in the case of the Tuesday or the Thursday crime.

MR. BARNETT: Oh, I don't think it --

QUESTION: I mean, I think -- I think in order to -- to make -- in order to avoid having those kinds of distinctions get into this case, we've got to recognize that Schad was, among other things, making the -- the due process judgment based on -- on traditions of how we prove crimes. And -- and one tradition that would pretty clearly be excluded would be the -- the -- the -- the charge simply of one crime, choosing one day and one victim, another day and another victim as an alternative. And that may be a very strong argument for the Government -- against the Government's desire to -- to sort of have the whole hog here and say that -- that even the -- as it were, the principal act here could be proven in any of alternative ways.

But I thought the case that you had brought to us was whether in addition to proving the -- the principal act here, the series could be proven in alternative ways. And -- and I think my point is you can't distinguish the alternative ways of proving a series from the situation in Schad by saying that Schad was merely a case about characterization because Schad was a case about different acts.

MR. BARNETT: Well, Schad is distinguishable in many respects, but I -- I would say that under the circumstances of that case, that the Court came to that conclusion premised upon its look at the historical way a felony murder was treated like capital murder, and that that analogy does not affect the analysis in this case --

QUESTION: Well, it doesn't because we don't have the kind of historical precedent one way or the other that you're talking about. And that's why I tried to pin you down a little bit to find out what in practical terms is really bothering you here. And I thought what's really bothering you is -- is the problem of -- of case preparation. You want to be in a position to -- to narrow down the facts which you've got to negate, assuming you put on a defense or cross examine, and I thought that was -- that was what you were in practice really worried about here.

MR. BARNETT: That is a very strong part of the -- the argument.

QUESTION: Well, suppose Congress wants -- wants to pass a statute that says we want to get at these operations where there are lots of runners and people who will not be able to tell you precisely any particular sale, but will be able to testify in gross, I sold X -- on average X many bags a week. Suppose Congress wanted to get at that. Could it? Or are you saying, no, because you have to prove discrete acts?

MR. BARNETT: Well, I don't think we have a case here where you have children that -- that cannot discriminate between dates and to suggest --

QUESTION: This is a runner who says, I'm in the business of selling crack. I can't tell you -- I've been doing it for years -- on any given day who -- who I sold it to. Suppose Congress thinks that that exists in the real world and wants to make a crime that covers that. Are you saying they can't?

MR. BARNETT: I'm not saying they can't legislate against a continuing criminal enterprise, which is what they did here. What I'm saying is that they should be -- the Government should be subject to the same rules of proof that they are in any kind of a case, which is they've got a fact that they have to prove and they bring witnesses in who can testify to it. And I think that to take the position that their witnesses are -- that they're not going to have witnesses that are competent and therefore we should just disregard the requirements that they prove a case would be contrary to the Fifth Amendment.

Your Honor, at this time, if I have any time --

QUESTION: Thank you, Mr. Barnett.

Mr. Gornstein, we'll hear from you.

ORAL ARGUMENT OF IRVING L. GORNSTEIN ON BEHALF OF THE RESPONDENT

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

It is an established principle of the criminal law that while a jury must unanimously agree that the prosecution has proven the elements of an offense, it need not agree on the evidence supporting each element. As applied to the CCE statute, that principle means that the jury must unanimously agree that the defendant engaged in a continuing series of violations, but it need not agree on the particular acts that make up such a series.

QUESTION: And what -- what is the best authority for that from this Court?

MR. GORNSTEIN: The Schad case and the cases that precede Schad establish the basic controlling principle here, which is that the only thing that a jury has to be unanimous about is the elements of the offense and the jurors do not have to agree on the evidence that support each element. In Schad, the crime was murder, and in Schad, some jurors -- six jurors could think it was a felony of robbery, six jurors could believe there was an intent to kill. As long as they all agreed that the relevant mens rea was -- was established, they did not have to be unanimous.

QUESTION: And six jurors could think that the drugs were sold at high school 1 and six jurors at high school 2 and that would suffice?

MR. GORNSTEIN: Now you're talking about for a CCE?

QUESTION: Yes.

MR. GORNSTEIN: Well, you -- you would have to show a continuing series, and I'm not sure that just one -- one event would do it for a continuing series, but --

QUESTION: No. I'm assuming that there was a series of transactions --

MR. GORNSTEIN: Right.

QUESTION: -- at high school 1 and a series of transactions at high school 2.

MR. GORNSTEIN: Right. When -- if we -- in the basic way the Government charges a case like this, as long as all the acts were undertaken pursuant to a single course of conduct, it should not matter whether half the jurors pick out the three at one high school and half the jurors pick out a series at another high school.

QUESTION: Suppose that half the --

QUESTION: Well, who decides that they were all --

QUESTION: Suppose that half the jurors think that it didn't happen at all at high school 1, but that it happened at high school 2, and the six other jurors think --

MR. GORNSTEIN: Right.

QUESTION: -- just the opposite, that it didn't happen at all in high school 2, but it happened at high school 1.

MR. GORNSTEIN: Justice Kennedy, that -- the same result would follow. Just as in Schad, if six jurors had concluded there was no robbery at all and six jurors had concluded there was no intent to kill at all, they would still unanimously agree on the relevant mens rea.

All that -- that -- the question of what is an element of -- of an offense is essentially a question of statutory construction. What did Congress intend for the elements of an offense to be? Here the text of the act expressly says that the relevant element is that there must be a continuing series of violations. Given that definition of the element, the only thing that the jury must be unanimous about is that the defendant engaged in a continuing series of drug violations.

QUESTION: But it isn't just a question of intent. You wouldn't say that the Government could enact a crime which says anyone who, you know, is -- is either guilty of -- of filing an incorrect income tax return or of -- of rape shall go to jail for 30 years, and then throw it to the jury and let the jury decide. You know, you have some evidence of rape, some evidence of failure to file a proper income tax return. None of the -- on neither count can you get 12 jurors, but you get 6 on one and 6 on the other. Can the Government do that?

MR. GORNSTEIN: No -- no, it --

QUESTION: So long as it intends to do it. That's really what the Government intends.

MR. GORNSTEIN: You were right to correct me, Justice Scalia. The first question is one of legislative intent. What did Congress intend for the element to be? Once you know what Congress intended for the elements to be, there is then a due process question about whether Congress can rationally -- rationally define the elements of the offense in the way that it did. And the -- the hypothetical of he -- she struck A on Monday or B on Tuesday is completely unlike this CCE statute in due process terms.

QUESTION: What if the series -- you say so long as it's rational. What if the series elements were not tagged on to a -- a concrete that you needed 12 jurors for?

Incidentally, you agree you needed 12 jurors for part 1 of the statute.

MR. GORNSTEIN: We do not agree with that, Justice --

QUESTION: You don't even think you need 12 --

MR. GORNSTEIN: We do not agree on that.

QUESTION: You don't have to have this jury agree about anything.

MR. GORNSTEIN: They do have to agree about the elements of the offense, but not the facts underlying it. And what the -- what the first element -- we would acknowledge it is a more difficult question because if you look at the first element in isolation, it does look like it's focusing on a discrete act by a single defendant.

QUESTION: It sure does.

MR. GORNSTEIN: But when you read it in the context of the whole statute, which is -- the following sentence says that that's just part of a series of violations, it's best understood as really the functional equivalent of saying, there must be a series of violations at least one of which took place within the statute of limitations period.

QUESTION: So, you -- you think Congress could enact a statute which says, anyone who is guilty of a series of burglary shall go to jail for so many years, and if you put the statute that way, you would not have to prove to the satisfaction of 12 jurors any burglary.

MR. GORNSTEIN: Well, you'd have to prove a series, but the --

QUESTION: You'd have to prove a series.

MR. GORNSTEIN: Correct.

QUESTION: Three think this burglary, three think another one, three think a third one, and three think a fourth one, and this fellow goes to jail even though, beyond a reasonable doubt, no 12 people think he did anything that was illegal.

MR. GORNSTEIN: Well, first of all, a series -- presumably they would all have to agree that there were at least three or at least two depending on how you defined a series.

But to answer your hypothetical, Justice Scalia, the question in that case would be is Congress or the legislature, whoever it was, responding to a new and distinct form of criminal activity or is it simply attempting to circumvent unanimity requirements for what have -- what has been an historical single offense of burglary.

QUESTION: Schad was decided mostly on the basis of tradition. It had been done this way, you know, for a long time. And if I had to apply the same rule to the present case, I would look to those cases that -- that dealt with recidivism. And as I -- you know, you're guilty of this offense. You'll -- if -- if you have committed a prior offense as well, you -- you have a higher sentence. And let's assume that they're both elements of the -- of the offense. And in those cases, as I understand the historical background, you had -- you had to prove the prior offense by a unanimous jury and you couldn't say the jury -- you know, the jury thinks you committed a prior crime.

QUESTION: Justice Scalia, I'm not sure about the background that you're speaking of, but I don't think it's fair to compare this statute to a recidivism statute. It is not. It is a completely different kind of statute.

What it is -- what Congress was addressing here was a new kind of crime, and that is the operation by drug kingpins of large scale drug businesses from which they derive substantial revenues. It is not just somebody committed one crime and then another. It is a drug business crime, and that's why it's called continuing criminal enterprise. And in -- in responding to that distinct form of criminal activity, it was entirely rational for Congress to say -- to define the series element so as to require agreement on a series but not on the particular acts.

And I would also distinguish this case from the -- the case where you just have to prove a series because there are other elements to this offense. The Government has to prove that there was a conspiracy. It has to prove that the -- the -- that the defendant derived substantial revenues from that conspiracy, and the addition of -- of those elements helps to establish that what Congress was doing was responding to --

QUESTION: May I give you this -- this hypothetical? Supposing in this -- the facts of this very case, the Government had brought four different CCE charges, one involving the sale of brown heroin from 1984 to 1990, the second involving the sale of white heroin in 1988, and the third involving the sale of cooked cocaine in November of 1993 -- three separate -- and then the fourth, charging the whole bunch. Under your view, if I understand it, the defendant could be found not guilty on all of the three charges but guilty on the fourth.

MR. GORNSTEIN: I have to work through that hypothetical a second, Justice --

QUESTION: Well, each is a continuing criminal enterprise. The first involves brown heroin from 1984 to 1990. The second involves white heroin in 1990, and the third involves cooked cocaine --

MR. GORNSTEIN: And then there's one overriding --

QUESTION: And then there's one overriding.

MR. GORNSTEIN: One overriding --

QUESTION: And they could be -- and they charge all four.

MR. GORNSTEIN: Right.

QUESTION: The jury could be not convinced on any one of the first three, but enough -- you get a combination to convict on the fourth, and that would be okay.

MR. GORNSTEIN: That's possible, and -- and that is possible --

QUESTION: That is consistent with your theory.

MR. GORNSTEIN: It is but it's highly unlikely, Justice Stevens, that anything like that would ever happen, but if it did, it would be --

QUESTION: Well, except you have one witness on each of them and six of them think this guy is unbelievable and six think the other guy is -- so, I don't think that's so totally impossible.

MR. GORNSTEIN: Well, I would -- I would -- I would question that, but if -- if that unusual thing did happen, it would -- you would -- you would convict for the same reason that there's a conviction when six jurors think that there's a robbery and they're convinced beyond any doubt that there's not intent to murder and -- and six are convinced that there's an intent to murder and convinced beyond any doubt that there's no robbery. And that is the --

QUESTION: Those are all means and manners, but why can't we adopt the rule that where an element of the statute requires the commission of a crime, you need to have -- or a series of crimes, you need to have 12 tried and true jurors find that in fact a crime was committed?

MR. GORNSTEIN: I just don't --

QUESTION: Once you say that an element of it is a crime, a whole crime, not just intent, not just any of the manners or means, but a completed crime, once the Government wants to get somebody and impose an additional penalty for a crime, whether it's an individual crime or a series of crimes, you need 12 people to say there was a crime here, here, and here. What -- what would that destroy?

MR. GORNSTEIN: Justice Scalia, I --

QUESTION: What classic statutes would that harm that --

MR. GORNSTEIN: Well, I think what it would -- would harm are the modern statutes and -- for which there are no precedent and because --

QUESTION: -- we're exactly answering whether we should let these modern statutes proceed.

QUESTION: It's bank robbery. It's bank robbery. Whoever by physical -- you know, what is it? Assault or -- or intimidation, I mean, extortion. I don't know. I guess you could charge under bank robbery he either did it through extortion --

MR. GORNSTEIN: You could. You could charge one or the other.

QUESTION: Or you could say he did it through assault, which is a crime, and some of the people say it was assault and some of the people think it's extortion. I mean, sending somebody a note, give me the money or your life, is -- I would worry that there are lots of classical statutes that would be affected by that.

QUESTION: Well, and I suppose one could get -- get around the rule that Justice Scalia proposes, if it were ever adopted, by -- you know, Congress comes in and says, well, we're not talking about crimes here. We're talking about something called drug transactions. And they're not separately criminal, but if you combine them in such a way, then they are criminal.

MR. GORNSTEIN: Mr. Chief Justice, I just think that illustrates that there's really not a -- a strong principle behind it because even if you take Schad, I'm not sure what the distinction is when you say, robbery is a separate offense, but we'll move robbery in as part of murder and say half of the jurors only half defined it and then they found an element of the offense.

QUESTION: How do you --

QUESTION: The answer -- no, please go ahead.

The answer may be, as I think Justice Scalia suggested a second ago in -- in preface to his question, Schad assumed that there was in -- it was possible in the analysis to make a distinction between means and ends. The end in Schad was -- was the killing. One of the means by which that killing, in effect, was accomplished was -- was -- was what we tend to call the mental element. And historically we have said the mental element can be proven either as, you know, the factual element -- he deliberated -- or the mental element can be satisfied by proving that he was committing another offense when the killing occurred, i.e., in Schad's case, robbery. There was a means/ends distinction.

The trouble with applying Schad here is that I don't think we're talking about the same kind of means/ends distinction because what we're talking about here is an entirely separate element that does not go to the end of proving the one crime which -- which brought us into court. The particular transaction, which was the transaction principally charged here, was not committed by this other series. It was committed, whether he committed three other offenses or didn't commit three other offenses. And so, we don't have the same kind of means/ends distinction possible here that we had in Schad.

MR. GORNSTEIN: I don't see the distinction. What we have here is the element is defined that we're dealing with as a continuing series of violations. And it's true, that's not the whole crime, but it seems to me the same analysis would apply to a particular element. And that is --

QUESTION: Yes, but you -- you apply -- well, that's right. But what you're doing is saying, there are different means of proving the series, this three, that three, a third three, and so on. But the relationship between the series and the principal crime charged here, i.e., this particular transaction that brought us into court, is not the same as it was in Schad. So, query whether -- whether -- whether Schad should open the door to proving an element which is not itself a means to the -- to the commission of the principal crime in the same manner that Schad would allow if it were an element going to the means of proving --

MR. GORNSTEIN: But Schad announced a principle that was broader than just the means. It was a distinction between what is the element and what are the facts that helped to prove the element, the element as defined by the legislature.

Then once you answer that question, you have a second question which is, did the legislature define the element in a rational way?

But the first question is just a question of statutory interpretation under Schad, and here the text of the act says that all the element is is proof of a continuing series of violations. Given that definition of the element, the only thing the jury has to be unanimous about is that there's such a series.

And now we have a question. Did Congress -- is that a rational way to proceed?

QUESTION: Well, should rationality include -- include whether it -- it simply deprives the jury of its historic function? I mean, any crime could now be -- you -- you could dispense with the unanimity requirement of the jury by charging -- enacting new statutes for a series of burglaries, for a series of robberies, for a series of rapes, and the defendant would be -- would be held before the court and -- and -- and all you would need is a -- is a minority of the jury to believe that one or another rape occurred, a robbery occurred, or burglary occurred. And that's just so contrary to what our tradition has been.

MR. GORNSTEIN: As I said --

QUESTION: Is that -- is that an irrational definition?

MR. GORNSTEIN: Well, it may be if there's not a distinctive form of criminal activity that's being addressed, but there's a big difference between just requiring proof of a series, as in your hypotheticals, and requiring proof of a conspiracy from which the defendant --

QUESTION: What if a defendant is charged with speeding on the -- on or about such and such a date at the intersection of 15th and Pennsylvania Avenue? And after the evidence, six of the jury say he was really speeding when he was on Pennsylvania Avenue, but not when he turned into 15th, and the other part of the jury says, well, he wasn't really speeding when he was on Pennsylvania. It was after he turned onto 15th. Do you think that that jury can properly return a verdict of guilty on that charge?

MR. GORNSTEIN: They can, yes. I think if you -- even if you had a crime like reckless driving and a number of things -- and that was the definition of the crime, and a number of things happened, he turned into the right lane, he sped, he did a number of things, you could charge the crime of reckless driving. And then as long as the jurors agreed that he was recklessly driving, they wouldn't have to agree on the particular facts that convinced them that he was recklessly driving.

QUESTION: What about the Hobbs Act or the Travel Act? I mean, suppose that you have a person traveling in interstate commerce intending to distribute the proceeds of an unlawful activity. Six jurors think that the unlawful activity was robbing a bank; six jurors think that, on a totally different day, the unlawful activity was selling a lottery ticket without permission. In other words, is this going to apply to the Travel Act?

And then you look at the Hobbs Act with extortion. Six jurors think that he took a bribe with a traffic ticket and thereby extorted under color of official right, and six jurors think that what he did was rob a bank pretending to be a policeman with the right to go into a vault.

I mean, does this apply across the board? The Travel Act, the Hobbs Act, all the illegal gambling statutes?

I didn't think it did, to tell you the truth, and I was trying to figure out what the theory would be to distinguish the ones from the other.

MR. GORNSTEIN: Well, one thing you have to decide is what is Congress defining as the element of an offense.

QUESTION: Well, that defines --

MR. GORNSTEIN: In some -- in some cases there could be two -- two separate acts, each of which -- for example, if you take a drug distribution, each drug distribution is a separate offense that is charged and punishable as such. And therefore, you could not charge an either/or, either he distributed A or B. That would be two distinct offenses.

QUESTION: No, no, but that isn't the problem.

MR. GORNSTEIN: Here in this case what we have --

QUESTION: Here's it's not this?

MR. GORNSTEIN: That's right.

QUESTION: It's not that in the Hobbs Act. It's not that in the Travel Act. Look at the money laundering statutes. Six people think that this money laundering came from -- from a copyright violation. That's one of them under the -- six of them think that the money came from a big dope ring. Does it matter? I'm not asking because I have a view. I'm asking you --

MR. GORNSTEIN: I would have to look at each one of those statutes to see whether what we're talking about is separate crimes or not --

QUESTION: No, no.

MR. GORNSTEIN: -- or just alternative ways of --

QUESTION: It's not. We know what the Hobbs Act says. We know what the Travel Act says.

MR. GORNSTEIN: But still you'd have to decide whether each source that you got it for really created -- or purpose really created a separate crime. You'd have to decide --

QUESTION: Well, we all know that -- I mean, the Travel Act says whoever travels in interstate commerce with intent to distribute the proceeds of any unlawful activity. That's it.

MR. GORNSTEIN: Right. That sounds like --

QUESTION: Now -- now, six people think --

MR. GORNSTEIN: That sounds very much like a case where you walk in on a burglary and you could have various intents, and as long as the jury finds one of the intents to commit a felony, then you've got a burglary.

QUESTION: So, basically you're -- you're saying across the board --

MR. GORNSTEIN: And -- well, there's always a constitutional question at the -- at the back end which asks is this a rational way to define an offense.

QUESTION: Well, but to think of the Hobbs Act, the Hobbs Act -- the crime is affecting interstate commerce. And one person thinks affecting interstate commerce through, for example, extortion defined as extorting money under official right. All right? Now, they all think he affected interstate commerce. That's awfully broad. And six people think he affected interstate commerce by pretending to be a policeman and robbing a bank or being a policeman and going in and robbing a bank, getting in that way, and six people think what he did was take a bribe from somebody he stopped to get a traffic ticket. Now, what about --

MR. GORNSTEIN: So long as that is one offense, and that looks very much like Schad to me where six people --

QUESTION: By the way, they're totally different days and --

MR. GORNSTEIN: -- six people could conclude that somebody committed a robbery, and six could be absolutely convinced that there was no robbery; and six could be absolutely convinced that there's an intent to kill and six could be absolutely convinced that there was no intent to kill.

QUESTION: All right. Now, my problem is suppose that I think with the Hobbs Act, anyway, that's just too broad because all you have as the common thing is you affected interstate commerce. Now, if I go down that track, I have to draw a line and I don't know how to draw the line. You're telling me don't go down it. But, my goodness, if I don't go down it, look what happens.

MR. GORNSTEIN: I -- I think that you can start in this case with realizing that this act starts with a conspiracy. Under Rutledge, it said that we have a conspiracy plus other elements. Here all the predicates charged were undertaken pursuant to a single conspiracy.

QUESTION: You didn't charge conspiracy as the predicate act.

MR. GORNSTEIN: We did not specifically mention conspiracy as a predicate act. Conspiracy was in a separate count, but it was very clear from count 1 and count 2 that the very continuing criminal enterprise was -- was undertaken pursuant to the conspiracy that was set out --

QUESTION: Well, but you're saying that this is a --

QUESTION: The conspiracy, any particular conspiracy? As I understand your case, they could have all had different -- the different jurors could have different conspiracies in mind.

MR. GORNSTEIN: No. There was just one conspiracy charged in the indictment.

QUESTION: Well, but there could have been a lot of other -- I mean, there could have been --

MR. GORNSTEIN: There was only one and it was a conspiracy to distribute drugs --

QUESTION: But that's probably accidental. I mean --

MR. GORNSTEIN: It is -- that is the way the Government charges these cases, Justice Scalia.

QUESTION: But the Government -- but the Government could charge these cases by saying, you know, it could have been this conspiracy, it could have -- you could have conspired with these eight people or maybe it's these eight people or maybe it's these eight people. And it's up to the jury if -- if you get four for each, you have a conviction on the conspiracy count as well. Right?

MR. GORNSTEIN: Not necessarily, Justice Scalia, because in that hypothetical you could borrow some of the principles from conspiracy law where when there -- the Government charges a single conspiracy and in fact it turns out there may be multiple conspiracies, then a jury could get a separate charge about whether there was a different conspiracy than the one the Government was agreeing to.

QUESTION: It seems to me the direction you're going in now is to say that this is like a traditional conspiracy, and you're attempting to answer the problem raised earlier when we said that this is a modern sort of crime that's troubling. And so, you say, well, it's like -- enough like a conspiracy that we shouldn't have to worry too much. Is that about where the argument is going?

MR. GORNSTEIN: Well, no. I don't -- I think that one of the things that you don't have to worry about is how -- that Congress really was, and all these elements of the offense established, responding to a new and distinct form of criminal activity. It wasn't just taking a traditional offense and wiping out unanimity. It saw a whole new kind of criminal activity which was the operation by drug kingpins of drug businesses from which they derived substantial revenues. Nobody disputes that that was a new and distinct form of criminal activity that Congress was confronted with.

And the question you have to ask yourself is, in responding to that kind of problem, was Congress acting rationally in defining the elements of the offense --

QUESTION: But rationally may not be the happiest adverb there because rationally suggests there has to be a connection between means and ends. And if Congress' end is to, you know, catch as many of these people as possible and send them to prison, then they're probably going to define the thing in such a way that the -- a hung jury is not much of a threat to them. I think you -- you've got to spell out a little bit more why this was a permissible --

MR. GORNSTEIN: Well, but you have to look -- look at the elements of this offense. There has to be a conspiracy. There has to be a series of violations. There has to be substantial revenues derived from the conspiracy. That spells out pretty clearly exactly the problem that Congress was faced with.

QUESTION: Mr. Gornstein, what's new about this problem? I mean, habitual drug dealers may be new, but there were habitual pick-pockets. There were habitual bank robbers. There's no reason why statutes like this couldn't have been enacted in the past. But it's part of our Anglo-Saxon legal tradition that we didn't have statutes like this. We didn't put somebody in jail for being a traditional -- an habitual speeder and then having the jury decide whether he might have speeded on any of 10 different days. We habitually have not done this.

(Laughter.)

MR. GORNSTEIN: Well, first of all, I don't think this, for the reasons that I've said, that this is the same as an habitual offender statute.

But second of all, there are other State law crimes that to some extent have gone to define a series as the basis for the crime. For example, child abuse is a -- is a classic example where all the jury has to agree upon is --

QUESTION: Mr. Gornstein, it just occurred to me, when you talked about multiple conspiracies, in the Kantiakis case, the court held you can't just find a whole bunch of conspiracies if you charge one. I really think your position may be inconsistent with the -- with that ancient case.

MR. GORNSTEIN: The --

QUESTION: The Kantiakis case.

MR. GORNSTEIN: Well, you can't find one. If there's just one, then you find one.

QUESTION: There are a whole bunch of them there, and you say, well, that's not good enough to satisfy the one conspiracy charge.

MR. GORNSTEIN: Well, if there's -- I'm not sure I'm following the hypothetical.

QUESTION: It's not a hypothetical. It's 328 U.S.

MR. GORNSTEIN: No, no. I'm sorry. Which -- which part of my position are you questioning? That's --

QUESTION: Well, your position that you can sort of lump everything together, and that's just as good as -- I mean, even though each juror thinks it's one separate part of the whole, as long as they all come out with the same conclusion, that's enough.

MR. GORNSTEIN: No, but I think if they all agree there's one essential conspiracy that they don't have to agree to every single part or element or crime that was committed in connection with that conspiracy.

QUESTION: No. They have to agree it's the same conspiracy.

MR. GORNSTEIN: That's right, and that's what -- that was what was charged here.

QUESTION: And here you don't have to agree it's the same series of violations.

MR. GORNSTEIN: No, I think that you did agree that there was -- that they were the same in this sense. They were all undertaken pursuant to a single conspiracy that was managed and led by the defendant from 1984 to 1991. It involved the sale of all three kinds of drugs in the area of Chicago, Illinois. That was the -- the very conspiracy charged in count 1, and that they were all -- all the acts were undertaken pursuant to that single conspiracy and they were a single course of related conduct in that sense.

QUESTION: Well, maybe what you're suggesting to us is that we ought to decide how far the means/ends distinction can be applied by asking how much more difficult, if at all, it -- it makes the -- it makes it for the defendant to prepare for trial. And you're saying, well, this isn't making it any tougher than it is to defend a conspiracy case.

MR. GORNSTEIN: That's correct.

QUESTION: So, is the -- is the implicit criterion that the limiting principle on what is possible under the means/end Schad distinction is a different principle, and that is, how tough is it making it for the defendant to -- to prepare to -- to defend himself?

MR. GORNSTEIN: I don't think that was the principle the Court was articulating in Schad. I just think --

QUESTION: Well, maybe it should have.

MR. GORNSTEIN: But I think that what you've articulated is just that that answers a second objection that there may be here, a notice objection. There really isn't a notice objection here.

QUESTION: Yes, but that isn't the only objection. I mean, he's not concerned just about the preparation. He's also concerned that his client is entitled to 12 -- to 12 votes instead of just 6.

MR. GORNSTEIN: I understand that, Justice -- I'm just saying that to the extent that what's being raised is a notice objection, that the fact that this -- you get the same notice that you get on a conspiracy charge completely answers that.

I realize there is a separate question that needs to be asked and answered about the unanimity question, and there our position is, as I have said, that the element here, as defined by Congress, as clear as it could be, it's a continuing series of violation, and the underlying facts just help to establish that element.

And then all you have left is a constitutional question which is, in light of our traditions and in light of the modern problem that Congress was faced with, did it rationally reach the conclusion that this was --

QUESTION: The modern problem is Oliver Twist, Murder, Incorporated. I mean, there have been continuing criminal enterprises I guess since the beginning of time.

MR. GORNSTEIN: Well, it was -- there may have been, but not the persistence -- the pervasiveness of the problem is -- and the ineffectiveness of prior solutions is what led --

QUESTION: The ones that exist in our time always seem worse, of course. I mean, I'm not worried about Oliver -- about -- about Fagin anymore, but --

(Laughter.)

MR. GORNSTEIN: I think there is quite a difference between somebody who commits a -- just a -- a repeat offender and somebody who is operating a drug business and is -- and part of that drug business from -- has literally thousands and thousands of street sales over the course of time and is deriving from that millions of dollars. And that's the distinction.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Gornstein.

The case is submitted.

(Whereupon, at 12:04 p.m., the case in the above-entitled matter was submitted.)