Shepard v. U.S. - Oral Argument

Argument of Linda J. Thompson

Justice Stevens: We will hear argument in Shepard against the United States.

Ms. Thompson.

Mr. Thompson: Justice Stevens, and may it please the Court:

This case involves the proper application of the categorical method of analysis that this Court prescribed in Taylor against United States, and it involves the application of that categorical method to what is described as ambiguous burglary convictions obtained under nongeneric burglary statutes with boiler plate complaints and a general finding of guilty following a plea proceeding.

At stake--

Justice Scalia: What... what do you mean by a... just so we get our terms defined, what do you mean by a nongeneric burglary statute--

Mr. Thompson: --In this case--

Justice Scalia: --and a generic burglary statute?

Mr. Thompson: --Well, a generic burglary statute, as... as defined in the Taylor case is one that criminalizes unlawful entry into a building or a structure with intent to commit another crime.

Those are the three elements of generic burglary.

Those apply if any... if a State statute covers those three, it's considered generic burglary and would then qualify as a predicate violent felony under the Armed Career Criminal Act.

A nongeneric--

Justice O'Connor: Now, do you... do you agree that all the papers showing the arrest and the investigation and so forth show that this was in fact a building--

Mr. Thompson: --No.

Justice O'Connor: --that was burglarized?

Mr. Thompson: I do not.

I... as this--

Justice O'Connor: Does it show it was a vehicle?

Mr. Thompson: --It doesn't show that it was a vehicle.

Justice O'Connor: Or a boat?

Mr. Thompson: It doesn't show that it was a boat.

Justice O'Connor: Or a motorcycle?

Mr. Thompson: It doesn't show that it was a motorcycle.

Justice O'Connor: It shows nothing?

None of the supporting documentation shows what it was?

Mr. Thompson: Those supporting documents do not play a role in the adjudication.

Justice O'Connor: Well, that isn't my question.

I asked you whether any of them show that it was, in fact, a building or a car or a boat.

Mr. Thompson: None of them shows that it was anything other than a building.

Justice O'Connor: Thank you.

Mr. Thompson: The police reports and the complaint applications, but the statute--

Justice Ginsburg: Well, why... why are you resisting that the... that the police report gave an identified building?

I mean, you're... you're saying that one mustn't look behind, in the case of a guilty plea, to find the police report or even the police application for complaint.

But there isn't any question, is there, that the police reports in fact gave addresses of particular buildings?

Mr. Thompson: --There is no question of that.

When you look at the police reports, if you read those police reports, some of which you can actually read, they do describe buildings and they describe addresses and hallways and things like that.

Justice Ginsburg: So what... what you're saying is the conviction itself didn't show that, and so the question is whether you can look to documents that in fact showed it.

Mr. Thompson: That's... that's correct, Justice Ginsburg.

Justice O'Connor: So the rule you would have us follow does result in a... a super technicality in a sense of what... what was on the record at the time of the plea.

Mr. Thompson: Well, actually the district court established that this was not on the record at the time of the plea.

The district court took evidence on this issue.

The statutes to... that are underlying these convictions, to get back to Justice Scalia's question, are nongeneric, and they are nongeneric in the sense that they make it unlawful to break into structures other than buildings or in addition to buildings.

Justice Kennedy: Suppose... suppose in the earlier conviction, the police report is in the court.

It's not part of the record, and then the court says, I've read the police report.

Is that accurate?

And the client... or the defendant says, yes.

Then later, can we go back and look at the police report even though it was not annexed as part of the record?

Mr. Thompson: Well, that calls into question what kinds of documents can be examined in terms of making a... a determination as to whether this offense was categorically a crime of violence, that is, that it was generic burglary.

It's our position that there's a limitation, and the limitation is imposed by Taylor itself, that the question being answered be made a question of law, that it is a question of law, that it's a matter of law that you make the determination.

Justice Ginsburg: But if the defendant at the plea colloquy had said, yes, I entered X building or even in the plea bargain had said that, even though the charge just read the boiler plate, the whole statute, buildings, vessels, et cetera, if he had admitted it either in the plea colloquy or in the plea bargain, wouldn't that be enough?

Mr. Thompson: If we had a contemporaneous record of the adjudication of this conviction that showed an actual admission to breaking into a building, I believe that that would satisfy a sort of modified Taylor categorical approach.

Justice Breyer: I... I don't understand your reading of Taylor.

As I've read that case many times, it seemed to me that that was making a perfectly sensible point.

At the end of the opinion, Justice Blackmun says, you know, there are some States like Massachusetts, for example, that instead of just saying burglary, they say burglary of a... of a ship or a car or a building.

And that leads us to answer a more general question.

Well, in context, that more general question is whether you ought to go look into how a particular burglary was committed to see if there was really violence or not.

And he says no.

Just look to the definition of the crime.

That's what he says.

That will end it.

Now, he says we agree, because I started here, that we have a couple of States with some weird statutes, and what you have to do in those States is you won't know if it's a boat or a car or... so he says, for example, in a State like the one we have, if it shows it's charged us with a burglary and you have to find out, you know, here's what you do.

It says you may have to go beyond the mere fact of conviction.

So he says go look to the indictment or information and jury instructions.

That isn't a limiting phrase.

That's for example.

He just thought that in those cases, that's what... all you'll have to look to, for example.

We happen to have an unusual case where there are no jury instructions because he pled guilty.

So what's the harm of going looking to the documents that will show, in an uncontested way, just what the address on these pieces of paper show?

There are no boats, you know, in Watertown.

It's not a dock, I don't think, or at least not in that part of it.

So... so I mean, what's the problem here?

Mr. Thompson: Well, the--

Justice Breyer: Why is everyone so mixed up?

I must be missing something.

Mr. Thompson: --The example that's given, the charging document and jury instructions... let's suppose that instead of... of guilty pleas, Mr. Shepard was tried and he was tried on this nongeneric, boiler plate complaint, and there were no jury instructions available.

Justice Breyer: What's the problem?

I grant you I could imagine a case that could be a problem.

Maybe it was a houseboat.

Okay?

[Laughter]

Or maybe it's like a trailer.

So if we run into that case, we'll deal with it.

You know, I'm perfectly capable of thinking that if this is a charge where there is a dispute on the contested point, fine, we won't take that dispute into account, maybe decide it in the favor of the defendant, maybe.

But this is not that case.

And by the way, if he's going to say, how do you know?

I'd say, I know.

I know Boston and I also know that breaking into a boat at least is unusual.

So if he thinks it wasn't that, let him say so.

Mr. Thompson: The district court did actually entertain this issue, Justice Breyer, and what they... what the district court found was there wasn't an opportunity, there wasn't a reason for Mr. Shepard to contest building or any other element of this offense.

Justice Breyer: No, of course, there wasn't.

So all he has to do now is say, Judge, in my latest thing, you know, they say 30 Bremer Street.

30 Bremer Street sounds like the address of a building, but by the way, unusually enough, it's the license plate of a car.

Now, if in fact that's the case, he can come in and say it.

There's no Fifth Amendment problem.

We're talking about sentencing and what a prior conviction was.

He doesn't even have to say it.

You as his lawyer could tell us.

Now, you know why I think you don't say it?

Because it isn't conceivably right.

Mr. Thompson: Well, and it also isn't in fact.

And the question here is--

Justice Breyer: What do you mean it isn't right in fact?

What is it?

Mr. Thompson: --Is it in law--

Justice Breyer: Yes.

Mr. Thompson: --or in fact that we are trying to make this determination?

Justice Breyer: We look to facts about what the prior convictions were about.

That's what Taylor says.

That, of course, is a fact, but it's a legal fact, what was this conviction for.

Mr. Thompson: Taylor said you don't look at facts--

Justice Breyer: I understand your reading of it.

What I want to know is what's wrong with my reading of it.

Mr. Thompson: --Because your reading of it requires a look at the underlying conduct.

It actually requires.

And the document here that was selected to exhibit the underlying conduct is as far away as you can get from an adjudicatory document.

Justice Souter: All right.

What... is... is your argument that we are likely, in effect, to... to violate some constitutional standard if we do what the Government wants, or is your argument as follows?

That Taylor says this is an offense-based not a fact-based determination.

Taylor says that's what the statute is getting at.

And if you go as far as the Government wants here, you basically will have gone beyond offense-based.

You will have gone... become fact-based and you will be violating the statute.

So my question is, is there something constitutionally we have to worry about which is the basis for your argument, or is it a violation of the statute that you think we ought to be worried about?

Mr. Thompson: In this case it's the statute that was violated, but you are correct, Justice Souter--

Justice Souter: Well, I don't have a position.

I can't--

Mr. Thompson: --that... no.

You are correct in representing that the Government's approach to this will take what is quintessentially a question of law, that is, a comparison of adjudicated elements of... adjudicated elements of conviction against... compared to the elements of generic burglary.

That's a question of law.

Do they match?

Do they not match?

It becomes a question of fact then, as the First Circuit put it in Shepard and in the Harris case, to determine what was actually in the mind of the defendant at the time he entered his plea.

Justice Souter: --Well, aren't we asking that question in... in any case?

The question ultimately is, what did he mean when he said I am guilty?

If you've got a plea colloquy, as you admitted a moment ago, it's easy to find out what he meant because they would have gone into the factual basis for the plea.

If there's a written plea agreement, it's probably going to be easy to find out because, again, there would be a basis for the plea set out.

Here, there isn't one of those documents.

So you're going one step further, but you're still asking the question what did he mean when he stood in that courtroom and said I am guilty.

And yes, in... in one sense that's fact-based, but all of those questions are fact-based.

They're going to the same issue.

What did he mean?

What was pleading guilty to?

Isn't that correct?

Mr. Thompson: Well, because it's based on an examination of the underlying conduct, which is forbidden by the Taylor decision--

Justice O'Connor: Well, maybe, maybe not.

That's kind of the question we have, how... what gloss to put on Taylor.

Justice Kennedy: Suppose--

Justice O'Connor: Do you join the amici in saying Almendarez-Torres has to be overruled?

Mr. Thompson: --No, I do not.

Justice O'Connor: No.

Mr. Thompson: I do not join--

Justice Kennedy: --But suppose--

Justice O'Connor: All right.

So we're looking--

Justice Kennedy: --Taylor were not on the books.

What... what would be the basis of your argument?

You say that it's all right to look at a plea colloquy, but it's not all right to look at an arrest report to which the judge referred.

What's the basis for that distinction?

What sense does it make?

Mr. Thompson: --The sense it makes is this.

What the Armed Career Criminal Act addresses and what this Court discussed in Taylor was the applicable term is conviction, that is, a conviction for a categorical offense.

The categorical offense is a crime of violence specifically described as burglary, arson, but there are specifically described crimes.

Those are things that you can determine as a matter of law.

Do the elements match the... the generically violent crime, or do they not match the generically violent crime?

If they do not match the generically violent crime, you might still be able to figure out, you might be able to surmise what the defendant actually had in his mind, if he had anything in his mind, about this at the time of the guilty plea.

Well, one of the unique things about the... these nongeneric burglary statutes in Massachusetts is that they're really relatively petty offenses.

Justice Kennedy: But... but why can you look at what's in the plea colloquy that's in the record, but you cannot look at a document that the judge referred to, if that document isn't there?

What's... what's the common sense argument that you're making?

I... I don't understand it.

Mr. Thompson: Well, there is no evidence in this case that the judge referred to a police report.

Justice Kennedy: No.

This is my little hypothetical case so that we can test your theory, just to see the reasons that you're advancing for... for us to rule in your favor.

And I... I don't see any rationale that you've given us.

Mr. Thompson: If you can look at the colloquy and the judge, without incorporating it, has the defendant explicitly admit the facts that constitute the elements of generic burglary, it is our position that that... that conviction could be used to enhance.

But--

Justice Breyer: Let me try the same question.

Justice Kennedy: But... but why can't you go one step further and refer to the document that was not in the record but that the judge mentioned in his... in his findings at the first sentencing?

Why?

I still haven't had a reason why.

Mr. Thompson: --I agree that whether or not that document is in the record, if there is an explicit finding or an admission by the court that enters the judgment, that the defendant broke and entered a building, that that conviction should be able to qualify as a predicate under the Armed Career Criminal Act.

It is not a requirement that the underlying document be incorporated into the record, only that the admission be made or the facts be found by the fact-finder, whoever is taking the plea.

Justice Stevens: May I ask you a question?

Assume the case had been tried and you could not tell from either the indictment or the instructions to the jury whether it was a generic burglary or a nongeneric burglary.

Would the... our decision permit us to look at the transcript of the trial to answer that question?

Mr. Thompson: Certainly not under Taylor.

The whole idea of Taylor was partly dictated by the words of the statute.

Justice Stevens: So your argument is that this is comparable to using the transcript of the trial.

Mr. Thompson: This is... it... well, I don't think it's comparable because the district court finding was that the documents that the Government relies on were not involved in the adjudication at all.

So it--

Justice Stevens: So this is even farther removed.

Mr. Thompson: --This is even farther removed than a plea colloquy, farther removed than a trial transcript looking into the evidence--

Justice Breyer: But that's what I don't understand.

We're now talking about that part of Taylor which deals with a narrow statute where our object is not to find out what he's guilty of or anything.

We're just trying to find out what was the crime he was charged with.

And there are two or three States which lump together in one statute crimes that are violent and nonviolent.

Burglary of a structure is violent.

Burglary of a car or a ship is not.

So all we want to know is what was the charge at issue.

Now, do you... let me break the question into two parts.

The key sentence here, I think, is for example, in a State whose burglary statutes include entry of an automobile, as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with burglary of a building, then it's going to be violent.

Now, would you... would you agree with me or not that he could have written... Justice Blackmun... that same sentence to say if, for example, the indictment or information and jury instructions show?

Would you be willing to add those two words, for example?

Mr. Thompson: --If, for example.

Justice Breyer: If, for example.

I want to know how... how absolute you're making this.

If, for example.

And the next question I'd ask would be if you agree for example, what are the things you can look to and what are the things you can't?

Mr. Thompson: And I... I do agree that that's one of the questions presented by this case.

Justice Breyer: Yes, but do you want add the for example or do you want to take it just categorically?

Mr. Thompson: Well, I do believe that the best reading is the categorical reading.

Justice Breyer: Yes.

Mr. Thompson: But I'm willing to accept for example--

Justice Breyer: Okay.

Then what kinds of things would you--

Mr. Thompson: --for purposes of argument.

Justice Ginsburg: --let us look to and what kinds of things not?

All we're interested in is what was he charged with, which of these three things.

Mr. Thompson: And all Taylor and the Armed Career Criminal Act are interested in is what was he convicted of.

Justice Breyer: --No, no, no.

I will get that later.

Let me deal with the charge.

If he was charged with breaking into a boat, that's the end of this.

Okay?

Mr. Thompson: True.

Justice Breyer: So, fine.

So I want to know what he was charged with.

Let me do that one.

Now, what will you let me look to to see what he was charged with?

Mr. Thompson: You can look to the charging document and the statute to see what he was charged with.

Justice Breyer: All right.

So what happens in the case where... Justice Blackmun let us go further than that.

He says the indictment... that's the charging document... or information and jury instruction.

He'll let us look to a jury instruction as if there's actually been a trial.

So he'll let us go further than you will.

Mr. Thompson: Not to determine what he was charged with.

To determine what he was convicted of.

Because the jury instructions are not going to be factually oriented.

The jury instructions are going to tell you what the element of the crime was, elements that were adjudicated.

So that if you have the person charged with a nongeneric document here... the nongeneric statute, a boat, a house, a whatever, and the jury instructions establish for you that he could not have been convicted by that jury without finding a house because that's the elements laid out in the jury instruction--

Justice Breyer: And what's the difference between that and a police report that makes it quite clear that in the circumstances there was no possibility of a boat or a car being involved?

What's the difference between that and the police report?

Mr. Thompson: --The police report does not show you what the results of the adjudication was.

It does not establish--

Justice Breyer: No.

What shows us that... what shows us that is--

Mr. Thompson: --The elements.

Justice Breyer: --is the check mark.

No.

The check mark on the form that says, for example, plea, admit sufficient facts.

You know, that's a check mark or it's on the form.

It says plea, guilty.

I mean, you know, you could have different things checked.

So that's what established the guilt.

And then the police report establishes whether... what kind of a thing was at issue.

And I will agree with you that if it's at all contested, we shouldn't get into it.

But if it's not contested, there's no question.

There was no boat around there.

It's a city street.

Or there was no car.

It's plain it was a building.

Then that's just as good as the jury instruction.

Why not?

Tell me why not.

Mr. Thompson: Well, I suggest that it doesn't tell you anything about what's actually been adjudicated.

What it tells you, it's what's actually been charged.

And here's one of the things that came up in the district court in front of Judge Gertner, and the Government brought up this as well as Judge... as the district court judge.

What if Mr. Shepard went in and said, yes, I broke into the property of another person with intent to commit a crime?

That would be a factual basis that would be adequate for the... for any sentence that could be imposed under that statute.

Because the... because of the fact that the boat, the house, the car, and the vessel are all put on the same level, the operative fact is is it yours, Mr. Shepard.

Does that belong to you, Mr. Shepard?

Justice Breyer: I mean, but that's always true.

You could have a... you could have a... a sheet that shows: admitted, assault, you know.

And... and what the sheet says, it says: charge, assault; plea, guilty.

It's possible, for all we know, that when the actual colloquy took place, he was talking about some other thing.

I don't know what he was talking about, but what you'd go upon is that there was a charge and he pleaded guilty to the charge.

Mr. Thompson: Which brings me to Henderson against Morgan.

One of the issues in Henderson against Morgan is whether or not you can infer guilt of an element that is not specifically charged even from overwhelming evidence, that that could be proved.

Justice Breyer: I... I don't... good.

Are you going to explain this?

Because I thought what we were supposed to do is just look to the sheet, charge; the plea, guilty.

And that is what we do and it disposes of 98 percent of the cases.

Mr. Thompson: It does.

Justice Breyer: All right.

So... so are you talking about those 98 percent now?

Mr. Thompson: I'm talking about the... the 2 percent that are nongeneric burglary.

And in those 2 percent that are nongeneric burglary, the issue that is raised, by the fact that it's nongeneric burglary, is you can't make a determination based on the face of the record of what was actually adjudicated, that this person was actually found guilty of each element of generic burglary.

And when you cannot make that determination from record documents and contemporaneous documents with the adjudication, then you cannot make that determination under the Armed Career Criminal Act.

Justice Souter: Why can't you make the determination?

Isn't the... the problem that your determination may not be as reliable?

And I thought ultimately your argument would boil down to saying this.

The reason you will accept the plea colloquy or the plea agreement, if it sets out the facts, is that that is very reliable.

It is a reliable indication of what he was pleading guilty to and what the court was finding him guilty of.

But once you go beyond that and you start looking into police reports appended to complaints or whatnot, you're getting into an area of less reliability, and when we're dealing with sentence enhancements like this, we better be reliable.

That's why the statute based it on... on offense rather than facts.

Don't get into a factual determination that is unreliable.

I thought that was your argument ultimately.

Mr. Thompson: That... that is part of the argument, and I... I think that we're just using different terms here.

You're using offense, and... and the Taylor court and the... and the Armed Career Criminal Act use conviction.

Justice Souter: I... I'll accept that, yes.

Mr. Thompson: Okay.

And so when you're talking about a conviction, you're talking about something that has already been established, that you should be able to make a determination by looking at the contemporaneous documents.

Justice Kennedy: But you... you still haven't given a reason, other than the one Justice Souter accepts.

Look it.

This is a case where we all know what the truth is, but you want to argue that we shouldn't find that out.

And it seems to me you have to give us a rationale for we shouldn't know the truth here.

You... you don't want us to find it, and there must be some reasons for that.

And the law does that once in a while.

We all know that something happened, but the law is supposed to pretend it didn't.

That's why Justice has a blindfold on.

I... I know that.

But you haven't given me one reason yet why I should adopt your theory.

Mr. Thompson: Well, the theory that I'm proposing is... is I believe the theory that's already been adopted by this Court, which is the... the one described in Taylor.

It's the categorical approach that says you cannot make a determination of what elements were adjudicated by looking at the underlying conduct.

Justice Souter: But why is a categorical determination important?

I threw you a... a bone a second ago, and I said maybe it's because of--

Mr. Thompson: It's--

Justice Souter: --a reliability concern.

Is that it?

Is that your point?

Mr. Thompson: --It is reliable and it's also not fact-based.

Once you start to--

Justice Souter: No, but is... is your point that once you get beyond the documents that you admit we can look at, there is a higher... an... an unacceptably high risk of unreliability?

Is that your argument?

Mr. Thompson: --That is one of my arguments, Justice Souter, and the... and there's something that goes hand in glove with that and did in this case.

The burden shifts then to the defendant.

The burden shifts to the defendant to prove that he was not convicted of generic burglary, and that--

Justice Souter: Well, but that... that doesn't necessarily follow.

Mr. Thompson: --assignment--

Justice Souter: But that doesn't necessarily follow from... from looking at a police report.

It may well be that we would say the burden never shifts, and he is simply in the position of any other party to a case.

If... if the other side has put in evidence that is... is against his interest and he does nothing, then he's in trouble.

But that isn't the same as shifting the burden.

Mr. Thompson: --Well, it--

Justice Souter: There's no... I guess all I'm saying is it doesn't follow from the argument that the Government is making that a burden of persuasion shifts.

Isn't that correct?

Mr. Thompson: --What shifts is the risk of being wrong.

The shifts... the risk of being wrong right now is on the Government.

If the Government cannot establish that the defendant was convicted of generic burglary, it bears that responsibility.

If the defendant cannot establish that back when he entered his plea--

Justice Souter: Yes, but the Government--

Justice Stevens: Ms. Thompson, you know your white light is on.

So if you want to save time, you should perhaps do so right now.

Mr. Thompson: --I would.

Thank you very much.

Justice Stevens: Mr. Elwood.

Argument of John P. Elwood

Mr. Elwood: Justice Stevens, and may it please the Court:

When a defendant has been convicted under a State statute that prohibits both burglary of a building and burglary of a car or some other item, the Court can still look to the conviction to determine whether it is an Armed Career Criminal Act predicate when, as here, the police report indicates the defendant was arrested for burglarizing a building rather than a ship or a car and the other documents in the file corroborate that the basis for the plea was the crime outlined in the police report.

Because two of the three elements of generic burglary... that is, breaking and entering and intent to commit a crime--

Justice Stevens: May I ask this question?

Suppose the police report had been ambiguous and referred to both a boat and a house.

What would... could... would it be... what would you do in that case?

Mr. Elwood: --I think in a case where the police report was ambiguous about what it is that the person broke into, I think that you could not base the enhancement on that.

We are asking only when both the police report is unambiguous and the documents recording the guilty plea suggest--

Justice Stevens: But why... why couldn't you use it in the other case?

Couldn't you ask the police officer what he... who conducted the investigation what the facts really were?

Mr. Elwood: --I think you might be able to--

Justice Stevens: And you'd start out with the premise that 90 percent of these cases are really houses anyway, so there's a strong presumption in favor of the Government?

Mr. Elwood: --I... I think that you could talk about introducing extrinsic evidence of... of that sort.

We're not asking the Court to go that far, and I think in the run-up cases--

Justice Stevens: So the... the question in this case is whether a police report is extrinsic evidence, isn't it?

Mr. Elwood: --I don't think so in this case because the police report is in... in a police file itself.

Justice Stevens: Well, suppose that it was an assault and battery, for example, and you're trying to decide whether it was violent or not, and the police report was somewhat ambiguous.

Could you... you couldn't look at it then.

Mr. Elwood: No, and I don't think you could for an additional reason, which is that I don't think assault and battery is necessarily a... is a necessary element of the... of... of... I'm sorry.

Justice Stevens: There's a distinction between violent assaults and--

Mr. Elwood: Right, violent and nonviolent.

Justice Stevens: --nonviolent assaults.

Mr. Elwood: Exactly right.

Justice Stevens: And you might want to find out which one it was and... and as here, it seems pretty easy.

Everybody knows most burglaries are... are of houses.

But I'm just wondering if we're not trying to find out what the categorical rule is that... that is at stake here.

Mr. Elwood: The only rule we are advocating is that when we are talking about a necessary element of the offense that can be satisfied in different ways, that you can look to the police report to indicate which way it was met in this case if the rest of the file, the State court file, indicates that the police report was the... provided the factual basis or provided the basis for the conviction.

And I think if you look at the file in this case, for example, for four of the defendant's--

Justice Stevens: Well, you say it provided the basis for the conviction.

Was it presented to the court in each of these cases?

Mr. Elwood: --We believe that the record indicates that it was.

For four of the defendant's convictions, if you look at the document that records the guilty plea, it... it says... in addition to the notation of guilty, and as Justice Breyer averred, a check of admit sufficient facts or that there are sufficient facts present, it lists the same date of the offense, the same street address, the same arresting officer, and the same victim.

And it is our submission that that implies certainly very strongly... it supports a very strong inference... that the crime of conviction was the very same crime that is described in the police report.

Justice Ginsburg: I thought Judge Gertner said she didn't know whether anybody had seen this police report.

It wasn't attached to the charge.

I thought that was her position, that these are untested documents.

We don't know one way or another whether the judge that accepted the plea had seen them.

Mr. Elwood: To begin with, Judge Gertner looked only to... she didn't draw any inference based on the document recording the guilty plea and what happened.

She looked only to the direct evidence of what happened in the colloquy, i.e., the petitioner's affidavit.

But even more than that, her only finding was that the police report, as a police report, was not introduced at the plea colloquy.

It wasn't marked as an exhibit.

It wasn't attached to anything.

It wasn't introduced as that.

I don't think that's inconsistent with the idea that as is often the case and is probably usually the case, that the police report was synopsized by the prosecutor and... and read at court, which would explain why the offense of conviction has the same offense date, same street address, same victim, same arresting officer.

Justice Ginsburg: But we don't have any colloquy.

We don't know what happened at the... you're saying it's... it's altogether likely that that happened, but we don't know.

Mr. Elwood: But we do know that under Massachusetts State law, that there... before a court can accept a guilty plea, there has to be a factual basis in the record.

There have to be facts in the record to support every element of the offense.

Justice Ginsburg: So if the defendant says, yes, I plead guilty to this crime and the crime is described as ship, vessel, car, building, and that's... if that's all that happened is the boiler plate charge that just repeats the statute and the defendant says, yes, I did that, but nothing tells us did what, other than violate the statute.

Mr. Elwood: The requirement... the factual basis requirement requires a statement of the facts, not a statement of the legal conclusion, and simply reading the charging document as a legal conclusion about what it... about a boat, building, et cetera was broken into.

What it requires is a narrative description of the underlying conduct so that the judge can satisfy him or herself to what the defendant is pleading guilty to is actually a crime.

If he just says, I agree with the charging document, if the underlying facts were he broke into a grocery cart or a... a refrigerator shipping box or something, it might not satisfy the elements of the crime.

Justice Stevens: But couldn't the judge in that colloquy have said to him, did you break into a building, a car, or a boat?

And he would have said yes, and wouldn't that have satisfied the element of the crime?

Mr. Elwood: I don't... I don't think it would have satisfied the factual basis requirement in that there has to be a narrative description of what the defendant did, like he showed up at that day and he broke into 258 Norwell Street.

And I have yet to find a Massachusetts case where a... a guilty plea was accepted based on basically just a recitation of the charging document--

Justice O'Connor: Now, there's no record here of the colloquy at the plea?

Is that it?

Mr. Elwood: --No.

There's... there's no facts... there's no... as is the case often in guilty pleas, which are not challenged on appeal, no colloquy was ever prepared and apparently the tape recording was destroyed.

Justice Kennedy: But your test is whether or not there's reliable record evidence?

Is that... that the test?

Mr. Elwood: Yes, whether there's reliable record evidence that is reliable in describing what the offense was that was the subject of the plea colloquy.

And in this case, we believe it is met both because the police report is unambiguous, as several of the members of the Court have averred to, and that the documents recording the guilty plea I think very clearly indicate that the thing that was at issue was the crime described in the police report.

Justice Kennedy: Does it... does the plea refer to the police report?

Mr. Elwood: No, it does not.

It doesn't in so many words refer to the police report, but it refers to... it... it, I think, unambiguously describes the crimes described in the police report and that it involves, as I said, the same date, the same street address, the same victim, and the same arresting officer.

Justice Kennedy: Where do you draw the line?

Is there some... I... I take it that you say certainly if the plea colloquy or the... or the judge's guilt determination refers to the police report, then the police report comes in.

Suppose there's no reference to the police report.

Mr. Elwood: I think that--

Justice Kennedy: Can we still go find the police report and then where do we stop?

Mr. Elwood: --I think that if there's no reference to the police report and if the police report is not in the State court file, which it was in this case... the court indicated it was in the State court file... I... I think that you would probably have to have a stronger showing in order to say, well, he pleaded guilty to the police report such as a... a reference to the police report or more of an indication on the guilty plea form, a notation of... of what was entered or--

Justice Kennedy: Well, you mentioned--

Mr. Elwood: --something that unambiguously indicated the police report provided the factual basis for the plea.

Justice Kennedy: --You... you mentioned the State file.

Is... is the rule whatever is in the State file, even if there's no reference to it?

You had... you had two variables: one that there was reference to it; and two, that it was in State file.

Suppose there's no reference, but it is in the State file.

What... I'm... I'm not sure what rule you would draw?

Mr. Elwood: The... if... I... I think that there has to be both an... that the police report is unambiguous and that there is reason to believe or that it is more likely than not that the police report provided the factual basis for the plea, and if it's... if there's no reference to it in so many words, I think the same could be said this... that the same could be said here in this case.

It doesn't say we look to the police report.

You just draw that inference from the fact that the crime described looks like the crime described in the police report.

Justice Breyer: So what is your... what rule would you have here?

The question is, was he convicted of a crime of violence?

98 percent of the cases, all you have to do is look to the crime charged, burglary, and the fact that he was convicted.

He pleaded guilty or didn't.

But there are these two... three States I guess that lump together in one code provision for breaking and entering into a ship or a car or a house.

So now we've got to know which of the three it is.

If they go to trial, it's easy.

Just look to the jury instructions.

If they plead guilty, I guess your opponents would say that's the end of it.

You can't use it because we don't ever know from the charge itself which of the three it was that was at issue.

Was a house at issue?

Was a car at issue?

Was a boat at issue?

Now, you're going to say, but do a little investigating to find out what was at issue.

Look at the police report.

Is your view look at anything as long as it's uncontested and clear?

Their argument is no matter what you look into, once you go beyond that charging document, you're going to find I think Justice Souter's point.

It's going to be ambiguous sometimes.

You get into facts of things happened years ago.

It's just not worth it.

Mr. Elwood: I think our argument... or the... the proposition that we are arguing for today is that when the documents and the State court file indicate that the defendant was arrested for only burglary of a building and there's no question that it wasn't a ship or a vehicle, that it will support the ACCA--

Justice Breyer: Yes, but we're still going to have to write something.

Mr. Elwood: --Correct.

When--

Justice Breyer: And what I want to know is what's your rule.

Mr. Elwood: --Right.

When the other documents in the file indicate that it is more likely than not that the police report or that that description of events served as the basis for the guilty plea.

Justice Stevens: May I--

Justice Kennedy: So... so we... are we going to decide... decide a lot of probate cases about incorporation by reference in wills and stuff?

Mr. Elwood: I... I think--

Justice Kennedy: I don't know what we're supposed to do.

Mr. Elwood: --I think that in this case it just... I don't think the Court really has to get to the outer reaches of this because in many of these cases, it's overwhelming--

Justice Stevens: --But if we don't get to the outer reaches, the next case I suppose will involve a... an application for a search warrant or an arrest warrant which describes facts and pretty well tells you what really happened.

Could you rely on that?

Mr. Elwood: --No.

Because the... the important thing is not just describing what actually happened, but what... what happened on the day the guilty plea was taken.

And that is where the documents that record the plea I think come in to show--

Justice Stevens: Well, the police report wasn't made on that date.

The police report was prepared earlier, I assume.

Mr. Elwood: --The police report was prepared earlier, but when the crime... when they wrote down guilty, the offense he was guilty of is breaking into a certain address at a certain day, belonging to a certain victim, and involving the same arresting officer.

And we believe that--

Justice Stevens: But if it's that... if it's that explicit, I don't think you need the police report.

Mr. Elwood: --Well, perhaps because you can refer to the police report.

Justice Stevens: It seems to me we're dealing with a case in which the court documents are sufficiently ambiguous that you have to look to something else.

Then the question is what other things may you look to, and you say we can look to police reports.

I say why not look at warrant applications or maybe the prosecutor's notes, or there could be other equally reliable documents available, it would seem to me, that would... which establish the facts.

Mr. Elwood: I think that you really only have to look at... the... the fact that these are present in the court's files and the fact that--

Justice Stevens: I thought the police reports were not present in the court--

Mr. Elwood: --They are present in the court's files.

The court said they were present in the court's files.

They just said they didn't become part of the plea colloquy because of--

Justice Souter: Well, the... the warrant affidavit is going to be present in the files.

It's... it's returned.

It's... it's normally filed with... with the other papers in the case.

Mr. Elwood: --I think, though, that there's... there would be no particular reason to believe that the warrant application had been... had served as the basis for the guilty plea.

I mean, if you had some sort of--

Justice Souter: Why... why not?

I... I mean, are we going to imagine an entirely different case out of the blue from the one that's disclosed in... in the warrant application?

It seems to me that there's a... a relatively high degree of probability there.

Mr. Elwood: --If... I... I think that if the documents recording the guilty plea indicate that the... that the crime described is the crime described in the warrant application, you probably could look at that if... to determine if it was a boat or a building or--

Justice Souter: Well, let's say the warrant application says, you know, we're looking for a stolen radio and the charge does indicate that he was... that... that the... that the property taken in the burglary was a... was... was a radio.

Wouldn't that be a basis for saying, okay, the warrant application probably discloses what was going on here?

If... if the... if it was a radio on the warrant application, a radio in the burglary charge to which he did plead guilty, probably it's the radio at the address indicated in the warrant application.

Isn't that a fair inference?

Mr. Elwood: --Perhaps.

The... the whole thing about the warrant application, though, strikes me as... as a little bit more attenuated, though, also because it's done in advance of the police arriving on the scene and discovering what's going on whereas the police report--

Justice Souter: Well, it may be done in advance by... you know, by... by a couple of hours from the... the police going in--

Mr. Elwood: --Right.

But still it's... it's done beforehand as opposed to done after the crime has been investigated.

Justice Souter: --What... what about the... the police officer... what... what if we don't have a document of any sort but the... the State calls the police officer who, in fact, made the application for the... the issuance of the complaint and he says, when I appeared to ask for the issuance of the complaint, I testified to, I swore to the following facts?

I.e., that it was a house at such and such Shaw Street.

That gives you your contemporaneity element.

Why not accept that?

Mr. Elwood: I think that under a sort of a... theoretically that's a... that is a theoretical possibility, Justice Souter.

I don't think that would happen a lot in actual practice because the sort of people who are prosecutional witnesses have a sufficient caseload that they're just never going to have in a... a actual recollection of specific events.

And I can represent to the Court that--

Justice Souter: They have notes.

But the police all have little notebooks.

That's what they use in trial day in and day out.

So it seems to me that... that if... if contemporaneity is the... is... is... or rough contemporaneity is... is the criterion, then on your theory we ought to get into testimonial evidence.

Mr. Elwood: --It's... it's both contemporaneity, if I've said that correctly, but I think also a... a reason to infer that it provided the basis for the plea... for the plea colloquy, which it is in this case because--

Justice O'Connor: Well, I guess you would be content with just relying on whatever was disclosed at the plea colloquy in court.

Mr. Elwood: --That's correct.

And--

Justice O'Connor: And you would take... you would make the assumption, apparently, that on that occasion the elements, the factual basis for the plea would have been disclosed.

But unfortunately, the record has been destroyed.

Mr. Elwood: --It has been destroyed, but Massachusetts State law requires that there be a factual basis before the court can accept a guilty plea.

And I think we can... under the presumption of regularity that attaches to guilty pleas, you can presume that occurred.

Justice O'Connor: You can just presume that the proceeding was regular and it was disclosed.

Is that right?

Is... under Massachusetts law is there any difference in the penalty at all for burglary of a house versus a motorcycle versus a car versus a vessel?

Mr. Elwood: No, there isn't.

They're all punished the same.

So it's not as though this was a... a lesser included or anything like that.

Justice Kennedy: So you want us to write the opinion that we can presume that what's in the State investigative files and records was likely before the trial court?

I... I'd like to know what--

Mr. Elwood: I don't think it--

Justice Kennedy: --I don't know what I'm supposed to write.

Mr. Elwood: --That when the... basically when the police report is unambiguous and when the documents in the State court file indicate that the basis for the guilty plea was the crime described in the police report, that you can infer that the factual basis for the plea, which is required under Massachusetts law, was in fact the breaking into a building as opposed to a ship or a vehicle and so forth.

Justice Stevens: --Mr. Elwood, can I tell you what's troubling me about that?

Maybe the whole categorical approach is unwise.

It may have been more strict than it should be.

But it... I'm puzzled by the notion that in a case that's been tried to verdict, you can only look at the indictment and the instructions, as I understand Justice Blackmun's opinion.

You could not look at the testimony in the record, even though there are nine witnesses who described what happened.

It seems to me that might be much more reliable than a police report.

And I'm just wondering am I correct, do you think, on saying you cannot look at the testimony in the tried case?

And if so, how do you... how do you say that police reports are better than sworn witnesses?

Mr. Elwood: I think to me it's not 100 percent clear whether when Taylor referred to the jury instructions and the charging documents, that that was exhaustive of the jury trial conflict.

Justice Stevens: It's a for example thing.

Mr. Elwood: Right.

It could be something else.

But I think that if you were going... it's still possible to draw the distinction based on an administrability factor, which is the way many courts have looked at it, which is you don't want to have to have the court look back to transcripts of the whole thing versus... for the whole trial, whereas if they can look at a discrete body of documents and say yes, this guy pleaded guilty to burglary of a building, that you can reach that conclusion.

It's a line of administrability, not a... a line of testimony with the documents.

Justice Stevens: The thing I'm just questioning is whether this rule that you... you're advocating is really more administrable than one that just says it seems crazy in this particular case.

But... but in the interest of having a categorical administrative rule, we'll simply say whatever the public record shows and the proceedings themselves.

Mr. Elwood: I think that it has proven administrable.

And it... it... I think that the majority of courts allow you to look at court documents in order to determine what was... what sort of offense was at issue and... and that--

Justice O'Connor: How should we interpret Taylor?

Do you... do you agree with the interpretation suggested this morning by Justice Breyer, for example?

Mr. Elwood: --I think it's definitely should be interpreted to include guilty pleas because taking Taylor literally, I mean, they only discussed jury trials.

But every court with criminal jurisdiction, every court of appeals with criminal jurisdiction, has concluded that it includes guilty pleas.

And so I think it... it does make sense.

I don't think that the Court would have in such a short section of the opinion have exhaustively addressed the entire scope of factual situations, and I don't think it would have addressed the circumstance under which most guilty pleas... or rather, under which most convictions are obtained--

Justice Breyer: Well, then... but reading it that way, which is arguable, this case, but reading it that way, you'd say you can look... what we're interested in is not what happened.

We are interested in what kind of a crime was at issue.

And where it's difficult to decide what crime is at issue, you can look to whatever official documents are there at the time, any court records, to make that determination, but there... if there is any indication that they're... they're contested, if there's any dispute as to what was at issue, then you can't count it.

Then it doesn't count.

What about that as a rule?

Mr. Elwood: --I... I think that is a sensible rule.

I mean, basically our rule--

Justice Breyer: So you'd say there's... you can look to what Justice Stevens says.

You can look to what is official in that record that seems to have indication of reliability, and if there is any indication at all that this was a matter in dispute, you can't count the conviction.

That would be the rule.

Mr. Elwood: --I... I think that would be a sensible rule.

And in this case, as... as we indicated, not only are the police reports unambiguous, but there's a very strong reason to believe that they were the basis for the guilty plea as it was obtained on that day.

Justice Ginsburg: Mr. Elwood, we had a case last term involving a search warrant, Groh against Ramirez, and it... it was very clear that the application for the warrant identified specifically what the police were to search for, but the warrant itself didn't.

And this Court held you couldn't look behind that blank warrant for the particulars that were revealed in the warrant application.

And I suppose this is similar in the sense that we have the conviction and you're saying, but you can look behind that conviction to something that, we don't know, may or may not have been before the court.

Mr. Elwood: As I recall Groh, that case specifically turned on the fact that the face of the Fourth Amendment requires that the warrant describe, not that the supporting documents describe, the place to be searched and the items to be seized.

And I think in this case we already know it's okay to look behind convictions because Taylor itself says so.

The only question is what items are acceptable, and--

Justice Ginsburg: Well, Taylor... Taylor doesn't quite have this full for example because there's another paragraph following the for example paragraph which says we hold an offense constitutes burglary for purposes of 924(e) if either the statutory definition corresponds to generic burglary, which it doesn't here, or the charging paper, which it doesn't here, and jury instructions, which the judge tells the jury you must find this in order to convict.

Those are not for examples.

That paragraph says you've got three things you can look to.

You can look to the statutory definition.

You can look to the charging paper, and you can look to the jury instruction.

And that's it.

Mr. Elwood: --I think, though, that in the context that... that is, if you're going to include guilty pleas at all for these sort of straddle offenses that... that some of the conduct is generic burglary and some isn't, that if Taylor is accepted on face value, where it isn't an example, then it... it basically would mean that, sub silentio, the... the Court had held that guilty pleas could not be used at all for this sort of inquiry under the Armed Career Criminal Act, which I think would be extraordinarily or... or it would definitely limit at least the utility of the ACCA as an act punishing recidivism because the vast majority of convictions are obtained through criminal--

Justice Stevens: Yes, but aren't the vast majority of guilty pleas unambiguous?

This is a rather rare case.

Mr. Elwood: --But if the... I don't think... I think that whenever there is a straddle crime and that the charging document is--

Justice Stevens: Yes, whenever straddle crimes, but... but they're the exception rather than the rule.

Mr. Elwood: --That is probably the case.

I know that there are something like 28 States that have them.

Justice Stevens: But even burglary I think in most States would be clear.

Mr. Elwood: There... there are many States that... that have offenses that include both generic and nongeneric burglary, although I think that it's probably true that most... most burglary statutes are either generic or nongeneric, not sort of straddled like that.

But in any event, I think it would significantly limit the utility of the ACCA.

And in addition, every court of appeals with criminal jurisdiction has held that that's not what it means, that it does mean, as Justice Breyer indicated, that that was one example that the Court meant.

It is, after all, a fairly abbreviated discussion that wasn't briefed by the parties in the case, and I don't think that the Court should read it so expansively based on relatively ambiguous language.

If there are no further questions from the Court, we'll rely on our submission.

Justice Stevens: Thank you, Mr. Elwood.

Ms. Thompson, you have a little over 3 minutes.

Rebuttal of Linda J. Thompson

Mr. Thompson: Thank you, Justice Stevens.

First, I would like to point out that the Armed Career Criminal Act does not punish all recidivism.

It is designed to punish the people who have prior convictions for those offenses falling... falling within the categories.

So it's not designed to punish all recidivism.

Massachusetts does have generic burglary statutes.

These statutes that are at issue here are not among them.

But for the serious forms of burglary, such as home invasion, Massachusetts punishes those under generic burglary statutes.

So those do exist.

With regard to the record that the Court can look at in making this determination, it was significant in the district court that Judge Gertner was not pointed to the face of the complaint.

And as you look at the complaints that are shown in the third appendix in this case, there is... there are dates listed at the bottom.

The entries in those docket sheets were made at different times, not all made at the time of a guilty plea.

The Government did not present any evidence to help the court understand anything about the way the dockets were made and the entries were made when a guilty plea was taken in the district court.

The third thing of interest is, as Judge Gertner found, there was no reason for a contemporaneous contest of the evidence... of the material in the police report because the police report was not part of the plea proceeding.

So what happens is the district court that's faced with the sentencing issue now has to make the determination, can I now look and see whether there was some contest years ago when the guilty plea was entered without the aid of a contemporaneous record of adjudication.

And what Mr. Shepard's position is, as to what the... the rule should be, is that where... and we don't contest even remotely that guilty pleas don't fall under the ambit of the Armed Career Criminal Act.

Taylor was a guilty plea itself.

That case was a guilty plea... is that where you have a nongeneric statute and you have a conviction by a guilty plea, that the court can look at a charging document and a contemporaneous formal record of adjudication, not simply anything that's found in the court file, and that must establish, based on that examination, that the defendant was necessarily found guilty of all the elements of generic burglary either by his own admission or by a finding by the judge.

Thank you.

Justice Stevens: Thank you, Ms. Thompson.

The case is submitted.