Garcia v. United States

ORAL ARGUMENT OF CHARLES G. WHITE, ESQ., ON BEHALF OF THE PETITIONERS (PRO HAC VICE) Chief Justice Warren E. Burger We will hear arguments this morning in Garcia against the United States. Mr. White, you may proceed whenever you're ready. Charles G. White Mr. Justice... Mr. Chief Justice, and may it please the Court: This is a case of statutory construction. The statute involved is found in Section 2114 of Title 18 of the United States Code. It prescribes the robbery and attempted robbery of anyone in lawful custody or control of mail matter of any money or other property of the United States. The statute was amended or had been amended in 1935 to add in the words "or any money or other property of the United States. " to what had previously been known exclusively as the Postal Robbery statute affecting only matters dealing with the Post Office. The question before this Court is whether or not Congress intended to expand the scope of that statute to encompass any custodian of any money or government property that they would prosecute under the statute. Now, the Government has, of course, adopted that position based on what they consider to be the plain reading and unambiguous wording of that statute. Petitioners contend that in fact the statute is not unambiguous and that the... it suffers from various defects in the way that it's worded, and we will be in a position to argue that. In addition, petitioners feel that the congressional intent is certainly relevant, and I would say controlling, as to what it was that Congress intended to do when in fact they amended the statute. Petitioners will also propose to this Court an alternative, what we believe is in fact the plain meaning of the statute that comports with congressional intent; and that is an... that will involve the application of an ancient rule, a well-respected rule of statutory construction called the rule of ejusdem generis. Now, the facts in this case are not totally pertinent to the legal issue involved, but some of them should be gone into in order to... to give some background to the Court. The petitioners were two brothers, Jose and Francisco Garcia, who back in July of 1981 were engaged in negotiations with an undercover agent from the United States Secret Service for the purpose of selling or buying counterfeit money. Now, the... Francisco... the Garcia brothers represented to Agent Holmes that they would be in a position to sell him counterfeit money in exchange for real money. They had a meeting in a park in Miami, Florida in the evening in which Agent Holmes had brought some government money which was kept in a pouch. The negotiations apparently were not to be had, because Jose Garcia did pull out a gun and train it upon Agent Holmes, and Francisco Garcia climbed into the car that Agent Holmes had driven to the scene and escaped with, or tried to escape with the pouch containing the real money. The backup agents that were with Agent Holmes were approaching the scene to affect arrests. One of their cars hit Francisco Garcia, knocking him to the ground, and Francisco Garcia was taken into custody, as was Jose Garcia. Now, they were... these two individuals were prosecuted and tried in front of a jury in district court in the Southern District of Florida. This issue that's before the Court was not raised by the trial attorney for the petitioners. The issue was not raised until the brief was filed with the Eleventh Circuit, and the Eleventh Circuit permitted the issue to be argued and decided on its merits. In the Eleventh Circuit opinion the conclusion was that the statute seemed very plain and unambiguous. Basically, the Government's position was adopted, and the petitioners were... had their convictions affirmed. I had stated in the very beginning that I intended to show that the statute was in fact ambiguous, and I think that the way to understand it is to look at the way in which the Government is contending the statute should be read. By looking at the words themselves you have a very unusual situation here. You have three clauses that are separated by a disjunctive "or". The Government has argued that in fact there are two clauses separated by a disjunctive "or", and that one clause being mail matter, and then "or any money or other property of the United States. " thereby that... those... that phrase which was added by Congress in 1935 encompasses one category of things to be prohibited. And the Government presumes that the intention of Congress in reading that statute was to have "property of the United States", "other property of the United States. " modify the preceding phrase which is "any money". Well, in the same breath the Government contends, and the Eleventh Circuit seemed to accept this argument at the time, that the use of the disjunctive always establishes completely and wholly separate categories of crimes. In order to determine or to rule that the plain reading of this statute establishes that, you have to take away from mail matter the other parts that were added in 1935. Otherwise, you may have, in fact, what the petitioners contend, which is a statute which was only designed to... to close what was perceived in 1935 to be a loophole in the Postal Robbery statute. Now, how does this... how does this work? If we take each different category that's separated by the disjunctive, we have mail matter is the first category, and there's no dispute as to what that means. There's a long history of case law and a pedigree which goes all the way back to 1792 that regards this particular part of the statute, or "any money". What was it that "any money" means? Surely, if the category has to stand by itself, then "other property of the United States. " is not going to be used to modify "any money". We don't have a situation here where the plain reading of the statute says that "any money of the United States. " We also have a situation where it would have made "any money" a redundant statement. As in Section 2112 of the United States Code in Title 18, robbery of government property has been ruled quite conclusively to include government money. The only purpose that Congress could have had for putting "any money" as a separate clause was that they were contemplating that there would be other money over which Congress could assert jurisdiction that was not government property. And I submit to the Court that what they were discussing and what they contemplated was the money which would be in the possession of those who would normally possess mail matter. Material other than mail matter the statute was designed to protect. And there's another way when you look at the statute as a whole that this type of an argument and this type of ambiguity begins to make more and more sense. Before we get to the articles which a lawful custodian would have custody of... the mail matter or any money or other property of the United States... we have the situation of a... who is a lawful custodian of these... these properties. Again, this is a statute which has been around for a long time. Case law has been established as to a lawful custodian of mail matter. Lawful custodians... different courts have... have looked at the... at postal regulations, different courts have looked at private business people who run a post office on a contractual basis and ruled that those people are in... in custody of mail matter. The courts have... have ruled on this issue. Congress is presumed to have known what the precedents were when it added these... these other categories to mail matter or any money or other property of the United States. They knew what a lawful custodian of these matters were, and there's no indication in the statute that they intended to set up any other standard for determining what it was that constituted a lawful custodian. Now, the petitioners contend that these types of problems are all based... and really the reason why we are here before this Court is because the Government was able to convince the Eleventh Circuit, of course, that there was only two clauses with the "or". But if you look at the opinion below, which we have petitioned this Court to review, you will see that there is a major glaring mistake that was made in that opinion. And that is that the writer of that opinion presumed that there was a comma between the words "mail matter" and the clause "or any money or other property of the United States. " And, in fact, the United States Code does not contain a comma in that place. There is no separation in the two categories. The separation is into three categories under a plain meaning of the statute. Now, going back to the analysis of what kind of any money they were talking about and other government property, we now see that Congress must have intended when reading the statute in its plain and unambiguous fashion that somehow the various phrases would be related to each other; that the different categories that the Congress was intending to protect would be related to each other. Unidentified Justice Mr. White, if the Court were to agree with you in this case, what would be the effect on the Garcias here? They were convicted of other offenses and sentenced to consecutive terms, is that right, for the other offenses? Charles G. White Yes, Your Honor. They were sentenced... Jose was sentenced to a 40-year term of which 25 years was for this particular offense, and Francisco was sentenced to a 30-year term. Unidentified Justice So it wouldn't be necessary to remand for any alteration of any sentence. Charles G. White Well, yes, Your Honor, the petitioners in their prayer for relief were asking that this Court order the district court to dismiss the count 3 in the indictment which charges this violation of Section 2114. Unidentified Justice Well, yeah, if that were done, the other sentences would stand as is, right? Charles G. White That's correct, Your Honor. Now, to proceed, if I may, when you look at the... at the statute as it's written, the different categories, mail matter or any money or other property of the United States, it's clear that you have a specific term-- Unidentified Justice You say there are three categories there, Mr. White? Mail matter is one, money is another, and other property is the third? Charles G. White --That's correct. Unidentified Justice Well, then... but the word "of" does not appear in front of the phrase "other property". In other words, the... the statute, as you well know and read, "Whoever assaults any person having lawful charge, control or custody of any mail matter or any money or other property of the United States. " It seems to me if your construction was right, it would read "or of any money or of other property of the United States. " Do you see what I mean? Charles G. White Well, Your Honor, the... you are correct, of course, in your... in that part of the analysis. This is one of the reasons why it's necessary to, in cases of this nature, to go back and determine what it was that Congress intended. Perhaps the Court is correct. Perhaps it was Congress' intention if they wanted to have three categories that they would have put the "of" there. Unidentified Justice Well, I'm not the Court. I'm just one member of the Court, and I... I was just asking, not intimating that that is necessarily the correct view. But it seems to me your position would at least be stronger if the word "of" appeared before "other property". Charles G. White Well, that may be the case, Your Honor. However, I think that the... the basic position on the point of ambiguity is really what we're discussing, and we're playing with these words, and we're trying to figure out what exactly they mean when one looks at them plainly and sees whether or not the guidance that those words give is sufficient to override any concern with what it was that Congress actually intended when they decided to... to enact-- Unidentified Justice Well, the Solicitor General used to agree with you, didn't he? Charles G. White --Well, he did back about ten years ago, Your Honor. He did agree with the position. The Second Circuit and the Ninth Circuit had-- Unidentified Justice Seventh, Seventh. Is it the Seventh? Charles G. White --Well, it was a Seventh Circuit case, the United States v. Hanahan, in which the Solicitor General had filed his... his concession in his memorandum-- Unidentified Justice Was that based... was that concession based on the kind of an argument you're making or not, or was it mostly legislative history? Charles G. White --It's my understanding of that... my... my understanding of it was that the concession was based mostly on... on legislative history. It was going back and looking at the intent of Congress; that it was really... the beauty of a plain and unambiguous reading of the words as they appear is that by having a specific term like "mail matter" followed by terms of normally general meaning that relate to each other, applying this principle of ejusdem generis, you have conclusively the class enumerated by mail matter, the money in the possession of those who would be in custody of mail matter, and the property that would be in their possession or custody. Unidentified Justice Well, when we... when we remanded that case to the Seventh Circuit, we ourselves didn't accept the confession of error. We didn't, in effect, construe the statute. Didn't we just remand for reconsideration in light of the Solicitor General's concession? Charles G. White Your Honor, my understanding of the history of the Hanahan case was that you did... you're totally correct. It was remanded for consideration. What the district court did-- Unidentified Justice But we didn't... we didn't agree... we didn't necessarily agree with the Solicitor General. Charles G. White --No, Your Honor. We're not... I'm not... I'm not contending-- Unidentified Justice Yes, all right. Charles G. White --That we're here on the-- Unidentified Justice But the Seventh Circuit did apparently. Charles G. White --The Seventh Circuit did agree with their... with their conclusion. Unidentified Justice Yes. Charles G. White And apparently Mr. Hanahan's account was vacated, and he... they imposed a... a conviction under 2112, I believe, on those facts, Your Honor. Unidentified Justice Mr. White, could the Government have charged the Garcias under Section 2112 in this case? Charles G. White Yes, they could have, Your Honor. They could have charged them under 2112. The question, of course, that may be decided if this case is remanded back is whether or not since they have also convicted the Garcias under 641, theft of government property, whether or not it would be appropriate at this point to impose additional penalties under 2112. All of what I've said before about the wording in attempting to answer the questions of the Court tries to get us past the threshold question which caused this case not to... I believe not to be fully considered by the Eleventh Circuit. And that was to go right into the issue of what it was that Congress was intending to do in 1935 when they added those words "or any money or other property of the United States. " to the statute. There are certainly... I believe the petitioners have... have successfully shown that there are two interpretations of this... of the plain reading of the statute: one based on the... my arguments and based on... on established rules of statutory construction. And I submit that the... the others the Government proposes are based more on what they would like the law to be rather than what it was that Congress intended the law to be. Going back into the history of the 1935 amendment we see that there really wasn't the kind of comprehensive hearings, the kind of comprehensive input from other federal law enforcement agencies that one would assume would happen if the Government was actually planning on enacting a statute of the sweeping scope which the... the Government would have you believe they intended to do. Really, the... the... a letter from the Postmaster General was the only... was the only part of the committee reports, aside from indications of various... various amendments that were being proposed on some phraseology changes. That letter from the Postmaster General reflected his concern that the law of 2114, which at that time was found in Section 320 of Title 18, smack in the middle of all the postal offenses, that that was very good protection for those custodians of mail. However, he was pointing out a rise in incidents of robberies of custodians of other materials besides mail. Now, it was a letter. It wasn't drafted in such a way that it was going to... the way the letter was drafted was going to become law. The Government in their brief made some issue about the fact that he says "custodians of money or other property. " as opposed to saying mailman or letter carrier. Well, that makes a lot of sense that he would just use the term "custodians of money" when he's the Postmaster General and he's writing a letter to the Post Office Committee in the House of Representatives, and he's talking about concerns of his own which are for his employees. What he was concerned about... and the statement of Congressman Dobbins on the floor of the House of Representatives underscores this... what he was concerned about were people coming in and robbing post offices not of letters, not of mail matter, but of money. And he wanted to make sure that the... a loophole, that this loophole in the statute was covered so that they could use the statute with its very stringent mandatory sentence if a firearm or dangerous weapon was used, they could use the statute to protect postal employees or those who have lawful custody of mail matter or other property that would be in the possession or control of the postal function. This is really what got this whole statute started, the whole amendment process started with this letter, with this request that this loophole be closed. Now, Congressman Dobbins, as the Government points out, was never ordained a "floor manager", in quotation marks. Congressman Dobbins, however, if you turn to the Congressional Record and turn back a few pages from where the various quoted excerpts on this bill are, or move back... up a few pages, you'll see that Congressman Dobbins was from the Post Office Committee, and he was apparently in charge of shepherding quite a few bills cut of that committee through the House of Representatives. And he was the one that they would turn to when they wanted to ask a question or what does this mean; what does this bill really do; is this bill this or that? And he would answer the question because, as he told them, he was consulting with the lawyers, the attorneys that worked for the Postmaster General trying to construct the wording of a statute that would simply and easily close the loophole that he was concerned about. There's another indication that the... that this is what Congress intended. There was some discussion in the Government's brief to the effect that the... there was... just because there was silence on this issue from other law enforcement agencies, that does not necessarily mean that they weren't interested in the result. Well, one year before, one year before this amendment was enacted, the Congress considered a letter from the Attorney General... I believe it was to the House or Senate Judiciary Committee... regarding the enactment of what later became Section 111 of Title 18. In that... in that letter, the Attorney General, of course, as the case... as this Court remembers from the United States v. Viola case where the congressional intent behind 111 was... was explored, the Attorney General mentioned that he was concerned, of course, about the jurisdiction of the federal courts over protecting law enforcement officers. He mentioned in the back... back part of the letter about how other people are trying to... other federal agencies are trying to protect their employees as well, and he mentioned specifically the Post Office is trying to protect assaults on letter carriers. So even the Attorney General at that time, and one year before this 1935 amendment, he got his extra protection for situations of this nature. And as a matter of fact, both the petitioners were charged under... under Section 111 in addition to Section 2114, and Jose Garcia was convicted, and Francisco Garcia was acquitted of that count by the jury. When one takes the entire context of this bill, of this amendments, looking at the ambiguity and the two different ways in which the statute can be read, it becomes clear that congressional intent would control under these circumstances. Applying the rule of ejusdem generis to this particular situation would only be not justified, it would only be incorrect if in fact there was a manifest congressional intent to the contrary. And it's clear that there is no such intent, and the Government has the burden, I submit, of showing where it is that Congress intended that their scope behind the statute would control. Really, in conclusion, I would state that the Government has basically lucked out in the Eleventh Circuit. The court apparently, and the Government, was willing to... to look and... and... and construe a comma which would give some credence to their plain reading, their plain and unambiguous version of what it was that they thought the statute meant. Petitioners have contended from the beginning that this is an... this was an ambiguous statute, and that for the Government to construe it as suddenly that the... that the Congress intended to extend these protections to all lawful custodians of any money-- Unidentified Justice Mr. White, can I... can I interrupt you? I... I'm troubled by your comma argument, because I don't understand why the comma would be any more significant than what Justice Rehnquist pointed out as there are just two "ofs". I mean it seems to me they... the fact there are only two "ofs" supports the notion there are two clauses, and you can't have three clauses with only two "ofs". I just don't follow your comma argument. Maybe I-- Charles G. White --Well, essentially it doesn't necessarily go into... the fact of the matter is that there is no comma there, and they wanted it there. They wanted it there for a reason. The reason they wanted it there was because they want to show that that "or", the first "or", is the true disjunctive that sets off the two categories that they feel that Congress was addressing. And with the comma not there, under the... the... all the case law that was cited by the Government and the Eleventh Circuit regarding what "or" means and what it means to have a disjunctive, and how it separates separate categories and estops separate categories of crime, instead of one disjunctive with two categories, you've got two disjunctives with three categories. And we have to now look at these grammatical points, as mentioned before, and see whether or not there should have been an "of" there or there should not have been an "of" there. And this is what establishes the ambiguity. Unidentified Justice --Isn't it true that as of today in the modern teaching of English, commas are the most unimportant things known to man? Charles G. White Your Honor, that may be the case. I... I'm not aware of whether or not, in fact, commas are important or unimportant. I don't have that... I don't have that knowledge. Unidentified Justice I mean if that's what you're leaning on, I think it's a thin reed. Charles G. White Your Honor, I don't believe that the... that the Petitioners' position is that I'm lean... I'm not leaning on the fact that there's a comma or there wasn't a comma. The point of the matter is that I think that the... that this all goes towards what the Government's... what they contend is the plain reading of the statute, is their version of it. It's establishing the ambiguity. It's understanding whether or not the statute is ambiguous. Unidentified Justice You don't take the position that if the comma wasn't there, you'd lose? Charles G. White No, Your Honor. No. I'm not saying that at all. I don't think that the... the case... I don't think the case turns on that comma. What I believe is that the... the attitude... the interpretation of the statute turns on the fact... the evidence of that comma, which it appears shows what the Government thinks and proves that what they think is only their version, and it's not clear and unambiguous as they would have you... as they would have you believe. And I think the congressional intent is clear that the context of the 1935 amendments, that it was in fact designed to protect the postal function, and that this Court should vacate the conviction and count 3 of this indictment as to both petitioners and... and remand to the district court for... for appropriate orders. And I would like to reserve the rest of my time for rebuttal. Chief Justice Warren E. Burger Mr. Ganzfried.

ORAL ARGUMENT OF JERROLD J. GANZFRIED, ESQ., ON BEHALF OF THE RESPONDENT Jerrold J. Ganzfried Mr. Chief Justice, and may it please the Court: Our position is that Section 2114 means exactly what it says. The statute prohibits, among other things, the robbery of a lawful custodian of government property, and where the victim's life is jeopardized by the use of a dangerous weapon, as it was here, the penalty is enhanced. Now, the evidence at trial showed the petitioners committed those acts, and in fact, there is no real dispute that their conduct falls within the statute's plain language. Petitioners seek to avoid these consequences, however, by suggesting that Congress meant something other than what it said in Section 2114, and so they request the Court to limit the statute to so-called postal crimes, although they haven't quite told us what that is, even though Congress-- Unidentified Justice Let me interrupt on the plain language point just... it's something that always troubled me. I have in my pocket a dollar bill. Jerrold J. Ganzfried --Yes. Unidentified Justice Is that money of the United States within the meaning of the statute? Jerrold J. Ganzfried Within the meaning of 2114 it's... it's not. It's U.S. currency but-- Unidentified Justice So the language doesn't... isn't quite as clear as... as its face would indicate. I would think money of the United States would be these green bills that I carry around from time to time. Jerrold J. Ganzfried --Well, it's... it's... it's clear for two reasons: one, because the phrase that follows it is "other property of the United States. " Petitioners have read the word "other" out of the statute. It's "money or other property of the United States. " I might say that if you're suggesting that there's an ambiguity as to whether it refers to U.S. currency or property of the United States, it has no bearing on this case because these people were stealing government funds. And, in fact, our reading of the statute-- Unidentified Justice But under your view it would not have... they would not have violated this statute if the agent had not had government funds but had his own money which he intended to get reimbursed for. Jerrold J. Ganzfried --If they lifted his wallet and took money that he was going to take for a bus at the end of the day. That's right. Unidentified Justice Well, Mr. Ganzfried, under your view, someone who stole, for instance, a hammer from GSA could be charged under this, and then there'd be a 25-year mandatory sentence? Jerrold J. Ganzfried If they steal the hammer, the answer is no. If they rob the hammer-- Unidentified Justice Taken in a robbery. Jerrold J. Ganzfried --If it's taken in a robbery and its government property, the answer is yes, it's covered. And I would say I suppose the purpose that they use that hypothetical in their reply brief is to suggest that it's unduly harsh. My answer to that is, first, if it does appear to be unduly harsh, that's a question for Congress to determine; and second, it's too broad... it proves too much because it would be the same in the postal situation. Unidentified Justice Well, you would say, I suppose, that the prosecutor simply has a choice whether to charge him under 2112 or 2114. Jerrold J. Ganzfried That's right. The prosecutor is certainly not obligated to rely on 2114. Unidentified Justice Now, if we thought the statute was clear on its face, are there any circumstances, in your view, when the Court could look at a legislative history... if there ever were a case, this would be it, because the legislative history is quite clear, it seems to me, that a postal nexus was contemplated by Congress. Jerrold J. Ganzfried Well, I... I... I disagree with that. I think if we're looking at the purpose of the statute, the congressional committee-- Unidentified Justice Well, just assume that for a minute, would you, in answering the question? Assume the legislative history is clear that a postal nexus was contemplated. Are there any circumstances that would justify the Court in looking past the meaning? Jerrold J. Ganzfried --Not here. Unidentified Justice As expressed. Jerrold J. Ganzfried Not here, because this... the statutory language is clear. There is no need to resort to legislative history or any other aids to resolve any uncertainty because there is no uncertainty to resolve. The purpose of looking to the legislative history is... is-- Unidentified Justice Well, suppose the committee report said in... in language as plain as the statutory language itself we intend this to have a postal nexus; that's the intent of Congress. Now, could the Court look behind the plain meaning of the statute to that kind of-- Jerrold J. Ganzfried --There's no rule of law that says that the Court cannot look behind the plain meaning of the statute, but ordinarily the Court will do so only when it's seeking to resolve an ambiguity on the face of the statute. We would also add that the Court has said in the past that a statement of a purpose in the legislative history does not necessarily mean that that is the exclusive purpose. So even if the committee reports had read as... as you suggest in your hypothetical, it would not resolve the case. Unidentified Justice --Well, you don't suggest there aren't cases here that rely on the legislative history to narrow the language of the statute; that is, to exclude from its coverage some conduct that on its face is covered by the statute? Jerrold J. Ganzfried I'm sorry. I didn't hear the beginning of the question. Unidentified Justice Well, you wouldn't... would you deny that there are any cases in this Court that narrows the otherwise broad coverage of the words of the statute based on the legislative history? Jerrold J. Ganzfried I would... I would... certainly there are cases that narrow the language of statutes. Unidentified Justice Well, a... I'm talking about words of a statute that on their face cover the conduct at issue, but it's been... but it's held that the statute doesn't cover it because of the legislative history. Jerrold J. Ganzfried My recollection is that there have been rare occasions on which the Court has done it. Frankly, no examples come to mind at the moment. Now-- Unidentified Justice Mr. Ganzfried, if... if Jose Garcia had been prosecuted under 2112 instead on the facts as the jury found them in this case, could the trial court still have imposed a 25-year sentence by just giving consecutive sentences under 2112 and 111? Jerrold J. Ganzfried --He could have, but 2112 and 111 simply specify maximum sentences, not the mandatory sentence the 2114-- Unidentified Justice But I mean that enough flexibility would have been present using those two statutes to still give the term that was given, in effect, 25 years. Jerrold J. Ganzfried --The court could have done that if it were so inclined. Unidentified Justice Do you... while I have you interrupted, do you know if there were ever any prosecutions for robberies of nonpostal employees before this section was moved to Title 18 under this section? Jerrold J. Ganzfried Prior to 1935? Unidentified Justice I think it was prior to 1948. Jerrold J. Ganzfried Oh, that revision. Unidentified Justice You see, it was in 1948-- Jerrold J. Ganzfried The revision is when-- Unidentified Justice --think, when it was moved from the postal area of the code to Title 18. And I just wondered if there were ever any prosecutions in the earlier years that didn't have a postal nexus. Jerrold J. Ganzfried --Not that I'm aware of. On the other hand, it... it depends on what you mean by the phrase "postal nexus". There was the Rondozo case that the petitioners have cited in their brief, decided by the Eighth Circuit in 1924. In that case the victim was the son of the postmaster, and he was not, as I read the opinion and recall it, employed by the Post Office Department at the time. Nonetheless, it was found that covered the situation simply because he was a lawful custodian. In one sense I suppose you could say there was a postal nexus. Unidentified Justice Right. Jerrold J. Ganzfried But possibly not the postal nexus that the petitioners are... are talking about. Unidentified Justice And I guess the SG did take a contrary position to the one you're taking now for quite some time about this. Jerrold J. Ganzfried Well, so far as... as far as I know, that position was taken in Hanahan, and it was the only time that the Solicitor General took a position on it. Unidentified Justice I see. Jerrold J. Ganzfried Certainly, the issue... pardon me. Certainly, cases under 2114 that did not involve a postal nexus had come to the Court. Now, this particular issue had not been raised. I'm thinking now of one of the two earlier cases, either the... the Peek case or the Sherman case. There was a petition for cert filed in one of them. Unfortunately, the citation to the denial of cert is omitted from our brief. There was a petition for cert filed in the case, and the Solicitor General took the position that cert should be denied. As I said, this issue was not raised, but he took no occasion to say 2114 requires a postal nexus. It was taken only in Hanahan, and it was taken there in circumstances where the 2112 option was available and recommended to the Court that there be a remand for resentencing under 2112 and to treat 2114 as a miscitation in the... in the indictment. We have since learned in the second Rivera case in the Second Circuit that there will be occasions when the 2112 option will not be available because there had not been a completed robbery under 2114, only an attempt, which 2112 doesn't cover. Unidentified Justice It's the attempt thing that slips through the cracks. That's-- Jerrold J. Ganzfried Well, the attempt that's covered by 2114, that is not covered by 2112. Unidentified Justice --Right. Jerrold J. Ganzfried And so having... having learned that the 2112 option is not always available to us, having discovered the Peek and Sherman cases that apparently the Solicitor General was not aware of in 1973, and having looked at this Court's more recent cases on the reading of statutes, particularly criminal statutes, and the great attention that's to be paid to the plain meaning enacted by Congress as the best and most reliable evidence of congressional intent, when this case came along we took another look at it since-- Unidentified Justice You just don't want... I mean you would prefer not to have the attempt... attempted robbery of government property not covered by one of these two sections. Jerrold J. Ganzfried --Well, we would prefer that. We would also prefer to have 2114 available to prosecutors within their discretion when the circumstances warrant. Unidentified Justice I presume you would also like to carry out the intent of Congress. Jerrold J. Ganzfried Absolutely, absolutely. Unidentified Justice Mr. Ganzfried, in U.S. against Sherman... that was a Fourth Circuit case... that was an appeal by the United States, I gather. And doesn't the Solicitor General authorize appeals of the United States? Jerrold J. Ganzfried No. That was... that was an appeal by Sherman. That was a conviction. Unidentified Justice Well, but the citation is United States against Sherman. Jerrold J. Ganzfried Yes. That was the court of appeals caption. Unidentified Justice Yes. I see. So Sherman did the appealing. Jerrold J. Ganzfried Sherman did the appealing, yes. And Sherman... and, I'm sorry, as I look at it I see we do have cert denied. Unidentified Justice No. Cert... cert denied. That's the title. Jerrold J. Ganzfried When cert denied, the title was Sherman v. the United States. Unidentified Justice And what's... why... why is the... why is it captioned U.S. against Sherman in the court of appeals? Jerrold J. Ganzfried As I understand it, that's the way courts of... courts of appeals ordinarily use the captions that district courts use. Unidentified Justice Well, the practice varies among the circuits. Jerrold J. Ganzfried Well, it may, and I... my recollection of the reading of the Sherman case was that it was a conviction and an appeal by Sherman. Unidentified Justice So it was a conviction. Jerrold J. Ganzfried Yes. Unidentified Justice It wasn't just a dismissal of an indictment or something. Jerrold J. Ganzfried That's right. Now, the issue was not raised in Sherman, or in Peek, or in the O'Neill case, an earlier Ninth Circuit case. But they were prosecutions that were under 2114, and they had no postal nexus by any stretch of the imagination. Unidentified Justice Am I correct in remembering then the Hanahan case in the Seventh Circuit, the issue wasn't raised in the court of appeals, was it? Jerrold J. Ganzfried That's right. The issue was raised for the first time in the petition for cert.-- Unidentified Justice May I also ask, is this question the subject of the recent legislation that Congress, I understand, has passed some comprehensive criminal legislation? Jerrold J. Ganzfried --I've made inquiries on that, and my understanding is that it's not. Unidentified Justice It's not. Jerrold J. Ganzfried I can check further on that, and if what I've just said is in error, I will certainly advise the Court. Unidentified Justice What was... what was the basis of your concession in Hanahan? Jerrold J. Ganzfried The basis of the concession-- Unidentified Justice What you were... what you filed here, which we don't have in our files. Jerrold J. Ganzfried --Oh, I see. Well, the basis for the concession in Hanahan was primarily the statement by Congressman Dobbins. Unidentified Justice So it was legislative history. Jerrold J. Ganzfried Absolutely. In fact, let me read from our memorandum of the case. Unidentified Justice Well, that's all right. I think you've-- Jerrold J. Ganzfried We said, "On its face the statute covers the crime for which petitioner was convicted. " We relied on Congressman Dobbins' statement. Unidentified Justice --Which you now call a snippet or something. Jerrold J. Ganzfried Which... which was... which was a snippet then and which is a snippet today. Unidentified Justice The passage of years hasn't charged it. Jerrold J. Ganzfried It hasn't gotten any longer since he said it in 1935. Unidentified Justice Of course, the whole legislative history is only about three snippets. Jerrold J. Ganzfried Three snippets and... and 3 7/8 of them are consistent with our position. In fact, if what we're trying to do... and we are... is to determine what Congress' intent was, they made it quite easy; because if the question is what was Congress' purpose, the committee report says the purpose of this bill is to bring within the provisions of the penal code the crime of robbing or attempting to rob custodians of government monies. Unidentified Justice Does the... does... does the committee report or the legislative history of that 1935 statute or the amendment, was it... it was revised in '35, was it? Jerrold J. Ganzfried There was an amendment in 1935. Unidentified Justice Does the legislative history include any comment by the Department of Justice-- Jerrold J. Ganzfried Apparently not. Unidentified Justice --On the Post Office's proposal? Jerrold J. Ganzfried Apparently not. Now, let me address two arguments that the petitioners have made on the face of the statute. It had been their... it had been my understanding of this case up until a week ago that there was no real dispute, but that on its face 2114 clearly covers the conduct here. And we take the position, as we do in our brief, that there's no need to go beyond the statutory language. It's not a case where the words are unclear, ambiguous or imprecise. And since there were not two plausible readings that were suggested, there was no reason to go any further to choose between any two... any such readings. Now, it wasn't until they filed their reply brief last week and in their argument today that they ever really suggested an ambiguity in 2114. They've changed their tune, and they recently discovered an ambiguity which, as I understand it, is that the term "money" is unclear in that it could either refer to government funds, or it could refer to any money. And I submit, as I said in response to a question earlier, that it doesn't matter for purposes of this case, because what were stolen were government funds. And in any event, the statute, in our view, does cover only government funds. They also make this morning an argument under the doctrine of ejusdem generis, and we submit on that that the doctrine is inapplicable here and should be rejected for essentially the reasons that the Court rejected it in the Powell case that's cited in Petitioners reply brief and in the Turkette case, namely that it's an aid to construction that comes into play when there's some uncertainty in the language. Here there is no uncertainty. Each category is separate, and there is no common characteristic that runs through the three categories. In essence, we don't have a statute that has a long list of specific items followed by a catch-all phrase at the end. In fact, the case on which they rely, the Stever case, my recollection of the statute in that case in 1916 was that the catch-all phrase at the end said something like "or other similar" items to the items that it pursued. We have nothing of that sort here. Now, as I said, there's no rule of law that prevents the Court from looking at the legislative history. Our position on that is that when you look at it and you take the legislative history as a whole, it supports us. I think we have to keep things in perspective; that-- Unidentified Justice Well, despite the clearness of the language, the Solicitor General urged us to look at the legislative history in the Hanahan case. Jerrold J. Ganzfried --He did. Unidentified Justice And the Seventh... and he urged the Seventh Circuit to do so, and won. Jerrold J. Ganzfried I... I don't know quite what happened in the follow up in the Hanahan case. I know that Hanahan was resentenced, but he took-- Unidentified Justice Well-- Jerrold J. Ganzfried --I assume-- Unidentified Justice --The Seventh Circuit took the Solicitor General's view, I think. Jerrold J. Ganzfried --I assume that it did. The Solicitor General, however, has... has now come to a different conclusion under the same statute. As this Court said unanimously in Mendoza last year-- Unidentified Justice Well, a different view also apparently on the... on the permissibility of looking at legislative history. Jerrold J. Ganzfried --Well, the ease with which one can have legislative history rewrite a statute-- Unidentified Justice Well, the view must have changed since Hanahan. Jerrold J. Ganzfried --The view... the view has-- Unidentified Justice About that issue, too. Jerrold J. Ganzfried --Presumably it has. Unidentified Justice Yes. Well, the legislative history back in '35 was not extensive, and I guess that's why you call it a snippet; but the prime sponsor and advocate at the hearing was this Mr. Dobbins, and his language and intent emerges pretty clearly, Mr. Ganzfried. That's what bothers me. He said, "The only purpose of the pending bill is to extend the protection of the present law to property of the United States in the custody of its postal officials, the same as it now extends that protection to mail matter in the custody of the public officials... postal officials. " And it just seemed to me, frankly, that was a pretty good indication of what they had in mind. And then there were objections to the language by a Mr. Walcott who said, and I quote, "This is the worst drafted bill I've ever read. " said he, and offered suggestions for clarifying the language, but they weren't adopted. Jerrold J. Ganzfried Well, two things. First of all, one of the suggestions that Mr. Walcott made was adopted. The reason that I... that I don't share that concern about the significance of Congressman Dobbins' comments is first of all that they have to be understood in context. He was not offering an explanation of the scope of the bill. He was not offering a definition of the terms that are at issue here. He was responding to criticism of the bill on an altogether different subject, namely the mandatory nature of the 25-year sentence. In responding to that in which he was pointing out that the amendment was not changing it... the statute as it already existed had a 25-year mandatory sentence... he added that all we're doing is, as you said, but he was not offering an explanation of the meaning of the statute. Second, another reason why the comment is not entitled to that weight is that it's inconsistent with the words of the statute, and it's inconsistent with the report of the committee of which Congressman Dobbins was a member. And as this Court has said, comments made in colloquies are hazardous bases for assuming what Congress' intent was. Those... the speeches are available only to the... or heard by the members who happen to be there that day, whereas the statutory language is... is what is actually presented to all members of Congress, commands a majority vote in both Houses and is signed by the President. Unidentified Justice Well, sure, but this was in the post office section of the code, and it was suggested by the Postmaster. And the evidence all shows that what they were worried about were these little substations where often there was property other than letters in the custody of the substations like a little bit of money, and people were coming in taking money from these little substations. And that's really why it was passed. Jerrold J. Ganzfried Well, we don't know why it was passed, but it seems to me it... I mean we can't look into the inner workings of the minds of the members of Congress. All we can work with is the record that they've left. And in trying to seek out the trail towards congressional intent, the largest and best signpost we have is the words of the statute they passed. And it would seem to me-- Unidentified Justice Well, certainly your committee report is contrary to Dobbins' remarks on the floor. Jerrold J. Ganzfried --Absolutely. Absolutely. It doesn't-- Unidentified Justice And did he file a dissent to that committee report? Jerrold J. Ganzfried --No, not... not that we're aware of. Unidentified Justice Was he the... what was his position on the committee? Was he a subcommittee chairman or what? Jerrold J. Ganzfried I... I don't know what his position was on the committee. Unidentified Justice May I ask you a question that I... I haven't really been able to think through? I assume... particularly Justice O'Connor's reminded us... that the Government actually did not make use of this statute for anything except postal cases at least until after 1948, really in only a handful of cases since then. Jerrold J. Ganzfried Well, I... I tried to find out the answer to that, just how many cases there were that were prosecuted under 2114, and unfortunately, we... I could not find any records to answer that, and so the response that I gave to Justice O'Connor was based on what I could find in the reported decisions. There may well have been prosecutions. Unidentified Justice At least there weren't any appeals. But assume it, assume it to be the case in the absence of really definitive evidence that the practice of the executive branch of the government was to construe the statute as having been intended to relate to postal nexus cases. Jerrold J. Ganzfried I'll assume that. I won't necessarily agree. Unidentified Justice Which I know you don't, and it certainly had changed later, at least in some cases. And if we are to look primarily at the contemporary context in which the statute was enacted, does that carry any weight at all? I... I really don't know whether it does... the executive's practice in-- Jerrold J. Ganzfried If what you're suggesting is that we try to engage in some pseudopsychology to determine what individual Congressmen were thinking about-- Unidentified Justice --Well, generally speaking, in the... generally speaking, in the thirties federal criminal law was... criminal law enforcement was basically the providence of the states, and... and the business of the federal activity in law enforcement has expanded dramatically in the last 10 or 15, 20 years. In that context I just wonder if we wouldn't have had... if there was the... the purpose that the plain language seems to suggest, why we wouldn't have had more cases other than postal cases. There's a lot of government property floating around. Jerrold J. Ganzfried --Well, let me, I think, recast that question. I think if... if that was Congress' intent, first of all, it's a simple matter for them to say any postal employee in the statute or any property of the Post Office Department. It also seems to me that if this language really does run far beyond what Congress intended that someone would have raised the question and said look at what we're doing here. This isn't limited to the post office. This says any property of... of the government. And the committee report-- Unidentified Justice Yes, but you know as a realistic matter how... how much attention a bill of this kind gets in the actual deliberations in Congress. It's fairly routine. Jerrold J. Ganzfried --Well, it seems to me that the language of the bill would get more attention than the comments that Congressman Dobbins made on the floor. Unidentified Justice Which committee was it that handled this bill? Jerrold J. Ganzfried This bill was handled by the Post Office Committee. There were two predecessor bills that were virtually identical. Unidentified Justice Is there any other criminal law of general application that's handled by the Post Office Committee? Jerrold J. Ganzfried Offhand I can't think of any, but I can tell you that the two predecessors to this bill were, when introduced, identical to it, were referred to the Judiciary Committee. No action was taken in the committee, and so in 1935 when it was reintroduced it went to the Postal Committee. If I had to guess-- Unidentified Justice So they could... so they could get action. Jerrold J. Ganzfried --It got action, and it got action from the full Congress. I would guess that it was simply a matter of... of political expedience, that there was a bill that was needed, and... and a way was found to get it through Congress. The bill itself is... is just as broad, no matter what the source, no matter what committee it comes from. And it seems to me that it would be a somewhat peculiar mode of statutory construction to go back 50 years later and tell Congress that it sent the bill to the wrong committee, that it has to do it right if it... if it wants to pass criminal laws. Unidentified Justice I'm just... I just would like to weight that and consider it just like all other things you've been talking about, which might be of no interest at all. Jerrold J. Ganzfried What we can do is make our submissions for the Court's consideration and... and hope that we're persuasive. Unidentified Justice Congress could have passed the bill and said anybody that steals government money goes to jail, period. You wouldn't have any of this trouble. Jerrold J. Ganzfried Well, we don't think we have that... that trouble. It already had a statute that says anyone who steals government property goes-- Unidentified Justice You don't consider coming up here trouble? Jerrold J. Ganzfried --Pardon me? Unidentified Justice You don't consider coming up here trouble? Jerrold J. Ganzfried It's an effort, but it's a pleasure. It's not trouble. Unidentified Justice Well, you were brought up here, were you not? You were brought up here. Jerrold J. Ganzfried That's right. Unidentified Justice He didn't have to come. [Laughter] Jerrold J. Ganzfried Well, since it's a case in which I... I believe that our position is rather simple, we don't have to revise the statute, and I'd suggest that in order to... to read into the statute the limitation that the petitioners propose, you would have to revise the statute. You would have to read in and insert language that Congress certainly could have used in 1935 and had at that point in numerous other criminal laws relating to the post office. And we've identified some of those at pages 16 and 17 of our brief. They knew how to do it. They didn't do it. They chose instead the broad language of this statute, and they stated clearly in both committee reports that the purpose was to protect custodians of government monies. Unidentified Justice Can I ask one other question about the plain language? I probably should have read more cases before I asked this. Supposing a person who's not a government employee at all has custody of an unopened letter that's written to his brother or his cousin or something, and then he's robbed and that letter is stolen. Is this statute violated? Jerrold J. Ganzfried I'll have to ask you a follow up fact to be able to answer it. Unidentified Justice It's been delivered. The letter's been delivered. Jerrold J. Ganzfried It's been delivered. I think our position on that is that once it's been delivered, it's not mail matter under the terms of the statute. Unidentified Justice So if I open my neighbor's mailbox-- Jerrold J. Ganzfried Which would be consistent, I believe, with our position under Section 1708 which covers thefts. Unidentified Justice --Do you think that's perfectly clear from the plain language of the statute? Do you think that limitation is clear from the plain language of the statute, that the lawful custody means the lawful custody during the transit of the mail as opposed to some later period of time? Jerrold J. Ganzfried I think it is, because I think ordinarily once mail is delivered, taking the ordinary meaning of the words, that once it's delivered, it's... it's a letter, it's not mail. Unidentified Justice It's no longer mail matter. Jerrold J. Ganzfried No longer mail matter. Oh, incidentally, there is one point that I shouldn't sit down without commenting on, and that is the business about this comma. I don't think it's terribly important either way, but the fact of the matter is that in the section of the statute that covers what these petitioners did, there is a comma. It's on page 2, it's the fourth line in our brief. These people were charged with... with robbery of the... of the lawful custodian of government property. And the portion of the statute that covers robbery says, "Whoever robs any such person of mail matters. " comma, "or of any money", comma, "or other property of the United States. " so on and so forth. So I don't think there was much to that argument to begin with, but in fact, the comma on which it was based or the absence on which it was based is there. Thank you. Chief Justice Warren E. Burger Do you have anything further, Mr. White? You have two minutes remaining.

ORAL ARGUMENT OF CHARLES G. WHITE, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL Charles G. White Just to set the comma business to rest, the statute, as you can look at it in its entirety, contains several references to mail matter, to money, and to other property of the United States. The first reference, which is really where the focus of the congressional intent has to... to do with, the very first reference it says... it says "mail matter or any money or other property of the United States. " and there is no comma there. So that... that's something I didn't realize that... that the Government was quoting from a different section of the statute than what we... we thought we were talking about. In any event, interestingly, the Government said something very interesting. It said that it would... it was for Congress to determine... and this, I believe, was in answer to Justice O'Connor's question regarding the... between whether this was unduly harsh, the robbery of someone, say, from GSA of a government hammer or something of this nature. Yes, it's true it was unduly harsh, and in fact, Congress did, the legislative-- Unidentified Justice Well, of course, that's not our concern; that's Congress'. Charles G. White --Certainly. Certainly, Your Honor. However, the statement that Congressman Dobbins made on the floor was directed exactly to this provision of this bill which makes it a very unique bill, which is a 25-year mandatory sentence if there's a dangerous weapon used or if it's a second conviction. Now, he was asked, this is not something which we normally do. We usually have a range, so the sentencing judge has discretion to impose the sentence that he feels is necessary. And Congressman Dobbins started off his colloquy saying well, this is the same... this is existing law. This is the law as it... as it already stands. It already has this 25-year mandatory sentence. We're not changing it. We're just expanding it a little bit. And this, I think, is the basis... it was... this issue that... that Justice O'Connor raised was actually raised before the Congress in these little snippets of-- Unidentified Justice That... perhaps there's not that disproportion that is suggested, because some of these hammers are pretty expensive. [Laughter] Charles G. White --Especially the ones with the Department of Defense. Unidentified Justice Well, if it were a coffee pot it might make sense. [Laughter] Charles G. White It certainly... it also certainly was not the intent of Congress to... to give such unbridled discretion to the prosecution. Thank you very much. Chief Justice Warren E. Burger Thank you, gentlemen. The case is submitted.