Cases by Issue - Federal Rules of Criminal Procedure

Washington v. Recuenco - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

Washington v. Recuenco

Media File:

05-83_20060417-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James M. Whisman

Chief Justice Roberts: We'll hear argument first today in Washington v. Recuenco.

Mr. Whisman.

Mr. Whisman: Mr. Chief Justice, and may it please the Court--

When a judge, rather than a jury, decides a fact that increases the defendant's punishment above the applicable standard range, the Sixth Amendment's jury trial right is violated.

This is true regardless of whether the fact is called an element or whether it is called a sentencing factor because elements and sentencing factors are functionally equivalent under the Sixth Amendment of the United States Constitution.

It follows that the same harmless error rule that applies to missing or misdescribed elements should also apply to missing or misdescribed sentencing enhancements.

In a series of Washington decisions, the Washington Supreme Court has held that harmless error analysis may never be conducted as to a missing or misdescribed sentencing enhancement simply because it is called a sentencing enhancement.

This rule of absolute prohibition is inconsistent with this Court's jurisprudence and should be corrected.

Before I go on, however, to explain the legal basis and the flaws in the legal reasoning of the Washington State Supreme Court, I would like to take a brief moment to address a few State law issues that have been raised by the respondent's brief.

The first is the question of whether or not at all in Washington we can, at present, seek deadly weapon enhancements or, more specifically, firearm enhancements.

It was alleged in the respondent's brief that we cannot, and I'd just point out to the Court that there is no authority in Washington for that proposition.

And so asking this Court to simply affirm the... the firearm enhancement that was originally imposed in this case does not constitute imposing a sentence that would any way be inconsistent with Washington law.

Justice Kennedy: On... on that point, I have... I have one question.

At page 3a of the petition appendix, the Washington Supreme Court's opinion is set forth, and in the course of that opinion, it says, to the contrary, when defense counsel argued the definition should have been submitted to the jury, the prosecutor explicitly stated that the method under which the State is alleging and the jury found assault was committed was by the use of a deadly weapon.

And then he goes on to say, in the crime charged in the enhancement, the State alleged there is no element of a firearm.

The element is assault with a deadly weapon.

I don't... this was at the sentencing proceeding, I take it?

Mr. Whisman: I believe that's correct, Your Honor.

Justice Kennedy: Yes, because I couldn't find it in the sentencing proceeding.

Mr. Whisman: In the... in a subsequent or nearly subsequent breath, the prosecutor then asked for the enhancement, the 36-month enhancement, that applies for firearms.

I think what you're seeing there is that the prosecutor was responding to the... to defense counsel's use of the term element.

And in... in the year 2000, before Apprendi, before Blakely, we never would have used that term as applied to a sentencing enhancement.

We just didn't think of it that way.

Now, we have since changed our thinking, obviously, after Apprendi.

But I think if you... on the... on the overall point, if you look at defense counsel's comments beginning with the comments pretrial, where he notes that I can see no relevance to... to the admission of a different gun.

Then he comments, Ms. Recuenco was threatened with a 380 automatic with a clip.

Regarding the charge in particular, counsel at JA, page 30 says, the allegation and the basis on which this case was tried was under a theory of firearm.

At JA 37, counsel said, the firearm is an element of this offense as it has been pleaded and argued to the jury and evidently, perhaps, obviously proven to the jury.

So--

Justice Kennedy: It does sound as if he thinks there was... the prosecutor thought there was no error.

A deadly weapon is a deadly weapon, and then--

Mr. Whisman: --That's right.

And... and I think, Your Honor, that stems from the... from the way the statutes are structured.

Beginning many, many years ago, in Washington we had what we called a deadly weapon enhancement.

So there was no distinction made between any kind of weapon.

In 1995, the law changed.

There was a distinction made as to firearms.

The... the penalty was increased as to firearms.

And so beginning that time, there was a material distinction depending on the weapon that was used.

But I think that--

Justice Scalia: Was deadly weapon still an enhancement at that point, or was deadly weapon part of the definition of a new crime?

Mr. Whisman: --Deadly weapon was still called an enhancement, Your Honor, under the statute.

And so the statute defined deadly weapon very generally, and then in the punishment section, the punishment provisions, which specifically were formerly under section 310 of the Sentencing Reform Act... now it's been renumbered to be 533.

Under that provision... you have two provisions, one which provides the punishment for deadly... for firearms, and under this... for this case, that would be 3 years.

And then as to the rest, it says if someone was armed with a deadly weapon other than a firearm, you have a lesser penalty.

So as I say, I think that for a long time we have treated... in Washington, we've treated all of these things as deadly weapons, but recognized that if it was a firearm, the penalty was greater than if it were something other than a firearm.

Justice Souter: I thought the deadly weapon... the definition of deadly weapon... that that could include a revolver or a pistol.

You... you seem to be describing now deadly weapon.

That's one thing, and that excludes guns.

And then firearm, a discrete category.

But I thought that deadly weapon includes at least pistols and revolvers.

Mr. Whisman: A firearm includes pistols and revolvers because a firearm is something... anything from which a projectile is fired.

So--

Justice Souter: But... but didn't the deadly weapon... definition of deadly weapon include firearms?

Mr. Whisman: --That's the way it was defined to the jury in this case.

That's correct, Justice Ginsburg.

It was... it was... the... the jury instructions went to the jury to find deadly weapon as a firearm.

And over and over, the court reiterated, especially in the instructions conference, that the... there's no question but that the only weapon here is a firearm, and so they used the simplified version of the instructions.

Justice Souter: Wasn't--

Justice Ginsburg: But with a 1... 1-year enhancement or... I thought that that could apply in a case where the deadly weapon was a gun.

Mr. Whisman: No.

Our... our position, Your Honor, is that it cannot, that if... you either have a firearm or you have no enhancement whatsoever.

If... the only way that a... that a gun could be a... it's... it's because of the language, other than a firearm.

So, in other words, you have either a firearm and a 3-year enhancement, or you have, as I say, no... no weapon enhancement at all.

So, in other words--

Justice Kennedy: --Well, would it be either proper or required by the Washington trial court to tell the jury, ladies and gentlemen of the jury, the charge is assault?

There is also a possibility of a sentence enhancement.

It's a 1-year enhancement if it's a deadly weapon.

It's a 3-year enhancement if it's a firearm and a pistol is a firearm.

Would the judge err if he did that?

Or another way of putting the same question, would it be proper for the judge to leave out the 1-year deadly weapon instruction and just instruct you can... you must determine whether it's an assault and you must determine whether there's a 3-year enhancement for the use of a firearm?

Mr. Whisman: --We believe that's exactly what the court did in this case, Your Honor, by... by instructing the jury that deadly weapon is firearm.

In Washington, we never tell the jury--

Justice Kennedy: No, no.

My hypothetical is he says it's a 3-year enhancement if the deadly weapon is a firearm.

That's... what I'm asking is, in effect, under Washington law, is it error if the judge allows the definition of deadly weapon also to go to the jury so they can find a lesser included offense.

Mr. Whisman: --Well, there... there are two parts to the answer.

Let me answer that one first.

There... our position is there is no lesser included offense of a firearm that's still a deadly weapon.

And if you look at State v. Olney, O l n e y, that was one of the cases reversed in the Recuenco case, you'll see that... that they explain why that's the case.

In other words, it's either a firearm or there's no enhancement whatsoever.

The... the other part of the question I wanted to just clarify is that in Washington, we would not be telling the jury the length of time that... that the defendant would face--

Justice Kennedy: Well, then you're saying the instruction here was proper.

Mr. Whisman: --I'm saying that the instructions that went to the jury, correct, were... were proper.

What was improper in this case is that the special verdict form did not sufficiently or specifically enough preserve the jury's verdict so that, in other words, when the jury passed on this case and returned a verdict form that said deadly weapon, that did not expressly encompass the firearm.

And so... and that was... that was the... the mistake that was made in this case.

We should have submitted a verdict form to the jury that would... that would let a jury expressly describe what the verdict was.

Justice Stevens: Could you... could you clarify one thing for me?

I just want to be sure I have it in mind correctly.

Is it correct that the firearm has to be an operable firearm?

Mr. Whisman: That portion of the Washington law, Your Honor, isn't... isn't crystal clear, but what I can say is that that's not in this case because trial counsel at... at trial on more than one occasion specifically said it was irrelevant to this case.

What we have to prove is that the firearm was a real gun, and--

Justice Stevens: But is... just again, I'm not trying to find out the answer to what happened here, but just as a matter of what the law provides.

Is it conceivable that a... a gun which was not operable could nevertheless be a deadly weapon because it can be used as a club?

Mr. Whisman: --In that circumstance, yes, Your Honor.

Justice Stevens: It could be.

Mr. Whisman: But... but obviously, as counsel... on page JA 31 and at JA 38, counsel very specifically said the State tries to say that a nonworking firearm can also be the basis for this offense, and certainly it can be.

And then at... at page 38, they say, obviously, the question of whether it actually worked or not would be irrelevant under the law.

So the... strictly speaking, the question of operability wasn't before the jury.

We did have to prove that it was real.

And, of course, there was never any dispute about that.

The defendant's... by the defendant's own testimony, for example, in the... in the transcript at page 677... that would be volume 8, on 1/24/2000, page 677... the defendant spoke at some length about the fact that he was worried about his children getting a hold of this gun.

There were significant safety concerns.

At page 680, he talked about how he locks it up all the time.

Justice Ginsburg: Would you explain again why it was irrelevant whether the gun was operable or not?

Mr. Whisman: Operability, Your Honor, is... is... there were a series of cases that... that arose in Washington having to do with... with a gun that was basically a real gun, but that there was technically wrong with it.

And those series of cases discussed how soon it could be rendered operable to make it still constitute a real gun.

But I think that's really kind of an esoteric area of the law.

Justice Ginsburg: But to be a real gun, it has to be operable.

Mr. Whisman: Well, that's what the... what the cases have said is that it only has to be ready... could be made ready to... to fire in a short amount of time, yes.

As I say, that's simply not in this case because counsel conceded this gun... that operability wasn't an issue here.

All we had to prove was that it was a real gun.

Justice Souter: --Now, did you have to prove that because, as... as I have assumed, the charge included the statement that he had used a handgun?

Was that the term used?

Mr. Whisman: Yes, Your Honor.

Justice Souter: Okay.

Mr. Whisman: The charging document said the defendant was armed with a deadly weapon, which establishes the general category, and then, to wit, a handgun.

As I say, there... there was no issue either... either pretrial or throughout the course of the trial that counsel knew precisely what he was facing.

Justice Ginsburg: But all that the jury found was deadly weapon because that's all they were asked to find.

Mr. Whisman: That's right.

They only used the terms, deadly weapon, Your Honor, and that's why in the Washington State Supreme Court, we conceded that, technically speaking, the jury's verdict didn't encompass the firearm finding.

The express verdict didn't encompass the firearm finding.

But under the facts and circumstances of this case, it's our... our view that that error, even though it could be an error, is harmless.

Justice Scalia: Well, you... you could... it could be argued that it not only didn't encompass the firearm finding, but it excluded the firearm finding.

If, as you tell us, there are two categories, one being deadly weapon, which does not include firearm, and the other being firearm, wouldn't you say that the jury verdict positively contradicted?

Mr. Whisman: I think, Your Honor, Justice Scalia, if you imagine a situation, as Justice Kennedy was posing, where the jury was presented with two options and they were going to choose one or the other, you might be able to make that argument.

But here, the jury was presented only with the definition saying deadly weapon is a firearm, whether loaded or not.

And under those circumstances and under the circumstances where the only weapon associated with this assault is a firearm, the only thing that they could have premised their decision on was the firearm.

So, as I say, it's not as though they were choosing either or.

In Justice Kennedy's hypothetical, you might have had that situation.

Chief Justice Roberts: Is the jury given a copy of the information?

Mr. Whisman: They are ordinarily read a copy of the information, Your Honor, at the start of the case.

I don't recall that being transcribed in the... in the transcript as... as the court has it.

That is the ordinary course of proceedings.

In... in the respondent's brief, there is a fair amount of time spent on distinguishing this case or... or trying to analogize this case actually to charging defects.

As I've indicated already for the past few minutes, I believe that this case simply doesn't present that issue because it was readily apparent that this defendant was fully advised of what he was facing.

Now, if there were other defects... if there were true defects in the charging document or if the defendant was surprised by the sentence that the judge ultimately imposed, then we would have to analyze, separately analyze, whether or not the charging was sufficient.

And under this Court's jurisprudence and under Washington law, that is a separate analysis, a separate analysis--

Justice Ginsburg: Why was deadly weapon put in by the prosecutor at all?

If... if you're right that this is not a deadly weapon case, this is strictly a firearm case, it's not a lesser included, here the prosecutor charged deadly weapon--

Mr. Whisman: --Correct.

Justice Ginsburg: --to wit, a handgun.

And then the special verdict form doesn't say one word about firearm.

So couldn't the defendant expect, well, they charged the main thing?

They charged me with deadly weapon, and they asked the jury to find deadly weapon.

Mr. Whisman: And... and I think to answer that question, Your Honor, again we have to step back to the year 2000 and... pre Apprendi, et cetera.

At that time, there were a series of cases, Meggyesy, Olney and Rai, R a i, that... that are overturned, quite frankly, by the Recuenco opinion, where the appellate courts had quite expressly said that it was sufficient to submit the deadly weapon verdict form in that form to a jury where it's clear that the only weapon at issue was a firearm.

In each one of those cases, that was what was done.

And in fact, in at least one of them, the victim was shot, so there couldn't be any question.

So there was... there was a well established practice in Washington law at the time of proving that sort of thing.

Now, it's true that the more thorough practice, the more precise practice would have been to submit a verdict form that said firearm, but that wasn't done in this case, but it wasn't done, I believe, pursuant to those cases.

Unless the Court has any additional questions, I'd like to reserve the rest of my time for rebuttal.

Argument of Patricia A. Millett

Chief Justice Roberts: Thank you, counsel.

Ms. Millett.

Mr. Millett: Mr. Chief Justice, and may it please the Court--

In Neder, this Court held that the failure to submit an element to a jury... an element of a crime to a jury is subject to harmless error analysis because it is a nonstructural trial error.

In Apprendi and Blakely, this Court held that the Sixth Amendment right to trial by jury recognizes no distinction between elements that set a maximum punishment, sentencing elements, and elements of the underlying offense.

For that reason, the failure to submit an element that sets the sentence to the maximum sentence available should be subject to exact same harmless error analysis that was applied in Neder.

The exact same constitutional value and constitutional right is at stake.

The exact same analysis of the effects of the error will be applied by the court, and the same sort of discrete error in time that you had in Neder.

There's no functional distinction between Neder.

In addition, in Schriro v. Summerlin, this Court held that the failure to submit a sentencing element to a jury is not the type of error that calls into question the fairness, accuracy, or reliability of the underlying proceeding.

In Cotton, this Court held that that same type of error does not impugn the integrity, public reputation, or fairness of judicial proceedings.

And in Mitchell--

Justice Stevens: Ms. Millett, can I ask you this one question?

Would there ever be a case where it was not harmless error when the judge makes the finding?

Isn't it... wouldn't it be reasonable for the appellate court to assume, well, if the judge made the finding, it's probably supported by the evidence and presumably the jury would have come out the same way?

Mr. Millett: --No, I don't... I don't think that's true, Justice Stevens, that there will be times... I don't think this is one of those cases, but there will be--

Justice Stevens: But there might be a rare case, but in about 95 percent of the cases, wouldn't it be true that the fact the judge made the finding is pretty good evidence that the jury would have made the same finding?

Mr. Millett: --I think it will depend on whether the evidence was disputed before the judge in a... in a... in the Federal system would have been sentencing hearing.

And remember, sometimes--

Justice Scalia: The judge doesn't have to find it beyond a reasonable doubt, does he?

Mr. Millett: --Exactly.

Exactly, Justice Scalia.

There's not only... there may be disputed evidence, but the standard may be different.

It's not clear whether it was here, but at least as to some factors.

It's clearly not enough that there's sufficient evidence to support the judge's determination.

The question would be whether there's any... a jury could have found any doubt or when it's clear beyond a reasonable doubt, that the outcome would have been the same.

But I do think in a case like this, it's important to keep in mind that it's... this case illustrates that these things are not categorically or necessarily unamenable to harmless error review.

And in fact, what would happen in cases like this and a lot in the Federal system, where you have undisputed, uncontested facts... and we know that because they had the incentive to contest them at a sentencing proceeding.

And so to hold that automatic reversal is required would mean it would go back for a retrial that would have nothing to do... nothing to do with the element that was not decided by the jury.

That would be undisputed.

There's not going to be any contest back here that the firearm, the semi automatic that was handed to the jury loaded and passed around to the jury, was a firearm.

It would just be a second bite at the apple to contest things that were decided properly and beyond a reasonable doubt by the jury, consistent with the defendant's constitutional rights.

Justice Souter: What... what do we do about the problem that is raised by... by counsel on the other side, that Washington law is such... or at least at the time the briefs were written, Washington law is such, as they understand it, that the... that the issue could never properly have been submitted to the jury, and... and therefore, if... if Washington courts are going to follow Washington law, in every case in which a firearm is an issue, the case is going to be handled exactly like this?

It's not... the firearm issue is not going to the jury.

The firearm determination will be made by the judge.

If the State of Washington decides not to amend its law, we would have a situation in which, in effect, Apprendi is read out of the... the constitutional law simply by State procedure.

And in every case, the... the response would have to be harmless error analysis on your theory.

That is a pretty neat way to undercut Apprendi.

Is that not a good reason to say we shouldn't have harmless error analysis?

Mr. Millett: No, it's not, Justice Souter.

First of all, the Hughes opinion on which they rely is crystal clear that the only thing the court found was that there was no procedure to re empanel a jury on remand.

And I point the Court to page 208... that's a P. 3d citation and 149 in the Washington Reporter citation... where the court specifically said, we are only talking about remand and not deciding whether these things could ever be submitted to a jury in the first instance.

Justice Souter: So you're... I'm sorry.

You're saying their argument is wrong, in effect, as a... as a statement of Washington law.

Mr. Millett: I think that's right, but even if it weren't, if... if you had some State that decided not to fix its law, in light of Apprendi and Blakely, I expect that what would happen is defendants would bring sort of... there would be a facial constitutionality problem with any attempt to prosecute under that.

And that may be the way to deal with it.

There's no question of willfulness here.

This is decided at a time when, in good faith, pre Apprendi even... this isn't even the Apprendi/Blakely window... that it was acceptable to have this sort of two tier proceedings much like we are used to in sort of a death penalty context.

And there's... there's been no... I'm sorry.

Justice Scalia: I don't understand what... what you meant by a facial unconstitutional... facially unconstitutional problem.

You mean a Federal court would enjoin the criminal prosecution because it's unconstitutional on its face?

We wouldn't say that, would we?

Mr. Millett: I can't imagine the Federal court would intervene in an ongoing State proceeding.

Justice Scalia: Neither can I.

Mr. Millett: But State courts are perfectly capable of... of applying and we assume that they would apply and adhere to constitutional law from this Court.

Justice Scalia: So that... that's not really an adequate answer, that it would facially unconstitutional.

Mr. Millett: Well, my understanding was that the Washington law... Washington legislature didn't amend its law to say that this could be submitted to a jury.

And then every defendant at the outset of the case, would say you need to, you know, strike the indictment, dismiss this charge--

Justice Souter: A motion in limine kind of--

Mr. Millett: --Right.

I think there would be a way... I'm... I'm confident there would be a way to deal with it.

And I don't think the way to deal with it is to assume that that's a reason to make harmless error not available to these types of errors across the board.

Chief Justice Roberts: The assumption of the hypothetical is, I take it, that the Washington State judges would deliberately violate our holding of a matter of constitutional law in imposing the enhancement.

Mr. Millett: They would, and I think that's not a fair assumption and it's certainly not the way to decide whether harmless error analysis should apply.

I mean, Blakely has been on the books for a couple of years.

Neder has been out there for 7 years, and we haven't seen people deliberately trying to get around people's Sixth Amendment rights.

Justice Kennedy: Do you agree in this case that the court did have the obligation to submit a special verdict form indicating that the defendant... asking whether the defendant was armed with a deadly weapon?

Mr. Millett: Yes, that's required by Washington law.

The jury--

Justice Kennedy: No. As a matter... a constitutional matter.

Mr. Millett: --That--

Justice Kennedy: Suppose the... suppose the judge didn't ask about deadly weapon at all, just... just asked whether there's an assault.

Mr. Millett: --Well, the... it's assault in the second degree which requires... itself requires use of a deadly weapon.

So it wouldn't even be assault in the second degree under Washington law without the jury finding a deadly weapon.

Justice Kennedy: But you... so... so there had to be an instruction that there was an assault in the second degree?

Mr. Millett: There had... there had to be a deadly weapon to have assault in the second degree, and then... and I may not get all the nuances of Washington law, but then the jury had to have the sentencing enhancement, had to make a separate finding that the defendant was armed with a deadly weapon at the time.

I'm not sure, again, if it's essentially redundant in second degree assault cases or not.

It's a little confusing.

But the... the law required that you find a deadly weapon but it wasn't which deadly weapon.

It was just a baseline eligibility, and then it was up to the court to decide which deadly weapon which would then dictate the sentence.

And one other point I'd like to make clear is there's been some argument that this case is different from Neder because you have a completed defense.

That is no different at all.

You had a completed verdict for a non offense in Neder, and the distinction between a judge making findings that make a verdict that support a non offense into offense is not one that makes a structural difference.

And in Carella v. California, Rose v. Clark, you had elements that stood on the fault line between lesser included offenses and greater included offenses.

Now, they weren't missing... they weren't technically missing elements, but they were elements that were subject to mandatory presumptions by the jury.

And yet, this Court said that they're subject to harmless error analysis.

Now, obviously, the type of the element is going to affect the government's ability to prevail under harmless error analysis, and there may well be times when the government will not succeed in that process, especially as you get elements that are more central to, you know, the... the crime and... and traditional elements like the intent issues that were at issue in both Carella and in Rose v. Clark.

The other point I wanted... I wanted to make is that the fact that the jury verdict form here came back consistent with... with the... or the jury verdict form in Neder came back with the completed crime shouldn't make a difference.

The change in the... that jury verdict only came back because of a second mistake.

The jury was wrongly and mistakenly told that if it found elements A, B, and C, it would... it would establish a... a completed crime.

The fact that in this case you don't have that second error isn't again a difference that makes one error structural and the other nonstructural.

The important thing is that the right is the same.

The cost... the right to the same, the ability of courts to analyze this error is the same.

And on the other hand, a rule of automatic reversal will impose an enormous cost on victims and the public.

Thank you.

Argument of Gregory C. Link

Chief Justice Roberts: Thank you, Ms. Millett.

Mr. Link.

Mr. Link: Mr. Chief Justice, and may it please the Court--

The Washington Supreme Court correctly held that as a matter of Federal and State law.

the error in this case, as in Blakely cases generally, could not be subjected to harmless error analysis.

I think it's important to clarify that as a matter of State law and... and as recognized by the Washington Supreme Court in its decision in Recuenco, the deadly weapon enhancement and the firearm enhancement are, in fact, lesser and greater offenses of one another.

We know that based on... on what... what action the court took on remand.

It didn't dismiss the... the enhancement altogether.

It said the only thing that could be done on remand was imposition of the lesser enhancement.

Justice Scalia: How could it be lesser included when, as we've heard, firearm does... I'm sorry... deadly weapon does not include firearm?

If deadly weapon included firearm, then certainly... I'm sorry... deadly weapon would... would... could be a lesser included offense somehow.

But the two are exclusive categories, aren't they?

Mr. Link: Under Washington law... it's important to understand that under Washington law, a handgun is... is a deadly weapon per se, but that handgun is only a firearm if the State establishes the additional fact that it has the capacity to fire, which is... which is why the statute, the deadly weapon statute, and the definition of deadly weapon in... in the statutory provision specifically includes handgun, revolvers, and other guns.

Justice Scalia: But if it has the capacity--

Justice Kennedy: But the statute does say deadly weapon other than a firearm.

Mr. Link: The definition statue of... of deadly weapon doesn't.

It's--

Justice Kennedy: But the enhancement section does.

Mr. Link: --It's a separate provision on the enhancement... or excuse me... as to the length of the enhancement that would be imposed does.

Justice Kennedy: Well, do you think in this case you'd be entitled to a lesser included offense instruction as a matter of law?

Mr. Link: I believe that as a matter of Washington law, the answer would be yes.

And again, I think it turns on the fact that there's this additional factor, additional element, of capacity to fire that differentiates a handgun from a firearm.

Justice Kennedy: Well, was there any evidence that it didn't have the capacity to fire?

Mr. Link: There was no evidence, I think, to suggest that it did.

Justice Kennedy: You're not entitled to... you're not entitled to a lesser included offense instruction for which there's no evidence.

Mr. Link: Under Washington law, a defendant gets a lesser included instruction so long as the evidence, viewed in the light most favorable to him, would support the fact that the lesser was... was included.

Now, it can't turn on whether or not the State... or whether the jury simply disbelieves the State's proof, but it can... when looking at the... the evidence in the light most favorable to the defendant, look at holes in the State's evidence, such as the fact that there is no evidence before this jury about this gun's capacity to fire.

Justice Souter: No, but there... there is evidence from which the jury could find that it was a real gun, and in the absence of any indication to the contrary, that is competent evidence for the jury to use in concluding that it would function like a real gun.

It's not... they didn't have to put in further technical evidence.

An issue might have been raised.

I mean, your... the... the defendant might have come up and... and presented evidence to the effect that it was only a starter pistol, in which case, okay, there would be a real issue.

But in the absence of any reason to doubt that the handgun was what it purported to be, there would be no reason to... there would be no requirement of further evidence about functionality, would there be?

Mr. Link: As a matter of Washington law and as of the fact that this is, indeed, an element of a greater offense, there is a requirement on the State to come forward with additional proof of the capacity to fire.

Justice Souter: What's... what's your authority?

I mean, that doesn't seem... as a matter of factual common sense, that doesn't seem required.

Is... is there a Washington case that requires that?

Mr. Link: There is not.

It's the statutory language of the deadly weapon enhancement itself.

Justice Souter: And what exactly in the language is it that you hang your hat on?

Mr. Link: The fact that the deadly weapon enhancement can apply specifically to a handgun regardless of the manner in which it's used.

For instance, it... a... a handgun that does not have the capacity to fire could be used to... to strike an individual, and in that context would be a deadly weapon regardless of whether it was likely to cause a serious bodily harm.

Justice Souter: No... no question.

But if there... but if there is no reason to question its apparent functionality, I mean, you know, it's a handgun.

It looks like a handgun.

Somebody is holding it like a handgun... there... there is no reason, it seems to me, as a matter of fact or based on the statute to doubt that it would be functional.

And therefore, it would seem to me that the proof would be competent that it was a functioning handgun in the absence of any question raised.

Mr. Link: Again, if we compare the definition of a deadly weapon under Washington law with the definition of a firearm under Washington law, a handgun is by definition a deadly weapon.

But a handgun is not by definition a firearm.

Chief Justice Roberts: Counsel, you asked for an instruction on the lesser offense of aiming a firearm.

Under that provision of Washington law, does the firearm have to be operable as well?

Mr. Link: It would seem that the... the same definition of firearm would apply.

Chief Justice Roberts: So you ask for an instruction assuming that the firearm at issue in this case was operable.

Mr. Link: No.

Again, I believe that he... he asks... an individual could ask for an instruction in that case and still maintain that the State hasn't met the proof of... of establishing even the lesser.

And there's nothing tactically contradictory about doing so.

If... if one... if an attorney can convince the court to... to allow the jury to consider a lesser, and then still challenge that... the proof of that lesser--

Chief Justice Roberts: But if the firearm were not operable, you would not have been entitled to a jury instruction on the lesser offense of aiming a firearm.

Correct?

Mr. Link: --If the firearm... if looking at the evidence in the light most favorable to the State, he may not have been entitled under the... the factual prong that... that the Washington courts use on lesser and greater offenses.

Justice Alito: Let's say a new case comes up tomorrow and the person is charged in an information with assault in the second degree, and it's clearly alleged in the information that a firearm was used.

But then when the case is submitted to the jury, the judge just forgets to charge on the firearm factor or element.

Would that... could that be harmless error?

Is that any different from the case that's before us?

Mr. Link: I think that if the parties litigate the question of whether or not it was an assault with... with a firearm, as opposed to litigate the offense of assault with a deadly weapon, and then there's merely an omission from the elements, I think that's a different case.

But I don't--

Justice Alito: Well, it's a different... is it a materially different case?

Mr. Link: --I think it's a materially--

Justice Alito: Is it just like Neder, or is it different from Neder?

Mr. Link: --I think that scenario would be closer to Neder, but I think that's a different scenario than what we have here.

And I think the reason why it's different here is because the jury returned... under Washington law, returned a complete verdict.

There is no... there was no error in either the verdict or in the jury instructions as a--

Justice Breyer: Take Justice Alito's case, and nobody litigated it because nobody doubted that it was a loaded gun.

Now, what's the result?

Mr. Link: --In that scenario, if the evidence is overwhelming as... as perhaps it was in Neder, one might assume that the error is uncontroverted.

But--

Justice Breyer: All right.

So... so, therefore, it's harmless.

So, therefore, we use harmless error analysis.

So what's the difference between that case and this case?

Mr. Link: --Because I think unlike Neder this case involves a jury... or excuse me... the... a... the wrong entity has determined the defendant's guilt not on the crime at issue--

Justice Breyer: Yes, I quite... I quite agree with you that there is the difference that in the Alito case as amended, it all happened before the jury got its verdict.

In our case, it happened after the jury reached a verdict.

Now, absolutely true.

And my question, of course, is why does that matter.

Mr. Link: --Because in a scenario where the jury has been properly instructed and has returned a complete verdict--

Justice Breyer: No, no.

It was improperly instructed.

The judge forgot to give this instruction about the nature of the firearm.

I take it... at least my case... the judge forgets to instruct about the firearm.

He just forgets.

All right?

And then the jury goes out.

It comes back and the lawyer says, Judge, I handed you the instruction.

Why didn't you give it?

He says, oh, my God, I forgot.

Now, does harmless error apply to that case?

Mr. Link: --I think that scenario is closer to Neder than it is to this case.

Justice Breyer: And I want to know why that matters because the only thing I've tried to create the hypothetical to matter is the one thing happens before the jury goes out, and the other happens after.

And why does that matter?

Mr. Link: I think it matters because in a scenario like this, as opposed to either Neder or... or the hypothetical, the only offense that has ever been litigated to the parties... or by the parties to the jury was the lesser offense.

The parties understood that only the lesser offense was at issue, and we know that because in response to Mr. Recuenco's motion to vacate, the State told the judge you aren't required to give the firearm instruction because that's not an element of either the substantive charge or the enhancement.

Justice Souter: No.

But it's also the case, as I understand it, and as counsel on the other side confirmed a few moments ago, that the charge specifically specified that a handgun had been used.

So this is not a case, as I think you were suggesting, in which there has never been a charge of the offense plus the enhancement they now claim.

The... the problem was in the jury verdict, not in the charge, not in notice to the defendant.

And if that's the case, why isn't it just like Neder?

Mr. Link: Because, again, I go back to Washington law.

And the fact that handgun is alleged in the information does not establish that it's a firearm because a handgun--

Justice Souter: Well, a... a firearm, as I understand it, is defined to include a pistol or a revolver.

Is that correct?

Mr. Link: --It is.

Justice Souter: All right.

Isn't the natural reading of... or understanding of the word handgun that it's a pistol or a revolver?

I mean, isn't that what people would normally take it to mean?

Mr. Link: That may be, but as a matter of Washington law, that's not the case.

And it may defy common sense, but that's what it does.

Justice Souter: Yes, but you're asking for a... you're asking for a Federal constitutional ruling, and right now, if I understand you correctly, you're arguing that you ought to win because if you don't win, as a matter of Federal constitutional law, we would be condoning a verdict for an offense that was never charged.

But if, in fact, handgun is properly read, properly understood to mean a pistol or a revolver, and that's what a firearm... that's... that's what a firearm is... is defined to include under Washington law, then in fact the offense has been charged.

The enhancement has been charged.

And as a matter of Federal constitutional law, it seems to me that ought to be enough to bring it within Neder regardless of what the quirks of Washington law may be.

Mr. Link: If, in fact, the allegation of handgun is sufficient to bring it in the context of Neder, then there... there was no error at all.

There would not have been a Blakely violation in this case.

And the wrong... the State was wrong all along to concede that there was because Apprendi doesn't just involve... doesn't just say that sentencing elements are the equivalent of elements in the traditional sense.

It says they're the equivalent of elements of a greater offense.

And the State concedes and the Washington Supreme Court has found that, in fact, there was a Blakely violation in this case.

Justice Souter: And that's because it... it didn't go to the jury.

Mr. Link: That's because the judge, as opposed the jury--

Justice Souter: Yes.

Mr. Link: --decided Mr. Recuenco's guilt on a greater offense.

Justice Souter: Right.

Mr. Link: So... so as a matter of Washington law, Mr. Recuenco's jury was properly charged and properly returned a verdict on the only offense litigated and that was the lesser offense of assault two with a deadly weapon.

Justice Souter: Well, when you say it's not litigated, do you mean simply that nobody, none of the witnesses, none of the counsel in argument, disputed that a handgun was there?

In other words, it was just one of those things everybody understood.

Is that what you mean when you say it wasn't litigated?

Mr. Link: What I mean by saying it wasn't litigated is that it was the understanding of the parties at trial that the firearm element was not at issue because that had not been charged, that that was not the charge in front of the jury.

Justice Souter: And... and what do you... what do you base that statement on?

In other words, I... I think you're now arguing that the understanding was that although it looked as though the... the most serious enhancement had been charged, the understanding of the parties was that it had not been.

If that's your argument, what is your basis for saying that?

Mr. Link: Again, I could point to the... the prosecutor's response in the motion to vacate.

I can point to the court's judgment and sentence, which I don't have the cite for right off the... my head, but it is in the joint appendix.

On that form, as is common in Washington, there are two boxes for the court to check.

One says that a verdict regarding a deadly weapon... or excuse me... that a firearm other than a deadly weapon was returned.

The other says that a... a... excuse me.

One says that a verdict form for finding that the person was armed with a firearm was returned.

The other says that it was merely the verdict form for being armed with a deadly weapon other than the firearm.

The trial--

Chief Justice Roberts: Counsel, what your trial counsel said was that the... I'm quoting from the joint appendix, page 30... the allegation and the basis on which this case was tried was under the theory of firearm.

It seems inconsistent with your representation that nobody had an idea that they were trying this under the theory of a firearm.

Mr. Link: --I think it's... it would be equally inconsistent with the State's current position if we look at JA 35 where the prosecutor's response was we didn't need that instruction because firearm was not an element of the crime.

Justice Kennedy: Do you think it would have been error in this case based on the evidence presented and the way the... the case was argued... would it have been error for the judge to instruct the jury that if they found that there was a firearm involved, they should make a... they could make a... a finding on that?

Mr. Link: Well, it's interesting because post Recuenco, after the Washington Supreme Court's ruling in this case, yes, that would be an error because after the Washington Supreme Court's decision in this case, what they said is that--

Justice Kennedy: But as a constitutional matter, would it have been error for the judge to instruct the jury in this case, based on this evidence, that they could return a verdict that a firearm was used as part of the assault?

Mr. Link: --As a matter of constitutional error, no, I don't believe it would have been.

But as... but under Washington law, it was a verdict they couldn't... as we know from Recuenco now, it's a verdict they couldn't have returned.

Chief Justice Roberts: Ms. Millett tells us that that only applies on remand under... under the Hughes case.

Mr. Link: Under Washington law, when a court... as I think is common under Federal law, whenever a court interprets a statute, determines what it means, that is what the statute has always mean... means, and... and that is what that statute will mean in the future until such time as the legislature amends it.

As of this date, while the... the legislature has amended the statutes at issue in Hughes, it has done nothing with respect to this statute.

So, as it stands now, based on the recognition of the Washington Supreme Court that at the time of the entry of that decision, there was no provision to submit that question to a jury in Mr. Recuenco's case.

There was also no provision to submit it to a jury in another case because prior to Recuenco, the only means by which the firearm enhancement could be obtained was pursuant to the decisions in Meggyesy, Rai, and Olney.

And that was the very manner that was used here, and that was the very procedure that the Washington Supreme Court found violative of Blakely.

Justice Stevens: Mr. Link, will you just... maybe I... I should know this, but the information charges an assault in the second degree using a deadly weapon.

If they had charged use of a firearm rather than a deadly weapon, what would the crime have been?

Would that also have been assault in the second degree?

Mr. Link: Well, that's an interesting twist under Washington law because deadly weapon is... is actually two elements of assault two.

Under the substantive offense, it's a component of... of assault, and also an element of the... but to allege a firearm, it is possible that the substantive offense could have been elevated to assault one.

It's also possible that it could have simply been an assault two with a firearm enhancement.

So--

Justice Stevens: The firearm enhancement itself would not covert it from second degree to first degree.

Mr. Link: --No.

And... and I think this illustrates a point.

Under Washington law, the State could charge assault three with a firearm enhancement in... in a case in which a person used a gun.

There's nothing under Washington law that requires the prosecutor to charge the greatest offense.

There's nothing under Federal constitutional law that even if that greater offense is charged, that the jury must return a verdict on that greater offense.

In fact, the jury, as the circuit breaker in the system, has always... always has the right, regardless of the strength of the evidence and regardless of... of what the trial court view as the correctness of the charge, to return the verdict on the lesser.

Justice Kennedy: You say regardless of the strength of the evidence.

How about no evidence at all?

Mr. Link: I think this Court's jurisprudence on... on questions of... of lenity and interpreting jury verdicts would allow a jury to return a verdict that... that isn't necessarily supported by the evidence.

It's the understanding that it's their--

Justice Kennedy: Well, the question is whether or not it requires it.

Mr. Link: --I don't think this Court requires that the jury... but I think what... what I'm trying to say, I guess, is that it requires... not requires.

It... it imposes deference on the trial courts that they cannot second guess the jury, that because the jury is always free to return a verdict on the lesser offense, there simply cannot be a situation in which the trial court, based on its own assessment of the facts, gets to enter the greater.

Chief Justice Roberts: Well, doesn't... isn't that true in Neder as well?

Mr. Link: I think in Neder... Neder is a different case and for a number of reasons.

Unlike Neder, there has never been a claim that there's any incorrectness in either the verdict in the charge or in the jury instructions.

In fact, Mr. Recuenco from the outset had no reason to suggest that there was anything wrong because the State was free to charge him with the lesser offense, and they did.

There would be no motive on his part to say, excuse me, Your Honor, I think I'm really guilty of a greater offense.

Please ask the State to amend its information.

Justice Alito: You keep saying a lesser offense and a greater offense, but under Washington law, there's just one offense.

Isn't that right?

It's second... it's assault in the second degree.

Mr. Link: It's assault in the second degree with the additional deadly weapon enhancement.

Justice Souter: And if we accept... going back to our earlier exchange, if we accept the proposition that charging that he used a handgun was sufficient to charge a firearm, then the charge against him was assault in the second degree with the maximum enhancement for use of a firearm.

Mr. Link: Again, had--

Justice Souter: You... you and I may disagree on... on how to read... how to understand firearm, but if you read it the way I just suggested, then the charge was assault two with the maximum enhancement.

Isn't that correct?

Mr. Link: --I think if the information and... and the instructions were read in that manner, the State was wrong to concede that there was Blakely error here at all because, if as a matter of law, a handgun is automatically a firearm, there would have been no Blakely violation at all.

But that's not the case.

Justice Souter: Well, I thought the... I thought the reason they conceded the Blakely violation was that in the instructions to the jury, the instruction only went to deadly weapon and the instruction did not specifically refer to firearm.

I thought that's why they... they stipulated that there was a Blakely error.

As a matter of the fact about the instruction, is... is my description correct?

Mr. Link: I'm not sure I can answer right... I believe the instruction mentioned handgun.

The instruction--

Justice Souter: All right.

And it didn't... it didn't use the... let's put it this way.

it didn't use the word firearm.

Right?

Mr. Link: --No, it did not.

Justice Souter: That's... that's why they conceded a Blakely error.

Mr. Link: But again, if... if under Washington law, a handgun were automatically a firearm, the instruction wasn't erroneous at all.

Chief Justice Roberts: Well, but the special verdict form still was.

Mr. Link: But the instructions for use of the special verdict form would not have been.

And... and it's because of that... that quirk in Washington law... and the State offered us some suggestion of why that quirk exists.

The deadly weapon provisions have been a part of the Washington sentencing scheme since its enactment in the mid-'80's.

It was only about 10 years later that the additional enhancements for firearm were added, and... and they were enacted by... by a citizens initiative.

And there's very little reference between the two of them.

But they still exist together because there's nothing that suggests, again, that the State couldn't allege the lesser offense even where a handgun is... is involved because it is the difference between a handgun with nothing more and a handgun that has the capacity to fire.

And it's that additional component of capacity to fire that truly creates the greater and lesser offense in this case.

Justice Stevens: May I just clarify one other thing?

Capacity to fire doesn't mean it had to be loaded, though.

Mr. Link: Capacity to fire does not mean per se operability.

It... it means that this instrument has the capacity to fire whether or not--

Justice Stevens: An unloaded gun could be a firearm.

Mr. Link: --An... an unloaded gun could be a firearm so long as it has the capacity to fire.

Justice Kennedy: In the charging document, where it says that he was armed with a deadly weapon, to wit, a handgun, and then it cites the Washington statutes, those citations include the 3-year enhancement provision?

Mr. Link: The... the citation to what is now--

Justice Kennedy: It cites RCW 9.994A.125 and 9.94A.310.

Is one of... is one of those the 3-year enhancement?

Mr. Link: --.310 is... is the definition of deadly weapon.

The other one... excuse me....125--

Justice Kennedy: 9.94A.125.

Mr. Link: --That includes both the firearm... the additional time for firearm enhancement, as well as the time for the deadly weapon enhancement.

Justice Kennedy: So it includes the 3 years.

Mr. Link: It... it cites both, depending on what subsection it's citing.

So it doesn't necessarily identify one as opposed to the other.

Justice Kennedy: But it does include it.

Mr. Link: It is in that... that statute, yes.

Chief Justice Roberts: And do you know if the information went to the jury in this case?

Mr. Link: As is consistent with Washington law, it's read to the jury at... at the outset, but it... it would be inconsistent, I think, with practice in Washington to have actually submitted the... the information to the jury.

In a situation like this, where the wrong entity has determined a person's guilt, despite the jury's complete verdict on a lesser offense, the application of harmless error simply eviscerates what Blakely sought to draw as the limits... or excuse me... as the... as the outer boundaries of the jury's right.

And in fact, it... it's the equivalent of a second Sixth Amendment violation because in each instance, the jury's complete verdict on the lesser offense is being set aside.

In the first instance, it's based on the trial court's review of... of the strength of the evidence, and in the second instance, it's based on the... the appellate court's review of the strength of the record to support not the jury's verdict, but instead the trial court's assessment of the proper charge.

Chief Justice Roberts: Well, the other way of looking at it is it's based on trying to understand what the jury meant when it said deadly weapon when the only evidence of a deadly weapon they were presented was a firearm.

Mr. Link: It assumes, I think, that... that the... it assumes the correctness of the judge's... of the trial court's assessment of the facts rather than simply accept the... the jury's verdict for what it was because, again, as a matter of Washington law, Mr. Recuenco could be found guilty of assault two with a deadly weapon even if he used what appeared to be a handgun, absent some proof of capacity.

And again, as a matter of... of Sixth Amendment jurisprudence, even had the State put together evidence establishing the capacity of the instrument to fire, the jury would have been free to return a verdict on the lesser offense of deadly weapon, even if it were to contradict Washington law on that point.

The jury would--

Chief Justice Roberts: And in Neder, even if the jury had been asked to rule on materiality, it could have decided not to rule according to the evidence.

The same argument applies in Neder.

Mr. Link: --But... but, again, in Neder, the jury returned a verdict of guilty on the offense that was litigated to it and based on the parties' understanding of what offense was at issue.

In this case, that doesn't happen.

And, again, it's illustrated by the prosecutor's response to Mr. Recuenco's motion to vacate, and it's illustrated by the court's judgment and sentence, which is at page 14 of the joint appendix, where it specifically finds that the only verdict... and... and again, doesn't question the verdict... that the only verdict returned was deadly weapon other than a firearm.

It doesn't assume that the jury found that it was the firearm verdict.

It doesn't make that assumption.

It recognizes that verdict for what it was.

Based on then existing Washington law, which Recuenco overturned, it concluded it had to impose the firearm enhancement.

So there's no suggestion by either of the parties or the trial court or the Washington Supreme Court, for that matter, that there was anything wrong with the jury returning a verdict of deadly weapon because, as a matter of Washington law and as recognized by each of those... those entities, the jury... the jury could do that, and they did.

Refusing to apply harmless error in this case doesn't require a single retrial of a single individual.

Unlike the normal case, unlike Neder itself, in... in those cases, had harmless error not applied, the defendants would have been entitled to a new trial.

That's not true after Blakely.

At best, what would happen is... is defendants would be remanded back to... to the various trial courts for the reentry of the sentence that's supported by the... the jury's verdict.

There will be no need to conduct new trials.

There will be no need to do anything, other than that simple ministerial act.

There simply is no prudential reason.

There won't be the flood of... of retrials or... or the prison doors thrown open for... for people to walk free with no convictions.

Justice Kennedy: Well, I... I take it Washington wouldn't have the option... suppose that you prevail.

Washington doesn't have the option to give him a whole new trial, do they, because there's been double jeopardy, I take it.

Mr. Link: As it exists now and based on the Washington Supreme Court's decision in Hughes and Recuenco, those individuals sentenced before the Washington legislature amended the act would simply be entitled to have their cases remanded back for entry of a conviction based on the jury's verdict.

Justice Kennedy: What I'm saying, you don't concede, do you, that Washington would have the option to retry him to try to obtain the 3-year enhancement.

Mr. Link: I... I certainly don't.

Justice Kennedy: I wouldn't think so.

Mr. Link: And both as a matter of double jeopardy and as a matter of Washington law, I don't think that... that would... could occur.

The Washington Supreme Court correctly held that harmless error analysis could not apply where the trial court has set aside the jury's complete verdict on a lesser offense in favor of a judgment on the greater, both as a matter of State and Federal law.

And Mr. Recuenco would ask this Court to affirm that decision.

Rebuttal of James M. Whisman

Chief Justice Roberts: Thank you, counsel.

Mr. Whisman, you have 4 minutes remaining.

Justice Scalia: Mr. Whisman, can I... can I ask you a hypothetical which I think puts in starker form what the... what your colleague here says this case involves?

Suppose that... that you have a statute, a murder statute, which applies the murder of a single individual, but... but you have another statute with a death penalty called aggravated murder.

And it's a different crime and it... it requires the... the killing of more than one person in... in the same... in the same event.

Let's assume a trial in which somebody came into a bank with a machine gun.

Only one person came in, and five people were killed.

But the prosecution only brought a prosecution for simple murder.

Okay?

And the jury comes back with a verdict for... for simple murder.

Certainly a judge would not be able to say, well, no jury could possibly have found simple murder here without also thinking that this person was guilty of... of this greater offense of... of aggravated murder and, therefore, I'm going to enter a judgment of aggravated murder.

That's what the... the defense says happened here, that there was just a verdict of... of the lesser offense.

That's all the jury found.

It could have found more and maybe... maybe in finding that, it... it must have thought that the greater offense also existed, but it never came in with a verdict for the greater offense.

Now, tell me why what happened here is different from... from the hypothetical.

Mr. Whisman: I think the key difference is the charging part of your hypothetical.

Your hypothetical assumes this defendant was never put on notice that he was facing aggravated murder, and if that were true, then under your cases and under... under our Washington law, we would analyze that as a failure of notice.

The... and it could have any number of implications for a defendant, including the evidence that they marshal at trial, but also including perhaps his interest in negotiating a plea agreement if a defendant doesn't know that he's facing aggravated murder at the end.

So--

Justice Kennedy: Well, suppose under Justice Scalia's hypothetical, aggravated murder is... is in the charging documents, but the judge doesn't say aggravated murder when he submits it to the jury.

Mr. Whisman: --Then I think that is susceptible to harmless error analysis, Your Honor.

And it would be... there would be an open question as to whether or not, of course, it is harmless, but then I think that we're back to the Neder situation.

Justice Stevens: But then we'd have Justice Scalia's case if this information left out the words, to wit, a handgun.

Mr. Whisman: You would be closer to Justice Scalia's case, Justice Stevens, yes.

Although under Washington law, we analyze the charging document and the sufficiency of it and ask whether or not it was... the words used sufficiently apprised the defendant.

But I think the defendant would have a stronger argument for the fact that he didn't know what he was facing if you had that hypothetical.

Chief Justice Roberts: And those are the sort of considerations that can be taken into account under harmless error analysis.

Right?

The absence of notice, the prejudice.

I would have put on this evidence if I had known I was accused of using a handgun.

Mr. Whisman: They can be a component of the harmless error analysis.

Ordinarily in Washington, we would handle that as a charging document challenge.

In other words, the defendant would say I was never charged with this crime and therefore I didn't marshal my evidence, et cetera.

It's a due process violation.

Either way, I don't think that the... the conviction stands much chance of surviving.

I did want to answer, first, a question that had been raised by pointing the Court to JA 18 where the defendant says, my proposed instruction makes clear that the deadly weapon in question is the firearm, that... not that some other kind of weapon might have been deadly.

So I think that focuses the issue appropriately.

I also wanted to point out that Justice Alito's hypothetical is really the State v. Williams case that we cited at page 14 in our reply brief where the defendant was expressly charged firearm and the victim was shot during the course of the crime.

And the issue didn't go... the... the same verdict form as we have here... in other words, it said only deadly weapon... was given to the jury, and the Washington court of appeals, feeling itself bound by Recuenco, reversed that finding. So I think that the opinion of the Washington Supreme Court is unduly broad and should be overturned.

Chief Justice Roberts: Thank you, counsel.

Mr. Whisman: Thank you, Your Honor.

Chief Justice Roberts: The case is submitted.

Attribution:

The Oyez Project

Featured:

Whitfield v. U.S. - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

Whitfield v. U.S.

Media File:

03-1293_20041130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Sharon C. Samek

Justice Stevens: We'll now hear argument in Whitfield against the United States and Hall against the United States.

Ms. Samek.

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

Congress enacted 18 U.S.C. 1956(h) for the sole purpose of increasing the penalties for money laundering conspiracies.

Congress did not intend to abandon the overt act requirement from money laundering conspiracies and for good reason.

The list of specified unlawful activities under 1956 is vast.

Anytime two or more people conspire or reach an agreement to commit a crime that generates economic proceeds, invariably the discussion will lead to what they're going to do with the money get... that gets generated, how they're going to spend the money, which is a potential 1957 offense, or how they're going to hide the money, a potential 1956 offense.

The Government would charge these agreements as money laundering conspiracies without there even being a single overt act to demonstrate that criminal intent had crystallized, that a money laundering conspiracy was really afoot, and that steps were being taken to launder money, oftentimes triggering substantially higher penalties for the underlying offense, and subverting... subverting the overt act requirement for conspiracy to commit the underlying offense.

Justice Stevens: Would you just clarify one thing for me?

Do they have to prove an overt act in order to establish venue?

Mr. Samek: Excuse me?

Justice Stevens: Does the Government have to prove an overt act in order to establish venue?

Mr. Samek: Our position is that the venue provision in 1956(h) for money laundering conspiracies requires that they establish an overt act and that venue would lie--

Justice Stevens: Well, your... you say the... the statute requires.

I'm just asking if it independently of the conspiracy statute... of the... the substantive statute itself, how do they establish venue.

Do they have to prove an overt act just for the purpose of getting a venue established--

Mr. Samek: --Yes.

Justice Stevens: --as they do--

Justice Scalia: Is that the only basis for venue?

I mean, I thought the statute provides that's just one of the bases for venue.

Mr. Samek: Our position is that the venue provision in 1956, 1956(i), is the exclusive venue provision for money laundering.

Justice Scalia: But... but read it.

What does it say?

Justice O'Connor: Are we talking about section 1956(i)?

Mr. Samek: Section 1956(i) is the venue provision.

Justice O'Connor: And doesn't it allow it to be brought where venue would lie if the completed money laundering offense that's the object of the conspiracy has been accomplished or anywhere an overt act was committed?

Isn't it an either/or?

Mr. Samek: Yes.

Our position is that when you read the venue--

Justice O'Connor: So you don't have to read it as requiring venue.

It's just requiring an overt act.

If there is an overt act, then venue will lie, but it also will lie where the completed offense would have occurred.

Mr. Samek: --Certainly, but where the completed offense occurs, there certainly would be overt acts.

You know, it's inherent in completing the money laundering transaction that there would be overt acts as part of the financial transaction.

Justice Stevens: --But why would they state it in the alternative if... why would they state it in the alternative if the overt act were always required?

That's the--

Mr. Samek: I agree that it's... it's somewhat confusing, Your Honor, but we would submit that the Government's interpretation of subclause (2) is that if two people conspired in... if two people in Florida conspired to commit a money laundering offense in California, absent any overt act whatsoever, conspiracy would lay in California.

Justice Ginsburg: But that doesn't respond to the venue question.

Venue, as written in this statute and in most statutes, is permissive.

It gives you a choice of forum.

It doesn't limit.

In... in the times when venue is exclusive, Congress is explicit in telling you that, but ordinarily a venue provision, as this one, either/or, is permissive.

It would be extraordinary to make a venue provision exclusive.

Mr. Samek: Well, this Court has made venue provisions exclusive in the patent infringement context and in the Banking Act precisely using the--

Justice Ginsburg: Well, this Court has no authority to make a venue provision either exclusive or permissive.

Congress decides that.

Mr. Samek: --And our position is that Congress made this venue provision the exclusive venue provision--

Justice Scalia: I... I mean, one can understand that if the venue provision just read, a prosecution may be brought in any... in... let's see... may be brought in the district where venue would lie for the completed... if it just read, venue will lie in any district where an act in furtherance of the attempt or conspiracy took place, then we could argue about whether that is the exclusive venue or not.

But I don't see how there is even an argument that it's the exclusive venue when you're dealing with a provision which says that a prosecution may be brought in the district where the... where venue would lie for the completed offense or in any other district where an act in furtherance took place.

How can you possibly read that to say that the exclusive venue is a place where an act in furtherance took place?

Mr. Samek: --Our position is that those are the two alternatives for where venue would lie for a conspiracy case.

Justice Scalia: Oh, okay, but... but then... then you acknowledge that the place where an overt act took place is not the exclusive venue.

Mr. Samek: Our argument is that the first clause of that provision contemplates the existence of an overt act.

Justice Ginsburg: What about the rule provision for venue, which has not been excluded by the statute?

The ordinary provision for venue.

Mr. Samek: The ordinary provision for venue would be that venue lies in the district where the crime occurs.

Justice Ginsburg: Yes.

Mr. Samek: That would be... in the money laundering context, under our interpretation of 1956(h), that would be where the overt act occurs.

So it would be consistent with it.

Our--

Justice Ginsburg: I thought the crime is the conspiracy.

The overt act may be an additional requirement.

Mr. Samek: --The overt act is part of... it's our position that the overt act is required, and there needs to be an agreement--

Justice Ginsburg: But you will... you will concede that there are many Federal crimes, conspiracy crimes, in which an overt act is not required.

The Shabani case requires you to recognize that.

Mr. Samek: --Correct.

And in those cases where all that's required is an agreement, then venue would lie where the agreement occurs, but in this case, because the... the offense requires an agreement plus an overt act, it's our position that that's where venue would lie.

As a practical matter, if there is... if... if this Court construes 1956(h) as requiring overt act, as a practical matter, anytime two people agree to commit a money laundering conspiracy in one district and commit overt acts in another district in furtherance of that, it would be highly unlikely that there would not be some overt act in the district where they agreed to commit the offense.

Justice Ginsburg: So you're saying that it doesn't mean very much because an overt act wouldn't be hard to prove.

Mr. Samek: As a--

Justice Ginsburg: But there are... I mean, the difference between statutes that say overt act is required and those that just say conspiracy... there are many, many such statutes, and we dealt with one in Shabani.

But of all the statutes that include no express overt act requirement, have any of them be read to implicitly include one, which is the argument you're making that we should adopt here?

Mr. Samek: --That's correct.

And no.

There... we have not found any cases where the Court has heretofore read an overt act requirement into a conspiracy provision.

But this statute is unique.

The money laundering statute is unique.

If you look at the statute and we lay it out... the statute in total... in our reply brief, starting at 1a... the structure of 1956 strongly supports our position that all Congress was doing, when they enacted 1956(h), was increasing the penalty for money laundering conspiracies.

As this Court is well aware, when Congress typically writes a complex statute, the statute begins by setting forth all of the offense elements.

Here, that would be set forth in (a)(1), (a)(2), and (a)(3).

The statute then goes on in subsection (b) to set forth the civil penalty provisions.

Subsection (c) then defines the various terms used in the act.

Subsection (d) then talks about relationships with other laws.

Subsection (e) identifies those Federal agencies that can investigate money laundering offenses.

Subsection (f) talks about circumstances under which there would be extraterritorial jurisdiction.

Subsection (g) then talks about recording... reporting requirements, and then you get to subsection (h), which we say, when you read the statute as a whole, clearly intends simply that the penalty for money laundering conspiracies would be increased to the same penalties as those prescribed for the offense provision.

Justice Scalia: Except that there are other statutes that... that read this way, which we have held to... to create the conspiracy offense, as well as impose the penalty for it.

Mr. Samek: Your Honor--

Justice Scalia: I mean, it... it could do that.

Any person who conspires to commit any offense defined in this section shall be subject to the same penalties as those prescribed for the offense.

And that could be deemed to create the conspiracy offense and prescribe the penalty for it.

Mr. Samek: --It could be construed as a freestanding offense provision--

Justice Scalia: And there are other such provisions, aren't there?

Mr. Samek: --There are not any of the offense... conspiracy provisions that this Court has interpreted that had the same structural ambiguity as 1956(h).

Justice O'Connor: Well, Shabani comes pretty close, doesn't it?

Mr. Samek: Shabani is a separate, distinct statute.

846 was a separate, distinct, discrete offense statute.

Justice O'Connor: --like this it seems to me contains no express requirement of an overt act, and we've said, indeed, none is required and that at common law it wasn't required.

Mr. Samek: That's true.

Justice O'Connor: So why would we read it in here?

Mr. Samek: Because text... as this Court has said on multiple occasions, in order to understand what the words mean in a statute, you have to look at context.

So you have to look at where the provision is placed and what Congress meant by that provision and look at the statute as a whole.

If anyone... if we look--

Justice Stevens: --Of course, if you look at this statute as a whole, you don't find the overt act requirement in it anywhere, do you?

Mr. Samek: --You don't find the overt act explicitly in the statute.

Justice Stevens: And the fact that you described it as a long, detailed statute it seems to me cuts against you.

Mr. Samek: No, because our position is that placing it in subsection (h) evidences that Congress' intent and sole focus when they enacted this was the purpose of increasing the penalty for money laundering.

The--

Justice Scalia: Let's get--

Justice Stevens: And they were making it unnecessary to rely on the general conspiracy statute in 18-371 or whatever it was.

Mr. Samek: --It's our position that they're incorporating the overt act requirement, the act in furtherance requirement, from 371 as evidenced by the legislative history.

Justice Scalia: --If that's so... if that's so, then why does the venue provision which you were just alluding to earlier read, except as provided in paragraph (2), a prosecution for an offense under this section.

An offense under this section or section 1957 may be brought in... and then it says... (2) a prosecution for an attempt or a conspiracy offense under this section.

Not under section 371, but a prosecution for an attempt or a conspiracy offense under this section.

Mr. Samek: And it would be an offense under this section because certainly the jury would need to find that the object of the conspiracy was money laundering.

So it would be an offense in that respect.

Justice Scalia: I... I think that language really cuts very hard against you.

A conspiracy offense under this section.

It... it is reading as though that's the section that defines the offense, not just the section that provides the penalty.

Mr. Samek: I can see how you would read it that way, Your Honor, but the offense--

Justice Scalia: Only because I'm a reasonable man.

[Laughter]

Mr. Samek: --The offense provisions set forth in 1956 are clearly set out and enumerated in subsection (a)(1), (a)(2), and (a)(3).

In 1988... when the statute was originally enacted, (a)(1) and (a)(2) set forth the offense provisions.

When the statute was amended in 1988 and Congress intended to create another offense provision, they set forth (a)(1)... the third sting provision which is (a)(1)(iii).

If Congress intended to create an offense provision when they enacted 1956(h), they would have set it forth as (a)(1)(iv), or alternatively, they would have added or conspires to each of the predecessor offenses.

Notably, the offense provision at issue here does not include attempts, which 846 did, and which the overwhelming majority of conspiracy subsections include... attempts are included with offenses.

The fact that Congress did not include attempts in this provision again reflects the fact that they were solely focused on 371, a conspiracy offense, and all they were trying to do was increase the penalty.

The placement of the--

Justice Ginsburg: Then you would expect at least a cross reference to 371 for defining the conspiracy, but there's nothing here.

Mr. Samek: --That's true, and it clearly would... it certainly would be clearer had they done so.

But if you take the language originally, this provision was proposed by Representative Annunzio to be an amendment to 371, and we lay out in our... in the blue brief at page 12 what that amendment would have looked like, virtually identical language to 1956(h).

Certainly if you read it in subsection 371... if you take the identical language and put it in section 371, there wouldn't be much of an argument, we would submit, that Congress surely intended to include the overt act, act in furtherance language and they were just talking about increasing the penalty for money laundering.

That makes our point that you look at the language, and depending on where it's placed in a statute, it can have different meanings.

Justice Ginsburg: You have given a few examples of a word may mean different things in different contexts, but you haven't given any example... and I don't know if there is one... where the entire string of words is identical in two statutes, both dealing with conspiracies, and you read an overt act requirement into one and not the other.

I mean, you have a much harder argument to make when you're talking about an entire provision where the wording is almost identical than when you're talking about one word used in different contexts.

Mr. Samek: That's true, Your Honor, but as this Court said in Shabani, absent contrary indications, the Court will presume that Congress intends to incorporate the common law concept of the terms that it uses.

In Shabani, the defendant did not argue any contrary indications.

They argued that at common law conspiracy required the commission of an overt act.

That is not our position.

But our position is that here there are contrary indications, and because the statute is ambiguous based on the placement and structure of 1956(h), you have to look to see if there are other indications.

And clearly in the legislative history--

Justice Stevens: Yes, but there's nothing in the text of the statute that's ambiguous, is there?

Mr. Samek: --No, but that is not dispositive because the placement the Congress has said... I mean, this Court has said on multiple occasions that you need to read a statute as a whole, and when you look at the--

Justice Stevens: But if you read it as a whole, you can't find any ambiguity.

Mr. Samek: --I think you can find ambiguity, Your Honor.

Justice Stevens: In the text of the statute?

Mr. Samek: In the--

Justice Stevens: Reading the whole text.

Mr. Samek: --Reading the whole text of the statute, it looks to me it reads that the offenses are set off... set forth at the beginning, followed by the civil penalties, then procedural aspects, including this penalty provision for increasing conspiracies.

Justice Stevens: None of which mentions an overt act.

Mr. Samek: No, it doesn't mention an overt act, but--

Justice Stevens: So I don't find anything ambiguous in what you describe.

Mr. Samek: --Well, we believe that 1956(h) clearly reflects Congress' intent to solely increase the penalty.

Justice Stevens: Perhaps that's all they thought of, but maybe they did a little more than they thought they were doing.

Mr. Samek: Well, if Congress inadvertently omitted the overt act requirement, this Court has on prior occasions read into congressional silence terms, definitions that Congress may have inadvertently left out.

So in United States v. Taylor, for example, the question was whether or not Congress intended to revert back to the common law definition of burglary in the Career Criminals Amendment Act, and in 1984, the Career Criminals Amendment Act had language that talked about a generic burglary, breaking and entering into a dwelling.

In 1986, when they amended the act, they removed that language.

The question before the Court then came up what does... you know, what does burglary mean.

Congress had omitted those words, but the Court found that that wasn't Congress' intent.

They clearly didn't intend to revert back to the common law, and it was probably an error of drafting and this Court found that generic burglary was the standard.

So this Court has done that before.

In the... in the Perrin case, United States v. Perrin, the same thing.

There... words were missing from the statute and the Court did not find that in Perrin... it was a bribery case, and what was at issue was whether or not the... the statute covered bribery of private persons or only the common law definition where it would only incorporate bribery of public... public persons, public officials.

And the Court said even though there are other statutes that have private person language in it, similar to this case, even though there are other statutes that have overt act requirements in it, we are not going to assume that Congress intended to revert back to the common law and interpret bribery as only applying to public officials.

So this Court can look at the legislative history.

The purpose is clear.

The Government admits that the purpose of the act was to increase the penalty.

Prior to 1956(h), money laundering conspiracies were prosecuted pursuant to 371, which required the commission of an overt act.

Congress clearly intended to increase the penalty from 5 years to a potential 10 or 20 years, based on what the object of the conspiracy was.

The legislative history all reflects that fact, and the Government admits that.

The... as contrasted with 846, which... in which the public law described 846 in a section labeled offenses and provision in the money laundering context, the public law described 1956(h) as a penalty to increase the... as a money laundering conspiracy for increasing the penalty.

Justice Scalia: Can I... can I ask what you make of subsection (d) of... of this provision which says that violations of this section may be investigated by such components of the Department of Justice as the Attorney General may direct and by such components of the Department of the Treasury as the Secretary of the Treasury may direct, as appropriate, and with respect to offenses over which the Postal Service has jurisdiction, by the Postal Service?

Apparently there was some turf war going on as to who had jurisdiction over these offenses and... and this was meant to... to solve the turf war, but it reads violations of this section.

Now, does that allocation of authority among Justice and Treasury and the Postal Service not apply to the conspiracy offenses under section 371?

Because that's not a violation of this section.

Mr. Samek: I'm not sure I understand your point.

I would think that if it's a conspiracy to commit... if the specified unlawful activity is one of the postal offenses or one of the customs offenses, both of which carry--

Justice Scalia: The offense is never completed.

there's nothing... nothing occurs except a conspiracy, and you're telling us a conspiracy is not a violation of this section.

This section sets forth the penalty... that's your argument... but it does not establish the offense.

The offense is established by 371.

If that's the case, this allocation of responsibility among the various divisions of the Government doesn't apply to conspiracy prosecutions, which would make no sense at all.

Mr. Samek: --It's our position that when Congress enacted this, they were trying to enact a penalty-enhancing statute.

1956(h) then incorporates or impliedly recognizes the overt act requirement from 371.

Congress was not intending to change the way money laundering conspiracies were prosecuted.

They would have done so under 371, requiring the act in furtherance, and a jury or a judge would find that money laundering was the object of the conspiracy.

That's how Congress envisioned this act as... as being applied, and so I would assume Congress would envision that if it was a conspiracy to violate one of the postal offenses, that the postal authority would have had authority to investigate that offense.

Interesting--

Justice Souter: What do you... excuse me.

What... what do you make of... of this argument?

Let's start with the premise that Congress wasn't thinking about overt acts at all.

Start with the premise that you argue from that what Congress was concerned with here was primarily penalty.

However, Congress did this in a context in which there are two recognized kinds of statutes, two recognized kinds of... of conspiracy formulations.

And if one has the magic words in it referring to an overt act, you got to prove an overt act.

In the other variety, there's no reference to overt acts, and as a general rule, you don't have to prove overt acts.

Why isn't it a sensible interpretive rule to say, look, when there are recognized models and Congress, in fact, chooses one rather than another, we're not going to get into the question of did Congress really mean to make a change when it picked one model rather than the other?

It simply picked one model, and the... the clearest way to have a coherent system of conspiracy law is to apply the model.

If it didn't talk about overt act, there's no overt act requirement.

Why isn't that a sensible way to... to work our way through these thickets?

Mr. Samek: --I... I think that would be a sensible way to work your way through thickets of statutes that were enacted after Shabani when this Court created that formulary.

Justice Souter: But Shabani rested on... on the existence of these prior models.

Shabani didn't create them.

Mr. Samek: That's correct, but there is nothing in the legislative history to suggest that Nash and Singer, the cases that Shabani relied on, were ever discussed or contemplated by Congress.

If Congress was going to make such a fundamental change in how they were going to prosecute money laundering conspiracies, they would have said so.

We're not talking about a backdrop of not requiring an overt act and should Congress read an overt act into Congress' silence.

Justice Ginsburg: There are about... there are over 50, I think, in title 18 alone conspiracy provisions with no overt act requirement, no explicit overt act requirement.

The... the argument you're making, I suppose, would require this Court to go by... one by one through those 50-odd statutes, and there would be contests of every one because the absence of those words is not dispositive, as you see it.

So you would be generating a controversy about 50-odd statutes that would be gone, that just wouldn't be there if you agreed with Justice Souter's approach.

Mr. Samek: Well, we don't... we don't believe that's the case because if you look at all of those subsections in title 18, none of them have the structural ambiguity that 1956(h) has, combined with a venue provision--

Justice Ginsburg: Have you looked at all 59, I think--

Mr. Samek: --The--

Justice Ginsburg: --and assured yourself on that?

Mr. Samek: --I've... I've looked through the entire statute, and I have not found... title 18.

I have not found any that have both an anomaly, a structural anomaly, and a venue provision that turns on the existence of an overt act.

Justice Ginsburg: Well, we've already dealt with venue where I think your argument is exceedingly weak since the statute phrases it as a permissive not a requirement.

Mr. Samek: Well, first of all, we would submit, just briefly on... on the venue point, if Congress wanted this to be a permissive venue provision, they could have said venue would lie where and in the circumstances or as otherwise required by statute, in which case they could have shown that they were applying to other statutory bases for venue, as well as what Congress was establishing here.

They didn't do that.

The venue provision was enacted in response to this Court's decision in Cabrales, which dealt with the money laundering... the substantive offense of money laundering, and this Court's suggestion that money laundering could be considered a continuing violation for purposes of 18 U.S.C. 3237, the continuing offense venue provision.

If all Congress was doing was codifying that principle and trying to address the issue in Cabrales, they would have just dealt with substantive money laundering in the venue provision.

They would not have also included a provision in the venue section dealing with conspiracy.

The fact that they did and the fact that they used language that this Court has previously found to--

Justice Ginsburg: It gave... it gave the prosecutor more choices of where to bring suit.

Mr. Samek: --We say those are the only choices on where to bring suit.

But--

Justice Stevens: Do you want to reserve any time?

Mr. Samek: --Oh, yes.

I'm sorry.

Justice Stevens: Mr. Marcus.

Argument of Jonathan L. Marcus

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

The money laundering conspiracy statute does not require proof of an overt act for three reasons.

First, the text of the statute contains no such requirement.

Second, the statute is modeled on the drug conspiracy statute which this Court unanimously held in the Shabani case does not require proof of an overt act.

Third, the statute was enacted against the background rule of statutory construction that... that a conspiracy provision, whose text conditions liability on the act of conspiring only, will be construed to follow the common law, where proof of an overt act was not required for conviction.

This Court should adhere to its bright line rule in this case because it provides clear guidance to Congress and to the lower courts.

Petitioners seek to avoid application of the bright line rule on a variety of grounds, none of which has... none of which has merit.

I will address a few of those grounds here.

First, the money laundering conspiracy statute, section 1956(h), is not a penalty provision for the general conspiracy statute, section 371.

Section 1956(h) does not contain any reference to section 371, and petitioners are unable to cite any provision in the United States Code that provides a penalty for an offense defined elsewhere, without also referencing where that offense is defined.

Under petitioners' theory, if section 371 were appealed tomorrow, section 1956(h) would also no longer be valid.

But there is--

Justice Souter: If... if 371 were repealed, would it affect the actual practice in the Justice Department?

I... I think I recall reading in the briefs for the other side that... that the... the United States has continued to charge conspiracies in money laundering cases under 371.

Is that correct?

Mr. Marcus: --Well, my understanding is on... on occasion that is done in a multi-object conspiracy case.

Where there are several objects to the conspiracy sometimes for purpose of simplification, the Government will just... will charge a 371--

Justice Souter: But not in exclusively laundering cases.

Mr. Marcus: --Generally, no.

There might be... there might be an occasional example where it may have been an oversight where a prosecutor may have overlooked section 1956(h), maybe soon after 1956(h) was enacted, but generally speaking no.

The money laundering conspiracy prosecutions are done under 1956(h).

Justice Scalia: When... when you say when there are multiple objects, you're not getting the money... money laundering just under 371.

You'd surely charge both under 371 and under... under... what is it?

1956.

Mr. Marcus: That's correct, Justice Scalia.

You could.

You could prosecute... you could prosecute them as... as separate offenses, but sometimes the Government for... just for purpose of simplification will just charge one... one agreement with multiple objects, and one of those objects might be a money laundering object.

Justice Kennedy: If it were just money laundering, could you charge under 371?

Mr. Marcus: Yes, you could charge under 371.

There's nothing that prevents the Government from doing so.

This Court has... has held before, for example, in the Batchelder case that there can be multiple provisions that essentially cover the same conduct, and the Government has discretion to choose which one to use.

Generally speaking, the money laundering conspiracy statute contains higher penalties.

So the practice today is... is to prosecute those offenses under section 1956(h).

Another... another reading there... another reason they're reading that it's a penalty provision should be rejected is that Congress modeled section 1956(h) on the drug conspiracy statute that's virtually identically worded to section 1956(h), and no one disputes that the drug conspiracy statute establishes a freestanding criminal offense.

Justice Scalia: This is 846.

Mr. Marcus: 846, yes, in title 21.

Petitioners also argue that because prior to enactment of section 1956(h), the Government had to prosecute money laundering conspiracies for 6 years under section 371, that this Court should presume that Congress intended to perpetuate the overt act requirement of section 371 into the money laundering conspiracy offense.

But this Court looks, first, to the text of the statute to discern Congress' intent, and had Congress wanted to perpetuate section 371's overt act requirement, it could have easily modeled the text of section 1956(h) on the language from 371 or on the language from any of the other numerous conspiracy provisions in the code that contained express overt act requirements.

Congress chose a different model, the drug conspiracy statute, which as I said before, this Court held in Shabani does not contain an overt act requirement.

By choosing that model, Congress manifested its intent not to require proof of an overt act because at the time it... because at the time it acted, the background rule of statutory construction provided that a conspiracy statute that conditions liability solely on the act of conspiring would be construed to follow the common law.

Petitioners point to silence in the legislative history, but the silence in the legislative history on the overt act requirement is not the kind of compelling evidence of... of contrary intent that would justify departing from the text of the statute and this Court's bright line rule.

Finally, petitioners rely on a venue provision for money laundering cases, section 1956(i), which was enacted 9 years after the money laundering conspiracy statute at issue here.

That venue provision reflects Congress' intent to identify a variety of districts in which money laundering cases can be brought.

It does not reflect an intent to redefine the... the elements of the substantive money laundering conspiracy offense.

Justice Souter: What do you make of the... the argument that I think occurs in the yellow brief, that... the reference to any other district where an act in furtherance, et cetera, took place implies that in the clause preceding, they were referring to a district in which an act in furtherance took place?

Mr. Marcus: Justice Souter, I think what... what that terminology was... was referring to was district.

The other is meant to modify district.

In other words, the first... the first clause there provides a venue where the case can be brought.

And if it's not brought in that... if it doesn't fall within that venue, then you can bring it in... in a different district, an other district.

I think that's the... the best way to read the... the statute.

I mean, otherwise, it could have... as it was pointed out during petitioners' argument, otherwise they could have just had one.

They wouldn't need separate clauses.

They could have just had one clause that said, and the case... the conspiracy case can be brought in any district where an overt act was committed.

Petitioners seize on the fact that the venue provision permits venue to be laid in any district in which an overt act was committed.

But the rule in conspiracy cases has always been that an overt... that venue can be laid where an overt act was committed regardless of whether an overt act was an element of the offense.

At common law, as I said before, conspiracies... a conspiracy conviction did not rely... depend on proof of an overt act, and yet venue could always be laid at common law where an overt act was committed.

The common law venue rule has been applied consistently to modern Federal conspiracy statutes, such as the drug conspiracy statute, which likewise does not require proof of an overt act as an element of the offense.

Congress' codification in the money laundering statute of... of this... of this venue principle cannot be read to presuppose an overt act element when the very venue rule it was codifying did not presuppose one.

If this Court... if this Court has no further questions--

Justice Stevens: I had just one other question, just out of curiosity, about how important this case is.

How many prosecutions under this statute does the Government bring without proving an overt act?

Mr. Marcus: --I'm... I'm not aware of... I'm not aware of a number, Justice Stevens.

Justice Stevens: Are there any?

Mr. Marcus: I... I don't know.

I mean, it's--

Justice Stevens: It seems to me quite unlikely.

Mr. Marcus: --Well--

Justice Stevens: I'm just wondering.

It seems to me sort of a tempest in a teapot, this whole case to me.

Mr. Marcus: --Yes.

I think it's true in the vast majority of cases, the Government does have proof of an overt act.

And, of course, overt acts help establish the... establish the agreement and... and to convince the jury beyond a reasonable doubt there was an agreement.

If the Court has no further questions--

Justice Ginsburg: I... I do have one and it's not on the money laundering conspiracy issue, but in this particular case, would it be consistent with the position that the Solicitor General has been taking for us to hold the final disposition of this case pending Booker and Fanfan?

Wasn't there a sentencing question?

Mr. Marcus: --Well, it's our position that it wasn't... they didn't raise that issue in... in the court of appeals.

They didn't raise the Sixth Amendment issue in the court of appeals.

They didn't raise that issue in their cert petition here, and so it's... it's not covered by the... by the question presented.

So it is the position that we've... that we've set out in the brief that it should not be... it should not be held pending that... that disposition in Booker and Fanfan.

Justice Ginsburg: And that's consistent with the position that the Government has been taking routinely in cases where Booker... where the sentencing guidelines are an issue?

Mr. Marcus: Well, I think in the... I think that that position is based on petitions that have raised the question, I believe.

If... if the Court has no further questions, it should reaffirm the conspiracy statutes that do not contain an overt act requirement should not be read to include one.

Thank you.

Justice Stevens: Thank you, Mr. Marcus.

Ms. Samek, you have about 3 and a half minutes left.

Rebuttal of Sharon C. Samek

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

Justice Ginsburg, you had inquired about the number of subsection... conspiracy subsections, and I didn't get a chance to answer your question.

Even if you don't find the statute is unique because of the venue provision, as my review of the conspiracy subsections in title 18, there were only about two others out of the 50-some-odd cases that have the same structural anomaly that 1956(h) does.

So this would not be opening up a can of worms to say that in this case an overt act clearly was intended by Congress and that we need to look at congressional intent.

So it wouldn't be... require... a holding in this case consistent with congressional purpose would not require the Court to then have to review every single title 18 conspiracy subsection.

As the Government pointed out, money laundering cases are not typically prosecuted without the commission of an overt act because overt acts are relatively simple to prove.

There's no reason why Congress would have intentionally eliminated the overt act requirement from money laundering conspiracies when, on the one hand, it's easy to prove, but on the other hand, it placed such a critical value in money laundering conspiracies because it's not just that it shows that criminal intent has crystallized and that money laundering is actually afoot, but you're talking about taking offenses, like we say in our brief, where someone pledges a... a cow for collateral for a loan and then they talk with a friend about whether or not they should sell the cow, and they decide not to sell the cow.

Under the Government's theory, they couldn't be prosecuted for defrauding the Government because, in fact, they never sold the cow.

They couldn't be prosecuted for conspiracy to defraud the Government because they didn't commit an overt act in furtherance of defrauding the Government.

They couldn't be convicted or prosecuted for money laundering because they never sold the cow, so there were never any proceeds to generate.

But they could be convicted, under the Government's theory, of conspiracy to commit money laundering based on the sale of a cow and their sentence would increase from a potential 5 years to a potential 20 years.

There's absolutely no indication in the Congressional Record that Congress ever intended such dramatic triggering of substantially higher penalties without the commission of an overt act, which is not difficult to prove.

Justice Ginsburg: The Government has said that... that you have essentially waived their sentencing guidelines issue that you asked us in footnote 6 of your brief to consider.

Mr. Samek: In the district court, there were issues raised as to all defendants as far as various sentencing enhancements.

In front of the Eleventh Circuit, one of those enhancements was argued and it was rejected.

As to Mr. Hall, one of the sentencing enhancements were argued and was reversed on that sentencing enhancement.

But there is still a sentencing enhancement that was raised in the Eleventh Circuit, but it was not raised in this petition.

It was not the issue that this Court granted cert on, but we would argue that it's still a valid... a valid claim and that this Court should hold this decision in abeyance until its decision in Booker and Fanfan.

Justice Scalia: Was the argument below that... # that imposing the sentencing enhancement was unconstitutional, or was the argument just that the facts didn't support it?

Mr. Samek: The argument was that the facts didn't support it.

Finally, Your Honor, we would... Your Honors, we would just again say that Congress did not intend to cause a dramatic change in the way money laundering conspiracies were prosecuted.

This Court has said in other cases that when Congress intends dramatic changes, that you would expect to find something in the legislative history.

The Court has said that in the Lewis case having to do with interstate gambling and... I see my time is up.

Thank you.

Justice Stevens: Thank you very much.

The case is submitted.

Attribution:

The Oyez Project

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Pasquantino v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Pasquantino v. United States

Media File:

03-725_20041109-argument.mp3

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transcript.xml

Transcript:

Argument of Laura W. Brill

Justice Stevens: We'll hear argument in the case of Pasquantino against the United States.

Ms. Brill?

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

There are five primary reasons why this prosecution is outside the scope of anything Congress has authorized.

First, the government's interpretation of the wire fraud statute is inconsistent with the revenue rule.

Second, it turns the rule of lenity on its head by allowing the government to incarcerate petitioners for 57 months for conduct that has never given rise to civil liability in this country.

Third, this prosecution contravenes our national policy of demanding reciprocity in matters of international tax enforcement.

Fourth, the government acknowledged below that it cannot bring this prosecution without disregarding another act of Congress, the Mandatory Victims Restitution Act, which is, as the name specifies, mandatory.

And, fifth, under this Court's decisions in McNally and Cleveland, the wire fraud statute applies only to schemes aimed at defrauding a victim into relinquishing something that it holds as money or property.

A sovereign's interest in an unassessed tax claim is neither money nor property.

Justice O'Connor: Well, can you look at the interest of the government as one of not allowing U.S. territory to be used to carry out a smuggling scheme?

I mean, why does it have to be viewed as one of trying to enforce some other nation's tax laws?

Mr. Brill: Justice O'Connor, the government's interest in prosecuting somebody does not define the scope of what the statute at issue proscribes.

Justice O'Connor: It's a wire fraud statute dealing with the use of communications capacity in this country to carry out a scheme designed to enable smuggling of goods.

Mr. Brill: Well, if the... if the statute was not written as it is... the statute, as written, uses the words "defraud" and the word... the word "property", and both of those terms are terms that this Court has defined very narrowly.

In Nader, it defined a "fraud" as--

Justice Scalia: Ms. Brill, I thought your brief said that we have an anti-smuggling statute, which is directed precisely against smugglers, but it only applies to those countries that have similar protection for us.

Mr. Brill: --Yes, Justice--

Justice Scalia: And Canada does not.

Mr. Brill: --Yes, Justice Scalia, that's exactly--

Justice Scalia: Now--

Mr. Brill: --correct.

Justice Scalia: --the existence of that statute would seem to suggest... and a statute which is limited to countries that will do the same for us... would seem to suggest that we don't want to do this for Canada.

Mr. Brill: Yes, that's exactly... that's exactly right, Your Honor.

There--

Justice Ginsburg: But it's also limited to vessels.

It's smuggling by water, not smuggling by--

Mr. Brill: --By automobile.

Justice Ginsburg: --vehicles, as is done here, so that we don't have any statute that covers smuggling on land.

Mr. Brill: Right.

Yes, Your Honor, that's correct.

Justice Scalia: Is there something better about reciprocity for vessels and not reciprocity for land smuggling?

Mr. Brill: I think it just evinces what Congress was concerned about most at the time, Justice Scalia, but it was... it is certainly the case that in any... any time that this country has endeavored to deal with matters of international tax enforcement, it has always demanded reciprocity.

It has done so through the smuggling statute, it has done so through the numerous tax treaties that the Second Circuit's RJR decision discusses at length.

And one of the points the RJR decision makes is that, in 1951, at the very time that Congress was looking at the wire fraud statute and enacting it, the Senate was, at the same time, becoming concerned that this country had gone too far in extending reciprocity in connection with its tax treaties and was actually evincing a policy of cutting back on the degree to which we would assist other countries in tax enforcement.

And so the issue is to look at... that the revenue rule must be used as a background principle of common law against which... against which the revenue... excuse me, against which the wire fraud statute is--

Justice O'Connor: Well, if we don't do view this case as involving some attempt to indirectly enforce Canada's tax laws... suppose we don't view it with that lens... then does that put it outside the so-called revenue--

Mr. Brill: --Well, if it were not... if it did not serve the function... it doesn't matter what the government's intent is and what is in the mind of the prosecutor, but if it did not have any effect of enforcing a foreign government's revenue rule, then, yes, it would be outside; but there are numerous ways in which this prosecution does enforce a foreign government's revenue rule.

Certainly, it deters future violations.

The sentence was based on the... an estimate of the intended loss, and there was no assessment or an adjudication in Canada to determine what the amount was that was owed.

And so the District Court became, essentially, part of the tax enforcement apparatus of the Government of Canada by performing that assessment in the first instance.

And so anytime that we impose criminal or civil liability in a manner that affects the tax policies of another country, we are enforcing that rule.

If we... whether we're requiring compliance with the... with the tax rule of a foreign country or punishing noncompliance.

All of those--

Justice Kennedy: Is the rationale for the rule that enforcement of taxes is so unpopular that we want to minimize the exposure to... of our judges so that they... the only thing they have to do is enforce taxes that... paid to our own government?

I'm serious about that?

Is that the rationale?

Mr. Brill: --Well, I think there's a certain amount of self-protection in some of the decision... decisions, surely; but the real... the underlying purpose of the revenue rule is a recognition that foreign... that taxes, in general, are a matter of policy.

They're inherently policy-based; they're not based on contract or other kinds of commerce.

They do not... they do not assist in resolving disputes between private parties.

And often they're imposed... especially customs duties, are imposed to disadvantage other countries, and so the courts have said these are a peculiar type of law, they serve only the interest of the... of the foreign sovereign, and there's a particular... there's been a particular sensitivity about scrutinizing those foreign laws, potentially declaring them invalid under the foreign governments' own laws or pursuant to our own Constitution.

And so revenue rules have historically been a categorical exclusion to general principles of comity through which we might otherwise recognize foreign laws or foreign judgements.

And the rule has come to be so entrenched, and has been so well established, that there's a whole body of background law in the tax treatise of our country, and of many other countries, that is based on our non-recognition and our non-enforcement of foreign revenue laws.

So--

Justice Ginsburg: But if we did... if we did enforce even a tax judgement of another country, there would be no U.S. law that would be violated.

You're talking about a common law, no country enforces the taxes of another.

But, at least in the Restatement of Foreign Relations now, that's put in terms of... there's no requirement that any country enforce the tax claims or judgements of another; but neither is there any prohibition.

Mr. Brill: --Well, Justice Ginsburg, the current restatement is worded in... addresses judgement specifically.

It does not... it doesn't address un-adjudicated tax codes.

But there's always been a much greater suspicion, a much greater reluctance, to get into enforcing a claim brought by a foreign country, where that country's own processes have not been allowed to run their course and to have the initial determination.

There... the restate... the second Restatement of Foreign Relations law, which is... was... came out in 1965 and is closer to reflecting what the law was at the time Congress enacted the wire fraud statute, says, in Section 41, Comment L,

"Under the... under the foreign relations law of the United States, courts in the United States will generally refrain from taking action to give effect to the penal or revenue laws of other states, except as provided by international agreement. "

And so that... that was a statement by the... by the propounders of the... of the Restatement of what they... what they believed the law was at the time.

Now, to the extent it's qualified, I think it's just to leave room for the fact that the Senate can promulgate treaties, or Congress can, by statute, command that courts recognize these laws.

But if--

Justice Scalia: You don't... you don't assert that this... that it... that this couldn't be done, do you?

You just--

Mr. Brill: --Not that--

Justice Scalia: --assert that we shouldn't assert that we shouldn't interpret this statute to have done it.

Mr. Brill: --Exactly, Justice Scalia.

If Congress had written a different wire fraud statute that had said,

"You can't have a scheme to defraud the revenue, whether foreign or domestic. "

that would have been a clear statement abrogating the revenue rule.

But we don't have any such clear statement, and the terms... the terms "defraud" and the terms "property" have to be read with the background rule in mind.

Justice Ginsburg: May I--

Justice Kennedy: But you would come to that conclusion even if we had a reciprocal enforcement agreement.

If this were Country X, where we did have a reciprocal enforcement agreement, you'd come to the same conclusion, no prosecution under this statute.

Mr. Brill: Correct, Your Honor, because there wouldn't... this statute wouldn't have been written to take that into account.

This--

Justice Kennedy: So, in a sense, the revenue position is irrelevant to your... to your secondary or your... or your independent argument on statutory construction.

The revenue rule is irrelevant to it.

Mr. Brill: --As to just whether an unassessed tax claim--

Justice Kennedy: Yes.

Mr. Brill: --is property, the revenue rule... the revenue rule adds a boost to it, but there are two... there are two dimensions to the property element.

One is that, as I said... and if a... if a tax claim is not... has not been subject to an assessment, that whatever interest the government may have in that is not in the nature of property; it is simply in the nature of law-enforcement power to collect.

They... some of these revenue rule cases talk about the power to--

Justice O'Connor: --So tax revenues are not property, in your view.

Mr. Brill: --Once a tax is collected, once the government actually has money in its hands, and if there's a scheme to, let's say, obtain an illegal refund through a tax and... that would be a scheme to deprive a government body of money.

But a scheme to merely evade paying a tax is not something that falls within the statute, separate and apart from the revenue rule.

But the revenue rule... as a result of the revenue rule, it is also the case that no state court would have recognized any property interest in a foreign sovereign, even if it had reached the point of a judgement.

And so it works in both ways.

The--

Justice Ginsburg: --May I ask you, Ms. Brill, something that puzzled me about this case?

It is a rather peculiar use of our wire fraud statute.

Are there any proceedings going on in Canada?

Has there been any attempt to extradite these people?

Mr. Brill: --Justice Ginsburg, there was an indictment that Canada issued against the Petitioners.

It has charges under... for smuggling, under Canadian law, which is Customs Act, Section 159.

It charges unlawful possession of imported spirits under Excise Act 163(1)(b), disposing of goods illegally imported, in violation of Customs Act, Section 155.

So Canada has its own process.

There has... there has not been, to my knowledge, any request by Canada for extradition, but the treaty between the United States and Canada does include revenue violations, and--

Justice Scalia: Presumably, if we punish this person this way, Canada wouldn't... there's no double jeopardy, right?

Mr. Brill: --That's correct.

Justice Scalia: So we'd be punishing this person for violating Canadian law, and then Canada would punish this person for violating Canadian law.

Mr. Brill: Yes, I haven't looked in detail at the statute of limitations provisions, but that could be the effect.

And we could be punishing them much more severely than Canada would be.

They have their own means of balancing what they think the appropriate balance is for these things, and certainly the wire fraud statute, 57 months in our--

Justice Kennedy: Well, I think the government has an interest in saying,

"Look, if you're going to smuggle, have your scheme up there in Canada; don't use our wire systems for fraudulent purposes. "

"We don't like that here. "

Mr. Brill: --And if they want to pass a law that says that, because of the... because there's a domestic--

Justice Kennedy: Well, they... of course, they say that this covers it, and it seems to me that really the... that turns on the definition of "property"--

Mr. Brill: --Okay.

Justice Kennedy: --which is an arguable point.

Justice Stevens: What if the... instead of a wire fraud case, it was assault and battery?

Supposing the Canadian revenue agent got inside of New York and one of your clients beat him up, would we have... solely because he was mad at him for trying to interfere with his attempt to smuggle into Canada... would we have to say that you can't do that, we have no jurisdiction over the assault and battery?

Mr. Brill: No, Justice Stevens.

It's... the question is whether you're--

Justice Stevens: The only purpose would be just what the purpose is here, they're trying to, you know, facilitate the smuggling operation.

Mr. Brill: --Well, the assault and battery... whatever the assault and battery provisions are, you would be bringing the prosecution solely for that purpose; it does not have any... the effect of applying the assault and battery statute, if there was one--

Justice Stevens: Interfere with Canadian's collection of their taxes.

That's the only reason for it.

Mr. Brill: --Well, I think it... in that case, it would be... it would be far too attenuated to reach that conclusion.

There could be... the motive of a person--

Justice Stevens: Why is that any more attenuated than a conspiracy carried out down here in Maryland using American assets to do the evil deed in Canada?

Mr. Brill: --Well, but the motive of the person performing the assault and battery would be irrelevant to the prosecution as to whether they intended to do the improper touching and, in fact, carried it out.

Justice Kennedy: Well, why isn't the motive irrelevant here?

We don't want our facilities to be used for criminal activities--

Mr. Brill: The question is whether--

Justice Kennedy: --any more than in the... in the hypothetical we don't want citizens beaten up on our soil.

Mr. Brill: --Justice Kennedy, the issue is whether... is what Congress had in mind in enacting the wire fraud statute.

And, in general, we presume that Congress had domestic concerns in mind, not that we have incorporated vast bodies of--

Justice O'Connor: Well, but it used broad language,

"Any scheme to defraud by means of wire communications in interstate or foreign commerce. "

Mr. Brill: --The wire... it is... the wire communications may be an interstate or foreign commerce, the word "any" modifies

"any scheme or artifice to defraud-- "

Justice Scalia: Is this statute applied against people who defraud the United States Government in taxes?

Mr. Brill: --Your Honor, the government's position on that, I believe, is somewhat inconsistent.

The tax... the tax division and the Department of Justice U.S. Attorneys manual specifies that it is... they believe it is the intent of Congress that tax matters will be dealt with through the internal revenue code, not through other means.

There are... there have been some prosecutions brought in the case of an illegal... an illegal tax shelter, where there is truly an... a private party who is defrauded into giving up money in connection with--

Justice Scalia: But you don't... you don't know of any prosecutions under this fraud statute for depriving the Federal Government of property.

Mr. Brill: --Well, the Henderson case, which we have cited in the reply brief, is one from the Southern District of New York, where Judge Weinfeld said, when faced with a mail fraud prosecution of that type, this is outside the scope of anything that Congress intended.

The... I would like to get back to the issue of money or property so that it... to have it conceptually why an unassessed tax claim is not money or property.

There is no allegation that... in the indictment or anywhere... that the petitioners took any money out of Canada's treasury.

So money is not an issue.

At most, it was an effort to evade Canada's right to collect money, not any money it has--

Justice Stevens: Ms. Brill, is this the same thing if it were a building fraud?

Suppose there were contractors building a Canadian building for the Canadian Government and they had a big fraud scheme down here, and it was to deprive the Canadian Government of money?

I think the statute would clearly apply.

Mr. Brill: --The statute only applies... what McNally said is, any assistance a governmental body obtains from the statute must be in the capacity of property-holder.

And so the... a scheme to defraud somebody out of their... out of a building, that's traditional property.

There's not... it is not the same thing.

Let's have an... let's take an example of an interference with prospective economic advantage.

So there is a defendant who says to somebody else who's about to get a contract... I know my competitor is about to get a contract, and I say,

"Why don't you go out of town? "

"There's a... there's a much bigger contract that you can get if you fly to Michigan. "

And, meanwhile, I go in, and I usurp the contract and take it for my own purposes.

Well, I've interfered with that person's prospective economic advantage, and so there would be a tort, and the person could collect from me.

But I have not taken any money or property from that person that was in his possession.

And what McNally and Cleveland plaintiffs to is whether there was money or property in the hands of the... of the victim.

And Canada's interest... until there has been an assessment, Canada's interest is purely that of a... of a sovereign.

It is... it does not have a claim to any money that is in the bank account of somebody who owes it a debt.

And the Johnston case, which we've cited in our reply brief, Your Honor, talks about... this Court talked about a statute in which there was a boxing promoter who collected fees for the boxing match and also collected taxes at the same time.

And the U.S. Government could not bring an embezzlement action against that person for not paying the taxes, because those taxes were not... were not yet anything that qualified as governmental property.

Justice Stevens: Ms. Brill, in the Court of Appeals, they treated the argument that this was not property as entirely separate from the revenue rule question.

And I thought your petition for cert was confined to the first question.

Mr. Brill: Well, Your Honor... no, Your Honor, we talked about both in the petition for cert..

And then the question--

Justice Stevens: But the question, itself, doesn't refer to the property issue.

Mr. Brill: --It talks about the--

Justice Scalia: Was it... was it phrased the same way it is in your brief, in the petition?

Mr. Brill: --Yes.

Yes, the--

Justice Scalia: Well, then the last part of it--

Mr. Brill: --Right, but--

Justice Scalia: --obviously covers it.

Mr. Brill: --Yes, the last part talks about--

Justice Stevens: Oh, I see.

I'm sorry, you're right.

Yeah.

Mr. Brill: --Yes, okay.

But to return... to return to the revenue rule... and thank you, Justice Stevens, for bringing me back to that... the government has acknowledged that there can be no restitution here.

And that's in... that's in the joint appendix, at page 106.

They expressly waived it.

They said that even if there was a foreign judgement that Canada was trying to bring here, that would be unenforceable.

There could be no RICO actions, because that's unenforceable; and no proxy suits on behalf of a foreign government.

And so the only thing that they say is, beyond... is not included... the only act of enforcement which they say is not included is, somehow, criminal enforcement.

And under Section 14 of the... excuse me, under the Fourteenth Amendment of the United States Constitution, Congress has power to enforce that amendment, and it has done so both in enacting statutes for civil recovery, as well as criminal recovery... criminal punishment, excuse me.

And so it's... the notion that somehow incarcerating someone is not... is not punishment is not something that makes much sense in that context.

The decisions of this Court have held that penalties are... monetary penalties count as punishment, and also that injunctions are... fall within the scope of the revenue rule.

That's in the Wisconsin versus Pelican Insurance case, which actually addresses the penal... the penal rule, which is the close corollary.

Justice Ginsburg: May I ask you, when... now that we're getting into money, one of the things that the sentencing board had to do was to find out how much of a loss there was, and that involved determining what taxes would be due under Canadian law.

And did that increase the sentence?

Did the... did the sentence vary with the amount of taxes that they... we found due?

Mr. Brill: Yes, Justice Ginsburg, it very much did.

The loss calculation was based on intended loss, and so they... what the District Court judge did was estimated the number of cases of liquor that were intended to be brought into Canada, and applied that number to the amount of the tax that Canada, he believed, would have applied to that... to that amount.

And that ended up changing the sentence from six months to, in the case of the Pasquantino brothers, 57 months, and the... and, in the case of Mr. Hilts, 21 months.

So the bulk of the sentence was based on the Canadian tax law and our courts making that assessment.

Justice Ginsburg: A judge making that assessment.

Mr. Brill: The judge made the sentence... made the assessment at sentencing, yes.

What the... what the... what the government did in this case was to submit, very self-consciously, all of the issues of Canadian tax law to the jury.

And the assistant U.S. attorney said this to the Fourth Circuit en banc panel several times, that they were presenting these matters of Canadian tax law as factual issues for the jury to find.

But, ultimately, in sentencing, it was... it was the court that ended up imposing and elevating that sentence.

If there aren't further questions, I'd like to reserve the balance of my time.

Justice Stevens: Mr. Dreeben?

Argument of Michael R. Dreeben

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

A prosecution for wire fraud based on defrauding a foreign government of taxes serves at least four distinct United States prosecutorial interests.

The first is that the creation of schemes to defraud frequently spawns collateral criminal conduct in the United States above and beyond the fraudulent scheme itself.

Here, for example, one of the defendants was charged in the indictment with using a gun in relation to the charged wire fraud scheme.

Second--

Justice Ginsburg: Where?

Using a gun where?

Mr. Dreeben: --In the United States, Justice Ginsburg.

Justice Scalia: Well, why didn't you prosecute him for that?

Mr. Dreeben: That crime depended upon the validity of the wire fraud charges, because the crime was use of a gun during... in relation to this wire fraud scheme.

Justice Souter: But that really doesn't get you anywhere, does it?

I mean, if the United States says,

"We don't want this gun offense to be prosecuted unless there's a wire fraud prosecution. "

that doesn't tell you anything as to whether there ought to be a wire fraud prosecution.

Mr. Dreeben: Well, what it tells you, Justice Souter, is why the United States has an interest in enforcing a law that facially is written to cover schemes to defraud that are carried out using the United States wires.

Justice Scalia: But that's... but that's a reason for extending the statute to everything.

To everything.

Mr. Dreeben: No, Justice Scalia--

Justice Scalia: "Property" can mean anything at all.

I mean, what you're saying is, the broader you read this statute, the more bad guys we're going to catch.

I'll stipulate that.

Of course it's true.

Mr. Dreeben: --Well, Justice Scalia, I'm starting from the proposition that the language of the wire fraud statute textually applies to this scheme, and Petitioner's argument is that, because of the common law revenue rule, the statute should be read to exclude schemes to defraud a foreign government of tax revenue.

And the fact that a foreign government is defrauded of tax revenue does not mean that the United States does not have an independent interest in rooting out that scheme and prosecuting it.

In addition to the collateral criminal conduct that such schemes can spawn, the creation of such schemes indicates a criminal mind and a criminal group that can turn its techniques for used... using to smuggle into Canada, also to smuggle back into the United States or to victimize other victims in the United States.

Justice Scalia: What about evading a Cuban tax law that we think... that many people would think is an unjust tax law?

I mean, one of the things I'm worried about is that this gets us into foreign policy.

Are you sure that we always want to enforce the tax laws of foreign countries through this fraud statute, no matter what those tax laws happen to be?

Mr. Dreeben: The United States has prosecutorial discretion to determine when to invoke the statute and in what interests it should be served.

Justice Scalia: It may well, but when it comes here, this Court is going to have to decide... we'll just approve whatever you want to prosecute and let you not prosecute whatever you want?

Mr. Dreeben: There is no provision in the statute, Justice Scalia, for this Court to second-guess foreign-policy determinations that are made--

Justice Breyer: Well, not just foreign policy.

The White Russians come here because they don't want to pay Lenin's taxes designed to equalize all individuals, in terms of property.

Country A has a tax law that makes everybody a criminal because nobody really ever pays all the taxes.

Country C has a set of laws that tax bibles.

Country D has a... I mean, you know, we can spin out the examples endlessly, and they're not farfetched.

So take all the arguments from last week, called "any court arguments", cross... or two days ago... just let's cross-reference them.

The problem is complexity of tax law.

The problem is many, many, many would be contrary to American policy.

And the problem is, nobody really knows what they are; indeed, they don't even know what American tax law is, no single individual, I suspect.

Let's put in Italy, France, Byelorussia, Belarus, Ukraine, Saudi Arabia, and 35,000 others.

Everybody becomes a criminal.

And then we say,

"Don't worry, we'll only prosecute the real bad ones. "

That's the argument, I think, on the other side, and I'd like to hear your perspective.

Mr. Dreeben: --Justice Breyer, I don't think there's any reason to assume that everyone becomes a criminal.

What this--

Justice Breyer: No, only people who come over here because they don't want to pay taxes in those countries.

Sometimes we would agree with them--

Mr. Dreeben: --Justice Breyer, in order to violate the wire fraud statute, you have to use deception in order to deprive another--

Justice Breyer: --Yes, they don't tell Lenin that they're coming--

Mr. Dreeben: --Well, that wouldn't involve the use of the United States wires--

Justice Breyer: --and they write to each other.

They have a cousin, in Brooklyn, who forwards them the money to get out.

Mr. Dreeben: --Justice Breyer, if one stipulates that that violates the wire fraud statute or that there's enough conduct that does, the question still comes down to whether the United States chooses to prosecute that case.

This is not a--

Justice Breyer: So the question comes down to--

Justice Scalia: The question comes down to whether this statute, which doesn't have to be read that way, ought to be read that way, whether it makes sense to read it that way.

What about... does Canada have an income tax?

Mr. Dreeben: --I'm not sure of Canadian tax law.

Justice Scalia: Well, let's assume--

Mr. Dreeben: In the context of this case--

Justice Scalia: --Canada has an income tax.

Would you... would you prosecute a Canadian who files a deceptive Canadian income tax return?

Mr. Dreeben: --Not for using Canadian facilities to do so.

Justice Scalia: No, no, no, from this country.

He's... you know, he's a snow goose and is in Florida when he files his return.

Justice Souter: He files it electronically.

Justice Scalia: Yeah.

Mr. Dreeben: The wire fraud statute is applicable to schemes to defraud, generally speaking.

The questions in this case are whether there is a common law rule that should be read to provide background.

Justice Breyer: --reason for it.

I just... you don't seem to know completely about Canadian law.

How much do you know about the tax law of Vietnam?

Because Los Angeles is filled with Vietnamese refugees, many of communities of such people in the United States.

Do we know how many of them perhaps might owe taxes under the law of Vietnam, and maybe are talking to each other about whether they really want to pay it?

Mr. Dreeben: I don't think this is a realistic problem, Justice Breyer, that should require the court not to read a statute whose language--

Justice Breyer: Well, what about the wealth tax in France?

Mr. Dreeben: --There are a variety of taxing schemes all across the world.

The question that the United States has to make when it determines whether to prosecute a wire fraud scheme is whether it's in interest... in the interest--

Justice Stevens: Mr. Dreeben, at the beginning of your argument, you said there were four federal interests you were going to identify.

You've been able to identify one... you know, on running around with guns.

What are the other three?

Mr. Dreeben: --The other three are--

Justice Scalia: Second--

Mr. Dreeben: --The second one, which I began to allude to before hearing some questions about--

Justice Stevens: Before you were asked a brief question.

Mr. Dreeben: --are that people who engage in schemes in this country are capable of then using the same techniques against victims in this country.

The third reason is that the creation of international schemes to defraud, like the smuggling scheme in this case, poses independent threats to the United States Government because international criminal organizations are particularly difficult for the United States to deal with.

And the fourth reason is that it is an offense to a foreign government, the United States Executive Branch may conclude, to allow our soil and our wires to be used to perpetrate a smuggling scheme against a foreign government with the United States doing nothing about it.

Justice Ginsburg: Well, if we're concerned about offending the foreign country, then isn't the way to go, in fact, the way Congress has gone in this area, we negotiate treaties?

I mean, one of the reasons why we go the treaty route are the kind of problems that Justice Breyer brought up, we want to have reciprocal treaties.

We want two things.

We want to make sure that it's a basically fair system that we're dealing with.

On the other hand, we want to say,

"If we do anything with respect to your taxes, we want to make sure that we get the same benefit from you with respect to ours. "

So never mind the revenue rule, isn't it pervasive that... when it comes to enforcing tax claims, that the route that Congress has chosen to go, and the Executive, as well, has been the treaty route?

Mr. Dreeben: Justice Ginsburg, those are tax treaties designed to mutually assist the countries to collect taxes.

This is a prosecution directed at fraud.

The collection of taxes in a cooperative, reciprocal manner between governments implicates very different interests than the United States has when it seeks to combat people who have intended to devise, or have devised, a scheme to defraud in the--

Justice Ginsburg: One of--

Mr. Dreeben: --United States.

Justice Ginsburg: --one of... one of the last interests that you mentioned, about offending foreign governments, well, on the face of this, it would seem, the one that... the country that's been done out of taxes is Canada, not the United States.

So, we should help Canada, if it's interested in collecting revenue from these people or trying them for a criminal offense, to do that.

It... I asked Ms. Brill, Have they been indicted in Canada?

She said yes, but she said it's... they had not... there has not been a request for extradition.

Is that... is that--

Mr. Dreeben: That's my understanding, as well, Justice Ginsburg.

And the pursuit of this prosecution by the United States reflects that when United States citizens engage in fraudulent conduct on our soil, our government has a distinct interest, from Canada's interest, in pursuing the prosecution of this case.

Justice Scalia: --How long has this statute been on the books, this wire fraud statute?

Pretty old statute.

Mr. Dreeben: 1952.

And its antecedents are the mail fraud statute, which was enacted in 1872.

Justice Scalia: How many prosecutions like this have there been?

When was the first one?

Mr. Dreeben: This--

Justice Scalia: For, you know, using the mails or interstate commerce to defraud a foreign government of taxes?

Mr. Dreeben: --This type of prosecution became more common in the 1980s when Canada greatly increased its taxes on importation of tobacco and alcohol.

Justice Scalia: More common, or didn't exist at all before the 19... do you know of any case before--

Mr. Dreeben: No, I'm not aware of any case before--

Justice Scalia: --before the 1980s.

Mr. Dreeben: --That's right.

Justice Scalia: Doesn't that suggest to you that the statute isn't naturally read to cover stuff like that?

Mr. Dreeben: No, I think the statute--

Justice Scalia: We didn't have smugglers before then?

Mr. Dreeben: --No, of course there were smugglers before then, but the statute, on its face, is broad.

And the only justification... the only two justifications for seeking to read it narrowly are, first, that there's a common law revenue rule that forms a backdrop for the construction of the statute.

That is wrong, the government submits, because there is no common law revenue rule that has ever been articulated that says one country cannot prosecute people in that country for defrauding a foreign government of tax--

Justice Scalia: What's the second reason?

Mr. Dreeben: --The second reason is the claim that to deprive a foreign government of money by not paying tax revenues is not common law fraud.

Justice Scalia: Okay.

Well, and you have arguments against both of those two?

Which are arguments are at least... at least... arguable?

What about the third rule, the rule of lenity?

Mr. Dreeben: Well, Justice Scalia--

Justice Scalia: If we... if we are unsure, if it's a close question whether it's property, if it's a close question whether we're enforcing the tax laws of Canada by prosecuting somebody for violating the tax laws of Canada, if that's a closed question, why doesn't the rule of lenity apply?

Mr. Dreeben: --Well, if the Court concluded that the question was not susceptible of resolution by resort to the usual tools of statutory construction, then you would apply the rule of lenity.

But it's our submission that neither of these two theories--

Justice Stevens: But may I ask this question?

I think you have conceded, in a footnote... and maybe you're... almost conceded... that if this were a RICO case, a civil RICO case, that the Congress enacted the RICO statute against this background rule and that perhaps the RICO case could not go forward.

What if it were a federal RICO case and... the same facts... would the RICO statute be qualified by the revenue rule?

Mr. Dreeben: --No, it would not, Justice Stevens, and that's because of the precise distinction that I drew in response to Justice Scalia's question.

This is a suit by the United States Government, as Plaintiff, not by a foreign government, as Plaintiff or prosecutor.

The revenue rule is essentially concerned with interests of sovereignty.

One foreign government should not be able to come into our courts and enforce its sovereign power by using our courts to collect taxes from our citizens.

Justice Breyer: What about the other reasons underlying it, which is what I was trying to get at before?

I see, literally, that the common law... you know, the enforcement... this is not literally enforcement.

So what I was driving at with my questions is, even though literally it's not, the problems of complexity, the problems of knowability, and the problems of there being so many, many foreign tax laws that we might think are basically unfair, that those considerations apply here, just as they do with the enforcement rule, and then add the fact that turning people into criminals under threat of prosecution by the Federal Government is really very much equivalent to enforcing the foreign rule in a court.

I mean, that's the whole thing spelled out.

And I meant it seriously, though I used foreign examples to, sort of, drive the point home.

What is your response to that?

Mr. Dreeben: Well, Justice Breyer, first of all, the complexity of foreign tax law is something that would defeat a federal prosecution in which we need to show specific intent to defraud if the law were not sufficiently clear for us to be able to meet that burden.

This case illustrates the kind of prosecution that will be brought.

There are taxes that are due upon the importation of alcohol.

The Petitioners arranged, through the wires, to bring alcohol from Maryland up to New York, and then they got it across the border by not answering questions when asked by customs officials and by not going to secondary inspection when they were asked.

In order to bring a criminal prosecution that requires specific intent to defraud, the government is not going to be relying on obscure systems.

As to the concern about the enforcement of tax systems that the United States may believe are... is unfair, that is the prerogative of the Executive Branch to determine in deciding whether a prosecution should be brought in a particular case.

This Court has repeatedly recognized that the Executive Branch is the preeminent branch in the area of foreign affairs--

Justice Ginsburg: --To go to one more aspect of the statute which I don't think you've addressed, Congress said that... with respect to the wire fraud and mail fraud and, I think, other things... that restitution to the victim is mandatory, that it's not left up to the government to decide restitution or not.

Except here restitution sounds very much like enforcing Canada's taxes, so you have conceded no restitution.

But it seems to me that Congress thought of the wire/mail fraud statutes as cases in which there would be restitution, and that suggests that they didn't envision foreign taxes to be the object of the scheme to defraud.

Mr. Dreeben: --Justice Ginsburg, the syllogism doesn't track, because the entire scope of the revenue rule, as defined in the common law cases that can be pointed to as the background principle, has to do with a foreign government, or someone acting on its behalf, coming into this country's courts to enforce its tax rules.

Here what you have is the United States Government determining that it is in the interest of the United States to bring a criminal prosecution.

Now, in this case, the prosecutor did concede below that restitution was not appropriately ordered.

That's not the position of the United States.

The position of the United States is that restitution under the mandatory statute should be ordered and it does not infringe the revenue rule.

But there are--

Justice Ginsburg: Now, how could that be, because restitution is to the victim?

The victim is Canada.

You collect Congress... or Canada's tax, and you give it to Canada.

Is there any other kind of restitution?

Mr. Dreeben: --No, there isn't, Justice Ginsburg, but the revenue rule isn't of such a broad scope that it applies to efforts by the United States Government to secure punishment by... for a criminal conviction.

But, Justice Ginsburg, if the Court were to disagree with that and were to believe that restitution, even when it's been sought by the United States... not by a foreign government, in its own right, with the power to instigate a lawsuit... but that even when the United States does it, that somehow falls within the parameters of the common law revenue rule, then the answer to that problem would be to interpret the restitution statute against the background of the revenue rule, not to interpret the wire fraud statute against the background of the revenue rule and hold that a prosecution by the United States is wholly barred.

The Petitioner's submission here is really rather--

Justice Scalia: The restitution statute is not ambiguous at all; whereas, this statute has a number of ambiguities in it.

And if I had to find my way out of the restitution problem, I would pick the ambiguous statute to get out, rather than simply saying,

"Well, though this restitution statute says this categorically, we will ignore it, because if we didn't ignore it, we would be enforcing the revenue laws of another country. "

There's nothing against enforcing the revenue laws of another country, if we want to; this is just a question of statutory interpretation.

Should this ambiguous statute be interpreted that way?

If Congress said,

"We're going to enforce Canada's tax laws. "

there's nothing wrong with that.

But--

Mr. Dreeben: --Justice Scalia--

Justice Scalia: --So you have two statutes.

One of them seems to be quite ambiguous.

The other one is categorical, you get restitution in all cases.

Now, how do I wiggle out of it?

Mr. Dreeben: --There's a difference--

Justice Scalia: --Obviously, I wiggle out of it with the ambiguous statute.

Mr. Dreeben: --there's a difference, Justice Scalia, between an ambiguous statute and a broad statute.

The wire fraud statute is unequivocally broad, and it has been so interpreted.

It's not ambiguous on the question of whether it applies to schemes to defraud that may involve foreign victims; it says "any scheme to defraud".

And I think, as Justice Kennedy's questions pointed out earlier, if there were a scheme to defraud a foreign business interest in Canada or a foreign governmental interest in Canada relating to some commercial venture, the wire fraud statute would apply, and--

Justice Breyer: What about... what about a scheme--

Justice Scalia: But you haven't told me... you haven't told me how you get out of the restitution statute.

There's no ambiguity there, and it is not a rule of law that you can't... it's unconstitutional to enforce the tax laws of Canada.

Since it's entirely feasible, and since the text is categorical, how do you get out of the restitution statute?

Mr. Dreeben: --Here is how I get out of it, Justice Scalia.

If you think, as I do not, that the revenue rule would bar restitution at the behest of the United States in a criminal prosecution, there is a background principle that says when there is an established rule of the common law, Congress legislates against that background, and unless it makes its intent clear and unequivocal to overcome that background rule of the common law, then the statute will not be interpreted to be in derogation of it.

It was that principle that formed the basis for the government's view that Canada cannot come in under the RICO statute--

Justice Ginsburg: Well, that view is in... somewhat in tension with your view that the common law revenue rule doesn't stand in the way of this prosecution.

Because you have to interpret the statute in light of the general rule that one country doesn't mess with another country's taxes, absent a treaty.

Mr. Dreeben: --Well, Justice Ginsburg, there is no common law rule that one country doesn't "mess with" another country's taxes.

What there are, are a set of cases that deal with specific problems in which foreign taxes were at issue.

And in all of the 20th century versions of this problem, what you had is a foreign government or an entity, acting at the behest of a foreign government, coming into another country seeking to use that country's courts to enforce its own tax rules.

And in that context, the justifications for saying that one country will not enforce another country's revenue laws have to do with the sovereignty interests of the host country.

One country, when it seeks to obtain revenue to carry out its own governmental policies, is doing something fundamental to its sovereign existence, and there's no obligation of the United States to assist the foreign government in using its court system to achieve those independent sovereign aims.

No prohibition on it, either.

As Justice Scalia pointed out, it's not constitutional, if Congress wanted to allow it.

But countries, historically, have not.

And that principle does form an important backdrop--

Justice Breyer: --Have countries also... just... here, I don't know, in respect to the principle... would it have been viewed as contrary to the principle if a country were to pass a law... say, England were to pass a law saying it is a crime in England not to pay French taxes?

I'm not saying they couldn't do it; I'm just saying, Would a law like that, saying it is a crime in England not to pay French taxes... would it have been viewed as contrary to an abrogation of... or a... you know, whatever you call it... a derogation from the common law revenue rule?

Mr. Dreeben: --I think that that's essentially the same question in this case, with the one significant difference that here there is a domestic--

Justice Breyer: But do you see why I want to characterize it?

I mean, would you characterize... my criminal statute's absolutely clear... the clear is, it is a crime in England not to pay French taxes.

Now, would you, or would scholars, or whoever, view about the common law revenue rule, would they have said,

"There is a derogation from the common law revenue rule. "

or would they have said,

"It has nothing to do with it? "

Mr. Dreeben: --Well, I don't know what scholars would have said about it--

Justice Breyer: No, what would you have said?

Mr. Dreeben: --but this is what I would say about it.

Justice Breyer: Yeah.

Mr. Dreeben: When you're dealing with the principle that a statute of the United States will not be construed to be in derogation of a common law unless it's clear that that's its purpose, the court should be very careful in defining what the parameters of the common law are.

The court should not take a common law rule and treat it as some dynamic entity that has capability of growing a dimension that is not consistent with its purposes and that it had never assumed in any decided case as a means of telling Congress,

"You can't do what you have done. "

So I would say, Justice Breyer--

Justice Scalia: We haven't told... no, no, no, no, no, no, we're not telling Congress,

"You can't do what you have done. "

We're saying, "Congress hasn't done this".

Mr. Dreeben: --Well, the only reason you would say that Congress hasn't done it, Justice Scalia, is if you concluded that... and I would ask the Petitioners what their best citations are, because I haven't been able to find them... what cases indicate that a country cannot bring the kind of prosecution that the United States did here to vindicate its own independent sovereign--

Justice Breyer: Nobody says they can't do it.

That's why I asked you my question.

My question is simply whether you would consider an absolutely clear law...

"We will... we... it is a crime not to pay your French taxes. "

I'm asking whether you would consider that... I'm not saying they can't do it; I just want to know... would it be in derogation of the common law principle?

Mr. Dreeben: --It would probably be in derogation of a more--

Justice Breyer: That's where--

Mr. Dreeben: --fundamental principle.

Justice Breyer: --Oh.

Mr. Dreeben: Not the revenue rule--

Justice Breyer: Not the--

Mr. Dreeben: --but a more fundamental principle that one country usually does not legislate with respect to extraterritorial acts.

Justice Breyer: --That would be another one, too.

Mr. Dreeben: But if you--

Justice Breyer: Because the... I... that's why I want to know--

Mr. Dreeben: --But that's not applicable here, either, Justice Breyer, because the crime involves wire fraud in the United States.

Justice Souter: Yeah, but why is it ethical, to the extent that there seems to be a mandatory obligation to order restitution?

And it seems to me that the restitution that would be ordered would be just as much in derogation of the common law principle as the out-and-out collection in Justice Breyer's example.

Mr. Dreeben: Justice Souter, again, to say that it's in derogation of the common law principle assumes that the common law principle has applicability to one country seeking to vindicate interests of its--

Justice Souter: Well, but I... a moment ago, you said,

"Okay, we'll assume that there would be some derogation. "

in Justice Breyer's example.

I don't see why you don't come to the same conclusion with respect to the restitution aspect here.

Mr. Dreeben: --Because the derogation that I was talking about with respect to Justice Breyer is punishing conduct that occurs entirely extraterritorially.

This is not conduct that occurs entirely--

Justice Souter: Yeah, but the revenue... the revenue rule does not rest simply on the rationale of non-extraterritorial enforcement.

It has... it has other rationales: difficulty of understanding what the revenue rule is; the... you know, the problems of policy; there are lots of revenue rules in foreign countries that we certainly wouldn't want to enforce, and so on.

It's not just extraterritoriality.

In those... those policies would be just as much implicated by the... by the restitution as by the out-and-out enforcement in Justice Breyer's example.

Mr. Dreeben: --Well, Justice Souter, I think that the policies underlying the revenue rule are narrower than the ones that you have articulated; but, even more to the point, they are not justifications that found their way into any holdings that would leave a reasonable legislator in 1952, when the wire fraud statute was enacted, to conclude that this is a rule that I'm going to have to specifically--

Justice Scalia: Well, perhaps--

Justice Souter: Well--

Justice Scalia: --I'm sorry.

Justice Souter: --Go ahead.

Justice Scalia: No, no problem.

Justice Souter: I was going to say, perhaps there were no specific holdings, because it would have been regarded as, kind of, a bizarre derogation of the rule in the first place.

Nobody had dreamed up this scheme earlier.

Justice Scalia: I was about to say the same... the same thing.

You keep saying there are no cases that do this.

Are there... are there... are there cases, before 1980, which do what you want to do... that is, to use our fraud law, or something, to effectively enforce Canada's... or some foreign country's tax law?

Mr. Dreeben: --No, but what I would say about--

Justice Scalia: No.

Mr. Dreeben: --the revenue rule is that it is a shrinking principle of the common law, not one that has been growing.

It originally started out as a principle that allowed countries to avoid invalidating contracts that they believed were in furtherance of commerce.

It gradually came under attack, because what it said is that the United States will not notice that a foreign country's laws have been violated in the formation of a contract, and so the contract will be enforced.

Commentators recognized that that was contrary to principles of comity and recognition that each country does have a reciprocal interest in acknowledging each other's laws.

In the 20th century, those contract cases completely drop out of the picture, and what becomes left are sovereignty cases where a country is seeking to exert its sovereign power inside the United States or inside a foreign country... the United States, itself, tried it once in Canada... to collect taxes.

And countries said,

"We're not going to do that. "

"We're going to leave it to the treaty process. "

But the rationales that Justice Breyer and Justice Souter have articulated, about complexity of foreign law and odious foreign tax systems, have never been the driving force behind the revenue rule.

It's been--

Justice Breyer: --I got your point.

I think it is the... in my answer... in my clear example, you would say no, that's not in derogation for the reason that there's an independent local reason for doing it.

It's not being done to... whether it has that effect or not, it's not being done in order to collect the foreign tax.

Mr. Dreeben: --That's right.

Justice Breyer: That's been your response throughout.

Mr. Dreeben: That is correct.

Justice Breyer: Okay, I--

Mr. Dreeben: What you have instead is a law of the United States that's enacted to serve perfectly valid interests that the United States Government has in rooting out fraud in this country and in dealing with schemes to defraud that are created here.

And for the court to say that,

"We don't like these kinds of prosecutions, because we're concerned about really bad foreign tax systems, and we're concerned about complicated law, and we're concerned that some common law rule that had never actually assumed the scope that Petitioners ascribed to it, should be formed... read as the background principle for the interpretation of this statute. "

is not a principle that finds any support in the construction of federal--

Justice Ginsburg: Mr. Dreeben, can I ask you... this is such a curious case.

You were very candid in telling us that when Canada put these astronomical taxes on tobacco and alcohol, that was almost an invitation to smugglers.

Did we have any discussions with Canada... I mean, they do have that border, which is rather easy to cross... about what we were going to do when they put the taxes on liquor sky-high?

Mr. Dreeben: --I am not aware, Justice Ginsburg, of what specific law enforcement conversations occurred, but I can tell you that there is extensive law enforcement cooperation with Canada, as a close neighbor, and that the interests of the United States very much do favor our policing against smuggling here, and Canada policing against smuggling there.

Thank you.

Justice Stevens: Thank you, Mr. Dreeben.

Ms. Brill, you have four-and-a-half minutes left.

Rebuttal of Laura W. Brill

Mr. Brill: Thank you.

The common law cases universally say that it does not matter who is bringing the claim.

It can be the foreign government or it can be another person.

Justice Stevens: Can I just ask you to tell us what your strongest case is?

Because they did raise that question.

Mr. Brill: Sure.

On the... on the issue of the identity of the person bringing the claim, the contract cases, Holman and Boucher, stand for that proposition, and the Peter Buchanan case, which came down in 1950, just before the wire fraud statute was enacted... this was in the Appellate Court in Ireland... it says,

"It is not a question whether the plaintiff is a foreign state or the representative of a foreign state or its revenue authority. "

"In every case, the substance of a claim must be scrutinized. "

"And if it then appears that it is really a suit brought for the purpose of collecting the debts of a foreign revenue, it must be rejected. "

That's at 1955 A.C. 529.

And so with the... with the Mandatory Restitution Act, this clearly is something to collect the debts of a foreign nation.

And the sentencing scheme that Justice Ginsburg alluded to earlier, in which the sentences were enhanced based on the intended loss, demonstrate that this is an enforcement action.

Stringam versus Dubois, which is an Alberta case from 1992, involving... the plaintiff there was an executor of a probate estate, and the court said,

"The identity of the plaintiff in the action is not vital if the action indirectly has the effect of enforcing revenue laws of a foreign country. "

That's at 135 A.C. at page 70.

And the way the revenue rule has been cited repeatedly is that it... what it prevents is not just direct enforcement, but direct or indirect enforcement.

And so it is... the fact that there have not been criminal prosecutions, it clearly would have been in derogation of the common law for a... for England to pass a statute saying it is criminal in England to break the laws of France.

Justice Breyer: See, he's saying it isn't, for the reason that, he says, that if England did it for independent reasons, it wasn't doing it because it wanted to help France get it's money, that then it wouldn't have been in derogation.

Of course, it would have been legal, either way, but he says it wouldn't have been in derogation, for that reason.

Mr. Brill: Right.

Well, it clearly would have.

There was no common law practice... we have... we have not found, in all the research... and the government has not found... any example of a criminal prosecution... not just in this country; anywhere in the world... to... deriving from the violation of a foreign government's tax.

And so--

Justice Souter: You're saying, in effect, that derogation is an effects test, not an intent test.

Mr. Brill: --Yes, Your Honor.

Yes, Justice Souter.

And the... in terms of what the government's interests are, there were no deceptive acts in this country.

The way the government gets a material misstatement is by a failure to disclose at the Canadian border, which only... even though they did not put in evidence of what the... that Canada even had a law requiring disclosure, the only way there could have been any kind of material misstatement would be if Canadian law required it, not if... not anything that happened in the United States.

In Cleveland, the court was very clear to point out... one of the reasons to adopt a rule of lenity in interpreting the mail fraud statute and the wire fraud statute is because violations serve as a predicate for RICO actions and for money-laundering violations.

And so what the government's position is, is that we should carve out this ad-hoc exception and allow wire fraud prosecution, even though we would not allow any kind of a civil RICO action and even though we're going to have an ad-hoc exception for the Mandatory Victims Restitution Act.

But what the court said in Cleveland is, the way we should do this is by adopting a proper interpretation in the first place, not by... of the wire fraud statute... not by having ad-hoc exceptions.

And the reference to prosecutorial discretion that there should be faith that the government will only prosecute, I guess, what the government regards as exceptional cases is not something that can provide any business involved in an international transaction with any... with any comfort.

And thank you very much.

Justice Stevens: Thank you.

The case is submitted.

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

Attribution:

The Oyez Project

Featured:

Shepard v. U.S. - Oral Argument

Fri, 09 Jan 2009 14:49:03 +0000

Case:

Shepard v. U.S.

Media File:

03-9168_20041108-argument.mp3

Related Transcript:

transcript.xml

Transcript:

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.

Attribution:

The Oyez Project

Featured:

Small v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Small v. United States

Media File:

03-750_20041103-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Boas

Justice Stevens: Mr. Boas, the Court will hear argument in Small against the United States.

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

This case presents the issue of whether, when deciding the meaning of a statute, we will focus, as the Government suggests, on two words only, any court, or whether we will look at the statute as a whole, whether we will consider the statute as a symmetrical and coherent regulatory scheme and decide the meaning of the statute by appreciating how sections relate to one another.

In this particular case, 922(g)(1) of 18 U.S. Code is a... represents a merger of two old sections, title IV and title VII, that were passed in 1968 in the Omnibus Crime Control Act.

In... in those... in that statute, we had two redundant and overlapping sections, and one talked about prohibiting persons who have been convicted in any court of a crime punishable by more than a year.

One, title VII, talked about prohibiting persons convicted in any court of the United States or a State of a felony.

There were different penalties, slightly different classes of people.

Title IV focused more on the receiver; title VII more on the possessor.

But nothing... nothing about the... these two titles, about the legislative history suggests that Congress at any time meant something different from the term, any court, in title IV and any court of the United States in title VII.

And when these two were merged in 1986 in the Firearms Owners' Protection Act, again, nothing suggests, nothing in the comments, nothing in the statute, that these two terms... that the elimination of the language, any court of the United States, was--

Justice O'Connor: Well, I guess we have held, though, several times that Congress meant to define very broadly when it enacted felon in possession of firearm statutes.

Did we not?

Mr. Boas: --That's... that's correct, Justice O'Connor.

However--

Justice O'Connor: So it makes it a tougher case when you use the word any because we've given the... the word any generally a broad definition.

Mr. Boas: --Well, earlier this year in the Nixon case, this Court said that when we look at any... and that was a case dealing with the meaning of any entity.

Did it mean any entity, public or private, or any private entity?

The Court said any can and does mean different things depending upon the setting, and the Court said when using it broadly would lead to strange and indeterminate results, we'll give it a more narrow reading, which the Court did.

Now, you're right, Justice O'Connor.

This Court has said that the purpose of the felon in possession statute was to be broad and sweeping, but the Government reiterates that view, citing repeatedly three cases, Scarborough, Bass, and Lewis, and all three of those cases in which the Court referred to Congress' comments and this Court's own comments about the broad sweep of the statute were 1202(a) cases.

And so notwithstanding the fact that the Court said this is a broad statute, each one of those cases, Lewis, Bass, and Scarborough, were cases where by definition the prohibition was against persons convicted in any court of the United States or a State.

So that language doesn't help the Government at all because those were 1202(a) cases which limited specifically the Court to any court of the United States.

So to take the... and I... and... the simplistic view that as the... as the Fourth and Sixth Circuit did and as the Government does here, that any means any, without regard to the rest of the statute, is simply... is... is too narrow a focus.

Let's look at the statute.

It's true that the word... the term, the two words, any court, is not defined.

But if we look in the definitions section, the term, crime punishable by more than a year, is defined.

And so what we should really be focusing on is the phrase, convicted in any court of a crime punishable by more than a year.

And that definition says the term, crime punishable by more than a year, excludes any State or Federal antitrust or business regulatory offense.

Now, if we exclude from the definition of crime punishable by more than a year and the Government's... if we exclude from that any State or Federal antitrust law and the Government's interpretation is adopted, then we're left with the anomalous result that if a person is convicted of an antitrust offense in this country, they're allowed to possess a firearm.

If they're convicted of one in France or England, they can't.

Justice Breyer: Are there any such cases?

I mean, I never heard actually--

Mr. Boas: No.

Justice Breyer: --when people... no.

I mean, are there any cases in which France or England has convicted people of an antitrust violation punishable by imprisonment for more than a year?

I... I didn't know that their antitrust laws had a criminal aspect, though I haven't looked it up.

Mr. Boas: Nor have I--

Justice Breyer: Fine.

Well, I... I've never heard if anyone in any foreign country, other than ours, though I gather my law clerk found that in Japan, in fact, Japan does have a criminal antitrust law.

They may be the only ones outside the United States, and I don't know that anyone has ever been convicted under it because they're not too... or they didn't used to be too fierce on antitrust enforcement.

Mr. Boas: --Well, 921(20) or--

Justice Breyer: I'm just wondering how anomalous or your anomaly is.

[Laughter]

Mr. Boas: --Well, the... the limitation not only excludes antitrust offenses, it excludes any business regulatory offense.

Justice Breyer: And are there such?

Mr. Boas: Of course.

I think--

Justice Breyer: I mean, maybe.

Mr. Boas: --Yes.

Justice Breyer: I don't... I don't... but I just... are we sure that there... that, you know, that this anomaly exists?

Mr. Boas: I... I'm certainly that there are business regulatory crimes throughout the world.

Justice Scalia: Why did they say any State or Federal?

I mean, in... in a way this provision... you... you may say that the... that the substantive effect of the provision supports your interpretation, but the text of the provision supports the Government's--

Mr. Boas: Well--

Justice Scalia: --because if any only means State or Federal, there was no need to say State or Federal in this provision.

You could have simply said any in this provision, just as you said it elsewhere.

So one would think that they said State or Federal because they wanted to exclude foreign antitrust matters.

Mr. Boas: --Well, this same limitation, Justice Scalia, existed as a limitation under 1202(a) where any court said any State or Federal court and the exclusion said any State or Federal court.

It's consistent--

Justice Scalia: Well, I don't care how it got there.

I'm just saying there... there... if... if any means what you said it means, namely State or Federal, there would have been no need to limit this other provision to State or Federal because the whole statute would only cover State or Federal.

Mr. Boas: --Well, but at some point in the statute, Congress has to give an indication of their intent, and this is where it is.

For example, there's another limitation immediately following it which says it shall also not include any State offense which is described as a misdemeanor in the State and carries no more than 2 years.

Justice Kennedy: No.

Well, but... but Justice Scalia's point... and I... I think he's correct... is that this cuts at least as much in favor of the Government as you and probably more because you would make Federal and State unnecessary surplus.

Mr. Boas: Well, there has to be some indication--

Justice Kennedy: You don't... you don't set forth the main qualification to the main definition in a... in a later subsection.

Mr. Boas: --Well, if we go further with 921(20), there's another limitation that again clearly deals with States, and that's the restoration of civil rights provision.

The Government concedes in their brief... and that was an effort to essentially statutorily reverse the Dickerson v. Banner Institute case... that that applies to State situations.

The idea that if a person receives a State pardon or his record is expunged, that wouldn't be a disqualifying factor.

And they talk about the law of the foreign state being what determines whether it's a conviction or not.

Now, clearly we're not looking at going to some pardon process in Germany or Uruguay to decide whether a person still has a conviction.

Another part of the statute that's very clear, 924(e)(1).

That's the armed career criminal section.

That section says that if a person's who's convicted under 922(g)(1), our statute, and has three prior serious drug convictions in a court described in 922(g)(1), then they get 15 years.

Now, that definition of serious drug conviction is a State or Federal conviction.

Now, let's flip over to 21 U.S.C. 802(44), the drug statute where you have a similar recidivist type of statute where you go from a 5-year mandatory to a 10-year mandatory if you have a prior drug conviction.

There in 802(44), a serious drug offense is defined as a State, Federal, or foreign drug offense.

So we see that Congress can differentiate when it wants to.

Now, they're--

Justice Ginsburg: Would... would you concede that... that this is at least sloppy drafting?

Because they said any in one place, they said State or Federal in other places.

Shouldn't they be... be consistent in their terminology?

Mr. Boas: --Well, perhaps they should be more consistent, Justice Ginsburg, but the overall... I mean, if you go down the list of the prohibitions in 922(g)(1), you can see that the thrust of this is... is to deal with domestic situations.

There's one that says you can't own a firearm if you're a... a fugitive from law... a fugitive from justice.

That's specifically defined as a fugitive from another State within the United States.

Justice Stevens: Mr. Boas, I think you make a strong argument that Congress probably didn't think of this particular problem.

Do you suppose if at the hearings before the committee, the process of the legislation, some witness came in and said, do you realize this language is so broad it will cover the person who is convicted of a felony in Japan, as well as person who's convicted of a felony in Illinois, do you think they would have modified the statute?

Mr. Boas: I think they would have.

I think that... I don't concede that there was really a need to, but I think they would have because they would have said it's--

Justice Stevens: Well, there would have been a need to under your view now.

Mr. Boas: --That's right.

But they would have historically going back to '68 and before, we always intended this to just cover domestic situations.

Justice Stevens: But I suppose somebody on the committee might have said, well, we don't want this kind of person to have a gun, and the fact he's convicted in Japan rather than in Brooklyn really doesn't make any difference with regard to the purpose of the statute.

Mr. Boas: If the individual is convicted in Japan, Justice Stevens, then he would not be under our immigration laws allowed to come to this country, and if he did come--

Justice Stevens: Well, but this person--

Mr. Boas: --he'd be an illegal alien.

Justice Stevens: --But the defendant in this case was convicted in Japan and he somehow got to the United States.

Mr. Boas: Well, because he's an American citizen.

Justice Stevens: Well--

Mr. Boas: So... but Congress can't cure every problem that exists in the world, and this statute is fairly comprehensive.

Justice Breyer: Are people really not allowed to come in if they've been convicted of any crime?

Mr. Boas: Any crime that carries more than a year basically.

It's pretty--

Justice Breyer: Suppose it was a crime like not wearing a veil if you're a woman in a country that... suppose it was a crime like criticizing the government if you were in Soviet Russia.

Suppose it was a crime like... you know, there are all kinds of crimes that we... we would never consider crimes--

Mr. Boas: --Well, that's--

Justice Breyer: --and in other countries there are... we don't let anyone in if they've done any of those things?

Mr. Boas: --No.

Well, those people will probably be seeking political asylum.

Aleksandr Solzhenitsyn... under the Government's interpretation, Nobel Prize winners would be precluded from... Solzhenitsyn did 8 years in a Soviet prison because he said nasty things about Joseph Stalin.

Two American women in Afghanistan, before the fall of the Taliban regime, were arrested and convicted because they possessed Bibles.

Now, the Government says, well, these are anomalies.

These don't occur often.

But Congress had to be aware of the possibility of tinhorn dictatorships all over the world having court systems that were so devoid of due process that we have to take a look at whether we want to--

Justice Ginsburg: Well, the... the court of appeals here said what it would... it read in a check.

It said it wouldn't read it to really mean any conviction.

It had to be in a system that was fundamentally fair.

Wasn't that what the court of appeals said?

Mr. Boas: --That's what they said, but... but when and how do we decide that?

There's another offense under 922(g)(1)... or under 922 that makes it a crime to give a false answer on a... a firearms questionnaire when you go to buy the gun... buy the gun.

Now, what does not individual do?

Does he say to the firearms dealer, do you have a list of countries where our Government has decided it's a fair enough system that I can say no... yes, I have a conviction in view of the list that it's an unfair system so I can say yes, I have no... or no, I have no convictions?

I mean, it... one of the reasons where we employ, for example, the rule of lenity, is... is a person put on notice of what it is that's criminal and what is not.

When does it come up that the system isn't fair enough to count?

Justice Scalia: Well, I think... let... let's put, you know, the worst for you.

If it were put to Congress, which would you prefer, that... that Solzhenitsyn not be able to have a gun or that the worst kind of violent criminal convicted and imprisoned and escaped from a foreign country who manages to get into this country can go in and buy a gun?

Which... which of these two would you prefer?

And I think I'd say, well, you know, it's tough on Solzhenitsyn he can't own a gun, but he'll probably get over it.

[Laughter]

Mr. Boas: Well, what I'd prefer and that the statute means aren't necessarily the same thing, Your Honor.

I'd prefer violent criminals who were dangerous not to have guns.

But again, that--

Justice Breyer: Suppose you put the question to Congress, which would you prefer?

Would you prefer the occasional person who's been convicted of foreign court, comes over here, that this statute doesn't apply to him, or would you prefer that all the refugees from Eastern Europe and people who come from Arab countries and people who come from countries that have quite different systems in places all over the world discover that suddenly they're felons because of things they never would have dreamt of because they were perhaps convicted of selling gasoline on the open market or perhaps they were convicted of any of these religious crimes we've talked about, selling a Bible?

Suppose you put that question to Congress.

Mr. Boas: --I think Congress would say the perils and problems that exist by a blanket inclusion without any method of determining which count and which don't count of foreign convictions are too great.

Now--

Justice Kennedy: Well, if it's a... if it's a matter of notice and... then that's a separate issue.

Plus the Government, it seems to me, should put on its form that this includes foreign conviction, and that solves that problem.

Mr. Boas: --Well, but what if it's a foreign conviction where there's no due process?

Is there a checklist that in that foreign conviction, did you have a jury, did you have the right to confront your accuser, did you have the right to remain silent?

I mean, we all seem to realize that the Government's position that any conviction anywhere is too stark a place.

And again--

Justice Ginsburg: May... may we go back to the... the choice that you were given by Justice Scalia first and then Justice Breyer?

I thought that someone who comes in here illegally and possesses a gun commits an offense.

Mr. Boas: --That's right.

Justice Ginsburg: Isn't it so?

So there's not... Congress would say to that hypothetical, we've got a third choice, much more sensible.

Anybody who sneaks in here without permission and has a gun--

Mr. Boas: That's correct.

Justice Ginsburg: --commits a crime.

Mr. Boas: That's one of the subsections of 922(g)(5).

Anybody who's an illegal alien here illegally can't have a gun.

Anyone--

Justice Scalia: So it doesn't cover Americans, of course--

Mr. Boas: --No.

It doesn't cover--

Justice Scalia: --who go... go and commit crimes abroad, are convicted abroad, and... and come back to home sweet home and then get a gun.

I mean, that seems to me extraordinary.

Mr. Boas: --That... I didn't hear your--

Justice Scalia: That seems to me extraordinary.

I don't think Congress would have wanted that.

Mr. Boas: --Well, I don't think Congress can be said to have intended or envisioned that they would cure every problem in the world.

It's a very, very narrow category of American citizens convicted abroad who come back here.

Justice Scalia: I think if there was a problem that... that they were going to leave unsolved, it is less likely the problem of having an American citizen killed by a gun toted by somebody who has been convicted of a crime abroad than it is the problem of somebody having been convicted abroad of some silly crime like wearing a veil or not wearing a veil or something else.

If... if it's either of those two problems that they meant to leave overlooked, I would say it's the latter.

They might well have said, well, the courts will take care of that.

Mr. Boas: Well, Your Honor, it's unclear what... what their thought process was in this matter.

But I can say this, that the narrow category that escapes the coverage of this statute... there's nothing to indicate anywhere in any of the debates, in the language of the statute that that's what Congress intended.

And again, if you look at the overall view here, I mean, fugitive from justice.

It's limited to someone from the State.

Person... let's look at 922(g)(9).

Very clear, incapable of misunderstanding.

The same prefatory language.

A person convicted in any court... exactly the same, and it ends with the same language... cannot ship, possess, receive.

And what does it say?

Instead of saying convicted of a crime punishable by more than a year, it says convicted of a misdemeanor crime of domestic violence.

And that's defined as a State or Federal misdemeanor.

Justice Scalia: Where... where is that defined?

Mr. Boas: That's defined in 921(a)(33), Your Honor.

It's specifically limited.

Now, here we are.

A person who beats his wife in England can have a gun in this country, but a person who commits a business regulatory offense in Germany can't.

It makes no sense.

The... it... it's a very clear statement by Congress that a misdemeanor crime of domestic violence... they're only intending it to be a State or Federal crime.

Justice Scalia: Once again, that... that cuts both ways.

Why would they... if the text reads the way you say it reads, why did they have to say is a misdemeanor under Federal or State law?

Because it wouldn't have mattered.

The only courts... the only convictions that would be covered would be Federal or State convictions.

They would not need that... that qualification.

Mr. Boas: At... at some point a person has to be told what Congress was intending.

This language goes back to '68 where the language in the exclusion limiting it to State... excluding Federal and State convictions matched the language in the term, any court, in 1202(a), which was title VII.

They were... they were complementing each other.

And... and if you look at even as far back as the Batchelder decision in the '70's from this Court, the Court talked about these two being redundant, overlapping, the only difference being that one uses the term felony, one uses the term crime punishable by more than a year.

Justice Ginsburg: Mr. Boas, when they combined these two--

Mr. Boas: Yes.

Justice Ginsburg: --and ones... the 1202 did say Federal or State... they made other changes, harmonizations.

In the explanation of their consolidation of the two sections, to what extent did they discuss changes and the reasons for them?

Mr. Boas: The... they made no discussion of the reason for taking out the language, of the United States or of any State, and what they... the only language was that we're intending to merge these into one statute--

Justice Ginsburg: But they did... they did explain other things--

Mr. Boas: --Yes.

Justice Ginsburg: --other changes, but this one... there's silence--

Mr. Boas: Exactly.

Justice Ginsburg: --as far as I understand.

Mr. Boas: And... and by keeping in the exclusions, by... by looking at 924(e)(1) where it... what's very important to me is that 924(e)(1) says if you have three prior drug... serious drug offenses in a court referred to in 922(g)(1), you get 15 years.

Those three prior three drug offenses in a court referred to in 922(g)(1) are State or Federal drug offenses by definition.

It seems to me that it really couldn't be any more clear.

And frankly, to the extent it's not totally clear and it could go either way, I think then the rule of lenity requires that it be decided with a more narrow construction, that is, that any court meant any court of the State or of the United States.

I believe it was in the... in the '90's when this Court's opinion, authored by Justice Thomas in I think it was called Alvarez-Sanchez, dealt with a statute, 3105 dealing with the admissibility of confessions in Federal cases and that they won't be inadmissible if they're taken by any law enforcement official more than 6 hours after the arrest.

And the issue what does any mean in terms of any law enforcement official.

And the Court said it means any State or Federal law enforcement official.

Now, it didn't have to reach the issue of whether it included foreign law enforcement officials, but certain things are obvious without an... an explanation.

And you're right.

There was some sloppy drafting here and it could have been more clear, but when we look at the statute as a whole and try to harmonize the various parts of that statute, it would be almost absurd to think, when we look... and... and maybe these anomalies won't occur all the time, as you point out, Justice Breyer, but it would almost be absurd to think that with all of these limitations, exclusions, when we run down the list under 922(g)(1), that Congress was talking about any court in the world.

Now--

Justice Scalia: Let me... let me ask you the question the... the Chief Justice would ask, were he here, because he always asked this kind of a question.

What... if you had to pick your best case of ours which interpreted the word any in the way that you would like us to interpret here, what's... what's the best case you have?

Mr. Boas: --I'd say... that's... there's a question--

Justice Scalia: It's a good question.

He asked a good question.

Mr. Boas: --It's a good question.

[Laughter]

I'd say the Nixon case decided this year which said that any can and does mean different things depending upon the setting and whether it works strange and indeterminate results would be one of my best cases.

There's... when I sit down, I'll probably think of a better one, but--

Justice Stevens: --Maybe you can think--

Justice Ginsburg: How... how about--

Justice Stevens: --Maybe you can think of a unanimous case.

Mr. Boas: --Well--

[Laughter]

Justice Ginsburg: --And this is one I'm... I'm surprised that you didn't cite, but it... I don't think you did... EEOC against Arabian American Oil Company, where the wording of the statute was anyplace outside the United States, title VII coverage, and this Court held that anyplace outside the United States did not mean that a U.S. employer operating abroad had to abide by the anti-discrimination norms with respect to hiring in some place abroad because Congress was thinking in terms of the inter-State sitting... in the setting and not international.

Mr. Boas: Well, I... I'm not familiar with that case.

Justice Ginsburg: That... that was a decision by the Chief.

So--

[Laughter]

Mr. Boas: That's should be... that's a good one too, Judge... Justice.

I... I... there's... there's another case that I'd refer to which is the... the Gonzales case, which is cited by the Government.

Gonzales is interesting because it deals with 924(c)(1), which is the section that says you get 5 consecutive years if you're convicted of... 5 years consecutive to any other sentence if you're convicted of possessing a firearm during the course of a serious drug offense.

And in that case, the Court concluded that any other sentence meant any State or Federal sentence, not just a Federal sentence.

Now, the Government might argue that that helps them because the... the defendant in that case wanted it to be limited to any Federal sentence because he was serving a State sentence, and the question was would the 5 years for the 924 violation be consecutive or concurrent, as the trial court gave it.

But it... what the Court did was say any depends on the context of the rest of the statute.

And here, we think it means State and Federal.

They didn't talk about foreign convictions.

You know, it's interesting.

It's ironic that... that while we're debating how American citizens should be impacted by foreign convictions, the administration is unwilling to sign the treaty that would make American citizens subject to the International Criminal Court because there's concern about what would happen to Americans abroad, even in that court, not in a court in... in Uruguay or in North Korea, but in the International Criminal Court.

In fact, in the preliminary findings of the FOPA statute, the... the Congress said... and this Court doesn't have to decide and I'm not asking the Court to decide the Second Amendment issue, but Congress found the Second Amendment was a fundamental constitutional right.

And the name of the statute is the Firearms Owners' Protection Act.

Congress had in mind protecting the owners of firearms when necessary, and--

Justice Scalia: You call that FOPA?

That's the name of the statute?

[Laughter]

It's an unfortunate acronym, isn't it?

[Laughter]

Mr. Boas: --That's right.

The spelling is a little bit different, Justice Scalia.

But Congress... the... the name of the statute tells you something about Congress' intent.

The otherwise licit and blameless activity of possessing a firearm isn't the equivalent of selling drugs.

Now, maybe if you have a prior drug offense and you're a drug dealer, under 802 of 21, Congress said you get your sentence doubled whether it's a State, Federal, or foreign conviction, but under 924(e) for a conviction under a court defined in 922(g)(1), the prior only ups your sentence if it's a State or Federal conviction.

We can't ignore the overall statutory scheme here, which time and time again refers to domestic matters.

The Government in their brief says foreign convictions are used all the time, and they give three examples.

They say we recognize them for the purpose of extraditing American citizens.

They say we recognize them because if you're convicted of a... a sex offense in certain foreign countries, you have to register here.

And they say we recognize them... I forget what their third reason is.

But there's no example that they gave or that they can give where a foreign conviction is ever used anywhere else in this country as an element of the crime.

I mean, it's used for recidivist purposes and State courts have debated back and forth whether we're going to double somebody's sentence because of a foreign conviction, but it's never used anywhere else as an element of the crime.

This... this would be a first, and it's pretty significant.

To me it's ironic that the Sentencing Commission said you can't use a foreign conviction simply to up somebody a few months in the guidelines.

But the Government here argues that we can use it to satisfy an element of the crime--

Justice Scalia: Recidivism is an element of the crime.

If... if you have a crime of, you know, repeated felony, recidivism is an element.

Mr. Boas: --Well, that... that's correct, Your Honor.

Of course, the... it's an exception under Apprendi that the... the prior crime.

But what... what I'm saying is it's... it's a slightly different situation in terms of it being... I know we have Blakely and the whole sentencing factor issue.

But it... it's a slightly different use of a prior and making... in other... in all those cases, the... it's a crime whether or not you have a felony.

The felony might make it a more serious crime.

In our case, this isn't a crime without this felony.

That's the thing that makes it a crime.

And what I'm saying is the only situation we have where something that's otherwise blameless conduct becomes a crime is the use of a felony.

There's no other situation where a foreign felony is employed or has been employed in that situation.

If there's no other questions, I'd like to, if it would please the Court, reserve the--

Justice Stevens: I'm sorry.

You've exhausted your time.

Mr. Boas: --I have.

Well, thank you.

Justice Stevens: Ms. Millett.

Argument of Patricia A. Millett

Ms Millett: Justice Stevens, and may it please the Court:

Justice Scalia, you asked about what case we would want to adopt and be our strongest case on the meaning of the word any in the statute, and my answer to that question, although I take the liberty of answering it, though you didn't ask me--

Justice Scalia: You can ask it as well--

[Laughter]

Ms Millett: --is the Gonzales case where this Court said that the word any in the gun control law, in this context, in this framework means, read naturally... I'm quoting here.

Read naturally, the word any has an expansive meaning, that is, one or some indiscriminately of whatever kind.

This is not, Justice Ginsburg, a statute where Congress wrote sloppily.

In fact, in Barrett and Huddleston, this Court specifically said and noted that excruciating care with which Congress wrote title IV, section--

Justice Ginsburg: There is... there's an overarching concern and I'll... I'd like to put it to you right from the beginning.

When a legislature legislates, be it the State or Federal Government, it is generally thinking in terms of its own domain, its own bailiwick.

When Congress legislates, it's thinking about the United States.

Sometimes it's thinking about abroad, but most of the time when it is, it says so.

And we have a number of cases, not just the Arabian American Oil Company.

I mean, that... the language of title VII was between a State and anyplace outside thereof, anyplace outside thereof.

And in that very case, the Chief made the point that I'm putting to you now, that Congress thinks about the United States, our country, and if it means to say something that will take in other places in the world, it says so clearly.

And we don't make the assumption that Congress was intending to have any extraterritorial flip to its law unless it tells us that.

That's my overall concern about the Government's position in this case.

Ms Millett: --Justice Ginsburg, this is not an extraterritorial application of a statute.

This regulates a threat to American public safety within the United States by someone within the United States based on their conduct, possession of a firearm by a dangerous person within the United States.

That is not extraterritorial application of the law.

Justice Stevens: --Yes, but--

Ms Millett: That's no more--

Justice Stevens: --but let me just interrupt on your... your best case suggestion.

I don't think the test is when has the word any been used in different ways, but has the word any court ever been used by Congress to include foreign courts.

Ms Millett: --The... the phrase convicted in any court--

Justice Stevens: No.

I'm asking about just the words, any court.

What's your best case for the proposition that that would normally be construed by Congress to include foreign courts?

Ms Millett: --I don't... I don't have a case that specifically talks about--

Justice Stevens: You don't have a case.

Ms Millett: --that yet, but if I can... if I can explain why the phrase convicted in any court... because any any court... the... the problem is you're not... there's not a case for that.

The word, any court, that... those two words appear in a lot of places in the United States Code.

Justice Stevens: And do they ever refer to foreign courts?

That's the question.

Ms Millett: The... not... not that I'm aware of, but... but they don't... it... it doesn't address it one way or the other.

Most of the times, the vast majority of the times that you see any court in the United States, it... in the United States Code, it's followed by qualifying terms.

What's very important here is that the phrase convicted in any court without qualifications.

There's lots of any courts in the United States--

Justice Stevens: But the reason you often need qualification is there's... there's sort of basic question, does this include State courts as where as... as well as Federal, and it's often necessary to spell it out one way or the other.

But I don't... I'm not aware of any precedent for trying to decide whether it also embraces foreign courts.

Ms Millett: --Justice Stevens, if I could make two points.

Again, convicted in any court is rarely employed by Congress.

Rarely.

And we've cited in our brief on the occasions it has been employed, the context and structure are wholly consistent with including foreign judgments.

The PATRIOT Act created a ban on the possession of biological agents or toxins, and it... it picked up this same phrase and put it in there, and I think it is... would... and that is also a statute that in a separate provision has extraterritorial application.

Justice Breyer: How many times have you used this statute to go after people who were convicted in a foreign court?

Ms Millett: It... it's... I can't give you an exact number because we--

Justice Breyer: About, approximate.

Ms Millett: --we don't know about the ones that we never hear about.

Justice Breyer: More like 100, more like 50, more like 10, more like 5?

About how many?

Ms Millett: It's... it's not that... I would... I would say there's probably 10 to a dozen, but I... I have to--

Justice Breyer: 10 to a dozen over how long a period of time?

20 years, 18 years?

Ms Millett: --Since 1968.

It's been on the books since 1968.

Justice Breyer: '68.

Now... so 35-40 years.

Now... now, how many times do you think that people... I mean, the... the... if you've used it only a dozen times or so in about 40 years, then it doesn't sound like a major threat.

What I'm weighing against that is the possibility that people are really convicted abroad of selling Bibles.

That really does happen, and there really were economic crimes in 1968 in all the Eastern European countries, and these aren't fanciful examples I've been giving you.

And so if you were in Congress... or... or why do you think that Congress would have wanted to get the courts into the mess of trying to decide why wouldn't those crimes be covered and were the procedures fair?

And we start distinguishing one country from another.

And what are the procedures in the Ukraine or Kazakhstan anyway?

I mean, my goodness, what a mess for the sake of a dozen cases in 40 years.

Ms Millett: Justice Breyer... and Justice Stevens, I do want to get back because I do have a lower court case that interprets any court in the way you discussed.

I want to get back to that.

But Justice Breyer, I understand this being a very important concern, and... and there are no doubt particular applications that could seem unappealing, just as in Lewis v. United States where this Court held that an invalid, a patently unconstitutional State conviction counts for section 922(g)(1).

The reason that the... the convictions are covered here is Congress was not--

Justice Ginsburg: Which was it?

Just... what was the case you just mentioned?

Ms Millett: --Lewis v. United States, and that is... that's really our favorite case, although we like the word of... definition Gonzales has for any.

But in Lewis v. United States, this Court addressed the question whether the ban on possession of firearms by someone convicted of, I'll say, a felony, a term of imprisonment of more than 1 year, applies to... to convictions that are allegedly unconstitutional under State law or may, in fact, be unconstitutionally entered.

They could have been the product of a coerced confession.

The allegation there was lack of representation of counsel.

Justice Ginsburg: Well, that... that example, what you gave in your brief, gave me this concern.

The problem that you've just been describing, the State convictions that may be invalid but is being used under 922, I regard that as a kind of a venue question because you can go back to the State that rendered the conviction and say, State, I was convicted in violation of the Constitution, give me my good habeas writ that I get... can get from the State.

Then I wipe out that conviction and I don't have it anymore.

But the person who's been convicted, say, in whatever examples... take... Zimbabwe would be another example.

Libya.

To go back to that system and get a conviction expunged.

That's why you can't use a case within the U.S. system where it's a question of where do you go to wipe out your prior conviction.

And for someone abroad, there isn't that option.

Ms Millett: Justice Ginsburg, in Daniels v. United States, which dealt with 924, the sentencing enhancement provision, but it has a... the parallel and incorporates 922(g)(1) convictions, this Court held... a plurality of this Court held in five opinions that... in fact, that the... the bar... or that you still count an unconstitutional or allegedly unconstitutional State conviction, even if it was never appealed and that... and there is no more opportunity for appeal.

The time has passed.

And under 922(g)(1), we also count.

Justice Ginsburg: But that's... that's a question of waiver or forfeiture.

Those are the ordinary rules that apply.

Ms Millett: Yes, but that--

Justice Ginsburg: But... but there's a basic rule in civil as well as criminal procedure, that if you want to attack a judgment, you go where that judgment was rendered.

And of course, you should abide by the timing rules of that, but that's just a very sensible thing within a federal union.

If you're... if you're attacking what State A does, go to State A, don't tell State C.

Ms Millett: --And--

Justice Ginsburg: But that... that doesn't operate internationally.

Ms Millett: --Well, it does certainly in this case.

He could have appealed his conviction in Japan and he did not.

So he had a forum to do that in.

But--

Justice Ginsburg: Yes, but you're not building that into your interpretation of the statute at all because you have said in your brief... and correct me if I've got you wrong... you don't like what the Third Circuit did.

You say just the fact of the conviction counts.

Don't investigate, court, whether it was a fair system that comports with fundamental notions of due process.

Just see if there's a conviction anyplace in the world.

And so what... what you're telling me is that it doesn't matter that you didn't appeal because even if he were precluded from appealing for some reason that we would consider totally unfair, it doesn't matter on your view of this statute.

Ms Millett: --That... that's right, Justice Ginsburg, and that is... you know, the... the statute also bars receipt of firearms by anyone who's under indictment.

And that application applies even though you can't appeal, except for exceptional circumstances.

You can't appeal an indictment.

And the 922(g)(1) bar, this Court's decision in Lewis made clear, is that it still applies unless and until your conviction is overturned.

So you don't have to have had a... a conviction vetted through the appellate process before the bar attaches.

In... in the immigration context--

Justice Ginsburg: But that's... that's standard for judgments anyway.

When the judgment is final, it means you've gotten through the first... it has preclusive effect.

Almost always, when a judgment is overturned on appeal, then you go back to State 2 and say, look, it's been overturned on appeal, and at least in the civil side, almost always State 2 will say, okay, we'll give you post-judgment relief because what we were relying on as our sister State judgment is no longer on the books.

I can't imagine that in our criminal system it doesn't work the same way.

Ms Millett: --Well, certainly in immigration and extradition, you don't get to appeal the validity of your foreign conviction or the... the processes that led to it.

So this is not an alien concept.

And it's very important to understand what Congress was doing here.

This isn't--

Justice Ginsburg: I'm asking if it's alien in our criminal justice system, not in deportation, not in... extradition is somebody who did somebody... something abroad, and we don't send people just to anyplace.

Don't we have to have a treaty?

Ms Millett: --Right.

We have treaties with more than 100 countries and we don't... and... and the courts do not examine the fairness of the proceedings or--

Justice Ginsburg: Because the person is going to be tried in that other system, and we have bound... within our international system, we say we're part of a world community and we want Japan to extradite people who have done bad things here to the United States, and so similarly, we will extradite to Japan.

We don't want them to look at our system and judge it.

We're sending somebody to be tried there.

So extradition is... is something entirely different than--

Ms Millett: --Although we... we do also extradite, just to serve sentences, where there may have already been a trial that could be as flawed as anyone could conceive or articulate.

So--

Justice Ginsburg: --Well, we have the check already that these are... these places with whom we want to do criminal justice business together.

So--

Ms Millett: --Well, what we have is the check that the political branches have decided that it's important to attach significance to foreign court--

Justice Ginsburg: --And then we have the... we have the document where it's very clear we want to have extradition with the UK, with Japan.

Here, you're relying on the word court, and you don't have it all spelled out like you do in an extradition treaty.

And that's the problem here.

Sure, if Congress had said we mean foreign court, then that would be it, but it hasn't said that and we have to determine does it mean the same thing as it means in the extradition context or the deportation context where you have a clear statement that Congress means a tribunal abroad.

Ms Millett: --In fact, in 8 U.S.C. 1182(a) which... which... inadmissibility criterion for aliens, convictions of moral turpitude, there's no reference to whether it's a conviction by a foreign court or a domestic court.

Justice Ginsburg: But if somebody is coming into the country, somebody is asking to come in, any conviction that you're talking about, of course, refers to someplace abroad.

Ms Millett: No.

No, it doesn't, Justice Ginsburg, because frequently and throughout that same statute, it refers to convictions in the United States.

A lot of times the reason for inadmissibility, including the Mariel Cubans cases this Court heard last month, is... is convictions committed in the United States.

Justice Stevens: May... may I interrupt this--

Ms Millett: Now, surely the context--

Justice Stevens: --this colloquy to raise another question, if I may?

Would you concede that there are some tribunals in the world that are comparable to what you might call a kangaroo court that Congress would not have intended to include within the term court?

Ms Millett: --Yes, Justice Stevens.

And I think that's an important thing here.

There has been no contest, for obvious reasons... we're dealing with Japan... as to what Congress meant by court.

And sometimes if it's Saddam Hussein's--

Justice Stevens: And how are we to decide whether such tribunal should be treated as a court within the meaning of the statute when there is no statutory definition of the term court?

Ms Millett: --Through traditional rules of statutory construction.

I think that would involve looking at the other... the... the background that Congress would have enacted the statute against, first of all, and that... that may well have... it may not have been courts of just the United States because, as we know, Congress twice deleted that limitation from the statute.

Justice Stevens: But if you concede that there are some tribunals that are not courts within the meaning of the statute, are you not conceding that the word court is inherently ambiguous?

Ms Millett: I... I am... I am conceding that... that it has to be given meaning.

I don't know that I would call it ambiguous, is we have to figure out.

But I... what I will say is that the phrase--

Justice Stevens: But it's something less than the all-inclusive term, any court, in a literal sense.

Ms Millett: --Any... it has to be... it has to be a court capable of entering convictions.

I don't... I don't think it's ambiguous in a sense--

Justice Kennedy: Well, I mean, it doesn't... it's... it's not a tennis court or an inner court.

[Laughter]

Ms Millett: --Right.

Justice Kennedy: If... if somebody asked where this man was convicted, they'd say in a Japanese court.

Ms Millett: Right.

And... and I think, in addition, we don't decide that a word is ambiguous just at looking at that word.

We would look at the overall structure of the statute, and we would decide that it has to be a governmental entity capable of entering convictions.

Justice Breyer: You didn't really have a chance--

Justice Scalia: Can I assume that there's some prosecutorial discretion in the application of this statute?

I mean, have you--

Ms Millett: Absolutely, Justice--

Justice Scalia: --have you prosecuted any... any woman who tried to buy a firearm because she had been convicted of wearing... not... not wearing a veil?

Ms Millett: --No, Justice Scalia.

Justice Scalia: Do you think any United States attorney would do that?

Ms Millett: I would hope not, Justice Scalia.

I think--

Justice Scalia: Or... or somebody who was convicted of treason in Cuba?

You... you think that... that that would be a... a case that would be prosecuted vigorously by a United States attorney?

Ms Millett: --I... I wouldn't think so.

I think--

Justice Stevens: Do you know any cases in which we've construed a statute narrowly on the ground that we're confident the prosecutor won't bring any such cases?

Ms Millett: --That... well, again, just last... this isn't... this isn't quite the same context.

But just this... just last term in the Cheney case, this Court recognized the limitations on prosecutors.

And in Atwater v. City of Lago Vista, in determining the scope of the Fourth Amendment and the capacity to arrest for misdemeanors, this Court recognized that not all checks have to come from the courts.

They can come from the political process here.

And it's very important to keep in mind that these hypothesized problems, bad applications, are that.

Purely hypothesized.

This has been on the books for almost 40 years.

Justice Stevens: But it's... it's been on the books for so long with very, very few prosecutions.

So it's one... it's not exactly an urgent question.

But it does seem to me if this... this problem had been brought to the attention of Congress, they would have defined the term court, and I don't... they haven't done that but probably because they didn't think of the problem.

And you can argue, well, they surely would have wanted to have this particular person prosecuted, but would they have wanted everyone with every foreign court all over the world.

That's the question.

Ms Millett: And in Beecham v. United States, in Justice O'Connor's opinion for the Court, this Court recognized there... it was dealing with another issue, whether the jurisdiction that restores civil rights is different from the convicting jurisdiction.

It said we don't have any way of knowing whether Congress thought about that.

That's not the question.

Congress passed a statute here.

It passed a statute that's been written very carefully.

It's passed a statute where the definition of the word any in the statute has already been defined.

And the... what the statute has been used for is to prosecute exactly the people that Congress wanted to capture.

It's international gun smugglers--

Justice Ginsburg: Ms.--

Ms Millett: --violent assailants--

Justice Souter: Well, Ms.... Ms. Millett, my... my problem with that argument and I guess my basic problem with... with the case is Congress did not just sort of stop when it got to the point that would support your Lewis argument.

It went a step... it went several steps further.

But one of the steps further that it went to was... was in... in a certain fussiness about the definition of crime, and it said, well, we want to make sure that... that no State or... or Federal business criminals are... are put at a disadvantage by this.

It then accepted anything that a State might call a misdemeanor if it carried no more than 2 years.

And it just seems very odd to me that Congress would have been that careful in putting these limitations on State and Federal crimes and would totally have ignored any category of crime under foreign law, any conviction under foreign law in... in light of some of the hypotheses that have been thrown out this morning.

It just seems strange that it would have ignored foreign law and foreign courts if it thought they were included.

Ms Millett: --I don't think it's strange at all, Justice Souter, and that is because that the business exception, if I can call it that, is a carve-out.

What you have here, in this Court's word, is a sweeping prophylaxis against the misuse of firearms.

That's what this Court called it in Lewis, a sweeping prophylaxis.

And what Congress did was back out--

Justice Souter: Well, it called it that, but it didn't... it didn't have this issue in front of it.

Ms Millett: --That's... that's right.

Justice Souter: I... I realize you've got the language, but it... it wasn't addressing this issue.

Ms Millett: Right, and... and the language should be what counts most.

But beyond that, you're talking about Congress--

Justice Souter: Well, I was talking about our language.

Ms Millett: --Right.

You--

Justice Souter: But... and I think that ought to count for a lot too.

[Laughter]

Justice Scalia: Well, not too much.

Ms Millett: --But what Congress was doing there was backing out.

It was making an exception, and it was doing this against a backdrop of a lot of violence with guns.

And so it makes sense that Congress would proceed carefully and deal with matters with which it was familiar and not want to carve out things that it wasn't familiar with.

Justice Souter: No, but how... how familiar an example is it that price-fixers would... would be placed in... in a terrible position if they couldn't carry guns?

I mean, that was not a pressing problem, so far as I know.

And yet, Congress dealt with it.

Ms Millett: Well, the problem--

Justice Souter: And if it can deal with a problem that is as little pressing as that, it seems odd that it would not have averted in any way to equally non-pressing problems under... under foreign convictions if that's what they had in mind.

Ms Millett: --It dealt with that.

I mean, specifically at the legislative history level, it dealt... it enacted that statutory exception because some States had made these types of business crimes punishable on more than a year.

So that's what it was responding to.

Justice Souter: All right.

What... what--

Ms Millett: I can't... I--

Justice Souter: --No.

I... finish your answer.

Ms Millett: --I can't... I'm not going to stand here and tell you that Congress specifically thought about this.

Justice Souter: Oh, there's no--

Ms Millett: Right, but--

Justice Souter: --We both know there's no--

Ms Millett: --But... but what Congress did here... and it's very important to understand... it was throwing a broad net--

Justice Ginsburg: --Ms. Millett.

Justice Souter: --All right.

Justice Ginsburg: Ms. Millett, there are many lawyers in Congress and at least the law students of my generation... some of them are of that elder age.

We learned in law school one country doesn't enforce the penal judgments of another.

This is a kind of enforcement of a penal judgment of another, not exactly, but something like it.

Another reason why I would expect a Congress, knowing that background norm, would say, when it meant foreign, foreign.

Unlike the context of the immigration, yes, there are some people who left and came back, but many... and... and we have all this whole line of cases.

Is adultery a crime of moral turpitude, and you know, those go back to the '20's.

But this, which came about only because of the merger of two statutes, one saying Federal and State, the other not, and no explanation at all, in light of all these anomalies that have been brought out.

Shouldn't we say to Congress maybe that's what you meant, but if you did, you have an opportunity to say so before we read in foreign?

Ms Millett: --Two answers, Justice Ginsburg.

First, this was the second time in 1986 that Congress refused to include that limitation on courts.

The prior law, before the 1968 act, specifically referred to courts of the United States, States, and territories.

It did not pick up that language in title IV in 1968, and they took it out--

Justice Souter: But neither did it give any explanation for not carrying it forward.

Ms Millett: --No, but I don't... that--

Justice Souter: It's... it's the silence at the... at the time it... it apparently departed from the practice of predecessor statutes that... that seems to be a problem for your argument.

Ms Millett: --But... but again, I don't think this Court has ever characterized as silence Congress' twice deletion of language from a statute in 1968 and again in 1986.

It had it.

It looked at it.

It took it out.

And in 1986 in the Senate report that you were referring to, Justice Ginsburg, earlier, Congress said they... the conference report said we are rejecting the Senate's definition of felony.

The other thing to keep in mind is when Congress enacted this statute in 1968, it also enacted an administrative mechanism for relief that would deal with exactly the uncomfortable situations that have been identified.

925(c) allows an administrative waiver in cases where an individual comes and says I don't want to--

Justice Stevens: You know, this is a very interesting case because there are three ways to answer the question of what is a court.

You can leave it up to us to do it, and that would be judicial legislation to fill in a hole in the statute.

You can have the executive do it, decide what case... what cases to prosecute, or if we should knock out this... interpret the statute in the... in a different way than you urge, Congress would then do it.

Now, which of the three is the better lawmaker on deciding which is the... what should the meaning of the word court be?

The executive, the legislature, or the judiciary?

Ms Millett: --I think... it's, of course, the legislature and the President's signature.

I'd like to put a plug in for the executive in... in that reference, but--

Justice Kennedy: That would save us a lot of work.

We--

[Laughter]

--we could just invalidate all statutes that we don't understand.

[Laughter]

Ms Millett: --But, Justice Kennedy and Justice Stevens, the important thing to keep in mind here is we don't just have a statute that appeared out of nowhere.

It's been on the books for a long time and there was a legislative--

Justice Stevens: No, but it is pretty clear that Congress didn't really think about this problem.

Ms Millett: --No, but it thought... it--

Justice Stevens: And it was also clear on your side that they would like to prevent this guy from having a gun.

Ms Millett: --Exactly, and--

Justice Stevens: So there are two competing considerations, both of which are very powerful.

Ms Millett: --Well, if nothing else... and this guy is squarely within what Congress wanted to capture.

If nothing else, you don't have to decide anything more in this case than that it covers persons like this whose convictions are fundamentally fair and it's not contested and could leave for another day... but let's--

Justice Breyer: --Can I... I want to get you.

Now, I have a new question.

Justice Scalia: Would... would you finish... would you finish please--

Justice Breyer: Well, I have a new--

Justice Scalia: --telling us about the administrative waiver proceeding?

You were in the middle of it and I never heard the--

Justice Breyer: --That's exactly what I wanted to know.

Ms Millett: --Right.

Justice Breyer: And I... can I... that's exactly what I wanted to know.

When a person comes in to get a gun... because I hadn't focused on this, and it actually to me it's relevant.

Suppose one of these people has been convicted in a foreign court and he doesn't have a clue, you know, that this means he can't buy a gun over here.

So he comes over here.

He goes into a... a gun store.

Now, does he get notice that that... this conviction over in Japan or Lithuania or wherever it was means that he can't buy the gun?

Ms Millett: Well, he got... in this case, he got... and this is--

Justice Breyer: No.

I'm asking... I'm asking in general.

Ms Millett: --You... you go and you fill out a form that says, as this case did... and it's on page 4 of our brief--

Justice Breyer: Yes.

Ms Millett: --asked him, have you been convicted in any court of--

Justice Breyer: So it just says any court.

Ms Millett: --In any court.

And I think when someone--

Justice Breyer: Well--

Ms Millett: --No.

But when someone has a conviction, when you have a felony conviction, you're on some notice of inquiry.

Justice Breyer: --It'll work for... yes.

It'll... it'll work for this one, but... but what I'm worried about... and really what led the Sentencing Commission to exclude all this stuff even though clearly recidivists should get a higher sentence, but we still excluded it because it's just a nightmare.

There are notice problems.

There are fairness problems.

There are procedural problems.

There are problems of crimes that aren't crimes here.

Ms Millett: Justice--

Justice Breyer: And... and all those come up, and that's what I'm worried about.

So I see this as a possible out.

Ms Millett: --Well--

Justice Breyer: The one... the procedure you just talked about might help.

Ms Millett: --And it's in 925(c), which is on--

Justice Breyer: That he knows about it.

Ms Millett: --page 65a of our brief.

But let me... let me be--

Justice Scalia: --And it provides judicial review of the Attorney General's failure to give the waiver.

Ms Millett: --It does, and... but let me be candid up front.

Congress stopped funding this administrative mechanism in 1992, and that... this Court addressed that in the Bean case.

It... it doesn't exist now, but that was 25 years after Congress wrote this language and put it in the statute, and the fact that they stopped funding it 25 years later doesn't mean the statute doesn't mean what it said.

Justice Ginsburg: Do you know why?

Ms Millett: And Congress--

Justice Ginsburg: Do you know why they stopped funding it?

Why did... because I think that's been reenacted every year.

No money for this.

Why... why did Congress stop funding it?

Ms Millett: --Because some of... some of the people who were getting waivers were going out and committing crimes again.

Congress here is very concerned about public safety.

And this is not... there was, you know, the question, is there ever an element where you treat this like an element of foreign crime.

There aren't... there aren't crimes normally where you treat indictments or someone being under a restraining order this way.

This is not punishing you for your foreign crime.

This is a global categorical, class-wide judgment that as a class persons who have committed crimes overseas are more dangerous and may pose exactly the public safety risk we wanted to grab and stop.

As a class, they do that.

In a particular case, it may not.

In a particular case, an indictment might not.

Congress was speaking globally.

It did so.

It threw a broad net.

It did so at the time it had an administrative check to deal with these problems.

Yes, that's gone.

That doesn't retroactively change what the statutory language meant.

This Court has said time and time again that this statutory language in 922 was written, in Beecham and Huddleston, with such care that Congress was focused on the difference between the present perfect and the past tense, this Court said in Barrett.

This is not sloppy writing.

When Congress put any court in and did not carry forward a limitation to the courts of the United States and took that out in another part of the statute in 1986, we have to assume that Congress knew what it was doing.

If there were problems here, there is a political process to deal with it.

The political process has taken away the administrative waiver.

But there has not been... this hypothesis of bad applications has not arisen.

It's hypothesized.

And what this statute has... has been used to do is capture exactly the people Congress wanted to capture.

It got exactly the ones who should be disarmed.

Justice Kennedy: Do you know anybody in the Justice Department you might talk to to amend this form so that the form says this includes convictions in foreign countries?

Ms Millett: I... I am confident that the ATF would be happy to do that.

As of now, the ATF has a regulation on the books for someone to look at and see that includes foreign convictions in this definition.

And I think when someone has been convicted, they're on notice.

Thank you, Justice Stevens.

Justice Stevens: Thank you.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Booker - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

United States v. Booker

Media File:

04-104_20041004-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Rehnquist: We'll hear argument now in Number 04-104, United States against Freddie J. Booker and 04-105, United States against Duncan Fanfan.

Mr. Clement.

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

This case, and these cases, concern the constitutionality of the twelve hundred criminal sentencings that take place in Federal court each week.

If this Court re-affirms its traditional understanding of the relationship between the Guidelines, and the statutory maximum penalties set forth in the United States Code, an understanding reflected in a series of this Court's decisions dealing with the Guidelines, than the constitutionality of those criminal sentencings remains secure.

On the other hand, if this Court takes a different view, and treats the outer bounds of the Guideline ranges as if they were statutory maximums, then the majority of those criminal sentencings become constitutionally dubious, and this Court must confront difficult remedial issues.

This is, of course, not the first time that this Court has confronted a challenge to the constitutionality of the Guidelines or to the Commission.

To be sure, in those previous cases, this Court has never considered the precise Sixth Amendment issue before the Court today.

But, nonetheless, those previous cases are instructive, because all of those cases, Dunnigan, Witte, Watts, and Edwards, all reflect a particular understanding of the relationship between the Guidelines and the statutory maximum sentences for each specific crime defined in the United States Code.

And all of those decisions suggest that the statutory maximum in the Code is the relevant focal point for constitutional analysis.

So, in the Witte case, for example, the finding of relevant conduct in the Witte case increased his sentence under the Guidelines by two hundred months.

Nonetheless, this Court rejected the double jeopardy challenge before the Court by emphasizing that that consideration of relevant conduct did not increase his penalty beyond the statutory maximum.

Likewise in the Edwards case, this Court considered the propriety of a judicial finding of crack cocaine that increased the Guideline sentence, when the jury was instructed in the alternative, to find cocaine or crack.

Now, even though the judicial finding had the effect of raising the punishment under the Guidelines, this Court found no serious Sixth Amendment issue raised precisely because the effect of the judge's finding did not take the sentence beyond the maximum for that cocaine-only conspiracy.

Justice Scalia: And you say we found no serious Sixth Amendment issue raised.

Was the right of jury trial issue argued in that case, and decided?

Mr. Clement: In the Edwards case, a Sixth Amendment issue and, I think, fairly including the jury trial, was raised in that case.

Now, I tried to go back and look briefs in that case and I have to admit, they're a little difficult to get through in terms of the precise issue that was being raised.

Justice Scalia: The right to jury trial is fairly clear and stark, and I guess don't recall that being argued in any of those cases.

Mr. Clement: Well, it was argued, I think, fairly clearly in the Watts case, I mean, there was a section... Watts, of course, was a summary reversal, so you have to go and look at the brief in opposition in the Watts case.

And if you do, there's a separate paragraph in the arguments section denominated the jury trial right.

And I think in some respects, the Watts case is a particularly clear indicator that this Court has rejected the view of the Guidelines that Respondents embrace.

Because Justice Stevens was quite prophetic in his dissent in that case.

He embraced the precise understanding of the significance of the outer bound of the Guidelines range in his Watts dissent, and no member of this Court joined that dissent, and no member found the disposition with respect to Watts--

Justice Stevens: That just proves they don't listen to me as much as they should.

Mr. Clement: --It may very well prove that, Justice Stevens, because you were very clear about the point, just to remind you, in the Watts case there were two cases before the Court, there was the Putra case, and there was the Watts case, they were consolidated.

And with respect to Putra, you can envision that case, or characterize that case as being sort of a collateral estoppel, double jeopardy case, but as you correctly recognized, very clearly, in your Watts dissent, with respect to Mr. Watts, the finding, the criminal finding of acquittal was based on 924(c), which requires use of a gun.

The sentencing enhancement was done based on an enhancing factor that only requires possession of a gun.

So there wasn't any collateral estoppel effect in that case.

But, nonetheless, in your dissent you pointed out, in footnotes 2 and 4 that it still had the effect of raising his sentence above the outer bound of the Guidelines range, and that, because that was done on the basis of a preponderance of the evidence, rather than a beyond a reasonable doubt standard, that that raised a constitutional problem, and you would have reversed.

The rest of the Court was happy to summarily reverse in that case.

Justice Scalia: Mr. Clement, here's the problem I have with the Government's argument insofar as it does not urge that we reverse Blakely, I know that you want us to do that as well.

But assuming we adhere to Blakely, it seems to me you have a cure that doesn't correspond to the disease.

You say that the reason the right to jury trial does not apply here is because, after all, these sentences have not been prescribed, or these maximums have not been prescribed by the legislature, but rather, have been prescribed by a quasi-judicial agency.

But the right of jury trial is meant to protect against whom?

Who are you worried about when you say,

"I want to be tried by a jury. "

You're not worried about the legislature, you're worried about the judges, precisely.

So I don't care if the upper level of the Guidelines were actually prescribed by a court, as opposed to the Commission which is, I don't know what it is, but it's not a court.

But even if it were prescribed by a court, how would that eliminate the jury trial problem?

The whole reason for jury trial is we don't trust judges.

Mr. Clement: With respect, Justice Scalia, I'd like to make two observations.

One, I don't think the jury trial right is just a juxtaposition of the role of the jury versus the role of the judge, because if that were the only factor at issue in this Court's Sixth Amendment jurisprudence, it would be very difficult to explain why it is that judicial fact-finding can have the effects that it can under a purely discretionary system, yet this Court has upheld that time and time again.

The second point I'd like to make, is I do think that this Court's Apprendi to Blakely line of cases--

Justice Ginsburg: Can we just go back to the point you just made, it's a little different when the judge has discretion and there's no... the judge has discretion to take a whole bunch of things into account, but they're not quantified.

And I think that was dramatically illustrated, the difference, by the decision of Judge Lynch when he said,

"Well, I'll go back to the old ways of doing it, I'll look at the Guidelines for some advice. "

he comes out with twenty-four months instead of thirty-three months.

So I think there is a huge difference between a judge taking account of many, many factors, not giving them a specific quantity as the Guidelines require.

Mr. Clement: --Well, Justice Ginsburg, I think there... there certainly is a difference between sentencing under the Guidelines, versus a system of discretionary sentencing, or even a system of discretionary sentencing where the Guidelines have an advisory character, I'd certainly concede that.

My point was, though, in making a distinction between the role of the jury and the judge, it's not just as simple as saying that the jury trial right exists precisely to protect the jury from the judge, because if that were the case, the kind of fact-finding that Judge Lynch engaged in, or the kind of fact finding that was commonplace under discretionary sentencing also takes roles away from the jury, and gives them to the judge.

Justice Scalia: Yes, but we're talking here about one precise role of the judge or of the jury, and that is, to find a fact that is necessary to keep you in jail for an additional number of years.

And the difference with discretionary sentencing is if it's, you know, ten to twenty years, what you know when you do the crime is that you've laid yourself open to twenty years.

Now, if you get a merciful judge, good for you, I mean, that's lagniappe as they say in Louisiana, but if you get a hanging judge, you've got twenty years, and you know that when you commit the crime, whereas we have a system now where you entitled to no more than so much.

And I find it just incompatible with a jury trial right to say that that fact must be determined, before you can be kept in jail.

And yet we're going let it be determined by a judge.

That bears no resemblance to the discretionary sentencing system.

Mr. Clement: With respect, Justice Scalia, I think you've built in some assumptions into that question, because under our system, generally speaking if somebody wants to know what the maximum exposure for a particular criminal offense is, they would be well-advised to look at the U.S. Code provision that specifies what the maximum sentence is for that offense, because that is their exposure, that's what they're told about in their Rule colloquy if they plead to the crime, and if the judge makes certain findings, to be sure, upward departure, whatever it takes in a particular case, that is the maximum exposure that the individual--

Justice Scalia: It's not the maximum exposure.

If, for example, one of the factors is whether the crime was committed with a firearm, I know that if I don't use a firearm, under the Guidelines, I can only get so many years, so somebody has to find that I used a firearm, and if I didn't, my maximum exposure is less.

Mr. Clement: --Unless the judge departs for some other reason, or the like.

I mean, certainly that's true--

Justice Stevens: No, or he makes a mistake in finding.

Mr. Clement: --I suppose that's true, too.

Justice Stevens: He finds a gun when there really wasn't one.

Mr. Clement: So there are different ways that you could get that sentence under the Guidelines system.

But if there's no mistake, and no departure on some of the grounds, we both understand, I think, how the Guidelines work and you're describing it correctly.

But still, that is a finding that is only necessary because of the determination of the Commission and the Guidelines, and that brings us back to the question--

Justice Ginsburg: Suppose the determination, as is occasionally true of the Guidelines, is made not by the Commission, but by Congress itself?

Or made by the Commission at the direction of Congress?

Then the distinction that you're making between the maximum set by the legislature and the guidance provided, or the guidance to discretion under the Guidelines, really doesn't stand up.

So at least to the extent that Congress directly enacts Guidelines, would you concede that then, the critical finding has to be made by the jury?

Mr. Clement: --I would not concede that, Justice Ginsburg, but let me first make clear that in the case before us today, the Guidelines that we have are promulgated by the Commission, and were not the direct or indirect result of a Congressional act the way that the, say, the Protect Act added particular amendments to the Guidelines, so that question is not directly posed in this case.

The reason I would say that even in that case there is a difference is because it is still different when Congress goes in and amends a particular Guideline in a sense in a sea of Guidelines provided by the Commission.

And I think that's true, one, because amending a single Guideline doesn't change the overall character of the Guidelines.

But also because, when Congress decides to take action not as a statute, but as an amendment to a Guideline, it doesn't change the fundamental character of the Guideline as a Guideline.

And so after... the Protect Act for example, specifies a period in which... after which the Commission can then amend that Guideline.

Which is obviously not a case that you can have with a statute consistent with the Presentment Clause.

And to just give you another example, the Sentencing Reform Act that has brought us here today, one of the things it did was make specific amendments to Federal Rule of Criminal Procedure 32.

I think when Congress does that, it doesn't make Federal Rule of Criminal Procedure 32 a statute, it continues to be a Federal Rule, the Federal Rules Advisory Committee can still modify it after the fact, and so I think even in that case, there's a difference in effect.

Justice Souter: What is the difference in effect?

I mean, that's where I'm having trouble, and I guess others are having trouble.

Yes, there's a difference in process, there may be a difference, in some sense, in ultimate status, but there isn't, it seems to me, any difference in effect.

The defendant in the courtroom is going to suffer the same effect either necessitated or sufficed by this fact which is just as crucial, whether it's a rule, whether it's a guideline, whether it's a statute, why should that make any difference for the Sixth Amendment?

Mr. Clement: I think it should make... well, I guess what I would respond to that, Justice Souter, is this.

I think that one thing that emerges from this Court's recent Sixth Amendment jurisprudence, is that the impact on the defendant himself or herself is not the only test that this Court looks to.

Because from the perspective of an individual defendant, they don't care if they've gotten five extra years because a judge made a finding under a discretionary regime, or they got five extra years because the judge made a finding that the legislature told the judge to make, the practical effect is the same.

Justice Souter: Well, the practical effect is the same but in the moment before either in theory they commit the crime or in the moment before the trial is over or in the moment before the sentence comes down, there is one big difference in the two classes of cases.

The defendant is entitled to claim that he can not be sentenced to the higher range unless a fact is found.

In a case of discretionary sentencing range, within that range, he can not make that claim, he can not make that assumption, and the... that, it seems to me, is the point at which the jury trial right has got to focus.

Mr. Clement: Well, I think again, as Justice Stevens suggested earlier, I mean, that may be true if you focus in on that single fact under the Guideline system, but under the myriad of various ways that your Guidelines sentence can go up or down, it may be inappropriate under the Federal Guideline system to focus in on the point of analysis on that particular interval, of just the one--

Justice Souter: Why not?

Mr. Clement: --Because, again, as a defendant, you may have a case where there are five or six potential enhancements, and there are five or six potential departures, and your sentence is going to be a product of the judicial fact finding that goes in, in making those various conclusions--

Justice Scalia: And each one is appealable separately, each one is appealable separately, it's a separate legal finding.

And the judge doesn't, in discretionary sentencing, he doesn't have to make any factual finding, he can just look at you and say,

"I think you're a bad actor, you've got forty years. "

We have a system here where the judge must make factual findings, and each one is appealable if he's made them incorrectly.

Mr. Clement: --I don't disagree with that characterization of the Guidelines, but I still think that it is a difference from a pure statutory scheme, it's different from a scheme like this Court had before in Blakely against Washington, where the statute focuses you in on just a couple of factors and you really can re-conceptualize that regime as providing for a base offense level and one or two aggravated grades of the offense.

As Judge Lynch observed in language that we quote on page 4 of our reply brief, you really can't re-conceptualize the Guideline system that way.

Justice Souter: Well, the principal reason you can't, or I think the principle reason that you're advancing is, that the Guideline system is so complicated.

There are a myriad of factors.

As Justice Scalia says, why isn't each one in that myriad subject to the same claim?

Surely, the argument can't be just because it's more complicated, that the Sixth Amendment evaporates.

Mr. Clement: I agree, Justice Souter, and the point isn't that it's more complicated.

If I just continue with Judge Lynch's observation, which, as I say, is quoted on page four of our reply brief, it's not just that it's complicated, it's that the mission of the Guidelines system is, once, assuming that somebody's been convicted of some Federal crime with certain elements defined by Congress, then, what the Guidelines ask the judge to do is evaluate the incident of criminal activity and assess an appropriate punishment without regard to whether it has met the certain elements of a particular Federal crime.

And so, the really, the focus is quite different, and in that sense, I think there is, there is more than a difference in form between a set of guidelines produced by a legislature and a set of guidelines produced by the sentencing commission.

Justice Scalia: I find very little difference between telling him to evaluate it with regard to particular elements of a crime and asking him to evaluate it with regard to particular sentencing facts.

The result is the same.

You're asking him to evaluate it in the light of certain facts that he has to find.

Whether you call them the one or the other, he's doing the same thing.

If he finds this fact you get three more years; if he doesn't find it, you don't.

I mean, you know, as far as the real outcome is concerned, what difference does it make whether you call it an "element" or a "required fact for sentencing"?

Mr. Clement: Well, I think there are differences between the two.

I think if you look at the Washington system that you had before you in the Blakely case, it was a product of the legislature, and so, not surprisingly, there is a focus on the crimes as defined by the legislature, there was a presumptive range for each crime, and then there were a handful of things that got you into... added three years, like a firearm, and then there was basically the upward departure authority or the downward departure authority, and that was it.

And that makes sense; a legislature is going to be predominantly focused on the statutorily defined crimes.

In the context of the Guidelines, on the other hand, it is a much more widely variant focused, and what it's focusing on is the criminal activity as a whole.

There are many factors that can increase it, there's many factors that can decrease it, and--

Justice Ginsburg: Is that complexity, is the key or, suppose these Guidelines were proposed by the Commission, just as they are, with all their complexity, but they were proposed as legislation, and then Congress enacted these Guidelines, would you be able to make the argument that you're making, still?

The Federal system, now legislative guidelines is viable after Blakely?

Mr. Clement: --I don't think so.

I think in that, in that context we would be limited to an argument to asking this Court to overrule Blakely.

But that is not to say that, that, what I want to make the point, though, is ultimately if pushed... and your hypothetical pushes us... if pushed, the argument is one of form, that the fact that these emanate from the sentencing commission makes a constitutional difference.

But I don't want to lose the fact in making that concession that there is still a real difference between the way the Federal Guidelines work and the way the Washington Guidelines work, and the Federal Guidelines work exactly as you would expect: sentencing guidelines promulgated by an entity located in the Article III branch, and consisting of Article III members; and the Washington Guidelines system works--

Justice Ginsburg: But that's not so clear anymore, it just happens that there are three members, but they don't have to be any judicial members, under the current legislation.

Mr. Clement: --That's true, Justice Ginsburg, but there--

Justice Scalia: It's still in the judicial branch, right?

Mr. Clement: --It's still in the judicial branch, Justice Scalia, and there are the same number of judicial members on the Commission now as there were when this Court considered the Mistretta decision.

And I think Mistretta itself recognized that we could have bodies located in the judicial branch that were auxiliary to the judicial branch, even if they consisted, quote, "solely of non-judges".

So I don't think that's what's dispositive.

I think what's dispositive ultimately is what this Court recognized in the Mistretta decision.

In the Mistretta decision, this Court made clear that the Commission was constitutionally located in the Article III branch precisely because it did not take on the quintessentially legislative tasks of setting maximum punishments and defining the elements of Federal crimes.

Chief Justice Rehnquist: In Mistretta it might have come out the other way had it not been for that observation.

Mr. Clement: I think that's exactly right, Mr. Chief Justice.

And I can talk more about that in terms of the separability issue, which is question two.

But I think especially if you get to the point where prospectively the proposal is to treat sentencing enhancement factors under the Guidelines exactly as if they're elements of Federal crimes, they would have to be included in indictments and have to be charged to the jury on beyond a reasonable doubt.

Then I don't see how Mistretta survives anymore or at least how Mistretta allows that particular judicial remedy to go forward.

Because at that point, you've really had the Commission become transformed into precisely what this Court said it wasn't, as a matter of constitutional law, in the Mistretta case.

Justice Kennedy: The paradigm that the cases discussed in Blakely and in the cases leading up to it from Apprendi, are facts such as the amount of drugs, was there a weapon, was there violence performed against the victim.

And if the Court finds that these are so much like an element that they have to be proved, and adheres to its jurisprudence and invalidates the Guidelines to that effect, is there any argument that either the Government makes or that some of the commentators would make, that there are other kinds of sentencing considerations that can be called factual, to be sure, but that should be from the judge: say, lack of remorse as demonstrated after the verdict; the fact that after the verdict, investigation shows that of the two defendants, one was the real ringleader, streetwise, the other was kind of a naive dupe; or that there was a failure to cooperate with the person presenting the... preparing the sentencing report.

These are facts in a certain way.

Is it for a penny, in for a pound?

Do we have to treat all of these as factual, or is there any progress to be made in trying to see if there are some, some facts that are, are like elements and some that are not.

That would be a... it would take a number of cases, I suppose, to elaborate that.

Mr. Clement: Justice Kennedy, I think that the thrust of respondents' position... they can obviously speak for themselves to this point, but I think the thrust of their position is in for a penny, in for a pound, that if you extend Blakely to the guidelines, then that's it, the guidelines go out.

I think the consequence of accepting the Government's position here, that the guidelines are different, would not foreclose the possibility for a more fine-tuned analysis that focused on the particular effects of particular guidelines ranges, or the particularly enhancing factors and the like.

And I think one thing that ought to give the Court caution before it extends Blakely all the way to the guidelines is, if you look at the guidelines, there are certainly some enhancing factors or some factors that increase punishment under the guidelines, that look nothing like any traditional element of any crime.

Justice Kennedy: What, what, what tests would you propose, or the commentators?

How do we distinguish the permitted kind of fact that the judge can find, and those that must be for the jury?

Mr. Clement: Well, I mean, two things, Justice Kennedy.

I don't want to get too far afield in the sense that we think that for purposes of this case, the Court could distinguish the guidelines and could still maintain the very bright line of Blakely as applies to legislative enactments.

But if this Court were going to either, with respect to legislative enactments or in the particular field of the guidelines, try to develop another test to differentiate elements from... I'm sorry, elements from sentencing factors, I think this Court could get guidance in the same kind of analysis that it's done in the context of affirmative defenses.

As Apprendi itself recognized, in the Patterson case, this Court decided that in that context, it would not adopt one bright line or another and just give up the enterprise of drawing lines in between.

And I think a similar enterprise could be done under the guise of dealing with the guidelines.

But I think the thrust of the Government's position here today is that you shouldn't accept the Respondent's particular challenge to the guidelines because that does have the effect of

"in for a penny, in for a pound. "

and wiping the guidelines out.

Justice Stevens: Mr. Clement, following up on Justice Kennedy's thought, if we adhere to the strict language in Apprendi itself, as quoted below, any... solely on the facts reflected in the jury verdict or the plea bargain, that's... that establishes the maximum.

What percent of the total number of sentences that are imposed in the, by the Federal system today would violate that rule?

Mr. Clement: Well, Justice Stevens, let me try to answer it as best as I can.

I want to make the observation, though, that the only estimate I can give you is based on retrospective data, obviously, and it could be--

Justice Stevens: Well, let's look at the future and assume that in 97 percent of the cases which are plea bargains, you could agree on what the relevant facts are.

That certainly could be done.

And in the 3 percent that are trialed, it is my impression that a very small number of those actually involve violations of the Apprendi rule.

Is that correct?

Mr. Clement: --I'm not sure that's right, Justice Stevens.

Let me answer it this way, because I can only answer it based on the data I have.

Justice Stevens: See, it's relevant because underlying all this is a question if the guidelines fail in toto, or do they only fail with respect to those relevant small number of cases in which there's a violation of the Apprendi rule?

Mr. Clement: I understand, and let me answer it this way, which is looking retrospectively at the data from 2002.

If you consider all the cases that either went to trial or pled and that, they're not differentiated, the two aren't differentiated, then about 65 percent of the cases raise a potential Blakely or Apprendi type issue, so that would be the starting point for the analysis.

Now, as you pointed--

Justice Stevens: In raising the issue, it depends on what... the issue you describe.

A lot of people describe it as an issue when you just use the guidelines at all.

Do they raise an issue, involve it in a sentence over and above the amount that would be authorized by either the jury verdict or the plea bargain?

Mr. Clement: --Yes, that's 65--

Justice Stevens: Do you think 65 percent of the cases do?

Mr. Clement: --The numbers that we have is 65 percent.

Basically, you have 44 percent of the cases involve some chapter II or chapter III enhancement or adjustment to the base level.

And then we've kind of looked, in addition to the 44 percent, we've looked at the drug cases, which by the nature of the drug sentencing table, virtually all of the drug cases, if they don't implicate a mandatory minimum, involve a potential Blakely upward adjustment.

And so what we've done is, in looking at these numbers, is to basically take all the drug cases and then subtract that--

Justice Stevens: They all, of course, involve a potential upward adjustment.

But do they all involve actual sentences above the amount that the jury verdict would have authorized?

Mr. Clement: --Well, again, Justice Stevens, I don't know, because that comes to a second question, which is, if I understand your question, which is, we know that 65 percent of the cases raise a potentially, a potential Blakely issue.

Then the question is, well, if 97 percent of the cases settle, is there a way to sort of waive Blakely rights and the like, and make this workable going forward?

And it's hard to know what the, what, what system will emerge.

Justice Stevens: The thing that... I'm sorry, but I really, it's very important to me.

Raising an issue, the issue is always raised when there's a possibility of a higher sentence, but I don't think it's fair to assume that 65 percent of the sentences of tried cases actually resulted in sentences higher than what the jury verdict would have authorized.

Mr. Clement: Well, again, I can only give you the numbers--

Justice Stevens: It's potentially that every case does.

But if in fact, most sentences come within the maximum anyway, it's of course a serious problem in those cases, but system-wide, it's not nearly the problem that the figures you've mentioned suggest.

Mr. Clement: --Again, Justice Stevens, I want to answer as best I can.

The figures I have suggest that 65 percent of the cases do involve an upward adjustment of some kind.

And so there is a Blakely problem.

So the only real question is, all right, 65 percent of the cases in the world where nobody thought Blakely was a problem for the guidelines involve those kind of upward adjustments.

There may be ways through plea agreements and the like to have people waive their Blakely rights in certain ways that may make the system work a little bit better or deal with a slightly reduced number of cases.

But I think any way you slice this, this is going to have a tremendous impact on the reality of criminal sentencing in the Federal system.

Justice Scalia: Well, as to past.

I mean, it may have a significant one-shot impact with respect to cases that were decided without Blakely in mind.

But for the future, I, I just don't agree with you that changes could make some reduction.

I think changes could provide for jury findings whenever, whenever there's a need for a higher sentence based on facts.

I don't know; what is the problem with that?

Mr. Clement: Well, I, well let me try to address the remedial question then going forward.

If this Court were to find that Blakely is fully applicable to the guidelines, then that's going to raise some very serious and complex remedial questions.

One question, though, I think ought to be clear, is that one option that shouldn't be on the table is the idea that on a prospective basis, the guidelines are severable in a way that makes all enhancements or all upward adjustments completely unavailable, and all downward departures fully available.

Because that system is obviously nothing that Congress intended.

Now Respondents, for their part, don't propose that rule, although they want to benefit from effectively that rule for their own cases.

What they suggest is that on a going-forward basis, you could include the sentencing enhancing factors as, in the indictment and then send them to the jury as effectively de facto elements of the crime to be found by the jury beyond a reasonable doubt.

Now with respect, I think that so-called Blakely-ization of the guidelines creates an enormous amount of judicial lawmaking and raises very serious separation of powers problems.

Justice Souter: What is, what is the lawmaking part?

I mean, if I have a choice... if I have... let's put the question this way.

Congress has authorized the Commission and the Commission has said,

"If fact X is found, then the range is higher. "

Is there a lot of lawmaking in concluding that Congress and the Commission would prefer that range to be higher regardless of whether a jury found the fact or a judge found the fact?

That doesn't seem like much of a stretch to me.

There may be other reasons not to do it.

But in terms of judicial lawmaking, it doesn't seem like much to me.

Mr. Clement: Well, with respect, Justice Souter, I think it is fairly ambitious judicial lawmaking.

You do have to take out a fair amount of text to get the sentencing judge effectively out of the business of fact-finding.

Justice Scalia: What text do you have to take out?

Mr. Clement: You have to take out the reference in 3553(b), that talks about what the courts find, and then it makes a definite reference to the court needing to find things in order to have upward and downward departures.

Justice Scalia: It depends on what you mean by the "court", doesn't it?

Justice Stevens: Just consider the word court to mean jury.

Jury or a judge.

Mr. Clement: And I think then--

Justice Scalia: Which... which is sometimes done, there are statutes that refer to the court, that--

Mr. Clement: --And as we point out in our brief, there are plenty of statutes that refer to the court in distinction from the jury.

I think then if you look at 3742(e), which is the appeal right, if you look at 3742(e), it makes it quite clear that on appeal, courts of appeals are supposed to defer to the, to the fact, the facts found by the district court.

Now I think in the context of the overall provision for judicial review, that it's clearly a reference to the judge, not to the jury.

Justice Scalia: --It seems to me, when there is an ambiguity that construed one way creates a constitutional statute and construed another way creates an unconstitutional one, it's an easy call.

Mr. Clement: Well, with respect, I don't think there's any way to avoid a potential unconstitutional system going forward, because if you treat these guideline factors that were clearly created by the Commission and in some cases created by Congress, on the assumption that they would be used for judge fact-finding, and then send them to the jury, then what you've done prospectively... it's one thing... let me put it this way.

It's one thing to recognize that the guideline factors that are enhancements have the effect of increasing sentences and operate like elements of crimes for retrospective constitutional analysis, for finding a Sixth Amendment problem, but it is quite another thing to prospectively treat those factors exactly as if they're elements of crimes, force them to be included in the indictment, send them to the jury beyond a reasonable doubt.

Justice Stevens: It just means that if a different procedure is followed, you'll reach precisely the same sentences the guidelines reached.

Mr. Clement: Well, I actually don't think that follows, Justice Stevens, because I think taking guidelines that were clearly designed for judge fact finding and sending them to the jury--

Justice Stevens: You think judges reach different results on factual issues than juries do?

Is that part of your submission?

Mr. Clement: --No.

What my submission is, is that taking guidelines that were designed for judge fact finding and sending them and using them for jury fact finding is going to have a very disproportionate impact on some cases.

Let me give you an example if I could, to make the point.

If you think of two fraud cases that under the guidelines--

Justice Stevens: But keep it simple because we're assuming that in most cases, there aren't a host of factors but usually just two or three, such as the drug quantity and did he... a gun.

Now in those where there's a fairly simple fact to identify, would it make any difference in the ultimate sentence that's imposed whether the jury finds it or the judge finds it?

Mr. Clement: --I think it would, Justice Stevens.

And if I could... I'll keep it a very simple fraud example.

Justice Stevens: Keep to the bad example I've given you.

The gun and the drug quantity.

Why would it make a difference?

Mr. Clement: Well, it might make as much a difference in the drug case--

Justice Stevens: Would it make any difference?

Mr. Clement: --Well, here's how it could make a difference, if I could use the fraud example.

Justice Stevens: Okay.

Mr. Clement: And then you may be able to see how it could or could not relate to the marijuana example or a drug example.

In the context of a fraud case, two fraud cases that are sentenced the exact same way and treated as uniform and proportional under the current system--

Justice Stevens: And there's a difference in sentence depending on the on the amount of money that the fraud involved.

Mr. Clement: --In the number of victims.

And what you'll have is... if you think of one fraud that involved one victim and a slightly higher amount of money, and another fraud that involved many victims and a slightly lower amount of money, the current guideline system basically tries to treat them the same.

Now with a single fraud victim, the idea of Blakely-izing the guidelines may be relatively straightforward.

You include the loss amount in the indictment.

You put a special verdict form with the amount of loss on it.

And you call in that one witness, and you can prove up your case beyond a reasonable doubt.

But if you have a case of telemarketing--

Justice Stevens: In that case... let's take them one at a time.

In that case, would it make any difference whether the jury made the finding or the judge made the finding?

Mr. Clement: --I don't think it would, Justice Stevens.

Justice Stevens: Okay.

Then what--

Mr. Clement: But that's what, what I want to contrast it is with--

Justice Stevens: --Now can you hand me a case in which it would make a difference.

Mr. Clement: --Sure.

Imagine that you have a telemarketing fraud where a thousand peoples... a thousand individuals have been milked out of a couple of dollars each.

Now under the current system, proving up the fraud amount for the judge is not that difficult because you can get the probation officer to testify, or some other way to get the total amount of the fraud in front of the judge.

Under the system that Respondents propose, you're going to have to call in every one of 2,000 individuals who was defrauded.

Otherwise, I think it's going to be very difficult to prove that fraud amount in front of the jury beyond a reasonable doubt.

And that just is one example of the disproportionate and disuniform effects--

Justice Stevens: You don't think a very large fraud such as you've described could be proved through two or three witnesses?

Mr. Clement: --I think it would be very--

Justice Stevens: If you used the Internet and they had all said... I am not persuaded.

Mr. Clement: --Well, I suppose--

Justice Scalia: And if it can't be, maybe the judges shouldn't go, be going around guessing how many people have been defrauded.

Or you know, saying

"more likely than not, on the basis of the kind of evidence we usually don't accept in criminal trials. "

Why is that okay?

I don't understand it.

Mr. Clement: --Well, again, I think whatever else is true, what you would be doing with such a system is you'd be taking factors that I think everyone concedes were designed by a Commission that was upheld as constitutional precisely because it did not have the effect of creating new Federal crimes and statutory limits.

Justice Scalia: It doesn't make me feel any good if I spend another years in jail because of it.

Say,

"Oh, well, don't worry about it, it wasn't an element of the crime, after all. "

[Laughter]

Mr. Clement: No, I understand that, Justice Scalia.

I'm trying to talk about the remedial question, though.

Justice Ginsburg: May I ask--

Mr. Clement: Sure.

Justice Ginsburg: --about practice experience in that regard.

I understand the Department of Justice has told prosecutors that now you allege these sentencing enhancers... like drug quantity, like amount of property stolen... you allege them in the indictment, you prove them beyond a reasonable doubt.

Has that proved intractably difficult in cases where it has been attempted?

Mr. Clement: Well, Justice Ginsburg, I think we don't have enough experience to know.

I think I can tell you one thing: that with a lot of enhancements, putting something in the indictment is not necessarily the difficult step.

There are some things like relevant conduct that can be very challenging to try to formulate in an indictment.

But for a lot of the factors that enhance a sentence, it's relatively easy to put it in the indictment itself.

I think the trickier difficulties come up in terms of trying to instruct the jury, especially in cases where there are multiple enhancements.

Chief Justice Rehnquist: I'm assuming that in the case of, say, perjury at trial, you couldn't possibly allege that in the indictment because you won't know.

Mr. Clement: That's completely right, Mr. Chief Justice.

And those cases are just out.

Justice Souter: They've got to be separately prosecuted.

Mr. Clement: And that's never been the under... I mean, that's true, there may be some cases that you could bring a separate perjury prosecution, but this court--

Justice Souter: Well, I don't know of any case in which you could.

Mr. Clement: --Well, there may be situations where there's an obstruction of justice that wouldn't necessarily make out all the elements of a perjury prosecution.

Justice Souter: No, no.

I just, we ought to have an obstruction of justice crime with defined elements that can be prosecuted.

Mr. Clement: Well, Justice Souter, with respect, I mean, this Court, both before the guidelines and after the guidelines, rejected the argument that the only way to enhance a sentence for obstruction of justice was to bring a separate perjury prosecution.

Justice Souter: And I, I would, I would take the same position today, unless you were going to define it, in terms of a condition that is both necessary and sufficient to expand the sentencing range of the crime that you are nominally prosecuting the person for.

I mean, that's the rub.

Mr. Clement: But that's--

Justice Souter: Let me go--

Mr. Clement: --That's what this Court had before it in Dunnigan.

And this Court said that that was not problematic.

It was obstruction during the trial.

And this Court upheld it on reliance on Grayson, a pre-guidelines case, and this Court said that the additional rigor and predictability instilled by the guidelines did not make a constitutional difference.

Justice Breyer: I've listed four categories of things that you think would be very difficult to prove to a jury at the trial, but not to a judge at sentencing.

The first is the vast amount of information now and prior to guidelines that were contained in the presentence report.

That information, most of which was used since history was begun, maybe a hundred years ago, is simply not available until the trial was over.

The second happens to be the things that the Chief brought up, matters committed at trial, such as perjury.

The third sort of thing are those things that just get too complicated when you try to list in indictment, such as victim... put them all together... victim, brandishing the gun, et cetera.

And the fourth kind of thing are the things that are too difficult to explain to a jury.

Try explaining even "brandishing" to a jury, and if you can do that one, which may be easy, try the multiple-count rules.

All right.

So I have those four things.

Now, are there others?

Mr. Clement: I think that's a fair summary, Justice Breyer.

I think on sort of how complicated it gets to take something that was designed for a judge and then send it before the jury in jury instructions, I would ask the Court to look at the Medas case, which we cite on page of our reply brief.

Justice Breyer: All right, all right if I believe that that is just out of the question, it's so complicated, nobody could do it, it would be a radical change, Congress could never have intended that, what about a much simpler approach?

What you would do is take 3553(b), and you say,

"Read the word i.e. "shall apply the guidelines"... to "may",. "

so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor.

In other words, read 3553(b) as permissive.

And now, assuming I've expressed myself on the underlying Apprendi questions, so I, but suppose Blakely does apply, would you... is... what would be wrong with taking that approach?

Mr. Clement: Assuming I understand the approach you propose, there would be nothing wrong with taking that approach.

Justice Breyer: All right, I have thought of one thing that might be wrong.

[Laughter]

So I'll ask you about it, if you want.

[Laughter]

Justice Scalia: Could it be that "shall" does not mean "may"?

Right?

[Laughter]

Oh, that's not it?

"Shall"--

Justice Breyer: All right, well, I... you see nothing wrong with that.

That makes the guidelines advisory, and there are a number of objections... maybe not, maybe big, maybe small.

One objection I was worried about is... I'm giving you my thought process, you know, and I... because I'm trying to get a... your response... is that if we did take that approach, you'd leave the appellate section in place.

That means every time the judge didn't use the guideline, the appeals courts would have to review for reasonableness.

Now that would be in place.

We would discover judges all over the country having different views on that.

Courts of appeals would have different views about was or what was not reasonable.

We would be here to review those differences, and we would become the sentencing commission.

I thought I had escaped.

[Laughter]

Now, how, how serious an objection is that?

Or do you recommend that, if you lose on this point, we take the approach of, in that way, making the guidelines advisory?

Mr. Clement: I would... I would take the approach that you should make the advisory... the advisory guidelines... the guidelines as advisory.

Now, with respect to whether or not you've escaped from the burden of serving on the sentencing commission, I don't think that the reading of 3742, the appeal provision, that you've envisioned is necessarily foreordained.

I think--

Justice Kennedy: Well, have you escaped Apprendi?

If discretion is cabined by guidelines and appellate courts review, for the abuse of discretion in applying those guidelines, why isn't that the same kind of entitlement that the Apprendi/Blakely opinion is predicated on to begin with?

Justice Scalia: --Absolutely.

Vote me for that.

I mean, after all, judges used to define the elements of crimes, didn't they?

And the mere fact that the elements at common law were defined by judges rather than by the legislature didn't mean that you didn't have to have a jury find them.

So if courts are going to establish the guidelines, so long as they are still binding, it seems to me you still need a jury finding, or you haven't escaped Apprendi.

Mr. Clement: --A couple of observations, Justice Scalia.

First of all, you're exactly right, since 1812 we've abandoned a system where judges can define the elements of crimes.

And that's why, if I leave you with one thought on the remedy, I would think that it's inappropriate to allow an entity within the judicial branch to have that effect on a prospective basis.

I think that would be a very serious separation of powers problem.

I think it would dwarf the separation of powers problem that at least you found quite significant in the Mistretta case.

Now, if I can address Justice Kennedy's question about the appeals system simply replicating the Apprendi or the Blakely problem.

First of all, we would suggest that the appeal process that you've envisioned would not violate Apprendi and Blakely.

And that's one of the reasons that we think the Commission wouldn't violate Blakely.

Because what we see is a distinction in this court's cases.

They have... this Court has that judicial discretionary sentencing doesn't implicate the Sixth Amendment.

This Court has said that legislative-directed sentencing does implicate the Sixth Amendment.

What the guidelines present is a situation of judicial sentencing that's directed.

We would suggest... we would suggest--

Justice Scalia: Judicial discretionary sentencing, as I understood it, never permitted an appellate court to increase the sentence given by the district judge.

Do you know of any cases, where an appellate court said the district judge did not give enough years, where there was discretionary sentencing?

Mr. Clement: --Well, Justice Scalia, I can point you to the DiFrancesco case, where this Court approved an earlier Federal statute that allowed for appeals in sentencing.

Justice Scalia: Well, that may be under statute, but I do not know, at common law, that when you talked about the discretion in the courts, it meant that in a criminal case a court of appeals could increase the sentence because of a... because of an abuse of discretion by the sentencing judge.

I'm unfamiliar with any such case.

Justice Breyer: Well, there are lots.

There are lots, actually.

If you... if... I ask, "Is it right, that"?

[Laughter]

But, I mean, if you take common law to mean England, as well as the United States, there weren't here, because the sentences weren't appealable, but in England, they were appealable, and they had a common law work out of what they called the "tariff", which is what the range of reasonableness was or wasn't.

And the prosecution, I believe, could appeal it of being too low; and the defense, being too high.

And the question was, Was the sentence reasonable?

The appellate court could set it.

Now, if we had a system like that... and this is my serious question... is it unconstitutional under Apprendi if appeals court judges reviewing a sentence could say,

"This is the range of reason, this is arbitrary up here, or this is arbitrary down there? "

Mr. Clement: Well, I think our position would be that that kind of system would be constitutional.

As I was suggesting to Justice Kennedy, we think, because that system would be constitutional, we think the guidelines are also constitutional.

I think Justice Kennedy is right, though, that somebody that says that that system is unconstitutional and the guidelines is unconstitutional is not going to be particularly impressed by that reading of 3742 that gets you to that result.

And that's why I want to leave you with an important thought, which is, that reading of 3742 is not foreordained.

This court could say that the guidelines should be applied in an advisory fashion, and that all that would be left of the Government--

Justice O'Connor: That just seems so contrary to what Congress intended.

There's no evidence that they intended this scheme to be advisory.

They told the Commission to set up a scheme that would be applied, because they wanted to make sentencing more uniformly applied in the Federal scheme of things.

I think it's a real stretch to try to argue for the position taken by some Federal judges in one of the amicus briefs that,

"It's just advisory, don't worry. "

And I find it very difficult to understand how appellate review could be applied to such a scheme.

Mr. Clement: --But, Justice O'Connor, that's why, to be clear, we've only argued in favor of an advisory view of the guidelines if we get to the remedial question, because I think you're absolutely right, if you look at what Congress actually intended, it's crystal clear they did not intend the guidelines to be advisory.

But it's equally crystal clear they didn't intend the guidelines to be the basis for jury fact-finding.

Chief Justice Rehnquist: Well, what if this Court said the guidelines are unconstitutional, period, and then judges simply looked to the guidelines, figuring, well, this is as good an idea as anybody else has about sentencing?

[Laughter]

Mr. Clement: I think that actually would be the proper remedy.

That's effectively what we ask for, Mr. Chief Justice.

And--

Justice Ginsburg: And if it were done that way, why would it be that you would try to change the word (b)?

Why not just have Section 3553(a), which does list the guidelines as one of the considerations that judges may take into account in sentencing, one of... among three or four others?

Mr. Clement: --No, I think that's fair, Justice Ginsburg.

I mean, in responding to Justice Breyer's hypothetical, I didn't mean that was the only way to get to the result we've proposed.

And the particular way, in our brief, that we suggest that you would get to an advisory use of the guidelines on a prospective basis is precisely as you suggest.

You don't read 3553(b) to change "may" to "shall"; instead, you read it, unfortunately, I guess, if we've reached the remedial question, to be unconstitutional.

And then, at that point, you focus in on 3553(a)--

Justice Ginsburg: Which has the guidelines--

Mr. Clement: --Absolutely.

Absolutely.

Justice Ginsburg: --as one of other factors.

Mr. Clement: Exactly.

And then if I could just--

Justice Scalia: Except that that, as Justice O'Connor suggests, deprives the statute of its principal purpose, which was to constrain... to constrain judicial discretion.

If there's anything clear about it, that was clear about, it was that they did not want judges to have as much discretion as they had.

And now you say these things are just advisory.

It seems to me much easier to... I wanted to ask you one very precise question.

Assuming I think "court" can mean "jury"... it doesn't have to mean "the judge"... where in, in the whole guideline system, how many sections do not permit the use of "court" to mean "jury"?

Mr. Clement: --Well, I think--

Justice Scalia: I think there's only one where, where it may not work.

Mr. Clement: --Well, I don't see how it works in 3742(e), because if you read that section in context it's talking about determinations made by the court, it's talking about determinations made by the court after the presentence report comes in--

Justice Scalia: That... that may be the one.

Mr. Clement: --and so I think that 3742(e) has to go.

I think the fairer--

Justice Scalia: All right.

Anything else has to go?

Mr. Clement: --Well, I think the fairer reading of 3553(b) is that it has to go, too.

I know that you don't agree with--

Justice Scalia: Yeah.

Mr. Clement: --I think you disagree with me on that.

I think 994... 99... 994(a), in Title 28, which talks about the guidelines being for the use of the sentencing court, I would suggest that has to go, but I assume you would say sentencing court can mean sentencing judge.

Then at that point, there's a provision of rule 32 of the Federal Rules of Criminal Procedure that must go, because it talks about the role of the district court in a way that I don't think you can, sort of, find to mean the jury.

And then I think, obviously, the sentencing guidelines provision that makes clear that it is the judge that's to make the findings by a preponderance of the evidence, has to go, as well.

So I think that is... that is... that is the sum total of the carnage of deciding--

[Laughter]

--that the guidelines are fully applicable with Blakely.

Justice Kennedy: If you... if you interpret "court" to mean "jury", how many of the sentencing factors which will be submitted to the jury are... would be a radical departure from the tradition, the role of the jury in the criminal system in the Anglo-American tradition?

Mr. Clement: I think very, very many of them.

I mean, I can't give you a better answer than that, in terms of the number.

But the Medas case, on page of a reply brief that I suggested the Court look at, provides one example.

There, you had a case where it had already gone to the, to the jury on a general verdict, and it had the typical kind of general verdict form that's used.

A six-count indictment.

There were boxes, guilty/non-guilty for each of the six crimes in the indictment.

Then when there was a concern that Blakely might require jury findings on all the various enhancements, the Government tried to put in a 20-page supplemental special verdict that tried to walk through the various factors that the jury would try to find.

I think that just, in miniature, shows you the kind of transformation you're talking about.

You go from a 12-line general verdict form, which is the classic kind of verdict form used in the criminal system, to 20 pages of a supplemental special verdict form.

Justice Scalia: Well, you ought to get rid of that prosecutor.

That didn't seem to me very sensible at all.

Mr. Clement: With respect, Justice Scalia, I think if you look at that supplemental verdict form, and you look at the guidelines, there's no other way to do it.

And I think, as the judge in that case said, one of the things that comes up in virtually every guidelines case is the issue of relevant conduct.

Now, that is a very, very difficult thing to try to instruct the jury on.

The application notes that the Commission itself have come up in span eight and a half pages of very small, single spaced text.

To try to give that as jury instructions, I think, would leave the jury completely bewildered.

Then, you'd also, though, even if you could get past the instruction problems, the effect of considering relevant conduct is going to have a transformative effect on what goes before the jury, because relevant conduct asks the jury not to focus on the elements of the specific crime; the relevant conduct focuses on the other acts of that individual defendant and, if there's joint criminal, if there's a joint criminal undertaking, the reasonably foreseeable events of acts of others taken in furtherance of the joint undertaking.

Now, the effect of using that guideline, designed for judges, and sending it to the jury, is effectively to transform many, many cases from individual defendant cases to scheme cases or conspiracy cases.

So in tallying up the carnage and the wreckage of applying these guidelines designed clearly for judge fact-finding and willy... nilly sending them to the jury, I think you have to include the confusion and the difficulty of that.

Justice Stevens: Mr. Clement can I... you don't have an awful lot of time left, and I want to ask you one rather important question, to me.

There's been a lot of talk about severability of the statute, and I can understand the concept that we'll only apply it in certain categories of cases.

But normally when I consider severability, I'm thinking of the text of a written statute.

Is there a particular provision of the sentencing guidelines that you think can be severed from the rest of the statute?

Mr. Clement: Well, Justice Stevens, I think with respect to the Sentencing Reform Act itself, the statute, the provision that we think needs to be severed is 3553(b).

Then, with respect to the Guidelines, I think our view on the guidelines--

Justice Stevens: Just sticking to the statute, take out 3553(b) in its entirety, you just--

Mr. Clement: --Well, the specific reference to "shall"... this is basically the "shall/may" issue... I think that needs to be severed.

I'm not quite sure whether 3553(b) is left after you do that, but that's... that's the important thing.

Justice Stevens: --I'm just not sure what's left of the whole statute if you take that provision out entirely.

Mr. Clement: Well, I think, as Justice Ginsburg suggests, 3553(a) still stands alone as telling the court that it should consider that.

And I think, in fact, if you look at the legislative history, I actually think the language in 3553(b) was, was a floor amendment that was added later.

So it certainly doesn't pull the whole statute down to take that one provision out of the statute.

If I could reserve the remainder of my time.

Argument of T. Christopher Kelly

Chief Justice Rehnquist: Very well, Mr. Clement.

Mr. Kelly, we'll hear from you.

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

The first years of Freddie Booker's sentence punished him for crimes that were proved to a jury.

But the judge added another eight years to his sentence, years that were only authorized by the judge's finding that Fred Booker probably committed other crimes.

Like thousands of other Federal defendants, Booker's sentence was increased based on crimes that were never proved to a jury beyond a reasonable doubt.

The final years of a Federal sentence are as worthy of constitutional protections against undeserved punishment as are the first years.

Justice Breyer: Suppose that the judge had simply sentenced the defendant, let's say, to ten years, but looked at these other crimes and said,

"In my practice, I go to 15. "

All right?

That's the basic situation.

Is that unconstitutional?

Mr. Kelly: Under the guidelines or under the--

Justice Breyer: No, no, there are no guidelines.

Mr. Kelly: --No, that is not unconstitutional.

Justice Breyer: All right.

Now suppose the people who do exactly the same thing is the Court of Appeals applying the word "reasonable", these officials of the judicial branch.

See, they're reviewing the sentence for reasonableness.

They say,

"In our practice when a person commits bank robbery, if just an ordinary case, we think it's reasonable five years; but if he has a gun, seven years. "

So if there's no gun, five years is the most that isn't arbitrary.

But if there's a gun, you can go to seven years.

In other words, an English-type tariff system.

Is that unconstitutional?

Mr. Kelly: I believe it would be, Justice Breyer.

Justice Breyer: You think it would be.

So--

Mr. Kelly: Right.

Justice Breyer: --now suppose the people who do it are the parole commission... as happen to be in the United States, executive branch officials.

For the last hundred years, they get sentences, for example, that were indeterminate, or might have been for 30 years.

And what they say,

"It is our practice, assuming good behavior, that if it was just an ordinary bank robbery we'll keep him in for five years, but if he had a gun, he's going to stay in for seven. "

Is that unconstitutional?

Mr. Kelly: Parole commissions don't increase sentences.

Parole commissions decrease sentences.

Justice Breyer: No, what they have is an indeterminate sentence.

Mr. Kelly: Right.

Justice Breyer: California.

Mr. Kelly: Yes.

Justice Breyer: And what they say is,

"In our practice, what we do is, we think it's reasonable, and we will keep a person in prison for five years in an ordinary bank robbery, but for seven years if he has a gun. "

I'm asking if that's constitutional.

Because that's the practice that they follow under parole commission guidelines, and they've done it now for a decade, I make up.

Mr. Kelly: That is constitutional, Your Honor.

And the reason is--

Justice Breyer: That's constitutional.

Justice Scalia: Does he have an entitlement to a certain number of years under any of these questions?

Mr. Kelly: --As I--

Justice Scalia: When you're sentenced to an indeterminate sentence, he's not entitled to parole at any time--

Mr. Kelly: --Other than venues--

Justice Scalia: --is he?

Mr. Kelly: --No, not at all.

And as I--

Justice Breyer: What I'm trying to drive at... and I'll be... is that I can't imagine a court holding that a parole commission in the executive branch that has exactly this same system would be behaving unconstitutionally.

It's difficult for me to imagine... though you say I'm wrong on that... a court holding it's unconstitutional when a court of appeals does the same thing reviewing for arbitrariness.

Mr. Kelly: --Well, perhaps I misunderstood your second hypothetical, Your Honor.

But my understanding of the hypothetical was that if the judge gave five years and the appellate court said,

"No, you should have given seven years because of the existence of a certain fact-- "

Justice Breyer: You know, I--

Mr. Kelly: "you must... you must increase the sentence.... "

Justice Breyer: --I'm not raising the question well.

I'm trying to imagine sentencing guidelines run by a parole commission, executive branch officials.

I'm trying to imagine sentencing guidelines run under the word arbitrary by ordinary courts of appeals panels reviewing the sentences.

And if those are both constitutional, then, I would ask, why is it unconstitutional to put the executive branch and judicial branch officials together in one group called the sentencing commission?

Mr. Kelly: The relevant constitutional principle doesn't have to do with whether it's the executive branch of Government or the judicial branch of Government; it has to do whether a fact is necessary in order to increase a sentence.

Justice Breyer: I understand that.

And... well, maybe I'm just not going to get my question across.

I am trying to imagine Apprendi.

Would Apprendi apply to parole commission guidelines?

I should think the answer, unless we're going to reverse a hundred years of history, is no.

Would Apprendi apply to a court of appeals panel with the power to review sentences for arbitrariness?

Mr. Kelly: No.

Justice Breyer: I would think the answer is no.

And, therefore, I wonder why it applies if we take judicial officials and executive branch officials, and they do exactly the same thing under the heading Sentencing Commission.

Mr. Kelly: In your hypotheticals, Justice Breyer, as I understand them, each of those entities is decreasing a sentence.

We're talking about a sentencing commission that authorizes a court and, in fact... well, authorizes a court to increase a sentence after finding a particular fact, and that is what triggers the Sixth Amendment protection.

It's the fact that a judge is authorized to give a longer sentence because of the existence of a fact than he would otherwise be authorized to impose.

And that is the essential protection against which the Sixth Amendment jury trial right protects.

That is a fact that has to be found by a jury, not by a judge.

Justice Kennedy: But what is your position if judges simply have complete discretion to sentence within a maximum range, and Judge A gives a lot of maximum sentences, and Judge B doesn't?

Is that system constitutional?

Mr. Kelly: There is no Sixth Amendment problem with that system, Your Honor.

Justice Kennedy: What is it in our legal tradition... what policies are served by preferring unexplained, unarticulated, standardless discretion to a system in which the judge gives reasons and follows careful standards and follows... and follows standards that give consistency from one sentence to the other?

Why should the former be preferred?

What are we doing here?

Mr. Kelly: I think, Justice Kennedy, that Blakely answers that question.

Blakely distinguishes between a discretionary system in which the judge has the authority to consider a number of different factors in order to do what the judge thinks is fair, but is not required to--

Justice Kennedy: What policies--

Mr. Kelly: --give any particular weight--

Justice Kennedy: --are being furthered by that, other than wooden adherence to Apprendi and Blakely?

Mr. Kelly: --The policy is that if the judge's sentencing authority increases by finding of fact, which is not the case in a discretionary system.

That fact is the kind of finding that we leave to a jury, because juries--

Justice Kennedy: But isn't that, isn't that ultimately formalistic and contrary to our whole design of our system, which is to learn over experience and to codify and to explain what considerations we take into account in applying the law?

Mr. Kelly: --I don't think it's contrary to our system, Your Honor, to say that if a more serious sentence attaches to a more serious crime, or to a more serious version of a crime, then it's up to the jury to decide whether the more serious crime or more serious version was committed.

In fact, that is essential to our system.

Justice Kennedy: So suppose, in Justice Breyer's hypothetical... like the California indeterminate sentencing regime which applied until about years ago, after an indeterminate sentence, the parole board interviews two people convicted for the same crime; one was the ringleader, street-hardened offender, and the other was just a novice, a guy that went along, although he... they both committed the same crime.

Under the California system, the former would be given a projected release date of ten years; and the other, a projected release date of about two years.

Would that be constitutional?

Mr. Kelly: Yes, it would, because, again, under a discretionary system, the judge's sentencing authority is unaffected by the finding of a fact.

If the parole commission determines that one offender's sentence should be increased and the other offender's should not be decreased, that has no Sixth Amendment application or Sixth Amendment--

Justice Breyer: Look, we're trying to go to the same point, and I think you're actually given me a pretty good answer.

The--

Mr. Kelly: --Thank you.

Justice Breyer: --I'm imagining my system being the system that Apprendi forbids.

So I'm not doing increase/decreases.

I'll think of the very kind of system.

And I take it your answer is this... and remember, I dissented in Apprendi.

Mr. Kelly: I remember.

Justice Breyer: I didn't agree with it.

Right.

But there we are.

And so I'm trying to see how far it goes.

So I wonder, we take our Apprendi system and now it's being administered by a parole commission.

We take our Apprendi system, and now it's being administered by a court of appeals using the legal standard arbitrariness.

And I take it your answer is those are just as unconstitutional.

Mr. Kelly: No, no, again, I'm not--

Justice Breyer: Now you understand what I'm doing, because I'm saying you either have to follow the force of your logic and make those unconstitutional, too, or you have to say there's a difference.

And, by definition, the only difference is who promulgated it.

And then, of course, I'm going to ask you, if there's a difference right there, why doesn't this one, which is executive plus judicial, fall on my side of the difference?

Mr. Kelly: --Well, maybe I... maybe I don't understand your hypothetical, Justice Breyer, because parole commissions do not increase sentences; parole commissions decrease sentences.

Justice Breyer: No, I... in my imaginary parole commission--

Mr. Kelly: Okay.

[Laughter]

Justice Breyer: --which I will argue a different point.

Mr. Kelly: Yes.

Justice Breyer: I mean, I will argue it another time.

I've seen a lot of parole commission guidelines, and I would say they, a lot of them did fall within the Apprendi boundaries.

But if we did take it and have the parole commission do it... "it", being the Apprendi forbidden system, in your view, is it unconstitutional?

Mr. Kelly: It would certainly be unconstitutional for a parole commission to find a fact that increased a sentence.

Justice Breyer: All right.

Okay.

Mr. Kelly: Yes.

Justice Breyer: And then the same thing is true of a... of a court of appeals panel.

Mr. Kelly: If it could find a fact that increased the sentence, yes, because those facts must be found by a jury.

Justice Scalia: Mr. Kelly, I would be interested in hearing you address some of the severability problems that the Government has been raising.

Justice Kennedy: If I could just ask one more question, because this is important to me.

Justice Scalia: Sure.

Justice Kennedy: What about the previous California system in which it was an indeterminate sentence and the correctional authority made findings which set the sentence?

They were... they were committed to the California--

Mr. Kelly: Sure.

Justice Kennedy: --correctional authority for the term prescribed by law, and that was set after the fact, post hoc, by the California Adult Authority.

Mr. Kelly: If the agency were increasing an authorized sentence--

Justice Kennedy: They're not increasing it.

Mr. Kelly: --on the basis of a finding--

Justice Kennedy: It's an indeterminate sentence.

Mr. Kelly: --Right.

Justice Kennedy: They set the sentence.

Mr. Kelly: After the... instead of the judge or after the judge?

Justice Kennedy: Yes.

It was just sentenced, the judge, for the term prescribed by law.

And an agency, after interviewing the defendant, after looking at the probation board, set the sentence.

The term prescribed by law could be for life.

Mr. Kelly: If there were facts which were necessary to authorize--

Justice Stevens: He sets the sentence within the range authorized by the jury's verdict.

That's the question.

Mr. Kelly: --Right, that's fine.

If it's within the range authorized by the jury's verdict, it's fine.

Chief Justice Rehnquist: Well, whoa.

What if, what if the statute says

"every felony in this state shall be punished by a term of not less than one year, or, on the other side, life. "

and you're committed to the parole authority, and the parole authority will decide between those boundaries?

Mr. Kelly: Assuming that authority is given to the parole commission to select a sentence, and no further findings need to be made beyond those made by the jury, there's no Sixth Amendment problem with that.

Justice Scalia: There might be a due process problem.

Mr. Kelly: In fact, there might be a lot of other constitutional problems, but not a Sixth Amendment problem.

Justice Ginsburg: I hope you will go over to the... to the severability problem, because, as I understood it, you and the Government were very much at odds about what should be severed and what shouldn't, and we didn't get to ask Mr. Clement about his severance, which was going to be that to the extent no plus factors are involved, no sentence-enhancing factors are involved, the guidelines remain binding.

He didn't get a chance to say that in his argument, and I hope he'll address it.

And you say,

"Whatever you do, don't make it half binding and half advisory. "

Mr. Kelly: Yes.

Justice Ginsburg: And why would it be so terrible to say,

"Well, to the extent that there are no sentencing enhancing factors, let's preserve what Congress did, let's make them binding when the jury doesn't have to find anything? "

Mr. Kelly: For a couple of reasons, Justice Ginsburg.

The first is that Congress certainly didn't intend to have dual systems.

That destroys the congressional purpose of uniformity because you would have sentences, I suppose, being uniform under systems... the system where guidelines applied, but certainly not under the system where the guidelines don't apply, because there are guideline facts that need to be found.

So that congressional purpose is not advanced.

The second problem is that it's such an easily manipulable system, particularly by the Government.

If the Government wants to be in the guidelines, it doesn't allege a sentence-enhancing fact, or a guideline fact.

If the Government doesn't want to be bound by the guidelines, it alleges a guideline fact, and that takes sentencing out of the guidelines.

And that cannot be what Congress intended.

Justice Souter: Is it any less uniform, any more manipulable, than on your proposal?

Mr. Kelly: Our--

Justice Souter: I mean, uniformity is gone.

A certain manipulability has got to be faced as a fact, and I'm not sure that you're proposing a better solution, I gather.

Mr. Kelly: --Well, I think our proposal doesn't really allow for any manipulation at all, Justice Souter.

We're simply saying that the fact finder must be a jury instead of a judge.

Justice Souter: Well, except that the manipulation, at that point, is the manipulation, in a way, in the present system, and that is it's the manipulability of charge bargaining.

Mr. Kelly: Well, that's certainly true, and that exists under the guidelines.

It exists without the guidelines.

It exists in discretionary systems.

Justice Souter: Yeah.

Justice Breyer: It does exist under the guidelines?

How does it?

Mr. Kelly: I think it does, because--

Justice Breyer: How?

Mr. Kelly: --Well, certainly, to the extent that prosecutors make decisions about what charges they're going to bring--

Justice Breyer: No, only, only, only if you have statutes that have mandatory minimums that have lesser sentences.

That's true.

Mr. Kelly: --Right.

Justice Breyer: But compared to the status quo, if you have the guidelines alone, one of their basic objectives was to prevent that kind of manipulation.

And, by and large, I thought they had succeeded on that point.

Justice Scalia: Well, hasn't charge bargaining simply been replaced with fact bargaining?

Mr. Kelly: It has, to a large extent.

Justice Breyer: Is that lawful under the guideline?

Is the judge required to accept the facts as the... as the prosecution and defense agree to present them?

Mr. Kelly: The judge is not required to--

Justice Breyer: No.

Mr. Kelly: --accept the facts.

The judge typically does.

Justice Stevens: I'm not sure that I understand why you wouldn't have the same alternatives under your view.

Because is it not correct that if the, if the sentence... the change under consideration is a decrease, those findings should be made by a judge.

Whereas, if it's an increase, you'd say they have to be found by a jury.

So why don't you have the same possibility of a two-track system under your view?

Mr. Kelly: I guess... I wouldn't view that as a two-track system, because the guidelines would continue to apply in either case.

It would not be a situation in which the guidelines apply to some criminal sentencings, but don't apply to other criminal sentencings.

The guidelines will apply in every criminal sentencing.

Whether a fact finder needs to be a judge or a jury depends upon whether the fact to be found increases the judge's sentencing authority.

Justice Stevens: So you would say... you would say your proposal is closer to what Congress really wanted, because it would leave in place all of the sentences that would be commanded by the guidelines, but just require a different fact finder in some of the cases.

Mr. Kelly: That's exactly right, Justice Stevens.

You--

Justice Ginsburg: But then what about all the factors... Justice Breyer outlined four categories of, of guideline factors that are not easily, if at all, presented to the jury.

The Chief Justice mentioned the one of perjury at the trial itself.

Could never give that to a jury because it hasn't happened until the trial.

And some of the others that become very complicated, like he mentioned, other... other relevant conduct, relevant conduct, yeah.

Mr. Kelly: --I agree that perjury is not something that could be submitted to a jury... perjury during trial is not something that could be submitted to a jury.

That's--

Justice Ginsburg: So that would just be out.

Mr. Kelly: --That would be out.

That's one of the very few.

Justice Ginsburg: It would have to be prosecuted as separate--

Mr. Kelly: It would have to be prosecuted as a separate crime.

Justice Scalia: Why couldn't you have a sentencing phase afterwards?

I don't know.

Justice Stevens: Could I interrupt for that?

Justice Scalia: Sure.

Justice Stevens: There's one thing that's running through my mind.

What if the defendant gets on the stand and testifies to a version of the events that the jury must have disbelieved in order to convict?

Could not the judge... in effect, he would be making the finding... he would say,

"The jury has really found this fact, and, therefore, I can rely on it. "

Mr. Kelly: I don't think so, Justice Stevens, because the judge is still making the finding that the witness deliberately lied, as opposed to being mistaken in his testimony.

And that is a finding of fact that increases sentencing authority.

So I don't think that a jury returning a guilty verdict in every case means that the jury disbelieved, or thought at least, that the defendant was lying.

Justice Breyer: What is your answer to Justice Ginsburg's question?

And I'd appreciate your focusing on what I thought were the two most important ones, which is, first, the... I thought that sentencing for a hundred years had gone on primarily on the basis of the presentence report.

And the idea was, the person is convicted and now we're going to decide what to do with this individual who's convicted, and we're going to read what the probation officer writes about it, and he'll go interview people after, as he does.

And many, many, many, if not most, of the facts in that presentence report were not available at the time of trial.

They're about the history of the individual, and they're more about the manner in which the crime was carried out.

And the other main thing is the... is the vast number of really complex operations, multiple-count rules, relevant conduct, all kinds of things that... try even "brandishing".

I mean, that's the second thing, the complexity.

So the presentence report--

Mr. Kelly: Sure.

Justice Breyer: --and the complexity.

Justice Kennedy: In other words, the tradition was that we asked the jury to determine what crime was committed, and the sentencing judge to determine the context in which it was committed.

Mr. Kelly: And that still happens, even under our proposal, to a large extent, Your Honor, because the presentence report has historically guided a judge in exercising his discretion at sentencing.

To the extent that the judge exercises discretion in selecting a sentence within a guideline range, the judge will still rely upon the presentence report.

And, frankly, most of what's in a presentence report doesn't have to do with finding extra facts; it has to do with guiding discretion in selecting a sentence.

So I don't think that that really changes under our system.

With regard to the complexity, it's been my experience in defending Federal criminal cases that although the guidelines are lengthy, there are only two or three that are likely to apply in any particular case, and it's not particularly complex to figure out what those are, and it wouldn't be all that complex to charge a jury with regard to how to determine facts that are required by the guidelines.

We give juries jury instructions that are complicated all the time.

We do it in RICO--

Justice Breyer: Congress's basic... that's a good answer.

Congress's basic objective here is... was uniformity.

I think it was a noble objective, whether or not it's been achieved or, but are you saying to Congress, Sorry, the Constitution prohibits you, in Congress, from trying to create uniformity, or greater uniformity, of sentencing among district judges?

There's just no way you can do it, because if you throw everything to a jury, you know, you throw it right into the hands of the prosecutor to determine what to charge, what not to charge, what facts to agree upon, et cetera, no way to do it?

We're back to our two cellmates... one day served, 50 years served... though the real conduct was the same.

Mr. Kelly: --The real conduct can still be proved to a jury, as long as it's charged and proved to a jury.

Chief Justice Rehnquist: How about the form of verdict under your system?

Is there one line for the basic offense, and then other lines for each additional factor that's alleged in the indictment?

Mr. Kelly: There may be, depending on the case.

There may be cases in which a general verdict is adequate because there are no guideline facts to find that would increase sentencing--

Chief Justice Rehnquist: But you're suggesting, then, a special... a special verdict in every case where there are guideline facts to be found.

Mr. Kelly: --Just as special verdicts have been used since Apprendi to find drug quantities and other facts that increase maximum sentences.

Justice Ginsburg: --But a special verdict wouldn't do from the point of view of the defendant, I think would resist it very heavily, if what the findings have to be are, say, a much larger drug quantity, the relevant conduct.

These are things that could be damning for a defendant.

So a defendant surely would not want that, all of this to be tried to the jury that's going to try the basic case.

The defendant would much prefer to have the jury not know about that it wasn't five ounces, that it was 500 grams, or that, at the same time, the defendant did a lot of other bad things.

Mr. Kelly: Your Honor, I think we can trust district judges to fashion procedural protections that assure that trials are fair.

That might, in some cases, mean bifurcating the underlying elements of the offense and the determination of those elements from the finding of guideline facts--

Justice Ginsburg: So you would have to have, then, essentially two trials.

Mr. Kelly: --In some cases, yes.

Justice Souter: Well, isn't it... isn't it... isn't that going to be so in every relevant conduct case in which the Government thinks the relevant conduct is a serious factor?

It is either going to have to be a separate jury verdict on sentencing, or the district judge is going to be limited simply to whatever range the jury fact finding provides as the maximum range.

There are no other possibilities, are there?

Mr. Kelly: Well, in some of those cases, Your Honor, the additional facts would come in on the main trail anyway, as 404(b) kind of evidence that is relevant to proving the underlying charges.

And if it's going to come in anyway, then there probably wouldn't be a second part of the trial.

So I think--

Justice Souter: But isn't the defendant in that case going to say look, I, I'm claiming a serious problem, if you're asking the jury to make a specific finding that I committed relevant facts A, B, C, D, and E, even though I don't happen to have been subjected to a criminal guilty verdict with respect to each one.

By, by requiring those findings, you're going to skew the jury's mind to the point where I'm not going to get a fair shake on the guilty/not guilty finding or special fact finding most immediately relevant to this case.

Every defendant is going to demand a separate jury proceeding for that, isn't he?

Mr. Kelly: --It's certainly possible that they'll demand separate, or bifurcation--

Justice Souter: Yes, but you wouldn't sit back and allow that focus, if you're the defense lawyer you're not going to allow that focus to be made at the time of the basic guilty/not guilty finding, are you?

Mr. Kelly: --Well, I've had experience with that.

And my experience has been, as I've said before, I might ask for a bifurcated trial, but if the judge thinks that that evidence is going to come in against my client anyway, the judge is going to deny bifurcation.

If the judge says you're right, this would be prejudicial to introduce this evidence in the main case, then we'll bifurcate the trial, and we'll let the jury find guilt, guilty not guilty and then find sentencing facts if the guilty verdict is returned.

Justice Ginsburg: Do you know what the Kansas system is?

I mean, right after Apprendi, they transformed their guideline system into one where the jury makes the findings, but are all of their trials bifurcated?

Mr. Kelly: I don't know if they bifurcate all their trials.

My understanding is that it works in a way that's similar to what I'm suggesting could happen in Federal court.

Justice Breyer: As long as you're on the subject, I'm quite... you're going to... what is your reaction to what I've written, which you've, you used to say wrong, wrong, wrong, but I want to know why.

And what I know why in particular is I speculated somewhat, that the reason that this might work, your side of it, if it works despite the, the complication, the bifurcated trials, etc.

, is that 97 percent of the cases are handled through plea bargaining, and this will give you a little bit of a leg up, which I speculated the defense bar likes.

I'm not surprised.

But then, I thought with in the long run, you just can't have a system of justice that depends for its workable nature upon plea bargaining, which in fact depends on the weapons you give to prosecutors.

And so I ended up thinking, I just can't underwrite such a thing.

And I'd like to get your, your, your reaction to that.

Mr. Kelly: Your Honor, here's how plea bargaining works now.

The prosecutor charges the easiest crime to prove that he can prove.

There is no effective plea bargaining in most of those cases because the prosecutor knows he's going to win that trial.

So the defendant pleads guilty because he doesn't want to lose his, his reduction for acceptance of responsibility.

I think what changes is probably if our proposal is accepted, that there is more meaningful negotiation and that prosecutors and defense attorney's will come to an understand in most cases of what sentencing facts are provable, and what are not, and cases will continue to plead out much the same as they do right now, except more effectively because we eliminate the problem of the prosecutor being able to prove the easiest charge and save the heart of the case for sentencing.

I think with that, Your Honor, I will, unless there are other questions, defer to my colleague.

Argument of Rosemary Curran Scapicchio

Chief Justice Rehnquist: Thank you, Mr. Kelly.

Ms. Scapicchio.

Mr. Scapicchio: As to question one, there's no meaningful difference between the Federal Sentencing Guidelines and the Washington State Guidelines.

The Government conceded as much in their brief to this Court in Blakely.

When they filed an amicus brief in Blakely they told this Court, or they urged this Court not to invalidate the Washington State Guidelines because, they told this Court, if you do, they are so similar to the Federal Guidelines that the Federal Guidelines will fall as well.

And here they are, less than five months later, standing before the same Court, saying something completely different.

Now, it's not that they're so similar to the Washington State Guidelines, but that they're completely different, and that they don't operate in the same manner at all.

And what it comes down to is that for Sixth Amendment purposes, the source of the law doesn't matter.

The Government got it right when they filed their amicus brief in Blakely.

It doesn't matter to a defendant whether or not the source of the law is legislative, or the source of the law is by commission or regulatory body.

If the sentence is going to increase, based on a fact that, that the law makes essential to punishment, that must be pled and proved to a jury beyond a reasonable doubt.

Justice Breyer: So can I ask you the same question?

Imagine that the statute says bank robbery is zero to twenty years.

Case one, a separate statute says a guideline commission will make distinctions, and the guideline commission says,

"five years in the ordinary case, seven years with a gun. "

Case two, the same thing but a parole commission does it.

Case three, the same thing, but a court of appeals panel does it, under the guise of what's arbitrary, what isn't.

They're all, in your opinion, to be treated alike.

Mr. Scapicchio: If there's a fact necessary to increase the sentence--

Justice Breyer: Well, there is just what I said, just what I said.

Mr. Scapicchio: --Then yes.

Justice Breyer: Okay.

Mr. Scapicchio: With respect to Mr. Fanfan in this case, Mr. Fanfan's sentence was promulgated based on the jury verdict alone.

Mr. Fanfan, the Government chose to indict Mr. Fanfan on a single count of conspiracy.

He went to trial on a single count of conspiracy.

Chief Justice Rehnquist: Conspiracy to what?

Mr. Scapicchio: Conspiracy to distribute 500 grams of cocaine.

The Government knew at the time of trial that Mr. Fanfan was arrested with 281 grams of crack cocaine at the time of his arrest.

The Government chose not to indict him for that 281 grams of crack cocaine, and instead, they chose to prove the easiest possibly indictment before the jury.

Once the jury was dismissed in this case, the Government then sought to increase Mr. Fanfan's sentence by 157 months, based on the possession of the crack cocaine that they knew about at the very beginning, and we're suggesting that Judge Hornby did the right thing in limiting Mr. Fanfan's sentence to that which was supported by the jury verdict alone and nothing else.

Justice Ginsburg: Judge Hornby had some distress in doing that, didn't he, because the difference was quite large?

Based on what the judge found, it would have been fifteen or sixteen years as opposed to five or six years?

Mr. Scapicchio: What Judge Hornby did for Mr. Fanfan was, he conducted what he called a presentence, a pre-Blakely hearing, and at the pre-Blakely hearing he allowed the prosecutor to present evidence relative to relevant conduct involved in the offense.

And the prosecutor presented evidence that the relevant conduct included this possession of 281 grams of crack cocaine, as well as a case agent who claimed that Mr. Fanfan was the leader of this entire conspiracy.

And then Judge Hornby went on to say, based on everything that he heard in the pre-Blakely hearing, if given the opportunity, he would sentence my client to between 188 to 235 months.

Justice Ginsburg: He didn't say it, that that was his discretionary choice.

He said that--

Mr. Scapicchio: He was required.

Justice Ginsburg: --He made, he made those findings of fact, that... leadership role and the quantity of drugs.

Mr. Scapicchio: He did.

Justice Ginsburg: And on the basis of those two he said the guidelines would require me to come up with this higher sentence, not that using the guidelines as advisory he would have gotten--

Mr. Scapicchio: Absolutely.

It was the guidelines required him to impose sentence between 188 to 235 months.

Justice Ginsburg: --And then the other, that's the high range, and the low range is, I'll just stick with the crime that he was indicted for, and that's five or six years.

Mr. Scapicchio: He, what Judge Hornby did is, is he sentenced Mr. Fanfan based solely on the jury's verdict.

The jury only heard evidence of the conspiracy to distribute 500 grams of crack cocaine.

Because the jury only heard evidence, and thus returned a verdict based solely on the 500 grams of crack cocaine, then Mr. Fanfan's sentence, according to the Judge Hornby after this Court decided Blakely, was limited to the jury verdict alone.

Justice Ginsburg: That's quite a windfall for Mr. Fanfan, isn't it?

Mr. Scapicchio: Well, in this particular case I would say no, because the Government knew when this Court decided Apprendi, and certainly knew by the time this Court decided Ring, that if they wanted to increase a defendant's sentence beyond the statutory max, that they should plead it and prove it in the indictment.

And in this case, they chose not to.

And so, whether or not Mr. Fanfan may have... get some benefit because of this Court's decision in Blakely, certainly he does.

I'm not denying that he doesn't.

But only because the Government didn't do what this Court told them they should do in both Apprendi and Ring.

Chief Justice Rehnquist: Did the trial judge give any indication of what sentence he would have imposed if he were not constrained by the guidelines?

Mr. Scapicchio: He did not.

He indicated that, if the guidelines applied, that he believed Mr. Fanfan fell between 188 and 235 months.

There was no discussion at all as to whether or not he had discretion to sentence anywhere outside the guidelines during this proceeding.

And, with respect to question two in this case, whether or not the guidelines are severable, which of course is the more difficult question before the Court, our proposal to sever out those portions of the guidelines that require judicial fact finding by a preponderance of the evidence will accomplish the sentencing reform goals.

The goals of the sentencing reform were uniformity, proportionality, and certainty.

Chief Justice Rehnquist: You wouldn't sever out the ones that would permit a downward departure, would you?

Mr. Scapicchio: Would we sever the portions of the statute that require--

Chief Justice Rehnquist: You would leave in place the provisions for downward departures?

Mr. Scapicchio: --We would leave in place the majority of the sentencing guidelines.

Chief Justice Rehnquist: Well, and... but could you answer my question?

Mr. Scapicchio: Mr. Chief Justice, would I sever out--

Chief Justice Rehnquist: Would you leave in place the provisions for downward departure?

Mr. Scapicchio: --Yes.

Justice Stevens: How can you do that?

The statute that makes the guidelines mandatory applies to both upwards and downwards departures, so I have always had trouble knowing what provision of the statute anybody severs.

I can understand your saying that there's a bunch of unconstitutional applications of the statute, and you have to set aside the sentences in those particular cases, but I simply don't understand severing a single provision that covers both upward and downward departures.

How do you sever it?

Mr. Scapicchio: Well, I think you sever it by severing out the unconstitutional portions of it.

And you sever it by getting rid of anything that indicates that indicates it's a judicial fact finding by a preponderance of the evidence.

Justice Stevens: But that's the same, that's the same provision that allows departures of the same... by the same procedure.

Mr. Scapicchio: Well, the departures in--

Justice Stevens: It seems to me you're not severing a piece of a statute, you're just severing a bunch of applications of the statute you think are invalid.

Mr. Scapicchio: --The applications of the statute that are invalid in this case are the ones that require judicial fact finding by a preponderance of the evidence.

Justice Stevens: Correct.

I understand.

Mr. Scapicchio: Those under Blakely need to be severed.

What we're left with now is a statute that needs to, that needs to function in terms of saving the guidelines.

Chief Justice Rehnquist: But would it... would it really save the guidelines in the way that Congress intended them, to strike basically the provision for enhancements, and leaving in place the provisions for downward departures?

Mr. Scapicchio: It's not going to operate exactly the way Congress intended.

Because Congress never intended to pass a statute that was unconstitutional.

And so it has to undergo some change.

And in this particular case, what we're saying is, minimize the amount of changes that the statute has to undergo in order to preserve it.

Justice O'Connor: Well, maybe we should just leave it to Congress to decide, because it doesn't sound like the scheme Congress intended.

Mr. Scapicchio: Well, Congress intended a mandatory system.

It's clear that Congress intended a mandatory system.

The Government--

Justice O'Connor: And it intended fact finding by a preponderance for both upward adjustments and downward.

Mr. Scapicchio: --Not necessarily fact finding by the judiciary.

It's not one of the listed goals of the sentencing reform act.

Those listed goals are uniformity, proportionality and certainty, and those goals can still be met under the proposal that we're suggesting the Court adopt.

There will still be uniformity in sentencing, there will still be proportionality and there will still be certainty of sentence.

Chief Justice Rehnquist: Well, but will there be proportionality if the sentences, sentences can be downward, the jury verdict could be adjusted downward, but not upward?

Mr. Scapicchio: If it turns out, Mr. Chief Justice, that there is some, some difference in the severity of a sentence that a defendant receives, certainly Congress could, could come in and make the appropriate changes if that's the result of the proposal that we're suggesting, but the proportionality wouldn't change.

You know, the degree of crimes is still going to line up in the exact same manner.

Chief Justice Rehnquist: But you can say the same thing if we simply said that the whole guidelines fall, and they're simply there for judges to apply if they wish.

You can say,

"Well, if Congress doesn't like that they can come in and put a new system. "

That's true any time Congress acts.

Mr. Scapicchio: But... absolutely, Mr. Chief Justice, it is true any time Congress acts, but in this particular case, the Government has the burden of proving the inseverability of the statute.

We're attempting to show that the statute is severable to save the guidelines in this case, and we're attempting to show that by suggesting to the Court that you don't have to throw out twenty years of sentencing reform.

That the guidelines should still be mandatory; we're suggesting that the mandatory portions of the guidelines remain, the bulk of the guidelines remain, and we're changing the fact finder.

Justice Scalia: Why do you... why do you have to call it severability?

Suppose we just said it's clear that whenever these facts have not been found by a jury, the guidelines cannot be applied?

That the guidelines are unconstitutional, as applied, when there's been no jury finding, and leave it.

We're not severing any particular language, we're just saying that that portion, that proceeding in that fashion produces and unconstitutional sentence.

And then let the Government work out how it wants to find its way around that problem.

Mr. Scapicchio: That's certainly an option that the Court could consider.

Justice Scalia: I'm just not sure, I share Justice Stevens' perplexity as to whether that's really properly described as severing part of the statute.

Justice Stevens: And may I add this thought, that it seems to me, I don't know whether this is true; Mr. Clement and I had a dialogue that was inconclusive; I had been under the impression, perhaps erroneous, that in fact the number of unconstitutional departures if one follows Apprendi as being the constitutional rule, is actually a small percentage of the total, and if it should follow that only three, four, five, six percent of the sentences that have heretofore been imposed or will be imposed in the future would be unconstitutional, that's a pretty weak reason for saying the whole statute is unconstitutional on its face, or even in one provision of the statute.

It seems to me you just say,

"Oh, okay, you can't impose those sentences in those three percent of the cases. "

I don't know why that's a departure from our prior practice.

Mr. Scapicchio: I, Well, I think because what's left is, is that the system will then be open to some manipulation, under that scenario.

If the Government can control who it is that will be sentenced under the guidelines and who will not be sentenced under the guidelines, then the system is, is ripe for manipulation.

Justice Stevens: No, my suggestion is everybody can be sentenced under the Guidelines; the only difference is that in three or four percent of the cases you may have to bring a jury in to get an enhanced sentence.

Mr. Scapicchio: In, under that scenario, if any fact that needed to increase a defendant's sentence was pled and proved to a jury, that would suffice.

Justice Scalia: You wouldn't care whether you call this severing, severability or not, would you?

Mr. Scapicchio: Absolutely not.

Justice Scalia: I didn't think you would.

Mr. Scapicchio: It produces the same results, whether it's, you call it severance or the way that the statute works.

Justice Scalia: And I assume, don't you, that any solution we come up to is likely to be an interim solution anyway?

Mr. Scapicchio: It's very likely to be interim solution and the legislature will tell us what they really want us to do and we'll all make the appropriate adjustments.

Justice Breyer: But the idea is that this works because most cases are plea bargained.

Mr. Scapicchio: Most cases are plea bargained.

Justice Breyer: So what you'll do if you're right, is all you would say is any time that the prosecutor wants to say that you committed the bank robbery or you committed the drug offense with more than a minimal amount of money or more than a minimal amount of drug, or there were guns, they get into a bargain, and they end up with a sentence once they bargain... if that's the sentence, because they're not even going to contest it before the judge, both sides will come in and agree.

But in those few cases where they do contest it, you would have to have the jury find the facts.

Mr. Scapicchio: Yes.

Justice Breyer: Now, the only reason that I find it disturbing is to think that Congress could have wanted such a system is given other developments in Congress, mandatory minimums and all kinds of things, that seems to me to be a system that would really, might make non-uniformity in reality, worse than it was before 1986.

See, I mean, my goodness, every prosecutor's going to be doing something different, every defense attorney; everything will depend upon the bargains.

The judges when they come in will think different things.

I mean--

Mr. Scapicchio: The--

Justice Breyer: --Should we uphold something like that in the face of a Congress that wanted uniformity?

Mr. Scapicchio: --Yes, and I'll tell you why.

Because that's exactly the way that the guidelines operate now.

The only thing that's changing is the identity of the fact finder.

That the Government can come in now and charge whatever it wants, because it's free to charge whatever it wants, and that, the Government in this case, or in any case, could then bargain with defense counsel and the defendant as to which facts they may want to plead to, as to which portions of the indictment they may want to plead to, happens every day.

And, and, and so, if that's the case, changing the identity of the fact finder isn't going to change that process at all.

Justice Breyer: Did you find out anything in your research on this where anybody in the... this discussion of the guidelines began, I think, in the early 70's, it's been around for 30 years.

The guidelines have been law for 17 years, and until recently with Apprendi, is there a history of anything being written about the guidelines being unconstitutional for this Sixth Amendment reason?

Did any group of judges, or defense attorneys, or academics or anybody write anything that we could look at until quite recently in which they thought this was a possibility?

Mr. Scapicchio: Before quite... before this Court's decision in Apprendi?

Justice Breyer: Yeah, before we began with Apprendi?

Mr. Scapicchio: I don't believe so.

Justice Breyer: Nothing.

Mr. Scapicchio: I'm not aware of any.

Justice Stevens: Have you read Justice Thomas's opinion in Apprendi?

He's got a lot of prior law in there that maybe would be of interest to you.

Mr. Scapicchio: And with respect to Mr. Fanfan in this case, Your Honors, we're asking that this Court give intelligible content to the jury's verdict by finding the district court's imposition of a 78-month sentence based solely on the facts found by the jury beyond a reasonable doubt.

Justice Stevens: May I ask just one, one last question?

Do you agree that within the guidelines ranges, which sometimes are fairly large, that a judge does have the discretion to impose any sentences he wants to based on the conduct of the defendant, whether or not it's proved to the jury?

Mr. Scapicchio: Within the guideline range?

Yeah.

Justice Stevens: You get to the range by the jury finding, the judge still retains substantial discretion within the, within the range.

Mr. Scapicchio: Substantial discretion within the range, yes.

If there are no further questions.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Thank you Ms. Scapicchio.

Mr. Clement, you have four minutes remaining.

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

This Court in Mistretta expressed its understanding that the commission was constitutional because it would pursue traditional judicial tasks related to sentencing, and it would not get involved in quintessentially legislative acts of setting maximum penalties, or defining the elements of the crime.

Now, we of course, think that's quite relevant for the Sixth Amendment issue that's raised in question one; but even if you disagree with us on that, even if you think the non-legislative origins of the guidelines don't matter for purposes of question one, surely they do matter for purposes of the severability analysis under question two.

Because if one takes those elements, those enhancement factors in the guidelines, and treats them like true elements of crimes that must go to the jury, then you are giving this non-legislative body's work product the effect of Federal criminal statutes, and that's something that not only Mistretta suggests is problematic, but United States v. Hudson in 18 suggests is problematic.

And the effect is really breathtaking; it is an understatement to say that the effect of that judicial remedial decision would be to create thousands of new Federal crimes.

Now, let me talk just for a second about the language of severability.

There's been some questions about whether what we're really talking about is severability.

First of all you're going to have some cases where there's going to be no enhancing factor at all.

And in those cases you don't need to talk about severability.

If there's no Sixth Amendment issue raised in a case, there's no reason to strike anything down and that would be a simple matter of traditional principles of third party standing and facial challenges.

The fact that you might have a constitutional problem in this case, doesn't mean that you invalidate the guidelines in those other cases, where they apply without problem.

The real question becomes, what do you do in a case where there is a Sixth Amendment problem, assuming Blakely applies to the guidelines?

At that point, I think severability is the right way to talk about it.

One way of dealing with the case at the point you recognize there's a Sixth Amendment problem in this case is to say,

"Well, there's nothing we can do about it, we can't sentence this individual to any more than the upper bound of the sentencing range. "

The second thing you can do is you can say,

"Well, okay, there's a constitutional problem, but the result is that we sever 3553(b), we don't make the guidelines mandatory, and we allow the judge to impose a discretionary sentence within the range of the statute. "

That is what we think is the appropriate solution.

As a couple of you have mentioned, what we may be talking about here is an interim solution anyway as Congress may well get involved.

That's why in considering what regime of remediability or severability best serves the interests of Congress in uniformity and proportionality, it pays to pay particular attention to the cases that are in the pipeline now.

And on those cases, there's no question which proposal better serves the interest of uniformity and proportionality.

Respondents have to admit that they are seeking a huge sentencing windfall here.

One other point that bears mention is this idea of, the suggestion that because the guidelines will not be binding in every case, the Government somehow controls the decision as to whether or not it's a guidelines case or not.

That is not the case.

That decision under the system will rest with the judge.

If there is an enhancement sought, but it's not found in the basis of the judge, then there's no Sixth Amendment problem in that case, and the case can go forward.

The irony, of course, is that the consequence of applying Blakely to the guidelines is to create more power with the prosecutor, because as Justice Breyer pointed out, under the current system of the guidelines, the prosecutor cannot control through the indictment exactly what sentencing factors the judge will consider.

The Burns case, for example, that this Court had involved a case in where the judge sua sponte took notice of sentencing factors that neither the prosecutor nor the defendant very much wanted in front of the court.

That will no longer be possible under a system where everything has to be in the indictment, so the result is to strengthen the hand of the Government.

The last thing is this idea of bifurcation is not a panacea.

I know Justice Scalia, you've thrown that out in a number of instances, but the traditional rule in cases with real elements of real Federal crimes is that you don't get to bifurcate out one element that the defendant doesn't want to put before the jury.

That's the, that's the binding law in cases like Collamore out of the First Circuit and Barker out of the Ninth Circuit.

So, I think it's wrong to suggest that, that bifurcation is going to solve all these problems.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Clement, the case is submitted.

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

Attribution:

The Oyez Project

Featured:

Blakely v. Washington - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Blakely v. Washington

Media File:

02-1632_20040323-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey L. Fisher

Chief Justice Rehnquist: 02-1632, Ralph Howard Blakely, Junior, versus Washington.

Mr. Fisher.

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

The sentencing system at issue here contains exactly the same infirmities that the system... that this de-validated two years ago, in Ring versus Arizona.

Once a defendant's convicted of a felony, Washington law sets a statutory cap to that a sentencing Judge may not exceed unless there are facts present that are not accounted for in the guilty verdict.

These are called aggravating facts.

Yet in Washington, just like Arizona, a Judge makes these findings.

And in Washington, it's even worse than Arizona in that the standard of proof is a preponderance of the evidence, rather than beyond a reasonable doubt.

But it's--

Chief Justice Rehnquist: But it's still within the statutory maximum, is it not?

Mr. Fisher: --Well, Mr. Chief Justice, the statutory maximum as Apprendi defines that term, as Apprendi and Ring define that term, is the highest sentence that is allowable based on the facts and the guilty verdict.

That... that sentence in this case, is the top end of the standard range, it would be 53 months for Mr. Blakely.

You're correct that Washington law labels an additional cap as what Washington law calls the statutory maximum which is the ultimate exceptional sentence, or the ultimate enhancement that could be put forward.

But that is simply a second cap.

The question that this Court in Apprendi and Ring asked was what is the maximum sentence to which the defendant can be subjected to, based on the facts in the guilty verdict.

And that is the top of the standard range.

Justice O'Connor: Well, I assume that if your position were adopted it would invalidate the Federal sentencing scheme that we have too, wouldn't it?

Mr. Fisher: I don't think so, Justice O'Connor.

Justice O'Connor: Why not?

Mr. Fisher: Well, the big difference, the biggest difference between the Federal system and Washington, is the Federal system is a system of court rules.

Not a system of Legislative mandates.

So when Apprendi and Ring use the term the highest penalty authorized by the legislature, or the statutory maximum that is easily applied to this case, because all of the--

Justice Scalia: Two wrongs... two wrongs make a right, I would say right.

Mr. Fisher: --That can sometimes be the case.

Because the sentencing system that is at issue here, is fully legislated.

However, when it--

Justice O'Connor: I can't see much difference.

Your point is that if the same scheme that Washington has were adopted by courts, it's okay.

Mr. Fisher: --Well, that may well be the case, Justice O'Connor, I don't think you have to decide the Federal... that issue in this case.

But this Court's clearly held Williams and lots of other cases that if a legislature leaves it up to individual judges to decide what kinds of facts they want to consider in meting out sentences that is fully constitutional.

And as this Court described the Federal guideline scheme is Mistretta, this Court in pages 395 and 396 of that opinion said what we really have is just an aggregation of that same individualized discretion.

Just make it a little bit more formal in the Federal scheme.

Justice Kennedy: We did think a big deal in Mistretta, did we not, about the fact that the sentencing commission is in the judicial branch.

Mr. Fisher: Absolutely.

That was the crux of the holding, Justice Scalia.

I realize there was some disagreement on that issue.

However, Justice O'Connor, to get back to your question, the critical distinction is, if the legislature is content to leave it up to judges, or the judicial branch to decide what factors matter and where lines should be drawn, then Apprendi is not triggered in the same way that it is when a legislature steps in and says... as it has done in this case.

We are not prepared to allow a court to go above a certain threshold unless it finds additional facts.

Unless additional facts are present.

Chief Justice Rehnquist: But if the guarantee of jury trial for a finding of fact in Apprendi, it is to be logical, why should it make any difference whether the court or the legislature sets out the scheme?

Mr. Fisher: Well, Mr. Chief Justice, there are two parts of Apprendi, one is... footnote 16 of Apprendi, this Court talked about the democratic constraints that operate on legislatures vis-a-vis courts.

And when a legislature steps in and says we're not prepared to let a sentence go above a certain level unless certain facts are present, that's a very different system, than when a legislature steps in and says we will let courts operate however they like underneath a certain... underneath a certain system.

Unknown Speaker: So are you here to say if Washington State's legislature said that for a burglary conviction that a judge can sentence anywhere from 10 to 20 years.

Based on the judge's discretion, that's perfectly okay.

Mr. Fisher: Yes, Justice O'Connor, I believe that that's what the holding in Apprendi and Ring would dictate.

Justice Souter: What about the other half.

You talked about one half of Apprendi, what about the other half.

I mean, the other half in effect says, when you allow fact finding by judges to convert crime A into more serious crime B, you're making an end run around the right to jury trial, isn't the same thing going on here?

Mr. Fisher: Well, I think that is what's happening in this case, Justice Souter.

And what happens is, and it takes us back to Apprendi--

Justice Souter: Why isn't the same... I mean, no matter whether it's happening under the... under the immediate authorization of legislation setting up the guidelines or legislation that sets up, or that authorizes a component of judiciary set guidelines, isn't the same thing going on?

Mr. Fisher: --Well, from the defendant's point of view you might say that it is, but there is a difference in that Apprendi talks... the baseline of Apprendi is deciding what are elements.

And elements... the wellspring of elements and the definition of a crime has to flow from a legislative function, a legislature or the person who makes the laws sets out what facts matter, or what facts don't matter.

So it's absolutely the case of course that Windship and the Sixth Amendment apply to courts just as much as they apply to legislatures, however we need a baseline for where those rights kick in, and I think that the proper baseline, or a proper baseline would be the facts that the legislative body or the lawmaker has set out that matter for punishment.

Justice Scalia: I guess the tough question is whether the sentencing guidelines, or rather the Sixth Amendment are unconstitutional, right?

Mr. Fisher: I think the Sixth Amendment is constitutional, Justice--

Justice Breyer: I just wonder what if the statute in the guidelines case, says to the judge, Judge, you must impose a sentence that the commission has written unless you depart for certain reasons.

The Washington statute says, you must impose the sentence, da, da, da.

Unless and it has similar kinds of things, special aggravating circumstances, for example.

In neither case can you go beyond the outer limit in the one case, 25 years, or 10 years in the other case, the statutory max in the statute.

What again is the difference?

Mr. Fisher: --The difference is, in the Washington scheme the legislature has in effect... the legislature has codified the sentencing grid.

The legislature has enacted itself, all of the standard sentencing ranges.

Whereas in the Federal scheme, the legislature, or the Congress has left it up to courts to decide where the standard sentencing ranges ought to fall, so long as they're under an ultimate maximum--

Justice Breyer: You know the reason... the difference is that in sentence... the Federal statute says, Judge, you must apply the grid of sentence.

And in Washington it says you must apply the word eight years, unless three years, unless... in the other words, apply what the commission said.

That's the difference, right?

Mr. Fisher: --I'm not sure I--

Justice Breyer: In the Washington statute, it says, Judge, if you have an ordinary case, you must sentence the person to three years.

But if it's not ordinary go to 10, no more than 10.

In a Federal case, it says, Judge, if you have an ordinary case, you must apply the sentence, now the commission fills in that blank.

But if it's not ordinary, go to eight years.

So the blank is filled by the commission in one case, by the legislature in the other.

The first stage blank.

Why does that make a difference constitutionally?

Mr. Fisher: --The reason it makes a difference is because in the Washington system, in the state system the legislature has, as a policy choice with democratic constraints operating upon it, selected a maximum that it's not prepared to let judges go above.

So it's constraining the discretion of judges.

In the Federal system, Congress is... you're right, Congress is telling judges, we want you to come up with rules and follow them.

But it's leaving it up to the judges, the judicial branch, to come up with what the rules are.

So the only significant difference that comes out of the briefing, between this case and the Ring Case, is that... is the state points to the fact that unlike Ring, where you had 10 aggravating factors, here Washington sets out a general standard, and leaves... and says 11... 11 suggested aggravators, but it calls those aggravators illustrative rather than exclusive.

However, we believe that under a proper application of Apprendi that distinction makes no difference.

Chief Justice Rehnquist: You can... isn't the one... isn't that Washington prescription, that we talked about in the Williams case, leaving it almost completely up to the judge?

Mr. Fisher: It's not, Mr. Chief Justice.

You are correct but if they did leave it completely up to the judge that would be the Williams case, it would be a very different case than this one.

However, the way that the Washington law is written, and the way it's been interpreted by the Washington courts is that the eleven factors are illustrative, and so therefore if a court is going to depart on a factor that is not one of them on the list, it has to be analogous, or fairly closely tied into the factors that are on the list.

So in the Ammons case for example which is one of the first Washington State Supreme Court cases interpreting their guideline system.

They said very bluntly that the whole purpose of this system was to take away the unfettered discretion that we had in the past and to significantly constrain it.

Justice Kennedy: So if you prevail the jury gets the list of... of all the 11 factors, plus whatever else the judge thinks might come up?

During the trial do you have to prepare them for that as well?

Mr. Fisher: Well, in a typical system, Justice Kennedy, there are one, two, maybe three aggra... proposed aggravating factors.

So what we'd be proposing is that yes, during the trial the prosecutor would charge an aggravated crime, and simply... just like the deadly weapon in this case, they would have charged deliberate cruelty.

And the judge would instruct the jury on what deliberate cruelty means.

Justice Ginsburg: Most... most of these cases like this one come up on pleas.

They don't... they were trials, yes.

And the jury would be instructed, but how would... how would it affect the typical case, where there's a plea?

Is the bottom of your argument that if you enter a plea you're home free, from any enhancement, there's been no jury.

You entered a plea before the judge, and just as in here the prosecutor says I'm going to recommend the top of the guidelines 29 to 53 months.

And you say fine I'll plead to that, and the Judge says I think you deserve more, is the terminal point of your argument that with a guilty plea, for the system to be constitutional, no jury now, just a judge, there can't be any enhancement.

Mr. Fisher: So long as the guilty plea does not include any stipulation to an aggravating fact, yes, the top would be the standard range.

However--

Justice Ginsburg: So the defendant would have to say, yeah, I stipulate to 31 more.

Otherwise it couldn't be given.

Mr. Fisher: --Well, I'm not sure it would work exactly that way, Justice O'Connor.

I think what would work would be that the defendant in this case--

Justice O'Connor: Justice Ginsburg, down there.

Mr. Fisher: --I'm sorry.

Justice Ginsburg, is that in this case for example the defendant would have pled guilty.

And he could have said I agree that I committed deliberate cruelty in this case, which would raise the cap and the judge would be able to do a sentence anywhere under that cap.

Justice Souter: Well, if he didn't agree to that, there wouldn't be a plea.

I mean, if the prosecutor says, look, I'm claiming an aggravator here and I want the range increased that would have to be part of that stipulation, the deliberate cruelty would have to be part of the plea agreement.

If it wasn't, there wouldn't be a plea.

Mr. Fisher: Absolutely, Justice Souter.

Justice Scalia: Do judges typically impose the higher penalty where there's been a plea.

It seems to me it's pretty hard to do that when you haven't had a trial.

What does the judge have in front of him to, you know, to enable him to make the fact finding that justifies the aggravator?

Mr. Fisher: Well, the way it works right now in Washington, is that if the defendant enters a plea, there's a presentence report that goes to the judge.

The judge can also, as the judge should in this case, have the victim testify for example.

However, Washington law specifically provides that if the judge wants to impose an exceptional sentence, based on aggravating facts, and the defendant disputes the presence of those facts, Washington law already provides in Section 370, the Judge has to hold a hearing.

And that's exactly what the judge... I'm sorry.

Justice Ginsburg: Are you saying that that hearing... you'd have to convene a jury specially... in this case it was a guilty plea, and the prosecutor was satisfied with 49, 53 months.

The judge said I'm not satisfied.

Is it your view when the prosecutor is willing to make that deal, doesn't want the 30 extra months, but the judge wants it, once the guilty plea is made, then can the judge say, never mind, prosecutor, I don't like that bargain.

And this... do you have to convene a jury specially then, just this jury specially to hear the evidence on whether there should be... or the--

Mr. Fisher: Well, Justice Ginsburg, certainly my case doesn't stand or fall on the fact that the judge is the one that did this hearing.

However, I think that in that circumstance it seems a sensible result that if the prosecutor isn't asking for an aggravated factor and nobody's contesting it, then the judge ought to either be bound by the deal, or the judge in the interest of justice, as he always has, can say I don't think this is a fair plea.

Justice Scalia: --That's right, he can turn down the deal.

Mr. Fisher: Yeah.

Justice Scalia: I mean, and does he only get the presentence report after the plea is accepted?

Or does he get it before the plea is accepted?

Mr. Fisher: I think it varies, Justice Scalia.

Justice Scalia: Well, so long as he has it in front of him, before he rules on the plea, he can effectively achieve what Justice Ginsburg is concerned about by simply refusing to accept the plea, unless the defendant is willing to confess to one of the aggravating factors.

Mr. Fisher: That's right, Justice Scalia.

Justice Breyer: So this moves the entire system.

I mean I am now... the light has dawned slightly... the reason I guess, I'd like your view, but the defense thought like Apprendi and pursues these cases because 95 percent of the people in prison are not there pursuant to a jury trial.

Rather they're there because of plea bargaining.

And it will work in the plea bargaining context, though it won't work at all in the trial context.

You'd have to go and argue, my client was in Chicago, but by the way I'd like to point out that he only hit the person lightly not heavily as the... so that wouldn't work at all.

But you don't mind because your job everyday is plea bargaining.

If I'm right about that, I want to know if I am right?

Mr. Fisher: Well, I think that you're right that Apprendi works in plea bargaining, but with all due respect I'm not sure that I accept that doesn't work in--

Justice Breyer: Okay.

Then let's go to the trial.

The person, as you know, robbed a bank.

Used a gun, took a million dollars and not just a thousand.

Brandished another gun, and hurt an old lady.

All that's charged.

You want to say, my client was asleep at home, yeah.

Now, how do you defend yourself against all those aggravators.

Mr. Fisher: --Well, Justice Breyer, the same thing happens for example when there's a lesser included offense in the case.

Justice Breyer: Of course it does, but they're very limited numbers and you can work with a few.

What you can't work with is five or 10, or particularly a very important one, but anyway, you explain it.

Mr. Fisher: Well, as I said, the typical situation in Washington is more like two or three aggravators.

I understand the Federal system is more complicated, but in the state system, there's typically two or three aggravators and in fact Washington itself proves that this works.

Because Washington has already singled out several factors they call sentence enhancements.

Such as using a deadly weapon, selling drugs within a 1000 feet of a school zone and some other ones on the list that they already require to be treated exactly in this fashion.

And then things... and I've never seen anyone complain, and with certain--

Justice Breyer: You know, but I'm just curious.

I understand that that must be so, because you have the experience.

But what I'm... what I want to know is why does that happen.

If my client wanted to say he basically wasn't guilty of the offense, then I want to say and also he wasn't near the school, or also he only used, you know, the ones you say.

How do you present that to a jury?

Mr. Fisher: --Well, Justice Breyer, one other point is important here because, in many cases it's not going to be such a big problem.

However, in the one state that we've seen that has adopted this system essentially the fix that we think would be the proper fix here in the State of Kansas, they've said that if a defendant contests aggravating factors that not... they have to be proved to a jury beyond a reasonable doubt.

However, the statute also provides that in the interest of justice the judge can sever the guilt phase and the sentencing phase, and so if... it puts the defendant.

Justice Scalia: I don't see the problem... I don't see the problem of challenging it.

It is up to the prosecution to introduce the evidence of the aggravators, right?

Mr. Fisher: --That's correct.

Justice Scalia: So the prosecution puts on one of the customers in the bank who says, you know, he was using a gun.

The defendant is not going to be testifying anyway, unless it's a very strange criminal trial.

It seems to me what would happen is exactly what would happen in a normal trial.

The defense counsel would seek to break down the story of the witness that this person was carrying a gun.

How far away were you, what kind of a gun was it, what color was it.

The same thing that would happen in any trial it seems to me.

Mr. Fisher: Well, I think that's generally the case, and that's why I said it's just like what might happen for example in a lesser included case, when murder and manslaughter was charged and it was the defendant's position that it wasn't him.

He wasn't around.

Justice Breyer: Yeah, put on the witness that says I want to tell you... they say he hit her with a gun and your witness wants to say, oh no he only he brandished a gun, he didn't hit her.

That's quite a good witness to put on at the time that you're claiming that he was across the room.

Mr. Fisher: Right.

Well as I said, there are--

Justice Breyer: Well, sometimes works, sometimes not?

Mr. Fisher: --Right.

Justice Breyer: The bizarre thing about this, which of course I said I'm in the minority here.

The bizarre thing is, it's hard for me to believe that the Constitution of the United States requires, not that it doesn't permit.

But requires a sentencing commission should Congress wish to take discretion, total discretion away from the judge, which of course your distinction leads to.

It's also very hard for me to believe that the Constitution of the United States prohibits Congress from... prohibits it from saying, you know, I don't want to leave that up... to each judge to decide whether having a gun is worth two years, or five years more.

I want to regularize this.

So those are the two dilemmas because you have to chose A or B, if there's something unconstitutional about this.

Mr. Fisher: Well, Justice Breyer, I think the Constitution doesn't prevent Congress or any legislature at all from regularizing criminal sentencing.

Unknown Speaker: True.

Mr. Fisher: Sentencing guideline systems are fine, and Apprendi says nothing about whether legislatures can come in, and regiment out and separate all the factors.

The only thing Apprendi says, is that if a sentence is conditioned on a certain finding of fact, and there is a dispute about that finding of fact, the defendant should have the right to have the jury make that finding beyond a reasonable doubt rather than have to judge.

Justice Kennedy: Transfer that whole... your rationale to the Federal system and you have the grand jury first indict us to the aggravators?

Mr. Fisher: Well--

Justice Kennedy: Why not?

Mr. Fisher: --Well, assuming the Federal system... if you're assuming the Federal system was covered by Apprendi.

I think that--

Justice Kennedy: I'm saying, assuming we apply your rule to the Federal system, I don't know how we couldn't, quite frankly.

You can get a grand jury indictment for all the aggravators.

Mr. Fisher: --Well, to whatever extent a grand jury needs to charge aggravated crimes I think they would need to charge it and then apply--

Chief Justice Rehnquist: Well, didn't Apprendi say that all the elements had to be charged?

Mr. Fisher: --Yeah.

Apprendi says that under fair notice principles... I'm going to stumble here a little bit.

Justice Scalia: Why don't you just say yes, what's so outrageous about that.

The man's going to be sent to jail, for another five years, you're saying he has a right to have a jury find beyond a reasonable doubt that he did the additional fact... act which justifies the five years.

What's so outrageous that that needs to be--

--Can the grand juries indict him for that?

Mr. Fisher: I'm stumbling over the grand jury because this is a state case, and not a Federal one.

Chief Justice Rehnquist: Yes.

But the question was, in the Federal system.

Mr. Fisher: Right.

Chief Justice Rehnquist: Obviously we've never held the Seventh Amendment grand jury requirement applied to the state.

Mr. Fisher: Right.

But to the extent the grand jury requirement applied it would... the grand jury would need to charge the aggravator just like anything else.

And as Justice Scalia--

Justice Kennedy: It seems to me you're... you may not be defendant friendly in all instances.

In this case, if the defendant really wants to bargain for the lesser offense, kidnaping II instead of kidnaping I, I suppose the prosecutor would say that part of the bargain is that you stipulate to A, B, and C. And then he doesn't have the opportunity to argue before the judge that he wasn't guilty of the aggravators.

In other words, it could work both ways.

Mr. Fisher: --Well, it can, but I think it's important to look at the injustice in this case, Justice Kennedy.

He made a deal to get kidnaping II, and didn't plead to any aggravators, however he got a sentence that was more in line with kidnaping I, based on facts that he never acknowledged and he disputed.

Justice Kennedy: Well, the cap for the kidnaping I, was much higher, and judges so often when they see aggravating circumstances get close to whatever the cap is that they're applying.

So I'm not sure about that--

Justice O'Connor: --Mr. Fisher, if you're... if you are correct here, I suppose all 50 states have sentencing schemes that would fall as a result, isn't that right?

Mr. Fisher: By my study, Justice O'Connor, I don't think that is correct.

Justice O'Connor: Why not?

Mr. Fisher: Well, there are only about 17 states that have guideline systems right now.

By my count, only about 10 of them have a system like the State of Washington's.

The other seven have systems where they do create standard sentencing ranges, but then they leave it up to the judge to depart from those ranges whenever they want to based on any reason.

Those systems I think are just fine no matter what this Court says today.

So I think we're only talking about those 10 systems like the State of Washington.

Justice Scalia: Upsetting the systems for States does not seem to trouble us in other areas.

Such as capital punishment, for example.

Mr. Fisher: That's right, Justice Scalia, and obviously this Court has thought a lot about that issue already in the prior Apprendi case, as to what... what the effects of its rulings are going to be.

Justice Breyer: I guess I'd be afraid the effect is going to be enshrine the plea bargaining system forever.

Because that will be the only practical thing.

Or to say there's a constitutional requirement that you have to have a sentencing commission and the legislature can't do the work itself, which is both undemocratic, a little hard to see why that's so... and produces just as much unfairness of the kind you're complaining about.

Disabuse me, if you can, of these pessimistic views.

Mr. Fisher: I'll try.

Justice Breyer: You agree that it's undemocratic?

Mr. Fisher: What is undemocratic... leaving it up to judges?

Yes, but that's the whole point of Apprendi is that the democratic constraints operate on a legislature, and then when a legislature steps in, that different things apply.

And when the legislature says something, as footnote 16 in Apprendi mentioned, it's a different force than when leaving it up to the judges.

If it's all right with the Court, I'll reserve the remainder of my time.

Argument of John Knodell, III

Chief Justice Rehnquist: Very well, Mr. Fisher.

Mr. Knodell, would you... am I pronouncing your name correctly?

Mr. Knodell: You are, Your Honor.

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

Whether the statutory maximums in the State of Washington is what the legislature says it is, or the upper end of the standard range, established only for the purposes of enforcing legislative limitations of judicial discretion is at the heart of this case.

And I would suggest to this Court that the answer to that question lies in the examination in the way that the statute works.

In Washington, the legislature of course like all States, initially defines the elements of a crime, and sets statutory maximums.

And I think if we look at the elements of the crime, and look at the way they work, you will see that they are substantially different, the kind of sentencing factors that are dealt with in reaching aggravating, or mitigating sentences under the Sentence Reform Act.

The criminal elements apply equally in every case.

They are necessary and sufficient I think, as was put in the General's brief, in each and every case.

They are mandatory, and forced to consider each and every one of them, the fact finder.

And there's only one result.

Conviction... conviction or acquittal.

There's no weighing of competing interests, there is no discretion.

Now, I offer doing this... the Washington legislature then created the Sentencing Reform Act.

The Sentencing Reform Act, I would submit to you created a situation in the State of Washington where we have three zones.

There's first a standard range and I would suggest to you that the word standard in the sense that it's used by the Washington legislature, it's used in defense as a basis of measurement.

The standard range is a baseline.

It is a zone in which the sentencing court has absolute discretion, as you will see in the guidelines themselves, and provisions, that a sentence within these guidelines is not reviewable.

That there's absolute discretion.

Then in addition, in that--

Justice Scalia: Excuse me.

The sentence is not mandated in the standard zone?

Mr. Knodell: --Not--

Justice Scalia: Just... you can give them up to 10 years, but if you want to give them two years, that's okay.

And that's not reviewable?

Mr. Knodell: --That's exactly right.

There is no review.

And I would just... you know, I would just to... try to impress upon you, Justice Scalia, that the... there is a range then between the upper end of the sentencing... of the standard range, and the statutory maximum, which is the zone where the limitations... the very minor limitations I submit to the Court that are imposed upon the sentencing court or enforced, that's the zone of limited discretion.

This limited discretion is limited only in two ways.

The court cannot... cannot impose a sentence beyond the range for reasons that the legislature considered in defining the crime in the first place, and the court cannot... cannot up the statutory maximum... cannot impose a sentence because he believes that the defendant committed a more serious crime than the crime of which he was convicted.

One of the primary purposes of the Sentencing Reform Act is to... is to ensure that the defendant, the criminal defendant is punished only for the crime of conviction.

The standard range is a baseline, the statutory maximum is a borderline.

The baseline and the requirement that the court enunciate reasons for departure are simply... they are not a hurdle.

Justice Souter: But may I ask you this.

You point out that he has to enunciate reasons.

Don't the reasons have to have... don't they have to cover basically two components.

First, they have to cover the component that you've alluded to and that is some kind of the reasoning for engaging in the act of discretion of going... going above.

It's got to be clear that this is not just, you know, more prejudice or anything like that.

Doesn't it also have to have as a component the identification, the finding of facts upon which this discretion can be exercised.

Take this case as an example.

The basis for going above was cruelty.

Unusual cruelty, whatever it was.

He would have to articulate the facts I suppose that a gun was used, that the woman was kept in this box a great deal of the time and so on.

Which would make it sensible to say, well, yeah, there's cruelty here and that's a reason for doing what I'm doing.

It's a distinction in the case in which somebody kidnaps a woman, forced her into a mink coat in the back of a limousine that wouldn't... that wouldn't do it.

So there... isn't there a fact finding component, even though the statute does not set out in advance what those facts must be or limit what they must be.

They simply must be relevant to the act of discretion, but there is a fact component, isn't there?

Mr. Knodell: There is a fact component, but if we look only at the fact component, Justice Souter, we will be taking a very impoverished view of what this statute does.

Obviously any sentencing decision, any discretionary decision is based in some degree on facts.

But look what happens under the Washington Sentencing Reform Act.

The court has a list of illustrative factors from the legislature, it's true, but the court can regard... the court can select them, cannot select them, can disregard some, can regard some.

It's an entirely discretionary procedure.

Justice Souter: But whatever it does select, they've got to be facts which at least would morally justify going above the ceiling.

The... the guideline ceiling.

Absent those kind of facts, as well as a reasoned judgment based on them, the ceiling governs.

Mr. Knodell: I disagree with that.

Justice Souter: Well, I don't think I understand what you're talking about.

No, I mean I'm missing something in the description of the system, that's what I need to have.

Mr. Knodell: Well--

Justice Scalia: Can he be reversed if there's nothing in the record that shows the fact... I mean he says I'm giving him another 10 years, because he used a gun.

There's nothing in the record that shows that he used a gun.

You mean he cannot go up on appeal and get that additional penalty removed?

Mr. Knodell: --He could.

Justice Scalia: Of course.

Because it depends on a fact finding.

Mr. Knodell: No, I disagree with you, Judge, but he would be reversed for two reasons.

It would be an abuse of discretion to base the sentence... it doesn't make it any less discretionary.

It's an abuse of discretion to overturn... excuse me, to impose a sentence that has absolutely no basis in the record.

Justice Scalia: You call it an abuse of discretion, call it whatever you like.

You know, call it piggy back.

But the fact is if his judgment is not supported by the facts in the record, he is reversed.

So he is making a fact finding.

Mr. Knodell: Two... let me make two points about that.

Discretion lies at the heart of this case.

Discretion is the difference between a crime element and a sentencing factor.

I believe that that, when you take a look at how the statute works, that's what is at heart... at issue here.

If the... if the judge makes a decision that's not based upon the record, that's simply pure whim, that's a due process violation.

That's an abuse of discretion.

The second point is, I--

Justice Scalia: It wasn't pure whim.

He just made a mistake.

He got this record mixed up with another.

In fact there's not enough evidence to support that fact.

The defendant is entitled to get that judgment reversed, because that fact is essential to his being given the additional penalty.

And as I understand what we said in Apprendi, and as I understand the Constitution, when you're sent to jail for an additional amount of time, on the basis of a fact that is required to be found before you can be sentenced, that has to be found by a jury.

Mr. Knodell: --Well, no particular fact is entitled... is required to be found.

It doesn't make--

Justice Scalia: No particular fact is entitled to be found, but a fact which the judge can select from among, but he has to select a fact.

And whichever one he selects, whether it's carrying a gun, or cruelty to the woman, or whatever else.

That fact has to be found by the judge and there has to be support for it.

Mr. Knodell: --That process that you're describing where the judge takes a look at the case... at the individual before him, and selects what facts are going to be relevant, and decides what weight to give them, and weighs that fact against competing interests in sentencing is exactly the kind of process that the judge went on... went through in Williams.

That is a constitutional process that is not rendered unconstitutional--

Justice Stevens: Yes, but in Williams there was no intermediate level that he couldn't go above.

There is here, isn't there?

Under the standard sentencing system, are they... did the other side misrepresenting this?

I understood that given what the man admitted in the guilty plea he could be sentenced to what, 53 months.

And not above that.

Mr. Knodell: --I disagree with that, very respectfully.

Justice Stevens: Without additional procedure before the judge?

Mr. Knodell: There's always going to be an additional procedure before the judge.

There's always going to be a sentence hearing.

Justice Stevens: Which require the judge to find a fact that had not been established previously.

Mr. Knodell: Yes.

And I think that that... what you have to remember is that fact finding process, is not like finding the criminal element because the judge is--

Justice Stevens: But why not, if it increases the sentence by five years.

Why isn't it exactly the same thing?

Mr. Knodell: --That is... it is alike only in the superficial sense, Justice Stevens, because you're... it ignores the process that leads to the selection of that fact and the way that fact is weighed, and the way it's used.

Justice Ginsburg: But Martin... did Martin?

I thought that in the Washington system, if the defendant disagrees, the judge says I think you did this cruelly, in the presence of a child, the defendant is then entitled to have a hearing at which evidence is presented and the judge has to make that decision about the additional time on the basis of a record.

And he has to... he applies it, it's true, not beyond a reasonable doubt, but preponderance of the evidence.

But it is based on a finding of fact.

Mr. Knodell: That's correct.

It's based on a finding of fact, but the finding of fact is not the whole picture.

After selecting the fact, making the finding, then the judge has to determine whether it's substantial and compelling.

Whether this crime is atypical, whether it differs substantially from other crimes of the same type.

That is--

Justice Scalia: Whatever else he does, the fact is, you're being sent up the river for an additional three years, on the basis of a fact finding by a judge that more likely than not you were carrying a gun.

More likely than not you were cruel to this woman.

That doesn't trouble you?

Mr. Knodell: --It... it's the same process, Justice Scalia, that you went through in Williams.

In Williams, you had the judge making the determination of fact finding that went beyond the... what was--

Justice Stevens: But the legislature hadn't put an intermediate level on what he could do without the additional finding, which you have here.

Mr. Knodell: --That's right.

What I want to emphasize to you, is that that limited... that limited jurisdiction is for the purpose only of ensuring that the reasons that are multi-varied, which could be anything, do not violate the principles of Apprendi, which do not lead to the defendant being punished for some crime that he wasn't convicted of.

Justice Stevens: But it is correct that that intermediate limit is something he cannot go above, unless he makes an additional finding of fact?

It's not been established at that point.

Mr. Knodell: That's true.

And I would simply add he has to make a finding of fact, he has to select which fact is relevant and then he's got to find that fact is substantial and compelling.

In the same way that a sentencing judge in an indeterminate would do.

The--

Justice Ginsburg: This is a pretty hefty... I mean if we look at it in practical terms, on the night of incarceration, this was 30 months added on, right?

So it was about a third of the total sentence?

Mr. Knodell: --That's correct.

By my computation however, under kidnaping, if this had been kidnaping I, it would have been more in the nature of 150 months.

It would substantially exceed the sentencing cap.

Justice Ginsburg: But he didn't plead to... he pled to kidnaping II.

Mr. Knodell: He pled and he was specifically told, Justice Ginsburg, that he could receive up to 10 years, and that the court had the right to go up to that amount if the court found aggravating circumstances.

And he knew that there would be a hearing.

So I... I think what's important there, is not so much what the number was, but how it was reached.

If it was reached in a way that basically... and I don't think mimic, but was similar to the traditional sentencing process, but it was simply structured by the... structured by the legislature and require the judges to enunciate a reason solely for purpose, not as a hurdle to it, not as a prerequisite to the exercise of jurisdiction beyond the standard range, but more as a way for reviewing courts to make sure that the trial court was not infringing upon the very limited limitations of the Sentencing Reform Act.

And I think it's substantially different than Apprendi.

And it does not violate the Sixth Amendment and that is the way that our supreme court described... describes this and interprets the Sentencing Reform Act.

I think that's due... due some deference by this Court.

If you take a look at Baldwin, for example, you see Baldwin describing the process... excuse me, as one where the only restriction on the court's discretion is a requirement to articulate a substantial compelling reason for the imposing a sentence.

That the guidelines are intended only to structure discretionary decisions affecting sentences that they don't specify any particular result.

And that makes this, I think, substantially different from the kind of enhancements that we're involving... or even the firearm enhancement that Mr. Blakely received here.

Justice Kennedy: Are there any states, or many states, where juries hear as many as 10 factors as part of their determination, and then make special findings in the matters?

Mr. Knodell: I don't know of any and I would suggest to Your Honor that that kind of a system is really impractical for a number of reasons, we take it.

If we separate the logistical problems here, there's some real structural problems with that.

In a state like ours where crimes almost have to be pled.

You would basically be left with a system, where the prosecutor can tell the Judge, can tell the jury, dictate to them what sentencing factors will or will not be considered.

When you instruct the jury you have to tailor a... some kind of instruction that would somehow try to approximate the kind of wide range in discretion the Judge has.

I would suggest to you--

Argument of Michael R. Dreeben

Chief Justice Rehnquist: I thank you, Mr. Knodell.

Mr. Dreeben, we'll hear from you.

Mr. Dreeben: Mr. Chief Justice and may it please the Court:

Sentencing guideline systems, like the State of Washington's and the Federal Sentencing Guidelines fulfil valuable functions in regularizing the sentencing process, and are distinctly different from the systems that this Court considered in Apprendi and Ring.

Justice Scalia: Do you agree that the two standards together, that if this is invalid, the Federal Sentencing Guidelines are invalid?

Mr. Dreeben: Justice Scalia, the United States will argue if this Court applies Apprendi to the Washington guideline system, that it should not be further extended to the administrative guidelines that are created by the sentencing commission.

Justice Scalia: The answer is no, you don't agree.

Mr. Dreeben: The answer is--

Justice Scalia: You think it is possible to uphold the sentencing guidelines and yet find this to be unlawful.

Mr. Dreeben: --I think it's possible and the United States will certainly contend that this Court apply--

Justice O'Connor: But you don't mean it's easily... it's not--

Justice Kennedy: --It is consistent with what we said in Apprendi, isn't it?

Mr. Dreeben: --Well, there are some obstacles to it that the Court should be aware of before it concludes that Apprendi can easily be applied to Washington and not to the Federal guidelines.

Under Federal law Section 35.53 (b) of Title 18 the sentencing courts are required to impose a sentence of the kind and within the range specified by the sentencing commission.

So there is an act of Congress that requires that the sentencing guidelines be applied.

Justice Scalia: The sentencing commission is in the judicial branch.

Mr. Dreeben: For administrative purposes--

Justice Scalia: That was a very important part of our opinion upholding the sentencing commission.

It's in the judicial branch, because Congress said so.

Mr. Dreeben: --The sentencing guidelines themselves are not self-operative.

They come into play for the sentencing courts direction, because of an independent Federal statute.

In addition, there are situations which Congress has given very detailed direction to the sentencing commission about the type of guidelines that Congress.

Chief Justice Rehnquist: How are the members of the sentencing commission appointed?

Mr. Dreeben: --They're appointed by the President and confirmed by the Senate.

And they do not include only members of the Article 3 branch.

In addition to that Congress has on occasion--

Justice Scalia: But they are... the commission is in the judicial branch.

You acknowledge that.

You argued that in the case, or the government argued that in the case, right?

Mr. Dreeben: --Well, certainly, Justice Scalia.

Justice Scalia: It is the judicial branch.

Mr. Dreeben: The Court held it in the judicial branch but the question is, what status the guidelines have, not which branch the commission is in.

Justice Breyer: So what is your distinction.

Look where I end up.

Apprendi rests on a perception that where a fact is found that means a longer time in jail.

It's unfair, not to have the jury find it.

That's a true perception.

So if you're not going to follow that across the board, there has to be a good reason for not following it.

And the reason is, that if you do follow it, you end up with a pure charge event system, all power to the prosecutor, very bad and unfair.

Or California, indeterminate sentencing where people rot forever at the judge's discretion, or a multi-jury system which is impossible to work with.

So that's why you can't follow the perception.

Practical reasons.

But if you're going to limit Apprendi, you're then going to have to find what are... in terms of the principle, arbitrary distinction.

One such arbitrary distinction is it matters whether it was a group of judges called the commission or the Congress itself that set the lower limit before the departure.

Another arbitrary suggestion is going to be the one you're going to suggest, and that's what I want to know what it is.

Mr. Dreeben: Thank you for the lead in, Justice Breyer.

I think that the best way for the Court to look at the problem of sentencing guideline systems is to understand the penalty systems fall on a continuum.

At one end of the continuum are the kinds of statutes that the Court had before it, Williams versus New York, in which judicial findings about fact were critical to what sentence a defendant actually received and those findings were not subjected to a jury trial, or proof beyond a reasonable doubt guarantee.

Justice Stevens: Not only that but the judge didn't even have to make any findings.

He could have just said his name is Smith, so I'm going to give him 20 years.

Mr. Dreeben: I think that that would probably have been reversed even at--

Justice Stevens: I don't think so at that time, there was very little appellate review of sentencing on Williams that was decided.

Mr. Dreeben: --Very little but sheer arbitrariness would probably not have sufficed even under Williams.

But--

Justice Scalia: Well, he could be foolish enough to say that, you know I don't like the way you comb your hair.

But he wouldn't say that.

He would just say, you know, 40 years.

Mr. Dreeben: --What he did--

Justice Scalia: He didn't have to give a reason.

Mr. Dreeben: --But what happened in fact in Williams is critical.

The judge made findings that this defendant had a long arrest record, he posed a future danger to the community and he therefore deserved a longer sentence.

And those were facts.

They were ascertained by a judge.

And there's no dispute in this Court's jurisprudence that facts that are ascertained by a judge, when the judge has wide open discretion in a long range are not subject to Apprendi.

The facts.

Justice Stevens: Not only does he have wide open discretion, but he has no obligation to make those findings.

He did make them in that case, but there was nothing in the statute that required him to.

Mr. Dreeben: --But what the legislature expects, Justice Stevens, when it gives wide ranges to judges, is that they will exercise their discretion based on facts to sentence the most serious offenders at the top of the range and the least serious--

Unknown Speaker: That's what they expect under sentencing guidelines and what they expect today.

It's not what they expected when Williams was decided.

Mr. Dreeben: --Well, Justice Stevens, what I would submit to the Court is that when a legislature established a wide range, say, 10 to 30 years in prison for a particular offense, it expected that the judges that heard criminal cases would use their experience and discretion to take into account all of the circumstances of the offense and the offender and determine whether rehabilitation and retribution were properly served by a longer sentence, or a least harsh sentence.

And they did this, in the expectation of calling on judicial wisdom based on particular facts.

What they--

Unknown Speaker: But it wasn't just facts, you left a lot of discretion to the judge.

If the judge thought that this particular crime was becoming rampant in this community the judge could decide we need to make an example.

And for that reason give the individual the maximum.

It wasn't just fact findings.

The judge had a whole lot of discretion, he had sentencing discretion.

It was really up to him whether this crime, not just considering the facts of the crime, but considering the needs of society, should be given a longer or a shorter sentence.

Mr. Dreeben: --I--

Unknown Speaker: It's a different system.

Mr. Dreeben: --I agree with that, and it was a large purpose of the sentencing guideline system to provide some centralization for the policy decisions that are made in sentencing to ensure uniformity, and proportionality.

But this is what's critical for purposes of the Apprendi decision here, also room for individualization.

Based on the judge's traditional perception, that there are things in the record, or in the character of this defendant that were not taken into account by the legislature and that the judge in the exercise of his discretion will determine, deserve a higher or a shorter sentence.

Now, in the context of--

Justice Scalia: Mr. Dreeben, just answer me this.

I will understand the government's position if you give me an answer to this question.

If you do you not think that the meaning of the Sixth Amendment which guarantees trial by jury, if you don't think that the meaning is, that every fact which is essential to the length of sentence that you receive must be found by the jury, if that's not what it means, what does it mean.

Mr. Dreeben: --It means--

Unknown Speaker: What is the limitation upon the legislature's ability to require facts to be found and yet those facts not to be found by the jury.

Mr. Dreeben: --It means, Justice Scalia, that the facts... that the legislature itself identifies as warranting the harsher punishment shall be found by the jury.

But when the legislature says to the judge, impose a sentence in the standard range, unless you in your discretion determine that there are circumstances that take the case outside the standard range, or outside the heartland.

In that event, the judge may exercise his discretion to go up to what the legislature determines is the statutory maximum, then what the judge's... what the legislature has attempted to do, is combine a system that will regularize and provide some uniformity but at the same time import that Williams discretion, the traditional discretion that this Court has recognized is consistent with the Sixth Amendment.

And I submit that if in the Williams era a legislature had passed a law that said, judges, we are giving you a range of 10 to 50 years for this offense.

We want you to figure out who should be sentenced where.

We want you to find facts and make judgments that are expressed in writing so that we can see what you are doing.

And we want you to put the worst offenders at the top and the least worst offenders at the bottom.

But this Court would not have held that those sorts of inroads on judicial discretion automatically mean that the Sixth Amendment kicks in.

And traditional judicial discretion is out the window.

Justice Breyer: Does that mean that the facts that are elements of the crime must be found by the jury.

The facts that are not elements of the crime, that are pertinent to punishment can be found by a judge?

Mr. Dreeben: That is exactly right, and that is exactly what Washington purported to do when it said there are illustrative factors that we are going to put in a statute that replicate what we know judges have traditionally done, but we are not eliminating your discretion to find other facts.

This is a nonexclusive list.

We want to call upon--

Justice Scalia: What determines whether a fact is... it's so facile it's a wonderful solution.

Unknown Speaker: What determines whether a fact is an element of the crime or not?

Mr. Dreeben: --Precisely what you--

Unknown Speaker: You get whacked another five years, another five years for it.

But the legislature says, oh this is not an element of the crime.

It's just a sentencing factor.

What... how do you separate the element of the crime from sentencing factors?

Mr. Dreeben: --It's not a label.

It is a consequence of the effect when the legislature says these are the facts that are necessary.

Here's the set, you use a gun, you engage in deliberate cruelty, you have a certain quantity of drugs, you have one of those facts, and nothing else can justify a sentence above the standard range.

That would define the standard range as a statutory maximum.

But that's not what Washington does and that's not what the Federal sentencing guidelines do.

What those systems do is say, here are some illustrative facts for your consideration.

But we are not going to cabin your discretion to identify additional aggravating circumstances in the exercise of the time immemorial judicial prerogative to look at all of the facts of the case in the sentencing.

And go up to what we have legislated as the statutory maximums.

Justice Scalia: But it used to... they have cabined it, judges can be reversed.

If they give the additional penalty in a manner that is not permitted by the sentencing guidelines, or here by Washington's system.

Don't say they haven't cabined it and they have?

Mr. Dreeben: They have cabined.

They have cabined it.

Justice Scalia: It's reversible.

Mr. Dreeben: Justice Scalia, but my point of the... the point of my hypothetical in which the legislature says to the sentencing judge, find facts, put the worse offenders at the top, apply the following three policies of sentencing.

Proportionality, retribution, and rehabilitation.

Justice Breyer: Okay.

So it used to be that the answer to the elements question was the people will decide what's an element through their elected representatives.

But after Apprendi we have to find some other way, all right.

So you're saying, well, if it is a delegation from the legislature, use your judgment, as judges used to do in sentencing, and find those facts in the process.

It's not an element, it's relevant to sentencing.

Is that the key?

Mr. Dreeben: That's right.

Justice Breyer: Have I got the key?

Mr. Dreeben: If the delegation--

Justice Breyer: Rephrase it, because I'm trying to get the precise key to what... to what it is.

I said general... I'm using general policies, that isn't the right word.

What's your word?

Mr. Dreeben: --Well, Justice Breyer, if what the legislature does is say to the judge, here's a standard range, but you in the exercise of your discretion identifying whether a factor takes the case outside what the sentencing commission calls the heartland, what Washington calls the standard range, then in that event you may go up to what we have defined as the statutory maximum.

And by doing that, by calling upon judicial discretion to consider unspecified factors, the legislature has not erected surrogate elements, which is what the Court found in Apprendi.

Unknown Speaker: Is that the nub of your argument?

That Apprendi is concerned with the erosion of jury trial, by the combined efforts of the legislative and the executive branches and we don't have to worry about the erosion of jury trial if the operative determinations are left entirely within judicial discretion, is that what you're argument boils down to?

Mr. Dreeben: That is what it boils down to, Justice Souter, because we're starting from a spectrum at which one end lies Williams versus New York, in which the Court fully accepted that it is entirely constitutional for a judge to say, in my courtroom if you commit a kidnaping and you engage in deliberate cruelty which I'm going to find by a preponderance of the evidence, you're going to get the maximum.

Justice Souter: All right.

If that in fact is the position, then I take it, it is open to a legislature in a case like this to say, instead of having a formal maximum range, I forget what it is, but from zero to 10 years, we're going to make it zero to 100 years, and we're going to leave everything else to the discretion of the judiciary, and Apprendi in effect will be a dead letter.

But your argument is that's okay, because we're not worrying about the judiciary.

Is that what it is, is that what it boils down to?

Mr. Dreeben: I think that follows directly from Williams versus New York, and it's an additional reason why this Court should be very reluctant to apply Apprendi to sentencing guideline systems.

Washington would not have to react to a decision applying Apprendi to its guidelines the way Kansas did.

Washington could decide that, all right, if the problem is that our standard range created a top of a statutory maximum term, we're just going to do away with the top of the standard range, and we'll leave it to judicial discretion, with the following policy statements to give some guidance to what they do.

Justice Scalia: I think you understated the prior... the prior system.

Because... the Williams system, it wasn't just the judge could say, if you kidnap and are cruel to your victims I'll give you the maximum.

He could say I... in my court if you kidnap, you get the max.

I mean there were judges around you know, known as Maximum John.

If you committed a certain crime you would get the maximum.

That's a different system than what we have now.

Rebuttal of Jeffrey L. Fisher

Chief Justice Rehnquist: Thank you, Justice Scalia.

Mr. Dreeben.

Mr. Fisher, you have four minutes.

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

I think it's important to make two points about Washington law, lest the Court be left with any confusion.

The first is, the Washington legislature has most definitely not left it up to Washington judges to depart upward for any reason they want.

They have not left it entirely up to the judges' discretion.

A judge has to find, as the judge in this case did, one of the eleven listed factors or one that is analogous to those eleven factors.

And there are case after case in Washington, or appellate decisions saying this aggravating fact is not good enough.

But if the Gore decision, and the Cardenas decision both cited in my briefs.

Another example is Barnes... the Barnes decision at 818 P. 2d 1088 in which for example the Washington Supreme Court said future dangerous which is a common aggravating factor in other contexts, it's not a valid aggravating factor in Washington in most kinds of crimes because the legislature did not list that out.

And in fact what the Washington Supreme Court said there, is they said, if we were to find that we would be giving ourselves too much discretion back for the very point of the Sentencing Reform Act was to take discretion away from us, to go above the standard sentencing range.

The second point about Washington law is, Mr. Knodell is right, that there is some discretion built into the system, but that discretion kicks in only after the judge has made the required factual finding.

In that respect the system is just like the one in Ring where the aggravating fact is necessary but not sufficient for the ultimate sentence.

The Judge still can in his discretion... this, Justice Breyer, goes to your question, the judge still once the jury or the proper fact finder makes all the required factual findings, the judge can still consider all the facts in the case, and go anywhere below that new maximum that's been established.

So judicial discretion is still retained in Kansas' system and it would be retained in Washington's system.

And the final thing I'd like to say is that Mr. Dreeben's point that this case is different than Ring because the fact that they're illustrative rather than exclusive would lead to Apprendi simply being a mere formality because all the legislature would have to do, for example in the Ring case, is have factor number 11 that says anything similar to the others on this list.

Then you'd have people saying, well, judges can do just about what they were doing, which was finding one of those 10 factors, but because there's factor 11, that says something similar to this is also good enough that Apprendi somehow doesn't apply.

We submit that a straightforward application of Apprendi as it was stated in Ring, requires a reversal in this case.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Fisher.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Cotton - Oral Argument

Fri, 09 Jan 2009 14:50:24 +0000

Case:

United States v. Cotton

Media File:

01-687_20020415-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in No. 01-687, the United States v. Leonard Cotton, et al.--

Mr. Dreeben.

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

This case is typical of many Federal drug prosecutions that were tried before this Court's decision in Apprendi v. New Jersey.

Respondents were indicted on a superseding indictment that alleged a conspiracy to distribute cocaine and cocaine base without alleging a specific threshold quantity of drugs that were involved in the offense.

Respondents were convicted of that offense at trial, and the evidence established at trial that the offense involved well in excess of 50 grams of cocaine base, the threshold quantity of drugs to authorize a minimum sentence of 10 years and a maximum sentence of life imprisonment.

At sentencing, as all parties expected, the judge made findings of drug quantity and determined that the quantities of drugs involved in the offense justified a sentencing range up to life imprisonment and imposed sentences on several respondents of life imprisonment and others of 30 years imprisonment.

Respondents made no objection to the judge's procedure in determining drug quantity himself without a jury trial determination on that issue or without an--

Unidentified Justice: Well, at... at sentencing, is it... it... it's really not that much of a burden to just send it back to the judge and tell him to do it right.

Suppose he had sentenced under the wrong section or something like that.

We'd just send it back.

Mr. Dreeben: --The problem in this case, Justice Kennedy, is that the court of appeals has held that the omission of a drug quantity allegation from the indictment is a jurisdictional error that always requires automatic correction on plain error review regardless of the strength of the evidence against respondents on the question or on whether respondents had notice that they would face an increased sentence as a result of enhanced quantities of drug--

Unidentified Justice: Well, but... but in order to test that, I'm just asking... it's not as if we have to have a new trial.

In fact, I... I doubt that you could have a new trial unless everybody stipulated to it.

Mr. Dreeben: --It's--

Unidentified Justice: All that happens is there's a new sentencing hearing.

That... that's not that big of a... of... a great a burden on the courts and on their resources.

We don't have to have some huge trial.

It's just a resentencing hearing.

Mr. Dreeben: --What will happen if the... this Court affirms the judgment of the court of appeals is that respondents will not be subject to the sentences that Congress authorized and that the evidence unequivocally showed in this case were justified.

Unidentified Justice: You're not objecting to--

--Aren't we really just arguing about... are we really just arguing about retroactivity then?

Mr. Dreeben: In this case we're not arguing about retroactivity.

What we're arguing about is plain error.

Respondents never made a constitutional objection in the district court to the procedure by which they were sentenced.

They never even objected as a factual matter to the proposition that their offenses involved 50 grams of cocaine base or more, which is all that is required in order to support a statutory increase in the sentence.

And notwithstanding their failure to object, the court of appeals concluded that plain error analysis always requires vacation of the enhanced sentence, and the Government does not get a chance to seek the enhanced sentence on--

Unidentified Justice: Here, the... the verdict of the jury corresponded to the indictment, I take it.

It... it wasn't a case where the indictment failed to allege an element of the offense which the jury found.

Mr. Dreeben: --That's correct.

The indictment in this case charged a complete offense under 21 U.S.C. 846, the drug conspiracy--

Unidentified Justice: Except that under Apprendi, the... the quantity may become an element, in effect.

This was tried before Apprendi--

Mr. Dreeben: --Correct.

Unidentified Justice: --came down.

Mr. Dreeben: This case was tried before Apprendi.

Unidentified Justice: If it had been tried after Apprendi came down, there might, in fact, be a notice problem I assume.

Mr. Dreeben: Yes, absolutely, Justice O'Connor.

Post Apprendi, the Government understands that it's its obligation to include an allegation of drug quantity in the indictment.

This case, which was tried pre Apprendi, was done in a regime in which all parties understood that an allegation in the indictment of a conspiracy offense, with no specification of drug quantity, did not limit the Government to proving increased quantities of cocaine base.

Unidentified Justice: Well, for your position to prevail here, do we have to overrule Ex parte Bain or somehow set that aside, which seems to suggest that if it's not in the indictment, it's a jurisdictional problem?

Mr. Dreeben: Well, Justice O'Connor, this Court already has overruled Ex parte Bain on its square holding, which is that the narrowing of an indictment is impermissible and deprives the court of jurisdiction.

Unidentified Justice: But the... the Government can surely also argue that Ex parte Bain by its terms doesn't apply--

Mr. Dreeben: Ex parte--

Unidentified Justice: --to this case because the indictment and the verdict corresponded, and that was different from Ex parte Bain.

Mr. Dreeben: --Well, that... that is a difference from Ex parte Bain, Chief Justice Rehnquist, but we don't dispute that in this case, post Apprendi, there is an error in the sense that drug quantity is treated as a constitutional element.

Unidentified Justice: Yes.

There can be an error but not a matter of... not going to a matter of jurisdiction.

Mr. Dreeben: Correct.

And the fundamental flaw in Ex parte Bain was to treat a constitutional error arising under the Fifth Amendment's Indictment Clause as if it were a jurisdictional error.

And it's our submission that the reason that the Court did that is because at the time, in the 19th century, on habeas corpus, relief was available only for jurisdictional errors, which led this Court to treat a variety of constitutional errors as though they were jurisdictional.

Unidentified Justice: Well, and because there was no right of direct appeal.

Mr. Dreeben: Correct.

So, the... the result was that a... the Court had broadly characterized a variety of constitutional errors as if they were jurisdictional errors, but later decisions of this Court make clear that the failure of an indictment to charge any offense is not a jurisdictional error.

Unidentified Justice: Mr. Dreeben, you would like us to make that clear, wouldn't you, because it isn't in our cases so far, that that kind of error, whatever it is, doesn't qualify as, quote, jurisdictional?

Mr. Dreeben: Yes, Justice Ginsburg.

We think that the time is... is right in this case to make it clear that that's not a jurisdictional error.

Unidentified Justice: There... there are many instances where the Court has said that an error is... that... that a requirement, certain requirement, is mandatory and jurisdictional.

That word has been used in... in many different contexts.

And are you suggesting some approach to the... what is jurisdictional so that there won't be this string of things that the label jurisdictional is appended to?

Mr. Dreeben: Well, jurisdictional has been appended as a label to a variety of kinds of errors, but the relevant sense in which it's being invoked in this case and in which the lower court understood it was a kind of defect that may be raised at any time regardless of an objection and that is tantamount to subject matter jurisdiction, the sort of error that is so fundamental to the proceedings that harmless error review and plain error review simply don't apply.

Now, the court of appeals in this case did, as a formal matter, apply rule 52(b) of the Federal Rules of Criminal Procedure, the harmless error rule.

But it also repeatedly stated that errors relating to the indictment process are jurisdictional, and the failure of an indictment to charge an offense violates a mandatory rule and creates a jurisdictional error.

And that led to the conclusion that this Court's precedents in Neder v. United States and Johnson v. United States simply don't apply and that the weight of the evidence against respondents in this case and their possession of notice that they would face increased sentences under the drug statute--

Unidentified Justice: May I ask what you rely on for the notice proposition?

Mr. Dreeben: --In... in the factual record--

Unidentified Justice: Are you relying on the general run of cases or the fact there was a preceding indictment?

Mr. Dreeben: --In this case, Justice Stevens, we rely most fundamentally on the fact that the state of the law at the time of respondents' indictment was that all defendants understood that notwithstanding the absence of a--

Unidentified Justice: But you're not really relying on the fact there had been a prior indictment that was withdrawn and superseded.

Mr. Dreeben: --We don't have to rely on that.

I think the prior indictment makes clear that the Government believed that this conspiracy--

Unidentified Justice: It believed at the time they filed the prior indictment, but when they withdraw it and file a second indictment, you normally would think they've withdrawn the charges that have been withdrawn.

Mr. Dreeben: --Well, not in view of the fact that at the prevailing legal regime at the time--

Unidentified Justice: That's a separate point, and I understand that point.

But it seems to me you'd make that point even if there had been no original indictment.

Mr. Dreeben: --I would.

And I think it's important to underscore that the superseding indictment didn't give the defendants the impression that the Government was retreating in the scope of its proof.

To the contrary, the superseding indictment expanded the conspirators from 9 to 14.

It expanded the length of the conspiracy--

Unidentified Justice: Yes, but it withdrew the quantity allegation.

Mr. Dreeben: --It didn't withdraw all references to quantity, Justice Stevens.

If you look at the superseding indictment, it alleges that there were multi-kilogram cocaine shipments and multi-kilogram--

Unidentified Justice: Well, I thought we were taking the case on the assumption that the indictment did not charge enough to get the sentences that they received.

Mr. Dreeben: --And that's correct.

But what--

Unidentified Justice: Whereas the earlier indictment did.

Mr. Dreeben: --The earlier indictment in terms said this offense involves more than 50 grams of cocaine base.

The later indictment didn't say that.

But if you do read the allegations in the later indictment, it's impossible that anyone could come away thinking that the Government had narrowed the scope of the conspiracy it intended to prove.

And respondents didn't take it that way.

There is information in the detention hearings of at least four other respondents that indicates that they understood that this was the kind of cocaine conspiracy... cocaine base conspiracy that, if proved, would expose them to a life sentence.

They had a full opportunity to try to contest that evidence if they wished to do so.

What the respondents did instead was attempt to say we weren't part of this--

Unidentified Justice: Let me just interrupt you by saying I think it would be most unfortunate if we decided this case on the particular fact that there was an original indictment and a superseding indictment.

This was case would mean nothing if that's all we have.

Mr. Dreeben: --Well, I don't think it would mean nothing, Justice Stevens, but we are asking the Court to rule on the broader ground that when an indictment fails to allege what we now understand to be an element of the offense, but the evidence is sufficiently powerful so that any rational grand jury, if asked, would have found that.

Unidentified Justice: What does the... what does the Government's position do to the Stirone case?

Mr. Dreeben: Nothing, Chief Justice Rehnquist, because Stirone was a case in which two features are present that are not present here.

First of all, the defendant in Stirone repeatedly objected to the broadening of the indictment in that case.

There the indictment had alleged that there was an effect on interstate commerce from an extortion as a result of obstruction of commerce in sand.

And the Government got to trial and attempted to prove that the sand would have been used to build a steel mill, the steel mill would have exported steel to other States, and that was the effect on commerce that had been obstructed.

The defendants vociferously objected, but the judge allowed that to go to the jury.

So, that case is not like this case, a plain error case.

It is a harmless error case.

And furthermore, the respondents... or the... the defendants in Stirone had a plausible claim that they were deprived of notice of the kinds of charges that they would actually face at trial; whereas in this case, there is not a claim, a plausible claim, that the defendants did not know that they would face an increased sentence if the Government established that the crime involved more than 50 grams of cocaine base.

Unidentified Justice: Can you tell me, post Apprendi in the trial courts, can the defendant agree with the Government to plead guilty but leave it to the judge to determine the amounts of the drug involved?

Mr. Dreeben: It's a little unclear, Justice Kennedy, whether the defendant can do that because typically the Government has not acquiesced and the courts have not been hospitable to partial pleas of guilty.

And in effect, the defendant would be tendering a partial plea to an aggravated drug offense and then asking the judge to decide one element of the offense.

Under pre-Apprendi law, that procedure would not be followed in any circuit.

Now, there have been some defendants who really would be willing to plead to the underlying offense and contest drug quantity, and I haven't had a chance to see whether that has played out in the district courts with any courts allowing that to happen.

Unidentified Justice: And what does the Government do when it indicts?

There's... there's no stipulation of any kind.

Does it have three or four counts and... and it alleges the... the maximum amount and then... and then a smaller amount and then another amount?

Three different counts?

Mr. Dreeben: No, Justice Kennedy.

We allege the amount of threshold quantity of drugs that we believe we can prove at trial.

If the trial evidence then establishes that a rational jury could find guilt on the underlying offense but still have a doubt about drug quantity, then the Government would be entitled to a lesser included offense.

Unidentified Justice: Lesser included offense.

Mr. Dreeben: Correct.

And... and the lower courts have understood that that's the appropriate analysis in a case like that.

Unidentified Justice: I guess part of the problem in this case is that if we say that defendants are entitled to the benefit of a change in the law before their conviction becomes final, there's not much you can do because you'd have to issue a superseding indictment and you can't do that.

Mr. Dreeben: We can't do it in this case, Justice Kennedy, which is why, in effect, the result that the court of appeals achieved is a tremendous windfall for the defendants.

They never raised a constitutional objection at trial.

They never contested the amount of drugs involved in the offense.

The statute clearly authorizes a life term for the conduct that was proved, and the evidence supports that--

Unidentified Justice: Well, I... I don't know they'd object.

Does he stand up during the prosecution's case and say, well, we just want you to know that you're not doing a very good job of proving the amounts?

I mean, what's... what's he supposed to do?

That... that... I don't understand when the objection would take place.

Mr. Dreeben: --Well, the objection could take place at trial when a defendant could have said the Government has to prove this quantity up to the jury or it could--

Unidentified Justice: No, but it... it doesn't.

I mean, the... the point at which the... the failure to indict and allege on quantity becomes objectionable is at sentencing.

Mr. Dreeben: --Well, that's--

Unidentified Justice: So, there would be no reason to.

Mr. Dreeben: --That was just what I was about to say, Justice Souter.

The... the most pertinent time for the defendant to object would be at sentencing, and there are defendants who raise the kind of constitutional objection that this Court alluded to in the Jones decision in 1999 and later accepted in the Apprendi decision in the year 2000.

There were defendants who raised that constitutional objection, and they are entitled to the benefit of harmless error review.

Those defendants who do not raise that constitutional claim are subject to plain error review.

And this Court has repeatedly recognized that even the type of error that might entitle a defendant to reversal on harmless error review, regardless of the strength of the evidence, does not automatically entitle the defendant to relief on plain error review.

In Johnson v. United States, this Court considered a very analogous type of error.

There the trial court convicted the defendant of a perjury offense without sending materiality to the petty jury.

So, there was no petty jury determination of materiality.

The defendant made no objection to that, and on appeal, this Court held that the appropriate standard is plain error review because the defendant had never objected.

And when the evidence is overwhelming and uncontestable... and uncontested at trial, the Court concluded that it is affirmance that supports the integrity of the judicial system rather than reversal.

Unidentified Justice: The prejudice to you is that you cannot reindict, but the objection would be irrelevant to that.

Mr. Dreeben: The objection--

Unidentified Justice: So, I mean--

Mr. Dreeben: --The objection would not be irrelevant because... for two different reasons.

First of all, the... the defendant, had he objected at the pertinent time and had the Government concluded that this was an objection that we should worry about, could have sought indictments on other counts relating to substantive drug violations if it believed that the sentence that it was about to obtain was not sufficient.

We're not in that position today because it's the year 2002, and the statute of limitations will have run on many other drug offenses that we might have brought.

Unidentified Justice: --Oh, you mean you could have just hit him with another... hit the defendants with another indictment in another case without a double jeopardy problem.

Mr. Dreeben: Well, any... a substantive drug count is a separate offense from a conspiracy offense.

This Court has held that in Felix v. United States and reaffirmed it more broadly in United States v. Dixon.

So, there would have been no double jeopardy objection.

But the Government is no longer in the position where we can extricate ourselves from the... the dilemma that the court of appeals has placed us in.

These defendants will not receive the sentence that the sentencing guidelines called for and that the statute authorizes.

And the fact that they did not make a timely objection puts them in a very different position than a defendant would be who had timely objected.

Unidentified Justice: The difference is--

--The actual difference, as a practical matter, is between life... a life sentence and 20 years.

Right?

Mr. Dreeben: That's right.

That's right.

Unidentified Justice: And that, Mr. Dreeben, seems to me a substantial difference.

So, I follow your argument at the... the very last step in a plain error analysis, but you seem to stop short of that and you said there wasn't any substantial difference.

And I think that that's troublesome because the disparity in sentencing is large.

Mr. Dreeben: The disparity in sentencing is large both from the Government's point of view and from the defendant's point of view.

The way that the Government looks at this question is would the defendant have gotten the same sentence if he had been accorded the procedures that he now claims that he should have been given.

If the Government had understood that it had to obtain an indictment that mentioned drug quantity and it had understood that the Constitution required the jury, not the judge, to make that finding, would the defendant be better off or the same off?

That is exactly the kind of analysis that the Court used in Johnson v. United States and Neder v. United States.

It looked at whether the... the availability of the procedure that the defendant has been deprived of would have made a difference to him.

Of course, it would make a difference to him if he could have compelled the sentencing judge to drop down to 20 years as a result of the Government's failure to put drug quantity in the indictment, and that's what would happen today if this case were unfolding in a post-Apprendi world.

But in a pre-Apprendi world, particularly where the defendant didn't object, it makes more sense to look at the problem as one of a deprivation of procedure and to ask whether the possession of the procedure would have--

Unidentified Justice: Mr. Dreeben, can I ask you this question?

I understand it's not this case, but would the Government... what... what would the Government's position be if the evidence of quantity came out after the trial was concluded just as a result of a pre-sentence investigation and then a finding by the judge?

What would... what should happen in that kind of case?

Mr. Dreeben: --In that kind of case, our position would be the same, that particularly on plain error review, the Court should look to the entire--

Unidentified Justice: Even though the evidence was not before the jury.

Mr. Dreeben: --Right, even though--

Unidentified Justice: Because Neder wouldn't apply to that.

Mr. Dreeben: --Well, it's not clear that... that Neder wouldn't apply to it.

It's true that in Neder itself, the Government proved up all of the evidence relevant to materiality at the trial.

But in many cases, that were tried--

Unidentified Justice: But you would take the same position even if all the evidence developed post-trial during the pre-sentence investigation.

Mr. Dreeben: --That's right.

We would.

But, as Your Honor has indicated, the Court wouldn't have to agree with that in order to sustain in this case.

And this case is the far more typical one in which the grand jury investigation itself developed substantial evidence of drug quantity.

Everybody knew that before the trial, and the trial evidence itself is where the evidence of drug quantity was adduced.

Unidentified Justice: Mr. Dreeben, I... I'm not sure I... you say we should determine whether substantial rights have been affected by... by asking whether if the procedure that has been omitted had not been omitted, he would have been... he would have been convicted anyway.

I... I just... that... that seems to me extravagant.

I mean, that... that would mean that if there were no indictment at all, you just go to the jury without an indictment and the jury convicts him of murder, you could come in and say, well, his substantial rights weren't affected because had there been a murder indictment, there was plenty of evidence to... to convict him of murder.

Is... is that the position the Government's taking?

Mr. Dreeben: No, it's not the position that we're taking, Justice Scalia.

And the logic of... of the Government's position in this case doesn't have to go to a total omission of any grand jury indictment at all.

Just as in Neder, the Court made perfectly clear that although harmless error analysis would apply to the omission of an element, it would not apply to a directed verdict--

Unidentified Justice: No, but my... my point is it seems to me the way you decide whether substantial rights have been affected is not to ask the question would he... would he have been convicted anyway.

Even though he would have been convicted anyway, in some cases you simply say there was no indictment.

His substantial rights were affected.

Period.

Mr. Dreeben: --Well, there... there is a class of cases in which the Court will find an effect on substantial rights without regard to the strength of the evidence.

Unidentified Justice: I don't think so.

Mr. Dreeben: And those cases are called structural error cases.

And as the Court is well aware, that's a very narrow category.

It was hotly debated in the Neder case whether structural error did apply to the petty jury's failure to decide an element to the offense, and the Court held that it was not a case of structural error.

Even the dissenting view in Neder, however, recognized that when there wasn't an objection at trial and the case comes up on plain error review and the Court might find an effect on substantial rights, it's still not required to reverse.

It applies the... the test that was articulated in United States v. Olano and in Johnson v. United States, was there an effect on the fairness, integrity, and public reputation of judicial proceedings.

Unidentified Justice: It seems to me that's the step that you... that you should put your... your emphasis on in this case, not the... not the substantial right.

Mr. Dreeben: Well, that's all the Court needs to hold in order to conclude that the court of appeals erred in this case because the court of appeals in this case got to the fourth step of plain error review, after finding an effect on substantial rights, and then it held that we really can't say what the grand jury would have done.

We're not permitted to speculate about that because the grand jury is a body that operates without any legal restrictions at all on whether it can charge or not.

That proposition that the grand jury is essentially free to charge or not, regardless of the evidence, is inconsistent with the historical record of the way grand juries operated.

The charges that were given by members of this Court sitting on circuit in the early years of this Nation made clear that grand juries had a duty to indict when there was probable cause to believe that an offense had been committed.

And the grand jurors' oath similarly reflected that grand jurors should indict when the evidence justifies that.

Unidentified Justice: Yes, but can I just give you sort of an intermediate hypothetical?

Supposing all the evidence of quantity developed after the grand jury had returned its indictment that it developed, but in the plea bargaining they found out how much drug there really was involved, you'd treat that as the same case even though the grand jury could not have indicted.

Mr. Dreeben: Well, if that case took place, as this one did, in a legal regime in which the Government didn't believe it had to get a grand jury indictment on the point, then I suppose my answer to that is if we had known, we could have gone back to the grand jury and gotten a superseding--

Unidentified Justice: No.

But you didn't know the evidence at the time is what I'm saying.

Mr. Dreeben: --Oh, we could have gotten a superseding indictment.

Unidentified Justice: Oh, I see.

Okay.

Mr. Dreeben: And... and that's what's odd about this case.

All parties in this case proceeded on the theory that it wasn't necessary to go to the grand jury, and that's the explanation on this record for why there's nothing--

Unidentified Justice: Well, except that the defendant doesn't have to proceed on any theory.

It's your prosecution.

Mr. Dreeben: --That's true, but the defendant on this case proceeded on the same theory as we did.

The defendant never objected.

The defendant never believed that there was a contest as to the amount of drug quantity in question that increased the sentence.

And the result is that the entire sentencing proceeding unfolded with all parties fully well understanding that the legal regime in place at the time meant that drug quantity did not have to be charged in the indictment.

And the proposition that a grand jury is free to reject the evidence of drug quantity and determine itself that it just doesn't want to charge the greater offense would be fundamentally at odds with the democratic system in this country.

Congress has voted a regime in which drug quantity can increase the penalties.

The evidence in this case established to the satisfaction of the Government that those increased quantities were there, and therefore the increased penalties should be applied.

Unidentified Justice: Of course, if we see it your way, it would be open to prosecutors all the time simply to make the grand jury proceeding a short-cut and not bother to get into quantity and, hence, not, in... in effect, advise the... the grand jury that it's... that it's going for something that might have the... the potential for life.

And even in a post-Apprendi regime, I suppose you could say, well, it was harmless error because the... the quantity... the... the evidence of quantity was there and therefore we... we shouldn't regard it as structural and we should overlook it.

Mr. Dreeben: You could make that argument, Justice Souter, but in a post-Apprendi environment, Apprendi is a sufficiently well-known decision of this Court that no prosecutor would responsibly go to sentencing and say I would like to have an increased sentence regardless of the fact that we didn't charge drug quantity.

And it's hard for me to imagine that there are defendants or judges that wouldn't catch the error if the prosecutor didn't itself bring it to the attention of a court.

Unidentified Justice: How about in this case?

If... if the standard were harmless error rather than plain error, would you maintain that the Government should still prevail?

Mr. Dreeben: Yes, Justice Ginsburg, we would because of reasoning analogous to... the Court used in Neder v. United States.

The underlying values of the right in question are not impaired.

The evidence was so strong that no rational grand jury could have failed to find the increased drug quantity and the defendants were not deprived of notice and an opportunity to contest it.

So, even though there was error, the error has to be weighed against the important values of essentially depriving society and the Government of the sentence that Congress prescribed for the kind of offense in question.

And weighing those against each other, the conclusion should be that the court of appeals should affirm rather than reverse.

Unidentified Justice: But the Court could well conclude otherwise were the test harmless error and you could still prevail.

Mr. Dreeben: That's correct.

And most of the cases that we are dealing with in this transitional era of drug prosecutions that were tried before Apprendi but are now on appeal after Apprendi, do not involve objections by the defendant in the trial court.

They are almost all plain error cases, and a ruling on the fourth prong of plain error analysis that concludes that in this scenario it doesn't offend the integrity and public reputation of judicial proceedings or their fairness to affirm rather than reverse would be a outcome that would resolve almost all of the litigation that has occurred in this area.

If the Court has no further questions, I'll reserve the remainder of my time.

Unidentified Justice: Very well, Mr. Dreeben.

Mr. Sullivan, we'll hear from you.

ORAL ARGUMENT OF TIMOTHY J. SULLIVAN ON BEHALF OF THE RESPONDENTS

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

I'd like to direct my first comment to the question that the Chief... Mr. Chief Justice asked about didn't the indictment and the verdict correspond.

Mr. Chief Justice, you're exactly correct.

The problem is that the sentence didn't correspond.

And these defendants were on notice for what later turned out to be a (b)(1)(C) drug case that had a 20-year statutory maximum and they ended up receiving a life sentence.

Unidentified Justice: I think my point was that Bain involved a situation where the verdict and the indictment didn't correspond, and that a rule that says that's jurisdictional might not extend to this situation.

Mr. Sullivan: The issue with jurisdictional is twofold in this case.

One deals with the Court's sentencing jurisprudence, which goes back all the way to In re Bonner, which is essentially unchallenged by the Government, which sets the proposition that any excess sentence beyond the statutory maximum is void.

And that was at the heart of Apprendi.

And Apprendi says and recognizes that a district court judge, like Judge Blake in Baltimore, was limited necessarily at her outer limits with what's charged in the indictment and what's found by the petit jury.

A district court does not have a sense of roving jurisdiction under 3231.

If a defendant comes into that courtroom charged by the grand jury with a specific offense, that sentence must be rendered for that specific offense.

Unidentified Justice: In re Bonner was one of those old habeas cases.

Mr. Sullivan: Mr. Chief Justice, I don't believe that a... a case that's old somehow loses its force after Apprendi.

Unidentified Justice: Well, but I... I think you have to recognize that the Court at that time, because there was no direct appeal, kind of expanded the concept of jurisdiction to reach constitutional error.

Mr. Sullivan: And I think that is exactly what the Apprendi Court and the majority is restricting now is... is that... that exact caution of the Court.

Until... I... I don't think that when a defendant goes into court and has notice that he's charged... let me just back up to say this.

The rule of law in this case is much more important than what happens to these defendants.

As Justice Kennedy pointed out, all we were challenging is the illegal sentence in this case.

We're not challenging the conviction.

We were convicted of a 21(b)(1)(C) offense.

We recognize that.

We recognize the court had jurisdiction over the offense.

We recognize that the court had jurisdiction over our defendants or our clients.

What we challenge is the illegality of the sentence.

Unidentified Justice: Well, that's all, but I mean, that's... that's pretty big.

Your... your clients were... were convicted, if you accept the Government's case, of being drug kingpins, of running and managing a massive drug operation, and... and you say all we're asking is that they be given the same sentence as a mule who was just somebody, you know, carrying a... a small amount of drugs.

I don't consider that an insignificant difference.

Mr. Sullivan: Justice Scalia, the burden is upon the Government in their prosecution to indict the appropriate offense.

I disagree with my friend, Mr. Dreeben, that somehow the error solely belongs to us.

The genesis of the error is the Government's failure to indict drug quantity.

Unidentified Justice: Well, I think he might concede that your... you're both equally at fault, but that... but that doesn't get you all the way.

You began by saying that this later became a (b) case, and that's the problem.

It was tried on... on a pre-Apprendi assumptions.

Mr. Sullivan: Much like Neder, Justice Kennedy, this case is the product of a laboratory test tube.

I acknowledge that, and the propositions and the fundamental beliefs that all of us went into the trial with are far different because none of us could ever imagine that the Apprendi case was forthcoming.

Both Jones and Apprendi were decided while this case was on direct appeal.

So, I don't see how we could forfeit an error that we could never even imagine would... would result in--

Unidentified Justice: Now, wait, wait, wait.

It wasn't that much of a bolt from the blue.

[Laughter]

Nobody could imagine Apprendi?

The dissenters couldn't imagine it.

[Laughter]

Mr. Sullivan: --Justice Scalia, let me... as a trial attorney, let me just--

Unidentified Justice: I mean, Apprendi was... was based on, I assume, the long common law tradition.

There had been Almandarez-Torres before.

Was... was that decided before this case was tried?

Mr. Sullivan: --I don't know the answer to that.

Unidentified Justice: I think it was.

And... and that case made abundantly clear that there was a big problem even... even with respect to the proof of... of prior offenses for recidivism, in... incremental sentences.

So, you know, both out of the blue?

No, no, no, no, no.

Mr. Sullivan: Perhaps I overstated--

Unidentified Justice: No, I don't think you did.

Mr. Sullivan: --Right.

[Laughter]

In... in... my point is simple, Justice Scalia, is that in pre-Apprendi practice, the... the Fourth Circuit made it abundantly clear to defense attorneys and to Government attorneys that we were not to concern ourselves with sentencing factors of drug quantity at the time of sentencing.

Unidentified Justice: Did some defense attorneys make the objection for the record in any case?

I'm thinking back in the old days when there was jury discrimination and the courts routinely said no, but many defense attorneys, knowing they were going to lose on it, made it for the record anyway, hoping that their case on appeal would be the one that changed the law?

Mr. Sullivan: Justice Ginsburg, I'm sure there are attorneys who did that.

That was not done in... in our case.

We challenged drug quantity in the typical pre-Apprendi way under the sentencing guidelines.

I'm reminded that in Johnson, this Court indicated that sometimes defense attorneys aren't expected to make laundry lists of objections, and I would dare suggest that many of the judges that I appear in front of would not be too welcoming of my trying to speculate what this body would do two or three terms from now.

So, I don't think that... I'm sure that there are attorneys throughout the country who were making these types of objections, sensing the change from McMillan and Almandarez-Torres, sensing the direction of this Court, but we... we did not.

Unidentified Justice: That's... I... I'll take that as a given.

I'll say, yes, it is a surprise.

I couldn't expect you to... to object to all these things.

But in terms of recognizing plain error, where I'm having a problem is I don't see how you could treat the grand jury any differently from the trial.

That is to say, if you have a trial and there is a failure to object, what we've said in our cases is it's not plain error unless it's very unusual circumstances.

Now, whatever those unusual circumstances are, if they're present here, it should be both, and if they're not present here, how could you possibly say that a person who goes through a full trial and it has the defect can't object, but a person who's had that defect at the grand jury stage, but it's cured at the trial stage, could object?

I just don't see how a system could function that way.

Mr. Sullivan: Justice Breyer, my... my answer is that it all goes back to the Indictment Clause of the Fifth Amendment and to the jurisdictional end-run that Justice Souter was alluding to.

The... you can't guess or speculate... no court, most respectfully this Court or any other reviewing court, can't guess what the grand jury would have, could have, or should have done.

Unidentified Justice: But we face many, many cases in which the normal tendency of the courts has been to say, forget about errors at the grand jury stage.

If you're suddenly going to recognize this as an error at the grand jury stage, when it's cured at the trial stage, well, why wouldn't that throw open the doors for all kinds of challenges of grand jury proceedings?

Mr. Sullivan: Justice Breyer, Mechanik and Nova Scotia were not... were not constitutional rules.

They were procedural rules under rule 6, which had a trial that followed through and the court could... had a record, and the court could look at the record to see if the grand jury problem affected the validity of the trial.

Unidentified Justice: Mr. Sullivan, I have the same problem that Justice Breyer has.

I didn't... you know, I didn't agree with... with Neder, but... but given Neder, you say we cannot second guess what the grand jury would have, could have, should have done.

But Neder says we can second guess what the petty jury would have, could have, should have done.

And why... why is second guessing the one any... any worse than second guessing the other?

Mr. Sullivan: I think it goes back to the historical function of the... the grand jury, Justice Scalia, and the fact that what happens to the grand jury is absolutely--

Unidentified Justice: Is it any greater than the historical function of the... of the petty jury?

Mr. Sullivan: --The petty jury is an... is the product of an adversarial process where a judge acts as a referee and the law is well defined and the evidence is well known.

And the judge sits there and makes determinations.

So, there's a certain sense of reliability to entire trial process.

We don't have that given the secrecy of the grand jury, the fact that no matter how many times I knock on the door to be asked to enter the grand jury, the Government will not let me or my client--

Unidentified Justice: But the defendant could certainly waive a grand jury.

Mr. Sullivan: --A defendant can certainly waive a grand jury and proceed by information.

But just if a... if a defendant chooses to waive the grand jury and go by information, that doesn't mean that they can be sentenced for a crime that they don't waive the indictment for.

So, for example, if a defendant waives jurisdiction on an 841 case and allows to go by indictment and--

Unidentified Justice: What... what do you mean when you say waived jurisdiction?

Mr. Sullivan: --I don't mean waive jurisdiction, Your Honor.

I meant waive... waive indictment and... and go by an information.

You can only be sentenced for the crime that you've waived for, that you've knowingly and intelligently waived for.

You can't be sentenced for another crime.

Unidentified Justice: Well, but the idea that you can waive a grand jury suggests that perhaps it is no... certainly no higher than the... the petty jury right.

And it was argued, you know, when the idea of harmless of error first began to be applied, how can we possibly second guess what a jury would have done here.

Well, the answer was that in many cases you can.

If the evidence is overwhelming, you can.

Mr. Sullivan: And following up on that, Mr. Chief Justice, I don't agree that the evidence in this case, despite Mr. Dreeben's articulation, was that overwhelming.

One of the defendants in the trial court were acquitted, Roger Evans.

And I would suggest that now in a post-Apprendi practice, we would do things a lot differently attacking drug quantity that we never did when it was a detectable amount because no one ever had to worry about it.

Unidentified Justice: Mr. Sullivan, you... the fact that one defendant was acquitted I'm not sure is... is relevant.

If the jury believed the testimony that was necessary to support the verdict, I understand the Government to be arguing they must have been describing transactions in amounts that would qualify them for the sentence they had.

Do you disagree with that proposition?

I thought we were sort of assuming... if I'm wrong, tell me... that it was a case in which the... if you believed the Government's evidence, as the jury did, you would necessarily have... had also believed there was more than the quantity to change the... the guidelines range.

Mr. Sullivan: I... well, I can't argue with that.

I think that's a mathematical, you know, formulation, but I agree that... what I would suggest is that what the Fourth Circuit said which is that the quantum of evidence is irrelevant when the problem stems from a defect in the indictment from the very beginning--

But I would suggest, Justice Stevens, that now in the post-Apprendi environment, defense attorneys are taking a much different strategy and not giving up or... or just resting on drug quantity or challenging drug quantity, challenging the laboratories, challenging the weights of the drugs, distancing ourselves like we would normally do in conspiracy cases farther away from clients who are holding heavy amounts of drugs because we now know that drug quantity is... is very important.

Unidentified Justice: It was an issue before the judge before, wasn't it?

You had every incentive to do that before, too.

I find that peculiar.

I mean, surely it made a difference before.

Mr. Sullivan: A detectable amount... when... when you're charged with a detectable amount, it doesn't behoove you, as a... as an attorney, to challenge a detectable amount.

It's almost a impossible task.

Any amount is detectable.

Unidentified Justice: But you would before the judge.

It's just a question now you do it before the jury, but you made the same kind of attacks.

It was still the difference between 20 years and life.

Mr. Sullivan: And... and the problem is, Justice Ginsburg, that under Apprendi Judge Blake... she was the wrong judge applying the wrong standard of proof.

She was the wrong fact finder and the wrong standard of proof.

Unidentified Justice: I guess that's your point.

I guess that's a fair point that there's... there is more of an incentive to raise it before the jury because the jury has to find it beyond a reasonable doubt.

And therefore, your chances of... of winning a... a contest of the amount before the jury are much better than your chances of winning one before the judge.

Mr. Sullivan: That's correct.

Unidentified Justice: Which is what Apprendi was all about, I assume.

But... but if we said we want to send this back so that you can have the advantage of Apprendi, there's nothing the Government can do because it can't reindict.

Mr. Sullivan: The Government cannot... I take the position, Justice Kennedy, that the... that the Government cannot reindict on double jeopardy grounds, but our clients would still receive 20-year sentences in the Bureau of Prisons.

Unidentified Justice: I... I understand that.

But assume, as the courts of appeals uniformly seemed to have held, that Apprendi is not retroactive to convictions that are final, and assume that the Government can protect itself in a post-Apprendi world.

What we're talking about is this narrow line of cases where you seem to have an... an automatic escape hatch and the Government can't retry.

Mr. Sullivan: And I find that fantastic because it's usually the other way around.

[Laughter]

That... the rule of law... I mean, sometimes you... you roll the dice and sometimes the defense wins and oftentimes the Government wins, Justice Kennedy.

And perhaps the results in this case are not palatable to some... to some people.

But in this case--

Unidentified Justice: Well, Mr.... Mr. Sullivan, in light of the Johnson case and the Neder case, I think the Government has a very strong argument here.

I mean, you... you could fail under Johnson to include an element in the jury instructions and, nonetheless, conclude that it was not plain error.

Mr. Sullivan: --Judge Blake instructed the jury, the petit jury, that drug quantity was not a concern of the court... I mean, concern of the jury.

In Neder and Johnson, Justice O'Connor, again there... there was a trial.

There was an adversarial process.

And we don't know to this very date, quite frankly, whether the grand jury was ever asked to make a determination on drug quantity in the superseding indictment, and that's the problem.

In Neder and Johnson, there was a record.

There was a great record that this Court could apply the appropriate test.

You can't do that in this case, in the Cotton case, because there is no complete record for this Court to go back and basically usurp the responsibilities of the indictment because we don't know whether on a certain date the Government brought in their witnesses to establish drug quantity.

We simply don't know that in this case, and I think that is the fundamental difference that distinguishes the line of cases of Neder and Johnson that go to trial problems as opposed to indictment problems.

Unidentified Justice: Under the first indictment, would the jury have been instructed that it had to find the amounts?

Mr. Sullivan: I think in pre-Apprendi practice, no.

I think there was... the instruction from the judge that drug quantities are not your concern would have been the judge's instructions at that point.

Unidentified Justice: You said that some people might differ about this particular case and maybe this time it's roll of the dice.

But the last part of the plain error test is just that.

Is this something that's fundamentally unfair that will affect the reputation of the courts?

And it seems to me that what you just told us goes against any such finding.

Mr. Sullivan: Justice Ginsburg, I had... the Olano test is quite clear that you don't... well, that a decision on a basic right that is forfeited doesn't matter on... if somebody is innocent or guilty.

It's much stronger and much more important than that.

I do suggest, most respectfully, that the integrity of the court under the fourth Olano prong would be impaired if the... the decision is that you can be indicted for one offense and convicted for another offense, that that's why the fairness and the integrity of the judicial proceedings comes into question.

The very integrity of the court, the power of the court to do the most... one of the most important things to a person who's charged with a crime... oftentimes people don't care what they're charged with.

Unidentified Justice: In... in a transition case, in... in a case where the... the law was... was in flux, this would not be a determination... a plain error determination wouldn't be that routinely this kind of omission could occur.

Mr. Sullivan: I think this is the exception rather than the rule.

That's correct.

Unidentified Justice: I thought that the... the lack of conformity between the indictment and the conviction is not in this case.

You said--

Mr. Sullivan: No.

It's--

Unidentified Justice: --you can be indicted for one offense and convicted of another.

That's... that's not in this case, is it?

It's just a question of whether the grand jury decided upon what was in the indictment.

Mr. Sullivan: --That's correct.

Unidentified Justice: Okay.

What was the defense?

Mr. Sullivan: I'm sorry.

Unidentified Justice: What was the defense at trial?

Mr. Sullivan: Justice Breyer, in this multi-defendant 846 conspiracy, the defense was one part that the Government cooperators lacked credibility, that they weren't reliable.

It was one part attacking the Baltimore City Police Department.

This is what we call a historical case.

It was a series of arrests that the Government put together at the end and made it into a conspiracy.

Unidentified Justice: I mean, was it basically they didn't do it?

Mr. Sullivan: It was that and there was also multiple conspiracies.

The judge instructed the jury on multiple--

Unidentified Justice: I just wonder on the harmless part or whether it's harmful.

If they were arguing, well, we didn't do it, is it likely that they would have presented to the jury evidence that even though we didn't do it, the amount involved was only 500 grams or less and not more?

Mr. Sullivan: --I... I don't think that that... that that would have been... you never use drug quantities as a defense.

Unidentified Justice: All right.

So, that's... that... you see the reason... the reason that I say that is because they're saying, look, this error is harmless, and part of the strength of your claim I think is that they never could have thought of it at the trial before Apprendi to raise it.

But if it is harmless and you're really arguing for us to make an exception from Neder, as well as the grand jury, I wonder if there's any response to the view I just stated.

I mean, that it was harmless.

Mr. Sullivan: I don't think it can be harmless, Justice Breyer, because the very thrust of Neder, the very thrust of harmless error analysis is the Government must prove beyond a reasonable doubt that the error didn't affect substantial rights.

And I don't know how the Government could make that burden of proof in this case--

Unidentified Justice: Well, in Neder, didn't the Court assume that substantial rights were affected?

Mr. Sullivan: --I think... I think--

Unidentified Justice: I think in either Neder or Johnson, it did.

I forget which one it is.

And then... so they went to the fourth prong and said, you know, even assuming substantial rights are affected, you know, this... this is not going to reflect on the integrity of the... the court system or whatever the fourth prong reads.

Mr. Sullivan: --That... I think you're obviously correct, Mr. Chief Justice, but I think the important thing too about Neder is that the Court was... was convinced... I think part of its position was that the correct standard of proof that the district judge on the materiality element found it by... beyond a reasonable doubt.

So, I think that we don't have a problem with a mishmash of different standards of proof like we do in this case here where... where some elements of the indictment are found beyond a reasonable doubt and some elements are found by a preponderance of the evidence and you have different fact finders performing... performing different functions.

Unidentified Justice: What I was trying to direct your attention to, which is... and maybe this doesn't help you.

But I thought that Neder... and I'd have to reread it to be sure... was saying the omission of an element doesn't always automatically mean no clear error, but it might sometimes.

And so, I guess if it might sometimes, maybe this is one of those unusual cases or exceptional cases where it would.

But if so, your clients must have been treated very fairly... unfairly and the criminal justice system must have suffered in its reputation.

Now, you might have something to say on that point, and I wanted to be sure you did if you do.

Mr. Sullivan: And my point is, Justice Breyer, that I agree with the premise of your question and my answer would be that Neder and that harmless error rule enunciated there would be utterly meaningless in this case because there's no object and no gap that any reviewing court could fill because we don't know and we will never know what happened in front of the grand jury when that element was not returned.

And it's precisely that no object to scrutinize for harmless, which you'll never have in a trial for the most part because of the adversarial process, because of the judge refereeing what goes on... there's a reliability factor there.

There's not that reliability factor before the grand jury.

Unidentified Justice: Well, but if you're right in that, then Mechanik was wrongly decided.

Mr. Sullivan: I... I don't believe that Mechanik was wrongly decided, Mr. Chief Justice.

Mechanik was not a constitutional issue.

It was... it was a... more of a procedural issue--

Unidentified Justice: But it said that, you know, you can't attack the indictment rendered by the grand jury even though you might have some... some reason to do so.

Mr. Sullivan: --That's correct, but there was never a challenge to the validity of the indictment... the indictment itself in Mechanik, which is the root of our contention here.

The Mechanik indictment was concededly free of error.

I think that's what the Court... what the Court found to be a very important distinction.

And that... we don't have that in this case.

The indictment is the cause of... of our problems in this case.

So, I think Mechanik is... is distinguishable, and the Court did apply harmless error in Mechanik but found that it didn't rise to the level to... to challenge the structural integrity of... of the grand jury process itself.

Unidentified Justice: May I go back to your argument that you made a second ago that we never know what the grand jury would have done if it had been presented with the evidence?

The difficulty that I have with that argument is, number one, I think we have a pretty clear body of law that tells the grand jury what its duty is, if it is presented with evidence which would justify an indictment with respect to quantity and hence the severity of the crime.

And if we're going to respect that law on duty, then in order to see it your way, we have to say, well, regardless of what the grand jury's duty is and regardless of what the probability is that it would indict and... and would specify the quantity, we have to assume that there's a wild card element in the grand jury.

And on the basis of that wild card element, you never absolutely know what they're going to do.

We are... we are going to hold that, in fact, you can never assess the harmfulness of the error.

How do we get to the point of dispensing with our law on grand jury duty and emphasizing the wild card element, in effect, of the grand jury when it refuses to follow that obligation?

How... how are we able to do that?

Mr. Sullivan: Justice Souter, I think the answer is that we try to remain as true as we can to the Framers' intent and the Framers' fear of a corrupt judiciary or an oppressive prosecutor.

And that bulk... that bulk word or whatever... whatever that barrier that exists between the process, that very threshold that brings someone into the criminal justice system that that cannot be... that is indispensable to our system.

Unidentified Justice: Well, wasn't that a fear--

--Go ahead.

Wasn't... wasn't that a fear, in effect, that grand juries are simply going to be puppets that are going to be indicting without regard to evidence?

Whereas, here the assumption is the evidence is overwhelming, and so that policy of wanting the grand jury to stand between the state and the individual is not really a policy that's implicated here.

Mr. Sullivan: I... you're right in that regard, Justice Souter, but we don't know if the Government did its duty and presented to this grand jury drug quantities in the superseding indictment.

So, we don't even know, based on any record that we can discern, whether or not that major element, that critical element that... that drives the sentences in this case was ever presented to them.

So, sure, I guess that, you know, grand juries can charge greater offenses of it.

And that's one of the beauties of it.

They can charge greater offenses, lesser sentence, no... no... I mean, not... offenses, or none at all, and they can even nullify, although it's not... we... we shouldn't encourage it.

Unidentified Justice: But they tend not to nullify, I think, except when there are political considerations that the grand jury sort of smells in the circumstances.

And one thing it seems to me clear is that the grand juries are not likely to smell political considerations when the Government decides to go after kingpins as opposed to when the Government decides to go after mules.

And so, I... I don't see that concern as coming to the fore in this case.

Mr. Sullivan: And I... and I guess it goes back, Justice Souter, to where I began this morning.

It's the Government's responsibility to indict each defendant based on their roles and their culpability.

You can't go in and just do a blanket 846 indictment.

You must delineate each and every element of each and every offense for each and every defendant.

And that's the Government's failure in this case.

Look, I... I understand the fact that it's not terribly difficult for the Government to obtain a Federal grand jury indictment.

I mean, I... it's very rare that they... a Federal grand jury will no-bill what the U.S. Attorney wants him or her to do or them to do.

There is a tension there.

But I think the rule of law and the purpose of the grand jury and why we need the grand jury is far greater than whether or not Mr. Hall, the leader of this drug conspiracy, is going to do life or 20 years or by whether other people who may have had different roles in the conspiracy which no drug quantity has ever been attributed to them... there's evidence that they have been involved in multiple conspiracies.

Whether they're mules or couriers or street vendors or kingpins, sometimes the rule of law requires that... that fairness be done.

And... and fairness in this case is a sentence based on what you were charged with, not a sentence based on something that you weren't charged with.

Unidentified Justice: I think you... I think you've got a good argument there except for the fact that we've got to find a distinction between the role of the grand juries and the petty grand juries given the fact that Neder is... is on the record.

And that's... that's why I was fishing for something and kind of shooting down everything that I could come up with.

And that's the dilemma I have.

Mr. Sullivan: The dilemma is, Justice Souter... is that what... this would crack open the gate to allow, I would suggest, the Government to trample into the... the grand jury function.

They already go into the grand jury room each and every day, but now they can indict for one thing, prove another thing, if their position is adopted here, charge one thing--

Unidentified Justice: But that didn't happen here.

They didn't indict for one thing and prove another thing.

You agreed--

Mr. Sullivan: --But--

Unidentified Justice: --the... the verdict corresponded to the indictment.

Mr. Sullivan: --No.

I'm talking in a different case, a more broader case, not this actual case.

Unidentified Justice: Well, wait.

You don't... you don't agree that the verdict corresponded to the indictment, do you?

I... I thought the only reason that that issue was not in this case is because of Neder.

It doesn't matter, under Neder, whether the verdict corresponded to the indictment.

That can be harmless error.

Right?

Which is why you're driven back to the... to the grand jury argument.

Mr. Sullivan: That's correct, but it's also correct that I told the Chief Justice earlier that--

[Laughter]

--that the... that the problem is a sentencing problem in this case and not a difference between... well, it is a... my time is up.

[Laughter]

Unidentified Justice: Mr. Dreeben, you have 1 minute remaining.

Mr. Dreeben: Unless the Court has any questions, the Government waives rebuttal.

Chief Justice Rehnquist: Very well.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Vonn - Oral Argument

Fri, 09 Jan 2009 14:50:27 +0000

Case:

United States v. Vonn

Media File:

00-973_20011106-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in No. 00-973, the United States v. Alphonso Vonn.

Mr. Dreeben.

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

Respondent pleaded guilty with counsel by his side after having been advised at least twice earlier in the proceedings of his right to the assistance of counsel at all stages of the proceedings.

The court of appeals, nevertheless, set aside his guilty plea on the ground that the district court, during the guilty plea colloquy, had failed to advise respondent of his right to the assistance of counsel as required by rule 11(c)(3) of the Federal Rules of Criminal Procedure.

The court of appeals decision is wrong for three reasons.

First, the court of appeals erred by applying a harmless error rather than a plain error standard of review to the district court's violation of rule 11.

Respondent had not objected in the trial court to the rule 11 error, and therefore the standard of review is that for claims which were not preserved below, rather than claims that were.

Second, the Ninth Circuit applied an incorrect standard for determining whether a rule 11 error affects substantial rights within the meaning of the harmless error and plain error rules.

The Ninth Circuit was of the view that unless the defendant could be shown to have knowledge of the precise aspect of rule 11, that the district court had failed to inform the defendant about the guilty plea must be set aside.

The correct standard under this Court's cases is whether the error had an effect on the outcome of the proceeding, which in this case means whether the error had an effect on respondent's willingness to enter a knowing and voluntary guilty plea.

And finally, the Ninth Circuit erred by confining its analysis of whether the error in this case warranted reversal to the record of the guilty plea colloquy itself, failing to look at other portions of the official record that illuminated whether the defendant actually had knowledge of the information that the district judge had failed to provide to him.

In this case, the district court, through its magistrate judges, had advised respondent, both at the initial appearance after respondent was arrested and at the arraignment after respondent was indicted, of his right to counsel at all stages of the proceeding.

Respondent executed a waiver of rights form in which he acknowledged receiving and understanding these rights, and the district magistrate judge asked respondent at the arraignment whether he understood these rights.

If the court of appeals had looked to the entire record to determine whether the rule 11 error in this case warranted reversal, it would have concluded, even under its own standards, applying harmless error review and asking whether the respondent knew the information that he had not been told during the rule 11 colloquy, that respondent, indeed, did have that information and, therefore, entered a valid guilty plea.

Unidentified Justice: Mr. Dreeben?

I'm not sure how your points two and three quite fit together.

Your point two is that you look at... to see the outcome of the proceeding, would it have been different?

But then your point three is that you should confine yourself just to the record.

If your... if your point two is whether or not, you know, all the circumstances... this was a wise plea that he would have... that he would have entered... it seems to me you might be going outside the record in order to determine that.

And I... and I have some question about your point two, anyway.

I think it goes too far.

Mr. Dreeben: Our second argument is that the proper inquiry into whether an error affects substantial rights is whether there is an effect on the outcome of the proceeding.

And in this case, the relevant proceeding to look to is the guilty plea itself.

Now, a court of appeals, in determining whether that standard is met, must of course look at the record.

The difference between the position of the United States and the position of the court of appeals is that the court of appeals says the only record that's relevant is the rule 11 guilty plea colloquy itself.

Nothing else matters.

Unidentified Justice: That... that I understand.

But if you're going to... if your... if your test under two is whether or not he would have entered the plea, it seems to me that that's a difficult inquiry to make if you confine yourself just to the record even if it's the whole record and not just the rule 11 colloquy plea itself.

Mr. Dreeben: Well, it is... it's a difficult inquiry to make if there is no information in the record that sheds light on it, and in that instance, the party that bears the burden of proof will probably lose, which is why it matters whether the standard is plain error review, in which the defendant bears the burden of proof, or harmless error review, in which case the Government bears the burden of proof.

But in this case, the claim of the rule 11 error is that the defendant didn't get, at his guilty plea colloquy, information that he had the right to counsel at every stage of the proceeding.

Since the record shows that the defendant, in fact, got that information, not once but at least twice, at earlier stages of the proceeding, and he had counsel by his side when he pleaded guilty, not once but twice, it is untenable on this record to suggest that the guilty plea would have come out any differently if the judge had complied with rule 11 in every relevant respect.

Unidentified Justice: Mr. Dreeben, if we answer what is your second question in your petition, not as outlined this morning, the second question being, do you look to the entire record or just the rule 11 colloquy, if we answer that question in your favor, look to the entire record, is it necessary to get into the two anterior questions that you outline, that is plain error versus harmless error, and this one that troubled Justice Kennedy that you don't list as a question in your cert petition?

Mr. Dreeben: Justice Ginsburg, I believe the Court can reverse the judgment based solely on a favorable resolution for the Government of the third question presented it; that is, if the Court does look to the entire record in this case, then I believe that the Ninth Circuit's judgment is incorrect even if it were correct on the other two points that I've outlined.

But there is a conflict in the circuits over the question of whether harmless error review or plain error review does apply in these circumstances, and the Government sought review on that issue in order to have this Court resolve the conflict.

Unidentified Justice: But if the... if that is an academic question... that is, if you could argue, as I think you do, if you look at the whole record... then it doesn't matter what standard you apply, harmless error, plain error.

It's clear that this defendant was advised of his right to counsel at every stage of the proceeding.

Mr. Dreeben: That is true, and the Court could resolve the case solely on that basis.

If it did so, it would leave unarticulated in this Court's jurisprudence the precise approach that lower courts should take when rule 11 errors occur.

Unidentified Justice: Well, alternatively we... we could resolve it just on the basis of your third point.

I mean, wouldn't that be just as conclusive, just say the usual plain error rule applies.

The burden was... was on the defendant to establish, and even if you limit the examination just to the colloquy, he hasn't... he hasn't established it.

Mr. Dreeben: That would be a resolution on what I think is the first question that we present in the petition.

Unidentified Justice: I'm sorry.

Maybe I got your numbers wrong.

Mr. Dreeben: Yes.

Unidentified Justice: But... but we can certainly resolve it on several of the questions without resolving the other ones.

Mr. Dreeben: It's certainly possible to do that.

The second question, which we did not present separately, but I believe is fairly included within our first question, the definition of what is an effect on substantial rights for purposes of a rule 11 error, is a question that the Court doesn't need to resolve in this case, but it is an important analytical tool for understanding what lower courts should do when confronted with rule 11 errors.

And therefore this Court's guidance on it would be useful.

Unidentified Justice: Which is more important?

I mean, if... if we're going to be very parsimonious and... and not decide any more issues than we have to, which... which is... does the Government think is the more important issue in the case?

Mr. Dreeben: The two that we presented I think are both equally important.

The question whether plain error or harmless error review applies and the question of what record the court of appeals should look to in deciding--

Unidentified Justice: Is there a conflict on the latter as well?

Mr. Dreeben: --There is a conflict on the latter as well.

Unidentified Justice: Any court, other than this one, come out this way?

Mr. Dreeben: No.

I believe that the Ninth Circuit is the only court of appeals that has limited the... the review solely to the guilty plea transcript.

The advisory committee notes to rule 11 make clear that the harmless error rule that was added to rule 11 in 1983, rule 11(h), was to be applied based on the guilty plea record and the rest of the necessarily limited record that is made in guilty plea cases.

But that record will include, as it did here, the initial appearance, the arraignment.

Sometimes there will be multiple hearings on whether the defendant wishes to change his plea to a plea of guilty.

Admissions may be made during the course of those hearings.

And, of course, there is a sentencing hearing.

And during the sentencing hearing, the defendant may provide... be provided with the information that was left out inadvertently of the rule 11 colloquy, and he may at that time either reaffirm his interest in pleading guilty or show no surprise at the information that is provided to him or otherwise make it clear that this rule 11 error had no effect on substantial--

Unidentified Justice: May I ask you--

--Why does it make any difference?

The... the plain versus the harmless?

My only problem is I foresee writing more words.

When I write words on this kind of subject, I worry that I would risk mixing everybody up in the courts of appeals, to tell you the truth.

There's already... there's been a lot written about plain error, substantial error, harmless error.

Why not just stick with what we've said?

How does it make any difference?

Why should we write some new words?

Mr. Dreeben: --The Government doesn't ask the... the Court to write new words.

Rather, we ask the Court to apply its existing plain error standards.

Under the plain error review that this Court has articulated and, indeed, under harmless error review, the meaning of an effect on substantial rights is defined by its effect on the outcome in the generality of cases.

Unidentified Justice: Right.

So, the... we don't have to talk about plain error or harmless error.

The only difference here, nobody doubts that if it was an error, which it was, or that it was plain, which it was, the issue in this case is whether it affected somebody's substantial rights.

Period.

Mr. Dreeben: Well, there are two competing definitions that are proposed for the Court on what an effect on substantial rights is.

Unidentified Justice: All right.

Mr. Dreeben: Justice Kennedy's question suggested that there may be some reason to--

Unidentified Justice: Fine.

That's my... that's... you've got exactly what I'm concerned about.

We should write a paragraph or two about substantial rights, what is an effect on substantial rights.

Other than that, there is no need to discuss plain error versus harmless error.

Is that right?

Mr. Dreeben: --Justice Breyer, I certainly agree and I agreed with other questions that suggest that there is a very straightforward, simple resolution of this case that would involve making very little law.

It would make clear that courts are to look to the whole record, and it would then leave unresolved the circuit conflict on plain error versus harmless error.

But the fact is that there are differences between plain error and harmless error review that will matter in a certain class of cases.

One difference between plain error and harmless error review is the one I've mentioned, that the defendant bears the burden of proof if it's plain error; we bear the burden of proof if it's harmless error.

The other difference is that even if an error does affect substantial rights, under plain error review, a judgment is not to be reversed unless there is an impact on the fairness, integrity, or public reputation of--

Unidentified Justice: Mr. Dreeben, one of the advantages... I don't know if it's a sufficient advantage of Judge Kozinski's position is a simple... very simple job for the court of appeals: either they got the advice or they didn't during the hearing.

How does the Government say the court of appeals should dispose of a case in which the record shows that an arraignment 3 or 4 months before the guilty plea colloquy, the defendant's lawyer says I've advised him about his right to counsel at trial?

He tells him that at the arraignment.

The record shows that.

And then that's all it shows.

Then you have the guilty plea colloquy.

And... and the judge fails to comply with the rule.

What should you do with that case?

Mr. Dreeben: --The court of appeals should affirm because there is ample evidence that the defendant had knowledge of the particular right in question that he claims was not given to him at the rule 11 colloquy.

Unidentified Justice: There's an irrebuttable presumption that he fully understood it 3 months later.

Mr. Dreeben: No.

There's not an irrebuttable presumption.

If there were something in the record that indicated--

Unidentified Justice: No, nothing else in the record.

Mr. Dreeben: --If there is nothing else in the record, then I think that there's nothing to rebut the presumption.

This Court has indicated in a number of contexts that information that a defendant has been given at one stage of a proceeding... give rise to a presumption that the defendant has knowledge of it.

For example, the defendant is indicted and read the indictment at an arraignment.

This Court made clear in Bousley v. United States that there's a presumption that the defendant has been given adequate notice of the charge.

Now, that presumption can be overcome later in the proceedings if the judge gives the defendant misinformation about the charge or if the defendant otherwise can show from the record that he didn't have an adequate understanding of the charge.

Unidentified Justice: Well, what about this record where the defendant said a couple of times, I don't understand what this lawyer is talking about and this is my first time in... in the criminal process?

He was, as you said, told twice and signed a piece of paper that said counsel at every stage of the proceeding, but the defendant also said that he didn't... he didn't understand what was going on.

He didn't understand what his counsel was telling him.

Mr. Dreeben: He said that the first time that he wanted to enter a guilty plea and the district judge recessed the proceedings for a week to give the lawyer an additional chance to explain to the defendant what was going on.

He said, take a week.

It's not going to cost you anything.

You'll get credit for the time.

You have a good lawyer.

He can explain it to you.

And the defendant said, yes, Your Honor, I acknowledge that.

A week went by, and the defendant came back into court, with the advice of counsel, counsel by his side, and pleaded guilty to one of the two counts that were pending against him.

The other count was continued on for trial.

Several other proceedings occurred while that second count remained pending, in which the parties obtained continuances for trial because counsel was unavailable.

All of this time, the respondent is in the courtroom, hearing this information, being made aware that he has a lawyer, that his lawyer is with him and his lawyer is going to be with him at trial.

Now, it is true that when the time came for the ultimate guilty plea, the judge didn't enumerate the defendant's right to counsel at trial.

And in fact, when the Government tried to alert the district court that it hadn't mentioned the right to counsel, the court said, I didn't alert him to that because he already has counsel.

And no one stood up at any point, neither the defendant--

Unidentified Justice: But you agree the court did violate the rule at that point.

Mr. Dreeben: --Yes.

The court clearly violated the rule because rule 11 is a prophylactic rule that sweeps more broadly than the Constitution.

It contains a specific enumeration of rights.

It contains those rights that this Court identified in Boykin v. Alabama, as--

Unidentified Justice: The problem with your solution is suggested... suggested by Justice Stevens' question.

My understanding... it's anecdotal but it's longstanding... is that judges are very careful about rule 11 proceedings.

They go through it point by point with painstaking care, and judges talk to each other about the right way to do it.

And, sure, we could write an opinion, now this is the good practice, you should really follow the rule very strictly, but if you don't, it doesn't make any difference.

It seems to me that adoption of your position will inevitably change the seriousness and the formality of rule 11 proceedings as it now exists.

I think that is inevitable.

Mr. Dreeben: --I don't think that that's a necessary consequence of a ruling in our favor, Justice Kennedy.

First of all, all of the court of appeals apply some form of harmless error or plain error review.

The Ninth Circuit is in the minority in applying the most restrictive form.

All of the other courts, though, currently imply something.

And that doesn't detract--

Unidentified Justice: Do you... do you place any reliance on the amendment to the rule in 1983 to add subsection (h), which says any variance from the procedures required by this rule, meaning rule 11, which does not affect substantial rights, shall be disregarded.

Is that applicable here in your view?

Mr. Dreeben: --It is... it is applicable if the Court concludes that plain error review does not apply.

Our first submission is that because this was a defaulted not raised below, it can be considered by the court of appeals only under rule 52(b) of the Federal Rules of--

Unidentified Justice: Okay.

May... may I ask you a question?

You pointed out... I guess it's no question... that subsection (h) was added, in effect, to negate the... the automatic reversal rule that... that had prevailed beforehand.

If that was the only thing that was intended by (h), why didn't the drafters of subsection (h) include both the kind of standard language for plain error... I'm sorry... the standard language for harmless error as they did and the standard language for plain error, which would clearly have indicated that one or the other of those alternatives would apply, as it would, otherwise in the normal course elsewhere?

Why did they just pick one?

Mr. Dreeben: --Justice Souter, I believe that the reason that the drafters picked just one is that the drafters were addressing a specific holding of this Court that, as Justice O'Connor indicated, had suggested that there was automatic reversal in the case of a rule 11 violation.

And the drafters wanted to negate that specific holding.

The rule--

Unidentified Justice: But the cleanest way to negate it would be to simply say, you engage in some kind of an analysis of consequences.

You either do it in terms of... of harmless error or you do it in in terms of plain error.

That would have accomplished the object and it would have made it abundantly clear that your position is correct by... by... and I just don't... I just don't understand why they omitted the one.

Mr. Dreeben: --The drafters weren't thinking of this issue.

What they were thinking about was specifically negating McCarthy.

They also wanted to make it clear... and they did make clear in the advisory committee notes... that the addition of rule 11(h) to rule 11 was not intended to have a negative inference that violations of other rules should give rise to per se reversal.

Rule 52 would remain in place for all of those other errors involving other rules.

Unidentified Justice: But you could... you could certainly accept the position that... that there would not be a per se reversal under another rule without also accepting the position that 52(b) would still apply.

Mr. Dreeben: You could.

I believe that there's a general presumption in the Federal criminal system that if an error is preserved at trial, it's subject to harmless error review, which is what rule 11(h) provides for.

If an error is not preserved at trial, it's subject to review only under the plain error rule, rule 52(b), and this--

Unidentified Justice: 11(h) is addressed to the district court too, and the... you're talking about what should the standard be in the court of appeals.

But there are other Federal rules.

That's a common formula that's addressed to the district judge saying, disregard trial errors that don't have any substantial effect.

Whatever those words are in 11 are both in the civil rules and the criminal rules in other places.

Mr. Dreeben: --That's right, and rule 52 is also addressed to the district court.

Rule 52 is found in the Rules of Criminal Procedure, not in the Rules of Appellate Procedure.

So, it instructs both district courts, court of appeals, and this Court to disregard errors that did not affect substantial rights and give the district court, the court of appeals, and this Court power to set aside judgments where the error was not called to the attention of the district court but the error constitutes plain error.

Unidentified Justice: Mr. Dreeben, I... I have a perplexity.

You... you said counsel... appointed counsel was present when... when the erroneous instruction was given but didn't object?

Mr. Dreeben: Correct.

There was a... an attempt by the Government--

Unidentified Justice: I understand that, but the rule reads if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant.

Mr. Dreeben: --That's rule 11(c)(2).

The violation in this case was of rule 11(c)(3), which enumerates for the defendant the various rights, not a complete list, but a partial list of rights that the defendant has at the trial.

Unidentified Justice: I see.

Mr. Dreeben: And those rights--

Unidentified Justice: And that one is applicable whether or not he's represented.

Mr. Dreeben: --Correct.

That... that rule is a response to this Court's decision in Boykin v. Alabama which held that if the record is entirely silent on whether the defendant entered a knowing and intelligent plea, a court of appeals on direct review cannot uphold it.

And in response to Boykin, the drafters of the rules wanted to provide a prophylactic buffer to make sure that there could be no valid claims, either on direct appeal or on collateral review, that the defendant pleaded guilty without a sufficient understanding of the rights that he would have at trial if he had gone to trial.

So, 11(c)(3) walks through the right to counsel, the right to confront witnesses, the right to self-incrimination, and the right to a jury trial.

And then it goes on in 11(c)(4) and says, by pleading guilty, you waive your right to a trial.

Unidentified Justice: Would... would you be taking the same position regarding plain error review if what were at issue was (c)(2) rather than (c)(3)?

Mr. Dreeben: Yes, but it would be an almost impossible burden--

Unidentified Justice: It would be harder.

Mr. Dreeben: --for the Government to satisfy.

Unidentified Justice: Because (c)(2) envisions a situation in which there's nobody to make the objection.

Mr. Dreeben: That's right.

Unidentified Justice: And (c)(3), well, doesn't always envision a situation in which counsel is present, does it?

Mr. Dreeben: Actually I want to revise the answer.

I think that it would be very hard for us to win if the advice required under (c)(2) were not given and the defendant were not represented by counsel.

Unidentified Justice: Right.

Mr. Dreeben: But not because only counsel can make an objection.

If a defendant validly waives the right to counsel, under Faretta v. California, and he's given an adequate colloquy, and he's told of the risks and disadvantages, and he's told by the judge, look, you're not a lawyer.

It's going to be difficult for you to do this.

If you want to go forward, please understand I'm not going to help you out in this.

You're on your own, and the rules of procedure are complicated.

They usually finish up by saying, so if it's up to me, I wouldn't do it, but if you want to do it, it's your choice.

If the defendant goes through that and he elects to go without counsel, he's subject to all the same procedural rules that anybody else is, and it's true that he won't probably do a very good job at protecting his own rights, but once he decides to act as his own counsel, he's not given a free pass to escape from those rights.

Now, if the judge doesn't give the advice required by 11(c)(2) and we can't show that he has gone through a thorough and adequate Faretta colloquy elsewhere in the proceedings, then I suspect we're going to lose that case because a felony trial without counsel is one of the few errors that gives rise to a per se presumption of prejudice without any further showing, and it would be almost impossible for us to show or for the defendant to fail to show that he's entitled to plead anew.

Unidentified Justice: May I ask--

--Can we go back to Justice Kennedy's question?

That is, taking your position, there is really no muscle behind the instruction to the district judge: You give each one of these warnings.

If you could say he got those warnings at the arraignment, he got them even earlier, he signed a card, so it doesn't matter because he's going to know by the time you get to the rule 11, then what sanction is there to say to a judge, look, don't skip any of these, just go down the list?

Mr. Dreeben: Well, I don't think, Justice Ginsburg, that the Court should frame a rule to provide a sanction.

All of the parties to rule 11 fully understand that it should be complied with.

The Federal Judicial Center has a bench book.

We come to court often with checklists to assist the court.

Defense counsel has that responsibility.

And judges conscientiously try to do this.

Unidentified Justice: This isn't much of a sanction on the judge anyway.

He's not the prosecutor.

He's not supposed to care whether this guy gets convicted or not, is he?

Mr. Dreeben: The ultimate sanction would fall on society if--

Unidentified Justice: May I ask you this question, Mr. Dreeben?

The... when the McCarthy was decided, there was a big conflict in the... all the courts of appeals about should be done in cases like this.

And one of the considerations that motivated the McCarthy opinion was avoiding an evidentiary hearing if the record is ambiguous on appeal.

It figured that simplicity is desirable.

In your reading of the rule, would there be cases in which the record was not entirely clear before the court of appeals and that there would have to be a remand for an evidentiary hearing?

Mr. Dreeben: --No, Justice Stevens, because whoever bore the burden of proof on appeal is going to have to make that showing based on the existing record, and if the Government bears the burden and it can't establish harmlessness, then the court of appeals should vacate the plea.

If the defendant bears the burden and he can't show it, he loses.

There will be an opportunity to make a constitutional claim under 2255, but this isn't an endless remand.

Unidentified Justice: The burden of proof you're talking about then is not actually an evidentiary burden.

It's the burden that the court of appeals judges the case by.

Mr. Dreeben: Correct.

That's correct.

Unidentified Justice: And there never would be a case in your view for... for more evidence.

Mr. Dreeben: I wouldn't say never and I wouldn't exclude the possibility that a district court... that a court of appeals had discretion, but it... it's not the normal procedure.

And if you look around--

Unidentified Justice: Of course, violations of the rule are not the normal procedure either.

They're very... quite rare.

Mr. Dreeben: --Well, with 60,000 Federal criminal convictions each year, even a very low error rate is going to produce a large number of cases.

And there are a large number of rule 11 cases that come to the court of appeals where there really is no substantial doubt that the defendant had all the information and counsel to plead guilty.

Now, he could make an ineffective assistance of counsel claim if he really felt he was missing something so that his plea wasn't intelligent.

But the purpose of rule 11 was not to create a regime in which guilty pleas were upset for minor deviations from the rule.

That was exactly what--

Unidentified Justice: This is not a minor deviation.

This is not a minor deviation.

Mr. Dreeben: --I think this is a minor deviation, Justice Stevens, because this defendant had been told about this right.

Unidentified Justice: Well, assume that he hadn't been told, then it would be a major deviation.

Mr. Dreeben: And he had counsel.

And I also think that almost any defendant who pleads guilty in an American court with counsel will have had a discussion with counsel about the option of going to trial, which would include counsel--

Unidentified Justice: Well, if he has counsel at arraignment and at a plea and so forth, surely he must realize he's going to get counsel at the trial.

Mr. Dreeben: --It's virtually inevitable that it will be.

And this was not a right that this Court had enumerated in Boykin v. Alabama was one of the rights that the defendant should be advised about.

Unidentified Justice: Okay, but we can't... we can't start... I don't think, we can start making distinctions within the... the rule 11 list among the rights that are supposed to be advised.

I mean, if it's on the list, I assume it's got to get equal treatment with any other right that's on the list, even though, I'm sure you're... you're correct, in most cases, the defendant with counsel is going to know he's got a right to counsel, which means, if you follow the... the harmless rule, the Government is going to have an easy time meeting its burden.

Mr. Dreeben: He... he should know that, and rule 11 should be complied with.

But I do not believe that there is a court of appeals case that reverses a conviction for failure to give this advice to a counseled defendant.

If I could save the remainder of my time.

Unidentified Justice: Very well, Mr. Dreeben.

Ms. Knox, we'll from you.

ORAL ARGUMENT OF MONICA KNOX ON BEHALF OF THE RESPONDENT

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

This Court has repeatedly held that pleas of guilty will not lightly be set aside when they are carefully and lawfully taken.

The premise behind cases from Brady and McMann to Bousley and Hyde is that pleas are taken with care and discernment befitting the grave and solemn act that they are.

The Government today proffers rules that would allow pleas to be taken in almost meaningless formality, taken in casual and sloppy proceedings with omissions, variances, and errors which could not be remedied.

That is not what the advisory committee did in rule 11.

It is not what this Court has supposed in refusing to set aside pleas later, and in some circumstances, it is not consistent with the Constitution.

Our position is that plain error is never applicable to review of a rule 11 violation on direct appeal, and that a rule 11 variance, which goes directly to the voluntariness or intelligence of the plea is always prejudicial unless the record of the plea colloquy shows that the requirements for an intelligent and voluntary plea were met.

Unidentified Justice: Well, what is the reasoning behind... you say your position is that plain error is never applicable.

Now, what is your... what's the reason you say that?

Mr. Knox: Well, the initial starting place is what the advisory committee did.

What the advisory committee did was to seek to abrogate the per se rule of McCarthy by adding (h) into rule 11.

When the advisory committee did that, it specifically noted that the class of rule 11 violations that would be considered harmless on appeal would be very limited.

By the Government's rules and if plain error were to apply, the class of errors that would be considered harmless on appeal would be almost unencumbered.

It would be--

Unidentified Justice: Well... well, in this... in this case, if we do look to the entire record and if we do learn that this defendant was advised that he had a right to an attorney if he went to trial at the trial and had acknowledged that understanding, then why is it not one of these insubstantial errors contemplated by subsection (h)?

Mr. Knox: --Well, it is a substantial error in that it is one of the core concerns of rule 11.

If the record--

Unidentified Justice: But if... if it shows that the defendant, in fact, knew, what's the problem?

Mr. Knox: --If the record, in fact, shows that the defendant had the knowledge he needs to render an intelligent plea, I would agree that that would be harmless error.

The advisory committee did not anticipate going outside the rule 11 colloquy for that determination, and there are legitimate reasons for that.

The issue of whether a plea--

Unidentified Justice: Why didn't they say that?

Why didn't they say that?

Is there anything in rule 11 itself that says you cannot look beyond the transcript of the plea hearing itself?

Mr. Knox: --Specifically there is nothing--

Unidentified Justice: No.

Mr. Knox: --in rule 11 that says you cannot do that.

At the time that... in 1974 when the advisory committee added subsection (g), having to do with taking a complete... making a complete record of the rule 11 colloquy, though, the advisory committee did specifically say that they were doing that in order to facilitate the reviews of plea challenges later.

And that... they were referring at that point to the transcript of the plea colloquy.

The important point here, I think, is that a plea has to be an intelligent plea at the time it is given.

When Mr. Vonn made his plea, he needed to know of the constitutional rights he was giving up by agreeing to forego a trial at that time.

Unidentified Justice: Well, you speak as if it was a recipe, you know.

You have to put all these ingredients in at exactly the same time.

But I don't think that makes much sense.

If he... supposing the arraignment had been a week earlier and he'd been told then and signed this waiver of rights, would you say that it couldn't be possible that he would remember them for a week?

Mr. Knox: No.

Of course, he could remember them for a week if they were meaningfully given to him to start with.

One of the things I think is important for the Court to focus on is what other proceedings we are going to look at, if we're going to go outside the plea colloquy, to decide whether a defendant has this knowledge or not.

What the Government has asked this Court to allow is the circuits to look at appearances such as the initial appearance and the post-indictment arraignment.

Those proceedings are... at least in our district and in many districts, they are mass proceedings.

These are not individual rights given to individual defendants.

There is no personal colloquy between the court and the defendant.

There is no attempt to make sure that the defendant actually understands these rights and the meanings of these rights.

Unidentified Justice: Ms. Knox, when you say they're mass--

--This the arraignment or the... just one moment.

This is the arraignment you talked about, not the sentencing.

The sentencing--

Mr. Knox: Not the sentencing.

Unidentified Justice: --Okay, thank you.

Mr. Knox: We're talking about the initial--

Unidentified Justice: You're talking about two... two pre-guilty pleas, the arraignment and when the initial complaint was made.

You say they were mass proceedings.

Does this record tell us how many defendants were being arraigned?

Mr. Knox: --The record does not show how many defendants were being arraigned in this case, no.

Unidentified Justice: But... and at the arraignment at least at that stage, a lawyer had already been appointed, and wasn't it true that the lawyer was with the client at the arraignment?

Mr. Knox: Yes.

Unidentified Justice: And that, in addition to the oral warning in the courtroom, there was a document that had a rather simple paragraph, unusually plain English for... for lawyers and judges.

And that was signed by the client, or at least to the extent he could sign since he had a broken arm, and it was undersigned by the lawyer.

So, that wasn't a mass exercise.

That was the client signing a document and his lawyer undersigning and the lawyer saying I represent that my client understands these rights.

Mr. Knox: That's right, and we also have a client who repeatedly told the court that he wasn't understanding what his attorney was telling him.

And so, we have... you can have no confidence on this record that Mr. Vonn understood his constitutional rights because he was handed a piece of paper that he put his X on.

Yes, he had counsel with him and his counsel said he understands these.

But Mr. Vonn himself was telling the court that he wasn't understanding the proceedings.

He wasn't understanding what his attorney was telling him.

This Court has--

Unidentified Justice: Well, all... all this goes to the question of... of what would... will happen, if we get to that point, on... on remand for consideration of a broader record if we rule against you on that.

But what does it have to do with the question whether the... the trial court should look beyond the four corners?

It simply means that in some cases it won't be easy to decide, but is... is that much of an objection?

Mr. Knox: --Well, I think it means in many cases it may not be easy to decide.

One of the--

Unidentified Justice: Well, is... is your... your basic point is that Congress intended just to streamline these proceedings and it simply didn't want courts have... to have to get into difficult evidentiary issues and that's why we should hold that they look no further than the four corners?

Mr. Knox: --Well, that is always one of the advantage of prophylactic rules is to prevent that later type of fact finding.

Unidentified Justice: But this prophylactic rule doesn't say what you want us to do.

I mean, that's the problem I have.

If that's what Congress wanted, why didn't they say it?

I mean, they have subsection (g) which... which is entitled Record of Proceedings.

A verbatim record of the proceedings at which a defendant enters a plea shall be made, and if there is a plea of guilty or nolo, the record shall include blah, blah, blah, blah.

It could have been very easy to say, and such record... such verbatim record shall be the exclusive basis on which the... any review of... of the proceeding is conducted.

Mr. Knox: There was no reason, in 1974 when the advisory committee added (g) to the rule, to say that specifically.

Unidentified Justice: Why?

Mr. Knox: Because it was--

Unidentified Justice: The usual rule is you look to the whole record.

Mr. Knox: --Because it was the rule of McCarthy.

McCarthy was the law in 1974 when (g) was added to the record, and it was... so there was no need for the advisory committee to put in there that it was being... that appellate review would be restricted.

Unidentified Justice: Well... wait, wait.

McCarthy didn't require looking to the record at all for any harmless error.

McCarthy said, no harmless error.

If you didn't give the instruction, that's it.

McCarthy certainly didn't say that in determining whether there's harmless error or not, you only look to the record of the proceeding.

It never reached that issue.

Mr. Knox: No, but McCarthy determined the issue of whether there was rule 11 error by looking only at the rule 11 colloquy.

That's important in terms of the constitutional rights because under Boykin, those have to be established on the record at the time.

Unidentified Justice: But the Government is not proposing to change that... that McCarthy rule.

The Government would still look only to the proceedings of... of the colloquy in determining whether there was rule 11 error, which is what McCarthy did.

You only look to that to determine whether there was error.

But we now have a totally different question which is, assuming there is error and assuming there is a harmless error exception to reversal, what do you look to?

Simply the whole record which is what usually is done, or for some special reason, should we limit it just to this proceeding?

And I... I think if it's... we're going to be so limited, it should have said so, especially when there is a section entitled Record of Proceedings.

I mean, all of this is only relevant if we first concede a point that... that you... that you do not concede, and that is if there is any such thing as harmless error.

But assuming there is such a thing as harmless error, why... on what basis in these rules could we limit our inquiry just to the... to the plea colloquy?

I don't... I don't see any basis for that.

Mr. Knox: Other than the policy reason that we've discussed, as well as what my argument as to what the advisory committee meant when it put both (g) and (h) into the rule, I don't have another reason that the Court should do it.

Unidentified Justice: Well, Ms. Knox, I... as I... as I read the advisory committee notes when they added subsection (h), I thought the note stated that harmless error review should be resolved solely on the basis of the rule 11 transcript and the other portions of the limited record made in such cases.

It clearly contemplated looking beyond the transcript.

Mr. Knox: I think it contemplated looking at the transcript with certain rule 11 violations.

This morning we have been discussing rule 11 as if all provisions of it are equal, and I don't think that is accurate.

I think it's clear that the advisory committee didn't mean that.

And in fact, all of the circuits have recognized that there are technical aspects to rule 11 and there are core concerns of rule 11, the core concerns being the (c)(1), (2), (3), and (4) and the (d).

That is, the (c)... the (c) aspects which go to intelligence of the plea and the (d) aspects which go to voluntariness of the plea.

Those are the core aspects.

Those are what are necessary in order for the court to take an intelligent and voluntary plea.

There are many other aspects to rule 11.

It has grown very large over the years.

Those are more technical aspects of the rule, and that is what the committee was concerned about.

If you look at when the committee added (h) into rule 11, they specifically noted their... their disagreement with the circuits that were vacating pleas for technical violations, for the failure to tell a defendant that he could be subject to a perjury charge for any false statements, for the failure to tell a defendant about a special parole term.

Those are the concerns that the committee had: the technical errors versus the core concern issues.

As to those technical errors, there could be other proceedings that would be relevant to that.

Most notably and the... what... the cases the committee cited in discussing these concerns would be a sentencing proceeding.

So, for example, the defendant is not told about the possibility of restitution, but restitution is imposed at sentencing, and there is... neither the defendant nor his counsel says, restitution, where is that coming from?

Those are not core concerns.

Those... it is important... the Government talks about--

Unidentified Justice: What is it in the... what is it in the language of the rule that supports your dichotomy here?

Substantial rights in rule 11(h)?

Mr. Knox: --Well, the rule itself--

Unidentified Justice: What... what is the textual basis?

Mr. Knox: --I think the Court--

Unidentified Justice: You're saying that there's some important rule 11 violations and unimportant ones.

Mr. Knox: --I think the Court itself recognized in Hyde that all provisions of the rules are not the same in the (c) and (d) provisions.

Unidentified Justice: What is the... what is the textual basis in the rule for that?

Mr. Knox: Both the (c) and (d) start out with language that says: a court may not accept the plea unless.

That was the language this Court looked at in Hyde in deciding that there were provisions of this rule that did not stand on the same footing as other provisions of the rule.

Unidentified Justice: Well, your restitution analysis is under (c)(1).

Mr. Knox: That's true.

It is--

Unidentified Justice: So, then that... so, then there is no textual basis for your distinction.

Mr. Knox: --Well, at the time that... that (h) was added into rule 11, the provisions of (c)(1), (2), and (3)... excuse me... (c)(1), (2), (3), and (4) did not include the provisions about restitution.

But if you look to what this Court has held is necessary for a knowing and voluntary plea, those are covered primarily by the (c) and (d) provisions.

Those are requirements that are necessary in order for this plea to be valid.

They are not subject to a harmless error analysis other than to say an unconstitutional plea necessarily affects the substantial rights of the defendant.

Unidentified Justice: You... you said a moment ago... I believe you referred to a case called Hyde.

Mr. Knox: Hyde.

Unidentified Justice: I don't see that in your brief.

Is it H-y... is it a case from this Court?

Mr. Knox: Yes.

It's a 1998 court where the Court... the issue before the Court in Hyde had to do with whether a defendant could withdraw a plea under rule 32(e) of the Federal Rules of Criminal Procedure without a fair and just cause.

And the Court held no, that he would need a fair and just cause, and it specifically... one of the major reasons the Court gave for doing that was to say that the only prerequisites to accepting a plea in the district court are fulfillment of the duties of the court in rule 11(c) and (d).

And that once that happens, the court can accept the plea and that the other--

Unidentified Justice: Well, does... I don't see how that really bears on the question of whether there can be harmless error or not.

Mr. Knox: --The point I was trying to make, Mr. Chief Justice, is that there is a basis for distinguishing some of the rule 11 violations from other rule 11 violations, that they do not all stand on equal footing.

And I was only pointing out--

Unidentified Justice: But, you know, even if they don't all stand on equal footing, certainly the... the provisions added in '74 suggest that all of them are subject to harmless error.

Mr. Knox: --The--

Unidentified Justice: I mean--

Mr. Knox: --advisory committee notes that went along with the addition of (h)--

Unidentified Justice: --No.

I mean... I mean the rule... the additions themselves don't make any effort to distinguish between the various parts of rule 11.

Mr. Knox: --The committee notes--

Unidentified Justice: I... I wasn't asking about the committee notes.

Mr. Knox: --Excuse me.

Unidentified Justice: I was asking about the provisions of the rule themselves.

Mr. Knox: No.

On the face of rule 11, the language in rule 11 itself draws the distinction only insofar as (c) and (d) have that special provision in it which says the court may not accept a guilty plea unless, and the other aspects of rule (c)... rule 11 do not have that provision.

The committee notes, though, are the legislative history behind this rule and they tell us a lot about what the committee meant when it added (h) into the rule.

And those committee notes make it clear that they were, in fact, drawing the distinction that I am offering, and in fact, every circuit has drawn that distinction.

Unidentified Justice: Where?

I'm looking at the--

--What part of the notes?

--at the notes, the advisory committee notes, on the addition of (h), and what particular part do you say makes it clear that--

Mr. Knox: Well, first, we should back up to the year before (h) was added in.

At that point, the advisory committee was adding a provision about special parole to the rules, and when they did that, they were noting that the violations that would not necessarily cause... cause a necessity to vacate the plea.

When it did that, the committee spoke about certain technical provisions of the rule being qualitatively distinct from the core provisions of the rule that went to voluntariness and intelligence.

They spoke disparagingly of circuits that were vacating pleas because the defendant was not told of his... of being subject to perjury prosecution for a false statement, and the committee specifically noted that because that kind of a right did not go to the intelligence of a plea, that it stood on a different footing.

Those are the types of comments that the advisory committee has made that make it clear.

The other thing in rule (h)--

Unidentified Justice: --Were those comments made in connection... are... are they placed in the record beside 11(h) and 11(g)?

Mr. Knox: --They... well, no.

They were put into the committee notes the year before (h) was added.

But when (h) was added, the court... as I've already made reference to, the committee specifically said that the class of rule 11 errors that would be considered harmless on appeal would be limited.

They referred to a number of cases that had been decided by the circuit where the circuits... they... they used those as examples of what would be considered harmless under (h) and what would not be considered harmless under (h).

The examples they give of what would be considered harmless were the so-called technical violations: the failure to tell him about the perjury prosecution, the special parole.

The examples they give of what would be considered harmless under (h) are the intelligence and voluntary: failure to tell him about the nature of the offense, allowing the prosecutor to advise him, which they said would be inherently coercive.

The... the committee itself in those examples has drawn a distinction in deciding what would be harmless and what would not be harmless between those errors that go to voluntariness and intelligence.

The issue of whether the error is plain error or harmless error is also something that the committee... it's fairly clear that the committee considered and decided not to apply plain error.

The concerns that the committee had were, as I mentioned before, the technical versus core concerns.

And the other concern the committee expressly dealt with was the difference between direct appeal and collateral review.

They were concerned about, under McCarthy, circuits vacating pleas on collateral review and adversely affecting the interest in finality.

To respond to those concerns, they drafted (h).

To do that, they went to rule 52.

They adapted the language of rule 52(a).

They didn't borrow it verbatim, but they adapted the language of 52(a) and they put it in (h).

Every case that the advisory committee was looking at that raised its concerns and that generated the need in their minds for (h) was a case where no objection had been made in the lower court.

They looked at rule 52, and they took what they wanted to be the applicable part of 52 and put it into 11.

Unidentified Justice: In other words, your argument is that the... that they have shown... and I take it they have shown in this litany of examples that you referred to a moment ago... a series of situations that they wanted to address.

Those were all situations, which under rule 52 alone, would have been dealt with on a plain error standard, and they nonetheless imported into... into rule 11 nothing but the harmless error standard.

Mr. Knox: That's right.

Unidentified Justice: Is that your factual claim in a nutshell?

Mr. Knox: Yes.

And it makes perfect sense that the committee would do that.

Rule 11 and rule 11 variances are different than the typical type of proceeding in error that appellate courts deal with.

Rule 11 does not give rights to a defendant.

Rule 11 puts a duty on the court.

In a typical case, a rule... take rule 43, which deals with the right to be present at all proceedings.

That gives the right to a defendant.

And therefore--

Unidentified Justice: Maybe this is a little bit repetitive, but... but assuming you're right that they did just import this and didn't discuss or intend to change what you look to to decide if there is a harmless error, what about Justice O'Connor's question?

Because in the note, they do say what you should look to is the transcript of the colloquy and also the other... other... the exact words, but you probably know the exact words... the other portions of the limited record made in such cases.

Well, then why wouldn't we look at the other portions, which include the arraignment and all the things the Government wants us to look at?

Mr. Knox: --I can only answer what I answered to Justice O'Connor, which is that they were referring to the more technical aspects of rule 11 and not the core requirements.

And I base that only on what McCarthy--

Unidentified Justice: Then from your point of view, it isn't a question of what we should look at.

We should look at this.

It's a question of whether there are some things that simply don't fall within (g)... or (h) rather.

Some things simply don't fall within (h).

In other words, there are some things (h), substantial error rule, doesn't apply to in your opinion?

Substantial rights.

Mr. Knox: --Well, both of those.

I... I contend both of those things so that violations or variances of rule 11 that go directly to the voluntariness or intelligence of the plea are by definition prejudicial because they do affect the substantial rights.

Unidentified Justice: So that you... you are essentially asking us to restore the automatic reversal rule with respect to this piece of advice; that is, if you plead guilty, you give up your right to counsel at trial.

I take it that your case boils down to that.

You say as to that bit of advice, because it's so fundamental, there should be an automatic reversal rule if the judge doesn't give it.

Mr. Knox: No, I'm not actually advocating an automatic reversal rule.

I'd be comfortable with that, but it's not actually where the Court has to go.

Unidentified Justice: But what's the difference between your position and--

Mr. Knox: Because in order to determine whether a plea is intelligent, it turns on what knowledge the defendant has.

And so the... when there is an omission by the district court as to the requirements of rule 11, then we... we don't know whether he has that intelligence... he has that knowledge or not.

It would be possible from the rule 11 colloquy to determine that he, in fact... even though the court failed to give him the advice, he in fact had that knowledge.

An example would be that he... the nature of the offense, for example.

There could be a colloquy where the court fails to tell him about the nature of the defense... offense, but the colloquy at the rule 11 proceeding itself indicates the defendant actually knows the elements of the offense either because it comes out when he gives personally a factual basis or his attorney says something about it when he is standing there.

As to the right to counsel at trial, it could... there could be something that happens at the rule 11 colloquy that would, in fact, put the defendant on notice that he has that right.

Unidentified Justice: --What's something?

Mr. Knox: For example, when the court gives him his right about confronting and cross examining witnesses, it could be given to him in the context of his attorney doing it.

So, the court advises him, for example, that if you went to trial, you would have the right through your attorney to confront and cross examine the witnesses against you.

That would clearly put him on notice at the rule 11 colloquy.

McCarthy didn't allow even for that type of inquiry.

McCarthy was just here are the rule 11 requirements.

If it... if they're not met, you reverse.

Mine would... my argument, contention would take it a little further, which is here are the requirements of rule 11.

If they are not met and they go to the intelligence of a plea, you look only to the rule 11 colloquy to decide whether he otherwise was put on notice of that right.

Unidentified Justice: May I ask you this question?

Do you agree with the Government that, assuming that you're right that it's harmless review, assume the burden is on the Government to establish harmlessness, but that they may look at the entire record, not just to the plea colloquy, that if we look at the entire record, we must conclude that the error was harmless?

Mr. Knox: Absolutely not.

Unidentified Justice: Why not?

Mr. Knox: Because in this record we have two proceedings that occurred months before the taking of Mr. Vonn's pleas.

Both of those proceedings were mass advisements.

There was nothing personal between the defendant and the court.

There was no real attempt to make sure that he understood--

Unidentified Justice: How about the fact that the defendant was actually preparing for trial a week earlier?

Is that in the colloquy?

Or pardon me.

In the record?

Mr. Knox: --Well, it's in the record that there was--

Unidentified Justice: Correct me if I'm wrong, but I thought this case was scheduled for trial and they were actually preparing for the trial.

Mr. Knox: --It is in the record that it was scheduled for trial.

It is also clear from the record that there was somewhat of an ongoing discussion, perhaps disagreement, between defense counsel and Mr. Vonn as to whether he was going to plead or not.

So, the record is unclear exactly as to how much preparation--

Unidentified Justice: Is there any evidence on the record to the effect that his defense counsel had said to him, by the way, if we go to trial, I'm out of here?

Mr. Knox: --No.

Unidentified Justice: Okay.

Can't we draw an inference from the fact that there is no such thing on the record?

Mr. Knox: No.

You know, I have... defendants believe all sorts of things that may seem odd to attorneys and judges who are familiar with the system.

Mr. Vonn was a first-time offender.

There's no evidence that he was familiar with exactly how the system worked.

It seems extremely odd to all of us sitting here today that a defendant who has an attorney at all pretrial proceedings would have any reason to think that his attorney was going to disappear for trial.

But there are defendants who believe that kind of thing.

Unidentified Justice: Well, in this very case, I thought he originally entered a plea to one charge, but he was going to go on to trial on the other.

There was no doubt about that, was there?

They were continuing to prepare for trial on another charge.

Mr. Knox: They... it is true that the... the gun use allegation had been set for trial.

Whether they were preparing or not is unclear from this record because what is clear from the record is that there was a disagreement about the defendant.

And in fact, when... whether he would plead.

And in fact, when the defendant eventually pled to that second charge, the gun use allegation, he specifically denied the elements that would make his activity criminal.

He specifically denied that either he personally had a gun or that he had any knowledge of his co-defendants having guns.

And so, there clearly was a dispute about that.

Thank you.

Unidentified Justice: Thank you, Ms. Knox.

Mr. Dreeben, you have half a minute left.

[Laughter]

Mr. Dreeben: Unless the Court has any short questions--

[Laughter]

--the Government will submit.

Unidentified Justice: Very well.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Cedric Kushner Promotions v. King - Oral Argument

Fri, 09 Jan 2009 14:50:30 +0000

Case:

Cedric Kushner Promotions v. King

Media File:

00-549_20010418-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Richard A. Edlin

Chief Justice Rehnquist: We'll hear argument now in No. 00-549, Cedric Kushner v. Don King, et al.--

Mr. Edlin.

Mr. Edlin: Mr. Chief Justice, and may it please the Court--

The decision of the Second Circuit adopting a scope of employment test should be rejected and reversed for three principal reasons.

First, the scope of employment test cannot be reconciled with the plain language of the statute.

Second, the decision below runs contrary to this Court's decision in Reves, as well as in Turkette and as well as in Scheidler.

Finally, the decision below would unnecessarily eviscerate the ability of private litigants in the Government to bring 1962(c) actions.

Turning to the first point, on page one of--

Justice Breyer: Can you tell me something, before you get into this, I would appreciate your correcting the following misapprehension, if it is, or affirming it.

This is my question--

Mr. Edlin: --Yes, sir.

Justice Breyer: --Are we talking about only a really odd situation?

A situation where we're talking about one individual?

Because if there are several individuals in a corporation, there really is no problem that this Act clearly applies, but we're only talking about a circumstance where there's just like one person.

Is there a general aspect--

Mr. Edlin: Your Honor, the problem--

Justice Breyer: --of what we're talking about?

Mr. Edlin: --I think the problem with the Second Circuit's decisions is that it does reach the general problem.

Clearly if you have a corporation that has many employees, and one of the corporate employees is the person, and the rest of the corporation is the enterprise, I see no problem with that case.

I see no problem with this case.

This case is exactly the same, because the introduction of the corporate form changes things, and whether it's a one person corporation or a multiple person corporation, the issue is precisely the same.

Justice Kennedy: But... I just want follow up Justice Breyer's question, in the case of a large corporation, what would the Second Circuit say?

The same thing?

Mr. Edlin: I think the problem with the Second Circuit's decision is that it may well say the same thing.

Justice Breyer: Now, that's what I didn't see because it seemed to me in any real corporation it's not going to be following what the corporation wants to commit a crime, so it's not in the scope of your employment to commit a crime.

And so under the Second Circuit's rule, unless you're suddenly... unless we're talking about a corporation that wants to go off and commit crimes, the person's never going to be acting in the scope of his employment, so always he's caught within the statute.

If there's, you know, several people, certainly.

Am I right?

Can you explain that very clearly?

Mr. Edlin: The problem that we have with the Second Circuit's decision is that it is hard to rationalize with the meaning of the statute and with the Court's decision in Reves.

Reves clearly, for example, confers liability on all inside managers.

Whatever else it does, it certainly confers liability on all inside managers.

There's no question under Reves that Mr. King would be included within the operation and management test that this Court adopted there.

The Second Circuit's decision immunizes precisely the same group of people, or a single person, that Reves would impose liability upon.

And the Second Circuit's decision is not limited and does not distinguish between corporations in which there is one principal party or corporations in which there are many parties.

I agree with you the scope of management test doesn't really work, but it's because it doesn't work.

It's not because the Second Circuit has limited it to just this fact item.

Justice Souter: In any case, I was going to ask basically the same question.

It seems to me that if the scope of management test includes at least, as I assume it must, some reference to the purposes of the corporation, then no corporation, whether it's a regular corporation or a pure formality, can be organized as a matter of law to commit acts of racketeering.

So the odd thing to me about the Second Circuit's opinion is the notion that one would be within the scope of employment while engaging in the prohibited activities.

And I would have thought that that was a legal impossibility.

Am I missing something?

Mr. Edlin: Your Honor, I--

Justice Souter: I should ask your opponent that question, but just to stir him up--

Mr. Edlin: --If you're missing something, I am too, and I am eager to hear an answer from Mr. Fleming on that question.

But even beyond the corporation, certainly RICO reaches both legitimate and illegitimate enterprises and, in the context of the illegitimate enterprise, scope of employment analysis makes no sense at all.

So I just think that when you look at what the Second Circuit is doing, it can't be reconciled with what the words of the statute said.

The words of the statute are extraordinarily broad.

This Court has had many opportunities to look at this section of the statute, and when we look, for example, on page one of the blue brief, at the definitions, person includes any individual or entity, and an enterprise for this purpose includes any corporation.

And 1962(c) refers to any person employed by an enterprise.

Justice Kennedy: --On these facts, could you have alleged that King was the enterprise and the corporation was the person?

Mr. Edlin: On these facts, I think that that... you could allege that, Your Honor.

I think that that would be--

Justice Kennedy: So you could have count one, where one is the person, and count two, and it's the same?

That seems rather odd.

Mr. Edlin: --No, I don't think that you can do both.

I don't think you can set it up and try to have it both ways, but I think--

Justice Kennedy: But I thought you just indicated you could do that.

Mr. Edlin: --If you chose just one.

If you had... if you chose Don King Productions as the--

Justice Kennedy: Well, do you flip a coin to decide which way you're going to do the count?

Do the pleading?

Mr. Edlin: --Unfortunately, you know, you might have to do that in the Second Circuit.

I don't think that's the way that the statute is--

Justice Kennedy: No, but under your theory.

Under your theory you say that you can participate with your own corporation.

I said what's the difference between an enterprise and a person on the facts of this case?

It seems to me that they could have just been flipped around.

Mr. Edlin: --On the facts of this case, Your Honor, certainly the pleading that we have in this case satisfies the standards of the case.

There's an individual, he is conducting his affairs through a corporate enterprise and engaging in racketeering activities.

No question that that pleading is appropriate.

Now if you flip it and you had Don King Productions conducting the affairs of Don King, depending upon what the facts were, that would not violate the plain language of the statute.

There are contexts that one could probably come up with in which the facts would justify that sort of pleading.

In this case, I think we've pled it the right way.

Justice Ginsburg: But as far as pleading is concerned, the rules allow you to plead in the alternative, and you don't have to pick your theory at the pleading stage, so I guess your answer to Justice Kennedy means that in your complaint you could have alleged it both ways and then waited to pick until later on.

Mr. Edlin: I think that that's no doubt technically correct, but I don't think that's what we're trying to do just because you can plead in the alternative.

I don't think that pleading in the alternative means that you can plead wholly inconsistent theories of facts.

You can plead alternative results, but I don't think that a pleading in the alternative like this would pass a motion simply because I do think that in terms of the structure of the person and the enterprise, you do have to pick it.

Justice Ginsburg: Do you need a corporation on your theory?

I mean, I was reading your presentation and I had the notion that it wouldn't matter if it were a sole proprietorship.

At least if it had employees, the sole proprietorship could be the enterprise and King could be the person.

Is that correct?

Mr. Edlin: That's correct, Your Honor.

In that case, a sole proprietorship with employees would be an association in fact enterprise and, again, distinct from the person.

So as long as there is no complete overlap between the person and the association in fact, those pleadings which are again not at issue in this case have routinely been upheld as appropriate pleadings.

I think, Justice Ginsburg, that our circuit just got this one wrong, and I think that it's very simple to address it.

Moving past the language of the statute and on toward the Reves case, again as I mentioned just a moment ago, Reves carefully considered the appropriateness of imposing liability upon employees or others who were in operational and management control of the corporation.

There is no question that under that test Don King would qualify as someone in operational or management control of this enterprise, and that is the appropriate standard to use here.

It is not a scope of employment standard.

Reves is the appropriate standard, and under Reves Mr. King would have liability.

The Second Circuit's decision simply immunizes that.

The final vice with the Second Circuit's decision goes toward the evisceration of 1962(c) actions.

1962(c) actions, I believe... I haven't done the math, but I believe they are the wide majority of RICO claims that are brought.

There are many more cases there.

Now, whether you take the Government's example of a--

Justice Scalia: Any idea what percentage of them really pick up organized crime, which is supposedly the object of RICO?

Mr. Edlin: --I don't, Your Honor.

I don't know.

Justice Scalia: Yes.

That would be a more interesting statistic as far as whether your interpretation really fulfills the purpose of RICO.

Mr. Edlin: Your Honor, there is no doubt that the statute was targeted at organized crime, but there is also little doubt--

Justice Scalia: That's right.

And all your statistic may prove is that the statute is being used excessively for a purpose that it did not have in mind at all.

Mr. Edlin: --Your Honor, there is little question that what you're saying is true, except for the fact that this Court has read in Sedima into the statute the fact that it has an extremely broad sweep and it catches precisely this kind of activity.

Congress made a choice in unveiling the broadest possible statute, that it would err on the side of including these kinds of cases, possibly even shifting the burden to Federal courts to deal with these kinds of claims so that loopholes were not created for clever racketeers to slip through and avoid liability.

I believe that that demonstrates the breadth of the statute, and if that is a problem to be remedied as this Court has observed on many occasions, it lies with Congress.

The plain language of this statute has been amply satisfied by this pleading, and I believe that the... again, to my last point, the problem with the Second Circuit decision is that whether you take the Government's example of the corporate president who directs the company to bribe public municipalities, or whether you take our example of an organized crime family incorporating and appointing everybody an executive vice president, those two situations, under the Second Circuit standard, would not be caught within the scope of the statute, and--

Chief Justice Rehnquist: Mr. Edlin, you rely rather heavily on our decision in Reves, and I notice the court of appeals opinion didn't mention it at all.

Did you urge that case in the Second Circuit?

Mr. Edlin: --We urged it in the Second Circuit.

We argued it extensively in the Second Circuit, and what is interesting to me at least in the Second Circuit's decision... there are a couple of points of interest.

One, it did not discuss Reves.

Second, it was a panel of two judges in the Second Circuit, but also Judge Lloyd George of Nevada who, in addition to presumably knowing something about boxing, knows something about the laws outside the Second Circuit and how his circuit interprets this.

A per curiam decision which drops a very strong footnote in footnote 4 which... in which the Second Circuit owns up to the fact that its decision, it's intention, if not direct conflict, with the laws of every other circuit on this point, I think demonstrates in some way that the Second Circuit was inviting this certiori.

Chief Justice Rehnquist: Well, a visiting judge is expected to follow the precedent in the circuit which he visits.

Mr. Edlin: I'm simply observing that I found how the court issued its decision interesting, given the fact that it does not mention Reves.

It is very difficult to understand how this case, which is so close to Reves, is not even mentioned in this very short Second Circuit decision.

And I think the reason is obvious.

It can't be reconciled.

There is no way to take the facts of this case and support them under any reading of Reves.

Justice Breyer: I suppose that what they're worried about, if I'm trying to imaginatively put myself in their shoes, is that a person could claim the following.

Take any company whatsoever that does business in interstate commerce, and the plaintiff says there's... there's a manager in that company who, on a couple of occasions, at least two, told the salesmen to overstate or to lie about a characteristic of the product.

That's it.

And now all of those become RICO violations because it is claimed that this person, you see, is engaging or participating in the affairs of American Express Company or any other large company, through a pattern of racketeering activity, i.e. two instances of mail fraud.

And that's so distant from the purposes of this statute that they're searching for ways to limit the scope.

Mr. Edlin: Justice Breyer, I agree with that.

However, this Court has rejected every instance in which a circuit court has sought to artificially restrict the language of the statute and has observed that the remedy is with Congress.

This statute was not passed without Congress observing that these exact criticisms were possible.

It was passed over opposition.

The answer to the opposition was simply that the protections of the statute did not take place in the definitional sections, it took place in the pattern and enterprise sections so that garden variety frauds are typically not committed with a pattern and continuity.

Justice Scalia: That's no... that's no protection in the hypothetical that Justice Breyer gave you.

I mean, you have one salesman who steps over the line a couple of times, and suddenly you're... you're... the corporation is into RICO.

I mean, that's totally absurd.

Mr. Edlin: Justice Scalia, whether it is or it isn't, it was considered by Congress at the time it was passed, and Congress made a decision that it would--

Justice Scalia: But don't tell me it's not absurd.

Say you know it's absurd, but that's what Congress provided.

I thought you were trying to say it's not absurd.

Mr. Edlin: --I'm trying carefully to say it's not absurd in that example, but apparently it's hard, and I won't continue to try to do it.

The fact is, though, that we do have a statute.

It's been read by this Court a number of times, it supports our interpretation of the statute.

The Second Circuit's decision should be reversed, and I would like to reserve whatever time I have remaining for rebuttal.

Thank you.

Argument of Austin C. Schlick

Chief Justice Rehnquist: Very well, Mr. Edlin.

Mr. Schlick, we'll hear from you.

Mr. Schlick: Mr. Chief Justice, and may it please the Court--

Section 1962(C) reaches racketeering activity by a defendant who is employed by the RICO enterprise, without regard to the scope of the defendant's employment.

That is clear from the text of Section 1962(c) which reaches racketeering activity by any person employed by or associated with any enterprise.

A scope of employment rule defies that plain language.

In addition, a scope of employment rule is inconsistent with the statutory scheme in three additional respects.

First, a scope of employment rule defies Congress's intent to reach criminals who infiltrate and corruptly run legitimate businesses.

It's important in that respect to address the question of whether a criminal or otherwise wrongful act can be within the scope of employment.

And the answer to that is yes, it can be.

Section 231 of the Restatement of Agency addresses that point, but consider the example of a corporation which instructs its employee to make a sale, knowing that the way that that sale was made traditionally is through bribery.

In that case, the bribery would be within the scope of employment, notwithstanding that it would be unlawful and, notwithstanding, there might not have been specifically urged by the corporation.

Because of that, when criminals take control of a business, they are able to bring illegal activity within the scope of that business.

And under the Second Circuit's scope of employment rule, that would immunize the racketeering activity.

Second, the scope of employment rule would create additional difficulties in applying Section 1962(c), because the test itself is contextual and subject to the case specific application.

This Court discussed that in Faragher v. City of Boca Raton.

The difficulties and the permutations of the rule.

Third, a scope of employment limitation is inconsistent with the Court's holding in Reves that a defendant, under Section 1962(c), must participate in the operation or management of the affairs of the business.

If participation and operation and management is necessary for there to be liability, then carrying out the affairs of the business cannot prevent liability.

An employee who controls a corporation would, under that rule, be immune from liability when he misuses his control of the corporation to involve the corporation in racketeering.

If the Court has no questions?

Justice O'Connor: Do you see any way to limit the application of RICO to the situations described by Justice Breyer?

It is a little far afield from its ostensible purpose.

Mr. Schlick: Yes, Justice O'Connor, the concern intuitively about Justice Breyer's hypothetical is the predicate act, which is mail fraud or wire fraud.

If you took the same hypothetical and substitute arson or murder or narcotics trafficking as the offense, I don't think that anyone would be shocked or surprised.

Justice Breyer: But that isn't the problem.

The question I think is... is there anything, any judicial interpretation, because mail fraud is one of the predicate acts, isn't it?

We're not a legislature.

I mean, so the question is, is there some area in this which would be an interpretation that brings it closer to the basic congressional intent which is just as you describe, to get organized crime people the bad things, but not sweep in so many things.

Or this simply a question of that's how the legislation was drafted, put up with it.

Mr. Schlick: This case goes to the interpretation of Section 1962, which applies to criminal as well as civil cases.

Courts have looked under Section 1964(c) to addressing particular abuses in the civil context, but what ever one thinks of the allegations in this particular complaint, the core fact pattern which is the running of a business in a pervasively corrupt manner is exactly what Congress intended to reach through RICO.

Justice Kennedy: Do you agree that this complaint could have been just as easily drafted, switching the enterprise and the participant?

Mr. Schlick: Justice Kennedy, it would be possible to frame a complaint either way, but the fact that--

Justice Kennedy: And I mean prove the case as well.

Mr. Schlick: --But to do that, you would be alleging two different fact patterns.

Suppose the corporation needed the personal assets of Mr. King to carry out its racketeering activity.

In that case, it might be possible to have the corporation named as the defendant or person, and Mr. King as the enterprise.

But that would be a different fact pattern than the one alleged here.

It would not be possible simply to flip the defendant and the enterprise at will.

Justice Kennedy: I'm not sure why not, under this fact pattern.

Mr. Schlick: Under this fact pattern, the allegation is that Mr. King has used not only his personal resources but also other agents, other employees, of DKP Corporation to carry out the racketeering activity, so it would be necessary to allege an enterprise that incorporates those persons or things that are used in the racketeering.

Argument of Peter Fleming, Jr.

Chief Justice Rehnquist: Thank you, Mr. Schlick.

Mr. Fleming, we'll hear from you.

Mr. Fleming: Mr. Chief Justice Rehnquist, and may it please this Court--

As usual, you depart from what you're prepared to say.

First, the application of 1962(c) to ordinary business, is absurd.

We do not rely upon that, although we do believe that if thinking along with us the Court concludes that the Second Circuit's reading of 1962(c) and its application is correct, the absurdity of the other reading would lead acceptance of its result.

Mr. Justice Breyer, our case is not limited to a single employee situation.

It would be... the Second Circuit's approach would be applicable if there were five or six employees or more.

Justice Breyer: Then that's their concern, because if that's right, then the one time when the interest of the employee committing the crime and the interest of the corporation are likely to be congruent is where you have an evil corporation, and that seems to be the one time that clearly the Second Circuit rule would exempt from the statute, and so oddly enough, insofar as it has an impact, its impact is bad in terms of the statutory purpose.

That's the argument of it.

Mr. Fleming: And exempt under (c), but would not exempt under--

Justice Breyer: I know, but insofar as the Second Circuit rule has real has real bite beyond a single person, its bite is biting the person... in other words, bite goes just in the wrong direction.

Mr. Fleming: --Our position would be, Justice Breyer, that (a) covers that situation, and it was Congress's intent that (a) cover that situation, where the same response to Justice Souter's question, and that has to do with whether any criminal act or predicate act or civil fraudulent act can be considered within the scope of employment.

Unfortunately, I think experience shows that those... that torts of that sort are conducted within the scope of employment.

Justice Souter: Well, that... that's an easy conclusion to draw if your sole test of scope of employment is intent to benefit the corporation, but the scope of employment inquiry is broader than that and, even apart from the fact that there's always a policy component to it, you've got to take into consideration in some way corporate purpose, and I take it we at least have common ground that there is no... there is not State corporation law that would charter a corporation to commit within the scope of its corporate authority an act of racketeering.

We agree on that, don't we?

Mr. Fleming: We do agree on that.

Justice Souter: Okay.

And if that has got to be considered then in determining what can fall within the scope of the employment of an employee or an officer, then it's hard for me to see how any act of the officer could, under State corporation law, be within the scope of his employment because it can't be within the scope of the corporate purpose.

Mr. Fleming: It could be... it could be to further the interests of the corporation.

Justice Souter: Right, but that's true only if that's your sole test of scope of employment, and if that's going to be the case, it would just, it seems to me, make for clearer thinking if we didn't talk about scope of employment and instead said, look, the test is whether it's to further the financial interest of the corporation.

Mr. Fleming: And what the court of appeals said... Second Circuit said in Riverwoods was in the course of their employment and on behalf of the corporation... and on behalf of the corporation.

Justice Souter: And I'm suggesting that you can't have both.

You might have a subjective purpose to bring lucre to the corporation, but I don't see how as a matter of law to be within the scope of employment, too.

Mr. Fleming: The Court would... what you're saying, Your Honor, is that if an employee commits a tort... commits a fraudulent act, it simply cannot be considered from the scope of employment.

I would disagree with that if, in fact, he was acting for the benefit of the corporation.

Justice Scalia: Yes, I think you have to disagree with that.

And I think you would say that a corporate charter cannot, certainly under any State law that I'm aware of, authorize the corporation to act negligently either.

Mr. Fleming: That's correct.

Justice Scalia: Nonetheless, when a... or willfully negligent, either.

And nonetheless, when a corporate officer does that, he's deemed to be acting within the scope of his employment.

Mr. Fleming: And we all know what happens.

Justice Souter: But then scope of employment then turns--

Mr. Fleming: So long as he's acting for the benefit of the company.

Justice Souter: --Then scope of employment, in effect, is going to be limited in this context to serving a corporate purpose in the sense of trying to bring monetary gain to the corporation.

That is the sole test.

Mr. Fleming: That is correct, Your Honor.

Justice Scalia: No, you wouldn't say that's the sole test, Mr. Fleming.

Surely if somebody is a lineman for a telephone company and he does some act that, you know, that is an act only appropriate for the vice president, you wouldn't say he's acting within the scope of his employment.

It has to be somehow within the assigned job that the individual has been given, doesn't it?

Mr. Fleming: Yes, I think it does.

Justice Scalia: Of course it does.

Mr. Fleming: I'm sorry... I misunderstood.

I thought what Justice Souter was saying was that the person's acting in his job... he may be acting tortiously in his job, but he's acting for the benefit of the company, and I believe that occurs all of the time, unfortunately, and when it does occur, it is within the scope of his employment.

Justice Souter: But I think the... I don't want to take more of your time on this than this last question, but it seems to me that the way the circuit was referring to the test, it was confining the test to this one element.

Was it trying to further the financial interest of the corporation.

Whether we as lawyers or judges would come up with a different test for that phrase, I don't know.

But that seems to be the one criterion that the circuit was applying, and I thought that's what you were agreeing to.

Mr. Fleming: I am in agreement with that.

The Second Circuit's view is very clear.

They say, as all the circuits say, that under 1962(c) the RICO person must be distinct from the enterprise, whatever that enterprise may be.

They then say that so far as they are concerned, corporate employees working for the... on behalf of and for the benefit of the corporation, are not distinct from the corporation itself.

We think that's consistent with the traditional view of a corporation.

There's the argument--

Justice O'Connor: The thing that strikes me as a little bit odd about the scope of employment test is that the scope of employment in Reves is one we usually make as relevant to whether the employer is liable, and it's not the inquiry we make when we're looking to see if the employee is liable, and I just don't see how the test quite fits.

Mr. Fleming: --If understand what you said, Justice O'Connor.

You make exactly our point about RICO and why the Second Circuit is correct.

Justice O'Connor: I wouldn't think so.

I didn't make the point for that purpose.

Mr. Fleming: The common law provides, as the Court knows, that a corporation is liable certainly civilly and sometimes criminally for the conduct... for the wrongful conduct of its employees.

RICO exempts the enterprise from liability and points to the person only.

We think if you have to look at that issue, when you're asking yourself what Congress was looking for in 1962(c), we say that because the enterprise is exempt from liability for the wrongful conduct of the person, that can be consistent with common law principles only in that situation where the corporation is exempt by common law.

Chief Justice Rehnquist: Mr. Fleming, a moment ago you referred to the distinctness requirement, and you said all the circuits are in agreement on that.

Is that your considered opinion as opposed to the scope of employment requirement?

Mr. Fleming: All the circuits agree that under 1962(c), there must be the RICO person... it could be any person... the RICO person must be distinct from the enterprise.

All the circuits agree on that, and all the circuit... excuse me, Justice Ginsburg?

Justice Ginsburg: You could have a sole proprietorship that has some employees, and that would satisfy the distinctiveness requirement, would it not?

Because as long as it wasn't just the one person operation with no employees, so you don't have to have another form.

You could be operating a sole proprietorship and still meet the distinctiveness requirement, as I understand it.

Mr. Fleming: Not in... not in the... in the seventh circuit, yes.

And in another circuits, perhaps yes.

In the Second Circuit, no, if the predicate acts were performed for the benefit of the sole proprietorship.

But I agree, Justice Ginsburg, that a sole proprietorship with a few employees is subject to 1962(c) application.

The question is whether the Second Circuit's view of the application of 1962(c) should prevail, or whether the view of other circuits should prevail.

The Second Circuit is saying that corporate employees acting with the corporation and for the benefit of the corporation are really a part of the corporation and are not distinct from the corporation for the purposes of the distinctness required by RICO.

Justice Ginsburg: The United States is one example where the Second Circuit position would meet, and it says here's a corporation, tells its employees go out and bribe the local police, it will be able to do this, that, or the other thing, and they won't touch us.

Those employees who are giving the bribe then are acting in the scope of their employment for the benefit of the corporation, and under your theory, there would be no RICO claim.

Is that correct?

Mr. Fleming: Against the employees.

But I think there could be punishment of the corporation, and perhaps of the employees also, under Section A of 1962, in which the corporation is the beneficiary and can be punished.

When you look at the--

Justice Ginsburg: It would be, I suppose, could make a criminal bribery case, but as far as 1962(c), on your theory, such a pattern would not fit because it was within the scope of their employment to give out these sweeteners.

Mr. Fleming: --And for the purported benefit of the corporation.

Justice Ginsburg: Yes.

Mr. Fleming: But the conduct could be reached under RICO under Section (a), both as to the corpora... certainly as to the corporation, and we believe also as to the persons.

And when you look at the entire statutory scheme, you have a situation where under (a) the beneficiary corporation... what Mr. Blakey calls the perpetrator corporation... is subject to RICO liability.

It doesn't make any sense.

When you get to 1962(c), there should be a quasi redundancy, and that's why the--

Justice Breyer: I thought that (a) is about... is investing racketeering proceeds in an enterprise, and (b) is about obtaining control, and (c) is about managing the enterprise or participating in its affairs through a pattern of racketeering activity.

They seem different.

So I thought that... imagine the case where you have a group of racketeers... I mean, let's call them really bad people, all right?

The really bad people in fact created or are found in positions of responsibility in an enterprise, and what they do is they have a series of really bad acts.

So we get that out of it.

Unknown Speaker: Now, where the really bad people are in an enterprise and they're running it through really bad acts, your interpretation, according to the other side, will basically in the worse case bring them out of section (c).

Justice Breyer: Because these are really bad people, they have a lot of really bad acts, so they're just the people that (c) wants, and you write them out, because after all they are not going against, they are even furthering what the enterprise is there for.

Now, that's what they say.

Now, you say, which may be true, if their interpretation is right and the legal distinctness consists of either (a) legal distinctness, or (b) factual distinctness, the distinctness requirement is always satisfied but for the fact that where there is a single person, and he doesn't even work through a corporation.

So you say that meets it meaningless.

Now, they say between the two, theirs is better.

All right?

So what's your reply to that, because they say that there should be limitations?

There are other words in the statute to do it, not this one.

Mr. Fleming: --Our reply, Your Honor, is that between one or the other, ours is better.

The Second Circuit--

Justice Breyer: I know that's what you think, but at the moment I would say given the fact that your interpretation takes it out of the heartland where it should apply, why isn't theirs better?

Mr. Fleming: --Because I believe the conduct that the Court describes can be reached, even under RICO, under other the sections of RICO.

Justice Breyer: Well, do you get it under (a), because I thought (a) was about investing in an enterprise, and I'm assuming--

Mr. Fleming: The... the... (a) is reprinted in gray brief, the amicus brief, at page 4(a).

Justice Breyer: --Well, it talks about investing the income or part of the proceeds.

Mr. Fleming: If I could, Your Honor, it shall be unlawful for any person, so it should be unlawful for any corporation which has received any income derived from a pattern of racketeering to employ that in the operation of the enterprise.

In the Herako case, the Herako case, it's exactly how Judge Cutahy harmonized Professor Blakey's argument about perpetrator corporations.

Justice Scalia: What you're saying it's... it's using the income in the operation of its own enterprise?

Mr. Fleming: Yes.

Justice Scalia: But I thought you say that person and enterprise have to be distinct.

Mr. Fleming: Person and enterprise have to be distinct under 1962(c).

Justice Scalia: Oh.

You say for (a) they can be the same.

Mr. Fleming: The courts say that they can be the same, but courts say that (a) is a corporate beneficiary RICO statute; the perpetrator corporations--

Justice Scalia: So you can get the corporation because it makes the income and invests it in its own operations.

Mr. Fleming: --Exactly.

Justice Scalia: What about the individuals?

Mr. Fleming: I believe you can get the individuals under (a) also, Your Honor.

Justice Scalia: Well, how?

They're not getting the income.

Mr. Fleming: Well, it's a question of booking, I suppose.

The difficult word there is received which after concede, but if the venal people that Justice Breyer is describing are engaging in all sorts of activity which is bringing income into the organization or the enterprise, I believe they can be captured under (a) also.

The real risk here--

Justice Stevens: May I just ask quickly for you to comment on the plain language argument of the opponent--

Mr. Fleming: --Yes.

Justice Stevens: --because the language does seem to read rather plainly in his favor.

Mr. Fleming: I have two points if I could, Justice Stevens.

One is any person, which is what I believe it says, is plain language, but plain language which has not made sense in the application of a statute has been disregarded by this Court where appropriate.

It was just--

Justice Stevens: Well, why doesn't it make sense?

Any person... so you get an enterprise that's violate... you know, meets all the definitions, and this statute says any person who participated as an associate or employee, and that work is covered.

Why doesn't it make sense?

It says that not only the corporation's liable, but the individuals who perform these foul deeds are equally liable.

Mr. Fleming: --It can... it can be read as literally meaning that, but there is an inherent ambiguity when you look at the interpretation of 1962(c).

The courts have not only required distinctness--

Justice Stevens: Well, it had to be distinct.

I mean, obviously it's, one of them is General Motors, the other is the President of General Motors.

They're distinct people.

Why... why doesn't the plain language just apply?

I don't get it.

Mr. Fleming: --Because the courts have also held that the enterprise shall not be liable, so--

Justice Stevens: But this statute of this section doesn't purport to impose liability on the enterprise--

Mr. Fleming: --Exactly.

Justice Stevens: --but to impose liability on people who work for it.

Mr. Fleming: That's my point, if Your Honor please, and if you think about the common law principles in this Court in Proup has said common law does implicate the interpreta... or is implicating the interpretation of RICO, the only time a corporation is not financially liable for the wrongdoing of its employees is when the employee is acting for the employee's benefit and not for the benefit of the corporation, and that is exactly... that is the ambiguity in this statute which we think takes away from applying meaning.

This statute says, as interpreted, says any person... but it also says the enterprise shall not be liable for that person's conduct, and we believe the only fair inference from that, which is also consistent with what Congress was talking about overall and its dominant purpose of RICO, the only inference which can be taken from that is that Congress intended the persons to be liable when they acted within a corporation for their own personal benefit.

Justice Scalia: Where does it say that the corporation shall not be liable for that person's conduct?

Mr. Fleming: Said judicially.

I can only say that, Judge Scalia.

All of the circuits in connection with the distinctness rule have felt that the corporation shall not be... there is no respondeat superior in RICO.

And that's how we look at it--

Justice Stevens: Going through Section (c), it doesn't impose any liability on the corporation.

Mr. Fleming: --Excuse me?

Justice Stevens: And certainly you're dead right that Section (c) does not impose liability on the enterprise.

It's focused on the persons.

Mr. Fleming: And we think that you have to look... we think you have to look at that when you're trying to say what did Congress mean here?

You have an (a) section which we believe implicates the renegade corporation and its renegade people.

You have association in fact which was created for the purpose of getting the renegade organization.

You now have (c).

I think everyone agrees that (c) is absurd when it exposes all commercial America to the threat of RICO.

We don't rely on that.

We don't think the Second Circuit relied on that.

I think the Secretary was saying a very simple thing.

They were saying when employees and officers are working together for the benefit of the company, they happen to commit acts of alleged fraud, they are not distinct from the company.

They are the enterprise, and there is no RICO person.

Now, I answer the plain language argument in two ways, The Sherman Act said every person who contracts and combines, and the single actor model is imposed upon that quite correctly.

I look not only at that, but I also look at what I've just described, and that is the absence of derivative liability.

You cannot properly interpret this statute and its application without considering why Congress targets a person employed but eliminates respondeat superior.

The only time at common law where that occurs, we think you have to presume that Congress acts with a view toward the common law is when the person acting--

Justice Stevens: I don't think you can really say it eliminates respondeat superior.

It simply didn't apply respondeat superior to the activities of these individuals who are themselves violating the statute because they're assisting in enterprise doing, engaged in a pattern of racketeering activity.

Mr. Fleming: --Our position... we believe the Second Circuit's position is that the individual who's targeted under 1962(c) is like the infiltrator.

He happens to be in the corporation, and he acts for his own benefit.

And we think that's totally consistent... I really, you now, I read the book and said never ask the Court a question so I will not, but I think we have to consider this... is it conceivable... is it conceivable that Congress intended the absurdity that I think this Court has recognized with regard to the application of--

Justice Breyer: Well, you have the same doctrine in (a).

I mean, on your reading of (a), whatever we do about (c), exactly the same thing would happen.

My example... why wouldn't it?

Mr. Fleming: --Because there the corporation is corrupt.

Justice Breyer: No, no, no.

No, going back to the first example of the bank that has the supervisor with the two... I mean, by innocent example.

The innocent example, you get... there... you see, there were two instances of exaggerating or lying about the qualities of our vacuum cleaner.

We said it picked up mice and it doesn't.

Thy don't fit through the hole.

Mr. Fleming: All right.

Justice Breyer: So... so now twice they've said that, and it was planned, and of course they sold two vacuum cleaners as a result, and they obtained a thousand dollars for that, and the money was thereby obtained through a pattern of racketeering activity, and they used that thousand dollars to pay expenses of the corporation, etcetera, and therefore it was used in the operation of the enterprise.

So all the absurdities are just as great in (a) as they are in (c).

Now, am I right or not?

Mr. Fleming: No, I think probably not.

Justice Breyer: I'm not?

Mr. Fleming: I think not.

Justice Breyer: Because?

Mr. Fleming: I think (a) looks more at the corrupt enterprise, and I think we will all accept the idea that corrupt enterprise is a potential RICO target.

You know, we're not talking about a no liability situation when we eliminate some... when you protect... when there is some protection afforded under 1962(c).

If there is anything to Mr. Kushner's claims, he has single damage remedy against not only Mr. King individually, but Don King Productions.

It also, you know, when I, you know, I think we have to ask this question, Unless the individual... the person who is the target of 1962(c) is a person who has been acting for his own personal benefit and not for the benefit of the corporation, unless he's that person, why should that person be subjected to treble damages for his conduct?

Put it another way, if that person engaging in tortious conduct on behalf of his company... on behalf of his company... why should that person be target for treble damage liability when the company's liability... the beneficiary... is limited to single?

Justice Stevens: Well, the answer to that is very simple.

The statute says so.

That's exactly what the statute says.

It's true of collection of an unlawful debt.

If he collects the debt... we're interested in the individuals who do these wrongful things.

That's what the statute says.

Mr. Fleming: Mr. Justice Stevens, I don't believe that--

Justice Stevens: I don't think it's absurd at all.

Mr. Fleming: --We've been sitting around here for a month, and we've asked ourselves what happens if we are asked doesn't the statute say exactly that?

And we say in a sense... in a sense--

Justice Stevens: --rule of reason in is... could be a rule of reason under this statute.

Mr. Fleming: --In a sense it does, but we believe that the exemption from corporate liability introduced an ambiguity which does not allow a plain language reading.

Second, you know, this Court... this Court in Copperweld said every person does not mean every person.

In Pierson it said any person except a judge because it implicated the common law.

In the Bach Laundry case, defendant was defined as any party.

I think Justice Scalia defined it as a criminal defendant in a concurring opinion.

In 42 U.S.C. 1985, which is conspiracy to violate civil rights, a number of dist... a number of circuit courts and district courts have held that two or more persons does not mean two or more persons if they're employed by the corporation.

So this single actor... this unity of conduct which the Second Circuit focused upon... is not foreign to the jurisprudence of this Court, and we believe it is the only appropriate way to harmonize the absurdity of this statute applied on a plain language basis, and RICO's purpose of punishing the... call them racketeer... person engaging in racketeering and, in this case, the quasi infiltrator, the employee who goes bad and uses his job as a means of feathering his nest.

The department talks about... Solicitor General, I'm sorry.

I'm always used to saying the department.

The Solicitor General says they need RICO to get unions... to bring injunctive action against unions.

Think of that.

What they are trying to do is to get rid of the union officers who, at the expense of the corporation, are feathering... stuffing their own pockets, feathering their own nests.

We think that's what Congress was looking at when it's talking about 1962(c), and the one thing we surely think Congress was not looking at was IBM against IBM, which is the effect of the any person analysis.

A question was asked about the use of it; I think in the Sedima case, we do not have the appropriate, we did not get the up to day statistics.

In the Sedima case, the ABA reportedly cited that said that nine percent... nine percent of the civil 1962(c) lawsuits were... had to do... had anything to do with organized crime, and the other ninety one percent were commercial disputes.

I go back to Justice Marshall's dissent in Sedima, as I go back to Justice Marshall in the Second Circuit.

I think there is another consideration which he posed.

The broad application of 1962(c) for which they contend is based principally, if not entirely, upon a quote, unquote, plain language, with all respect, Justice Stevens, with no real analysis and no answer to all to our point with regard to the absence of true liability.

No answer at all.

The application of their quote, unquote, plain language approach in essence does turn federal jurisdiction on its head because not only do you have people being threatened with treble damage liability where that should not exist, but you have federal jurisdiction being obtained where everything else lacking, you're in State court in a common law fraud case, or in this case in a supposed tortious interference with--

Justice Stevens: The problem with that argument is that I was involved in some of these decisions, we thought, well, if we really read it finely, Congress will straighten it out because they couldn't have meant this vast extent.

But Congress has let it sit there.

Mr. Fleming: --Am I allowed to... am I allowed to comment on what Congress will straighten out?

Justice Stevens: Sure, yeah.

Mr. Fleming: They took out securities fraud, and I assume that's because there is a strong securities fraud lobby.

Mail and wire fraud will never disappear from this statute, never.

First of all, it's needed for criminal purposes, so it will never disappear as a predicate act.

Chief Justice Rehnquist: Thank you, Mr. Fleming.

Mr. Fleming: I saw it.

Thank you.

Rebuttal of Richard A. Edlin

Chief Justice Rehnquist: Mr. Edlin, you have four minutes remaining.

Mr. Edlin: Mr. Chief Justice, unless there are any questions, we are prepared to waive rebuttal.

Chief Justice Rehnquist: Thank you, Mr. Edlin.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Alabama v. Bozeman - Oral Argument

Fri, 09 Jan 2009 14:50:32 +0000

Case:

Alabama v. Bozeman

Media File:

00-492_20010417-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Sandra Jean Stewart

Chief Justice Rehnquist: We'll hear argument next in number 00-492, Alabama versus Bozeman.

Ms. Stewart.

Mr. Stewart: Mr. Chief Justice, may it please the Court--

We are here today not because a possibly innocent man was unjustly convicted nor are we here because he was possibly denied a constitutional right nor are we even here because he possibly was denied one of the rudimentary demands of a fair trial.

We are simply here today to resolve whether or not a guilty man should escape his just punishment as a result of a technical violation of a statute.

Specifically, the question presented here is whether or not Michael Bozeman is entitled to have his, was entitled to have his indictment dismissed with prejudice as a result of a one day transfer from Federal custody into State custody for purposes of arraignment and appointment of counsel.

Justice O'Connor: Well, that's the clear provision of Article IV(e) of the Interstate Agreement, here, on Detainments.

It couldn't be more clearly provided in there that the court shall enter an order dismissing with prejudice an indictment or complaint if he isn't tried immediately.

Mr. Stewart: Clearly the language, when it's read in isolation, seems to indicate that the indictment must be dismissed with prejudice--

Justice O'Connor: Yeah, that's what it says.

Mr. Stewart: --but the language simply can't be read in isolation.

It has to be read against the background principle of harmless error, which was in existence at the time the IAD was passed.

Justice O'Connor: Well, I would think you maybe ought to just seek an amendment of the agreement.

It's just clear.

Mr. Stewart: Well, there's a question whether or not the parties to the agreement can actually amend the agreement.

This is not a... this is an interstate compact involving 48 different states.

Justice Kennedy: Can Alabama just get out of it any time they want?

How does that work?

Mr. Stewart: They would have to go to their legislature and repeal participation.

Justice Kennedy: But the State could through this legislature just withdraw from the whole country?

Mr. Stewart: Yes, according to the act itself, it could withdraw from the whole Act itself, but to do so it would have to give up certain rights that are bestowed upon it in the Act that are very beneficial to the States in disposing of detainers.

Chief Justice Rehnquist: Supposing there was an effort to amend this provision, if it proves that you're wrong about the... how could it be done?

Could Congress alone do it?

Mr. Stewart: Congress could not unilaterally change the provision of the compact.

Chief Justice Rehnquist: Congress did it, didn't it, for Federal prisoners?

Mr. Stewart: Congress did do it in Section 9 of the Agreement, but when Congress passed the original Agreement in Section 7, they reserved to themselves the right to amend the agreement.

Other States, specifically Alabama, do not have such a reservation clause in the Agreement, which would make it more difficult certainly to amend the Agreement.

Now, there are some other States that have amended the Agreement unilaterally, but it's not been challenged whether or not that was permitted... permissible under the Agreement itself.

Justice Scalia: Well, you shouldn't sign agreements that say this then if you don't intend to abide by it.

It just couldn't be clearer.

It just says if trial is not had, the information or complaint shall not be of any further force and effect, and the court shall enter an order dismissing.

Why did your State sign that, adopt that if it wasn't prepared to abide by it.

Mr. Stewart: Well, the State adopted the Agreement partially... certainly because of the benefits to it, but it also adopted the Agreement against the background principle that harmless errors shouldn't apply.

Justice Scalia: I do not know a background principle that overcomes the explicit mandate of a statute, shall enter an order dismissing the same.

Do you have cases that simply don't talk about where the implied effect of a provision in most cases is to cause dismissal of the suit, we won't let it happen when there's been no substantial prejudice, that I can understand, but here you have language that is categorically mandatory.

Mr. Stewart: No, Your Honor, I do not have a case where this Court has specifically held harmless error applicable where there is a specific type of remedy such as this contained within the Agreement.

Justice Souter: Isn't there a broader problem?

And I have the same difficulty, I guess, with the Government's de minimis argument, and that is, it's true there is a... there is a, as you put it, a sort of background principle of the harmless error doctrine, and there's a background de minimis, but I don't think that there is a background to the effect that these either/or of these doctrines may be used to excuse an intentional and systematic series of violations of the statute, and it seems to me that that is what you are arguing for.

You're saying not only would we move the person for two days for an arraignment here, we will continue to do it or we should be entitled to continue to do it, and even though that's a technical violation of the statute, we would in each case be excused on harmless error.

Do you know of any instance in which harmless error or de minimis, for that matter, has been used in effect to excuse a systematic violation of the statute?

Mr. Stewart: I do not know of a case where that has been done.

However, I would say, number one, that an intentional violation act would certainly, whether or not it was intentional, would be a part of the harmless error analysis, and here I don't think there was an intentional act whatsoever.

I think the prosecutor simply misread the Act and dropped the ball, and as a result Mr.... if this Court holds that dismissal is required, then of course then the result, the purposes of this Act have not been maintained--

Justice Souter: But I thought you were making a broader argument, and that is that this sort of transfer should be allowed.

It is... I mean, I can certainly see the value of making this transfer so that somebody who is not willing to waive arraignment can at least get counsel appointed and get the ball rolling toward prosecution, and I thought you were making the broader argument, not merely that this was a one time mistake, but that for the good reasons that support this procedure, we ought as a general matter to apply harmless error whenever it occurs.

Mr. Stewart: --Mr. Justice Souter, I am making the broader argument that harmless error should apply to a statute unless there's an indication of an intent contrary to it that says that harmless error should not apply, and it's my position that this statute does not indicate such an intent that harmless error should not apply.

Justice Breyer: How do we know it's harmless?

Mr. Stewart: Excuse me?

Justice Breyer: How do we know it's harmless?

What's the point of Article VI?

It's hard to... what is it contemplating?

There's a person in another State, you want to try him.

Now, you're not supposed to bring him out of that State until you're ready to go to trial?

How does it normally work?

Mr. Stewart: Normally Article IV works that you bring the prisoner over and you have 120 days within which to try him.

Justice Breyer: So you're going to put him in the county jail?

Mr. Stewart: Right.

Justice Breyer: But you have the indictment before you get him, is that right?

Mr. Stewart: That's correct.

Justice Breyer: So what's he coming for, just the trial?

Mr. Stewart: Under the Act, that is the purposes, he's supposed to... if you read the language in its technical, in its... on its face, then, yes, that seems to be the only purpose which you can bring him to.

Justice Breyer: The only reason that a State... Joe Smith is in California.

Now, you're going to use this Act, you're bringing him, you're under this Act in Article VI, you don't even want to see him until you're ready to go to trial, is that the theory of it?

Mr. Stewart: That seems to be the theory, if you read it, on its face.

Justice Breyer: But now might you sometimes--

Mr. Stewart: But certainly, no--

Justice Breyer: --have to see him in Alabama before you go to trial?

Mr. Stewart: --I'm sorry, I didn't understand.

Justice Breyer: How do trials work in that State?

Don't you sometimes have to see a defendant before he goes to trial?

Mr. Stewart: Absolutely.

And that is why this individual was brought to Alabama, to have the appointment of counsel.

Justice Breyer: So this must come up all the time, I mean, you bring a person into the State, we say it's not, we're not ready for trial yet, but we're going to the arraignment or we're going to have a hearing on suppression or a lot of things.

Mr. Stewart: Certainly.

Justice Breyer: All right.

So what are they thinking in this, there might be lots of instances where there are days that pass between bringing him into the State and trying him, and what's supposed to happen in that time?

Are you supposed to always keep him in a county jail, even if you're in Maryland, and in fact the other prison happens to be two feet away in Virginia?

Mr. Stewart: And the State of Alabama's position is, no, you don't always have to keep them there.

Justice Breyer: But that's what it says.

So what are they thinking?

Mr. Stewart: I think that's not what it says.

I think that there's enough ambiguity in the statute that is not required that you keep them there until trial.

Justice Kennedy: Well, you said the prosecutor dropped the ball, I think candidly, which leads to Justice Breyer's question.

If everything had gone right here, he would have stayed in the county jail and not, and would not be returned to the original place where we get can get him then in a minute, he could probably be returned some other place.

Mr. Stewart: Right.

Justice Kennedy: But at least not to the original place until the trial's complete?

Mr. Stewart: Right.

Justice Kennedy: Or unless I get a waiver?

Mr. Stewart: Yes.

Justice Kennedy: Can he be brought to another State for questioning just to meet with police officials?

Mr. Stewart: Certainly.

Justice Kennedy: Or is it just a court proceeding?

Mr. Stewart: Certainly he can be brought to another State just for questioning or for other purposes, but the position of Mr. Bozeman is that under the Act you can only bring him for trial.

The position of the State is that, no, there are other reasons you can bring him under detainer to Alabama.

Justice Kennedy: But that, we don't really need to resolve that here?

Mr. Stewart: No, that's not the question that's presented today, Justice Kennedy.

Justice Breyer: The reason I ask is the only sense I can make out of it, given the realities, is this is some kind of prophylactic rule, and the prophylactic rule would be, we know it's nutty in a lot of circumstances, but nonetheless the only way to get the States to move off the dime is to insist that they try him before they send him back, even if the jail's next door to the prison he came from.

Now, if it's a prophylactic rule, you don't have a de minimis violation.

Mr. Stewart: And certainly this Act was passed, this remedial legislation, it was passed specifically to address certain problems that occurred as a result of detainers, there being no formal procedures, and there being no way to bring an inmate into a State and have the detainers disposed of, and to do so in such a way that it didn't interfere with the rights to rehabilitation, that's the specific purposes behind this Act.

Article IX of the Act specifically says that it should be construed in such a way as to effectuate those purposes, and to construe this Act as requiring dismissal of the indictment is not going to effectuate those purposes.

Justice Kennedy: Well, but on that point, I thought that was a persuasive argument that both you and the Government make.

They are interested in the rehabilitation, so they should send him back to the Federal prison.

But why can't that be achieved by just asking for a waiver from the man because he would presumably agree with you in the normal case?

Mr. Stewart: Supposedly you could, you know, theoretically you certainly could ask for a waiver, but that is not what happened in this case, and it shouldn't be required that you ask for a waiver in order to--

Justice Kennedy: Why not?

I mean, if everybody is fully informed about the statute and the procedures, why couldn't that interest be adequately protected by saying, counsel, here's the problem, we can't try this fellow for another 30 days, so we'd rather... we can either let him stay here in the county jail or go back to his regular rehabilitation program and then give the person the choice.

Mr. Stewart: --We could give the person the choice, but certainly again that could just simply lead to more litigation, and whether or not he understood what he was waiving and what right he had, and also we have to get him here practically in Alabama, the practical way, you have to get the person into Alabama before you can appoint counsel.

There are ways to appoint counsel in advance of bringing the person to Alabama, but the practicalities--

Justice Kennedy: Well, but that just means that instead of a 24-hour turnaround, make it 48 hours, so you appoint counsel, give them time to consult with counsel, and then decide whether to go ahead with the trial before you send him back or send him back and let him continue the Government program.

I would think very often the prisoner would say, yes, it makes more sense to go back, but assuming I guess he lived in Alabama, didn't he?

That's part of the problem.

Mr. Stewart: --Yes, he did, Justice Stevens.

Certainly that's one way that this Act could be implemented, but the State's position is that that's not required under the Act because simply the transfer did not violate--

Justice Kennedy: Well, it's clearly required if you read it literally, but you're sort of saying for this reason we should not read it literally and therefore it's not required.

Mr. Stewart: --Right.

Justice Kennedy: Yeah.

Mr. Stewart: And of course this Court, at the time that this case was decided and at the time we were talking about whether or not Mr. Bozeman, whether his rights had been violated by the transfer, this Court had not decided New York v. Hill and decided whether or not waiver applied to the Act, and similarly the argument made there was that because the Act said that it shall be, that if there's a violation of the 120-day provision that the Act shall be... or the indictment shall be dismissed with prejudice, that waiver shouldn't apply because and that the Act specifically should say whether it should or shouldn't.

Justice Ginsburg: There was an enormous difference, Ms. Stewart, between that case and this one, and that is the defendant did something that caused... the defendant was sitting right there, and agreed to something.

Here the defendant hasn't agreed to anything at all.

So it's one thing to say a defendant can't say, yeah, go ahead and try me and then the trial date comes and he says, uh huh, it's too late.

Here the defendant didn't do one thing.

Mr. Stewart: I think there is a significance in that that case involved waiver, but it's not for the purposes of the argument that I'm making which is that the IAD was silent on whether or not waiver principles applied to it, just as it's silent as to whether or not harmless error principles apply to it.

This Court held that because it was silent and because the general principle, there's a presumption that waiver applies that waiver should apply there.

Similarly, I'm arguing that because harmless error is, there's a presumption that it applies to statutes as well as to constitutional errors that it should apply in this case.

Justice Ginsburg: It seems it would apply then in every case, and here was a prosecutor who made a perfectly reasonable choice were it not for this IAD to say, we're going to turn him around in 24 hours, just want to arraign him and send him back, but the literal reading of this cuts the other way, and if you don't hold prosecutors to that literal reading, then every case would be harmless, and must, shall would have no teeth at all.

Mr. Stewart: I don't think that every case would result in harmful error.

Certainly in this case is a perfect example where there was no harm... I'm sorry, I got that back--

Justice Ginsburg: I'm saying there would be--

Mr. Stewart: --Certainly there are cases where there would be harm to the defendant by the transfer, for instance in Alabama there are like 2600 inmates involved in drug programs, and there's currently a waiting list of 800.

Under the I... if an inmate were transferred to another jurisdiction for a single day or maybe two days, he wouldn't lose his place in line to become involved in this program, so if he was transferred for the entire period, say, to a Federal jurisdiction to await trial, he would lose his place and lose his opportunity to participate in those programs, which could specifically prevent him from participating--

Justice Ginsburg: --But we're talking about a one day turnaround.

We're talking about... I'm saying that this practice of saying it's convenient for us to bring the person up without the clock ticking on when we have to start the trial, so bring him up, arrange arraignment, send him right back.

And it seems to me that every case like that would be harmless error and not... and then you have the words of the statute and then simply not enforced.

Mr. Stewart: --I do think that there is a situation where you could bring somebody just for one day and there could be harm to them, if they weren't involved specifically, say, it was the time to take a GED, for instance, was that day, and they couldn't take it as a result, and it wouldn't be given for, you know, another year or something along that lines, it would be harm to the defendant, so there could be harm from a single day transfer.

Justice Ginsburg: Well, on that, even in this case illustrates the particular day, first it was one day, then another day, so it doesn't seem that the particular day is what's at issue.

It's the idea of can we get this person here for a purpose other than trial, then send him back, and not keep him here long term until the trial.

Mr. Stewart: That is certainly one of the issues that is encompassed.

If the Court has no further questions, I would like to save the remainder of my time for rebuttal.

Argument of Jeffrey A. Lamken

Chief Justice Rehnquist: Very well, Ms. Stewart.

Mr. Lamken, we'll hear from you.

Mr. Lamken: Mr. Chief Justice, and may it please the Court--

As the majority of Federal courts have held, a brief interruption in a prisoner's confinement does not require dismissal of the State indictment against the prisoner under Article IV(e) of the Interstate Agreement on Detainers.

Those decisions are correct, and the rule of de minimis is of particular--

Justice Breyer: Why would a long interruption be worse?

Mr. Lamken: --Pardon?

Justice Breyer: Why would a long interruption be worse?

Mr. Lamken: There are two reasons, Your Honor.

First, a long interruption would often cause the prisoner to lose his place in programs and then he would also, may lose his priority--

Justice Breyer: That's the... the interruption part wouldn't.

I mean, if he was in the county jail for a month or a year and then they sent him back, the sending back wouldn't cause any problem.

Mr. Lamken: --That's correct, Your Honor.

Our view is that the interruption is what is de minimis in this case, and when the interruption is merely for an overnight period, it does not cause a disruption in the inmate's participation in programs of rehabilitation in the original institution of confinement.

If there was a long period of interruption, in contrast, the inmate would have to start over in the programs or could possibly lose his place as priority of the programs, depending on the institution, so we believe that, yes, in fact, there could be a longer interruption that would cause harm to the--

Justice Stevens: But if your rationale is to protect the interests of the prisoner, why isn't the waiver the solution?

Mr. Lamken: --In an ideal world, yes, they would get waivers, but in our experience this situation arises because of miscommunications.

For example, in a case called United States v. Taylor, the United States Marshal Service placed a detainer on the prisoner, and the United States attorney's office was not aware of that detainer.

Consequently, when they obtained custody of the prisoner, they said... the magistrate specifically asked, is there a detainer on this prisoner?

And the U.S. attorney said, no.

They sent the prisoner back, not realizing that--

Justice Stevens: But we can't make the law take care of miscommunication within the United States Department of Justice, can we?

We've got to assume everybody knows what's going on?

Mr. Lamken: --Of course, Your Honor, but the rule of de minimis that when the event is so insubstantial in relationship to the purposes of the statute, the law does not take cognizance of it, and a single overnight transfer, like the one at issue here, is insubstantial in relationship to the purposes of the prohibition, and that purpose is to ensure rehabilitation of the prisoner and the prisoner's participation in the rehabilitation program.

Justice Stevens: Yeah, but to the extent you rely on the interests of the prisoner, it seems to me that interest is totally protected by a simple requirement that he can waive because he would presumably have counsel to advise him, listen, you're better off if you go back and continue your program.

I just don't understand why the waiver isn't a complete answer.

Mr. Lamken: Your Honor, it's not a complete answer for two reasons.

First, one, oftentimes prisoners would prefer that there is a mistake and that they actually got sent back and the indictment be dismissed, and second, there is an interest in the institution, the sending institution in receiving the prisoner back because it's the State's interest to ensure that its prisoners are undergoing the rehabilitation programs that they are providing, and when the prisoner is away for an undue period of time, such as the sometimes lengthy period between arraignment and trial, they are not participating in those numerous programs, and it is to the State's detriment, and so in that sense, although we often rely on the prisoner as in the context of waiver to--

Justice Kennedy: Was this the essential rationale for the Act, that the prisoner have these correctional programs or was it more the thought that a State should be entitled to impose its punishment for retribution purposes?

Mr. Lamken: --The Act has twin purposes, and the two purposes are, one, to set up a system of an expeditious system whereby States could obtain prisoners from other jurisdictions and exact their punishment or impose the penalties prescribed by law, and the other purpose was to ensure that while they were doing that it did not unduly interfere with the State that had the prisoner in its confinement and its programs of rehabilitation, so it should have been--

Justice Kennedy: Would the Act have been complied with here if the prisoner, instead of being returned to Florida, the Florida prison, had gone to some other prison because it says he has to be returned to the original place of imprisonment?

Mr. Lamken: --Your Honor, if one were to read the language quite literally, they could have sent him to a Federal institution, for example, in some other part of Alabama, and it would not have invoked the literal language of the statute, and dismissal would not have been required.

Justice Kennedy: Have there been any cases on that?

Mr. Lamken: No, it is a rather poorly drafted agreement in that respect, but because it is an agreement, because it is--

Justice Kennedy: Or they could just send him across the street to the Federal prison for a couple months, and there would be no problem.

Mr. Lamken: --I--

Justice Kennedy: If that's not where he originally came from.

Mr. Lamken: --That's not where he originally came from, and that situation occurs, for example, where the United States marshals retain custody of a high security prisoner, as they have the right to do, when they have concerns that the State may not have appropriate facilities, that they would retain that prisoner potentially in another location other than that one of original confinement.

It is not a well drafted agreement, but it is at its core a contract, an agreement among the States, and for that reason the sometimes more flexible terms of construction applicable to contracts, such as breach and performance, are applicable here, given the harsh consequences of a violation, complete frustration of the State's efforts to enforce its criminal law, we believe that the rule of de minimis is of particular force in this context.

It seems unlikely that the States meant to abrogate the principle of de minimis in light of that harsh consequence.

In addition--

Justice Souter: Why wouldn't the same argument have applied to the United States, but you got a special provision.

Mr. Lamken: --Indeed, when Congress enacted that special provision, the courts were divided 4-2 in favor of that, the rule of de minimis or something similar to it.

Four different circuits had held that in a single overnight transfer or a very short term transfer that did not interfere with the purposes of the Act, did not require dismissal with prejudice, there were two courts of appeals that were to the contrary, and Congress therefore stepped in with a different rule and amended the Act as it was entitled to do under Article... under Section 7 of the implementing legislation.

Justice Ginsburg: But States couldn't replicate that because they all have to be bound by the same, is that so or don't you know what is the answer to that?

Mr. Lamken: The Fourth Circuit has addressed that issue in a case called Bush v. Muncie, and it's not a matter of any clarity, but it appears that it would be somewhat difficult for a State to unilaterally amend its implementing legislation without withdrawing unless it, as Congress did in Section 7, had expressly reserved that right, and then if it had, if it did enact the provision that was inconsistent with the Agreement, there would be an issue among the States as to whether or not those States were willing to give that amending State the benefits of the Agreement, notwithstanding its departure in some degree.

Justice Souter: Wouldn't the easy way to do it, though, simply be to... for the States that wanted to at least to enter into a new pact sort of in the nature of a codicil, and put that before Congress in the contract clause... the compact clause, and at least as among those States that agreed to the amendment, I would suppose there would be no impediment to applying the same rule that the United States has.

I mean, that wouldn't be all that tough.

Mr. Lamken: Oh, for 48 states to arrive at the Agreement, to pass it as implementing legislation in each of those 48 states and to get Congress to pass on the compact is a somewhat arduous, although it is potentially viable prospect.

However, we believe that just as Congress resolved, in effect, a 4-2 circuit conflict in favor of the rule of de minimis and in favor of permitting these returns, we believe that this Court could take cognizance of the rule of de minimis as well and rule that because a single overnight transfer is so unlikely to interfere with the purposes of the Act that it falls within the rule of de minimis and therefore should not result in harsh consequence of complete frustration of the State's efforts to enforce its criminal laws.

That result would--

Justice Kennedy: What's your best case from this Court?

Mr. Lamken: --Best case from this Court on de minimis or--

Justice Kennedy: Your de minimis proposition.

Mr. Lamken: --The case we cited on the first page of our argument section is Wrigley, but Wrigley cites about six other people.

Justice Kennedy: I didn't think that was it.

What's your next best case?

Mr. Lamken: Next best case would probably be Portland v. Retail Druggists Association, and the next case after that would probably be Anderson v. Yungkau.

Those cases all involved intentional conduct that was in violation of a specific prohibition, but in each of those cases this Court contemplated that because the conduct itself was of de minimis proportion in relation to the Act's purposes and the realities of the marketplace in one case and the realities of the hospital industry in another, it could be excused under the rule of de minimis.

Justice Kennedy: Justice Souter pointed out, though, this is a remedial system, and you're asking us to really alter the design of the system.

Mr. Lamken: We don't believe it's a fundamental alteration in the design of the system, it is simply a recognition that there are some applications that are so far removed from the purpose and so insubstantial and some, in fact, that are so insubstantial in light of the purpose that they fall within the well recognized rule of de minimis and therefore should not be considered violations of--

Justice Ginsburg: But Mr. Lamken, you're really asking us for across the board approval of we could bring the person up for a reason other than trial, legitimate reason, to arraign the person, to be interrogated or whatever, a special purpose unrelated to trial, and yet the statute doesn't make any room for this, and I had... Ms. Stewart was speaking and she said the prosecutor made a mistake.

Here it took mistakes on both ends, the sending of the person.

Is there no effort to communicate to the States and to all the Federal authorities that this compact as presently drawn says when you send them, they stay until the trial is over?

Mr. Lamken: --This is, in fact, a trap for the unwary, but the Federal government does not have a way of knowing whether or not the individual was being brought, for example, back merely to plead guilty, in which case it would take overnight... it would cost a new trial.

Justice Ginsburg: But the communication was, we want him for 24 hours.

Mr. Lamken: Correct, and in fact if he were pleading guilty and that were the arranged... the agreement was trial, 24 hours would have sufficed to complete the trial within the meaning of the statute.

Thank you, Mr. Chief Justice.

Argument of Mark John Christensen

Chief Justice Rehnquist: Thank you, Mr. Lamken.

Mr. Christensen, we'll hear from you.

Mr. Christensen: Mr. Chief Justice, and may it please the Court--

All courts that have taken up the issue of the Interstate Agreement on Detainers have recognized the mandatory language, the only issue to be resolved is whether or not that language is given effect.

Ms. Stewart stated that one of the reasons that Alabama joined the IAD was because there were certain benefits to the State, and I believe that there's a sort of implied consent doctrine that's at issue here that if the State joins the IAD and the prosecutor takes the initiative to place a detainer, because that's the only way that this Act is activated, is by the placing of a detainer, then they have to be bound by what the statute says.

It's quite, quite clear, there's no room for any real discretion in here.

Justice Souter: What's the purpose of the harmless error provision in the compact itself?

Mr. Christensen: Justice Souter, I don't believe that harmless error can apply to a situation like this where the statute is so explicit not only in what is prohibited but in the consequences if one violates that.

Justice Souter: But do you get that from the text of the harmless error provision itself?

Mr. Christensen: There is no harmless error provision in the IAD.

Am I misunderstanding your question?

Justice Souter: Well, maybe I'm misunderstanding.

I'm sorry, I'm reading Rule 52, which comes at the end of the appendix.

That was my mistake.

Mr. Christensen: Yes, Your Honor.

Justice Souter: Withdraw the question.

Mr. Christensen: I will go on and state some of the reasons that I don't believe that harmless error does apply.

The IAD uses a sanction of dismissal with prejudice in three separate places.

I simply cannot believe that the legislative bodies that have adopted this merely overlooked this sanction.

I believe that it says this is an important issue.

Harmless error, even if one were to concede for the purposes of argument that it applied, it would be the State's burden to show that something that is so substantial within this statute, a right that is stated three separate places is... that there was no prejudice, and that's... I'm uncomfortable with all these Federal courts that presume that a short transfer is harmless.

Justice Kennedy: Well, what happens if the State of Alabama picks up the prisoner at the Federal facility and starts a three hour journey, but after half an hour there is a big snowstorm and it has to go back?

Mr. Christensen: That might be applicable in other States, Justice Kennedy, it's probably not in Alabama, but--

Justice Kennedy: No, a tornado.

Mr. Christensen: --A hurricane, perhaps.

I think there, that might be a unique situation where, where you might have a legitimate argument that we didn't complete this.

Justice Scalia: Act of God is a different exception than de minimis and a different exception than harmless error?

Mr. Christensen: Certainly.

Justice Kennedy: God doesn't act in de minimis ways?

Mr. Christensen: Yes, it would not be de minimis and perhaps not harmless.

Justice Kennedy: What if they return him to another facility, they take him away from the... this was in... in Florida, but--

Mr. Christensen: He was in Florida, yes.

Justice Kennedy: --Suppose they took him next to Marion, Ohio.

That's not the original place of imprisonment.

Mr. Christensen: Well, I think that liberally construing the statute as Article IX calls for means returning him to the original jurisdiction, not just to the original--

Justice Kennedy: Well, you live by the sword and you know what else you do, if you're going to believe in strict construction here.

There's a kind of liberal construction in favor of the prisoner?

Mr. Christensen: --Yes.

Justice Kennedy: Where... have we said that or--

Mr. Christensen: Numerous courts have said that this is remedial, it benefits the prisoner and ought to be construed in favor of the prisoner.

The council on State governments also has stated this although it was a number of years after it originally proposed the legislation.

Chief Justice Rehnquist: --What's the authority of the council of State Governments as to interpreting a written document?

Mr. Christensen: It's somewhat weaker than most legislative bodies or so on, but it is the group that originally proposed the legislation and originally drafted it.

It's the source of the IAD which has been adopted in nearly every State, there are 48 states plus the Federal government that have adopted this.

Chief Justice Rehnquist: And what was the position that the council of State Governments took, that it should be liberally construed to accomplish its beneficent ends or something like that?

Mr. Christensen: Liberally construed in favor of the prisoner as a remedial statute.

Chief Justice Rehnquist: But of course it had more purposes than one, did it not?

I mean, I don't think you would find a whole lot of States signing onto it if it did nothing but benefit prisoners.

Mr. Christensen: Yes, Mr. Chief Justice, it also benefits the States, and that's what Ms. Stewart acknowledged in that it provides them with an expedited mechanism for getting prisoners without going through lengthy extradition procedures.

It is of benefit to them, and that's why I mentioned this implied consent, that if they go through, join this agreement, go through the procedures to get the person and are enjoying those benefits, they also have to live by what--

Chief Justice Rehnquist: Yes, and that's true of prisoners, too, I suppose, responding to Justice Kennedy's hypothetical, they return him to the original jurisdiction.

Mr. Christensen: --And in fact most cases from all jurisdictions that refer to Article III where it is the prisoner who initiates the transfer, they have to follow the procedures quite strictly or they don't, do not get the benefits.

It's... part of my argument has been that what's fair for one side--

Chief Justice Rehnquist: Sauce for the goose is sauce for the gander?

Mr. Christensen: --Precisely.

Justice Breyer: He doesn't actually literally, if you take, if you were a literalist, and you look at (e), it doesn't say where it begins to run.

It says if trial is not had on any indictment.

It doesn't say... well, I mean, when if not trial?

It just doesn't say.

So we have quite a lot of flexibility as to what we might read in there.

I take it that they want to us say, in any instance where imprisonment in the original State is significantly interrupted, then if.

All right, so what's your candidate for when it starts to run?

You want to say in Justice Kennedy's hypothetical, if subject to a detainer the prisoner puts one foot out the door and immediately runs back, then if trial is not had before he ran back, I mean, how do we fill in that?

That's a total blank.

Mr. Christensen: Well, that running back would be the waiver, which Justice Stevens had proposed as--

Justice Breyer: But my question is, what triggers (e)?

(E) doesn't say what triggers it.

Mr. Christensen: --The trigger is the change, the temporary custody pursuant to a detainer.

If temporary custody is taken by the receiving State and--

Justice Breyer: All right, now, what they want to do is just say you're right, if significant temporary custody where significant is interpreted in light of the purposes of the law, that's what they want to do, and so literalism isn't going to help because neither literally is there.

Mr. Christensen: --Well, the legislative bodies that have adopted this have made a legislative determination here.

There's no room for discretion in the statute.

They say--

Justice Breyer: I'm sorry, my question is, what language says that you said if and your language was what?

If there is an interruption.

It doesn't say that in (e).

There is no language in (e), if there is an interruption.

You're making up the whole thing to read into it.

By the way, I think you're right, something like that must be read into it, but literally where you get the words, you're reading into it.

Mr. Christensen: --My wording is in IV(e), prior to being returned, there must be a trial prior to being returned to the--

Justice Breyer: I know prior to being returned, but once what, prior to being returned?

Once he sets a foot out the door?

There is nothing there that tells us when (e) begins to run.

Once what?

Once he leaves?

Once he leaves any day?

Once he leaves to visit his grandmother?

It's obviously not that.

It's something.

Mr. Christensen: --I believe that you have to read it in context, you have to go up to--

Justice Breyer: Yes, exactly.

Mr. Christensen: --(c), where--

Justice Breyer: You have to read it in context, and now my question is what are the words that you're reading in in context?

Mr. Christensen: --From IV(c), the arrival of the prisoner in the receiving State.

Justice Breyer: All right, maybe that's it.

I can read those, but you don't want to say... okay, maybe that's the answer.

Mr. Christensen: I think so.

I think also since we are on the time period that's contained in IV(e), the 120 days, I believe that that also militates against a finding of harmless error or a requirement that one has to show prejudice.

Certainly 120 days is in the vast majority of cases is going to be nowhere near what the constitutional speedy trial requirement would be.

Justice Stevens: May I ask you, if your reference to the arrival of the prisoner in the receiving state in subparagraph (c) is that your response to Justice Kennedy's hypothetical, too, about the hurricane or the snowstorm in Alabama.

But you have to arrive before--

Mr. Christensen: Justice Stevens, I believe that it has to be that if they cross the State line that--

Justice Kennedy: --Well, but there are many cases in which the Federal prison is right across the street from the State prison.

Mr. Christensen: --Yes, and there is a special provision in the IAD for that, Justice Kennedy, where the Federal Government can maintain custody of a prisoner and merely make them available for trial without turning over the temporary custody.

That's not the situation here, but that... in those cases, that would be a perfectly good, logical ending, keeping with the statute.

Justice Kennedy: Could there have been an argument here that there was, I don't know, continuous constructive custody by the Federal government?

Mr. Christensen: No, he was in the custody of the sheriff of Covington County.

Justice Kennedy: Because they delivered him over to those--

Mr. Christensen: Yes, sir.

Now, if they had wanted to send a Federal marshal with him, that would have been one of the prerogatives of the Federal Government as a sending State in this situation.

That's not available when it's a State to State transfer, but it is when the Federal Government is the sending State.

I would like to talk about the Federal circuits because I'm, even though I concede that there is a majority that have said something to the effect that a brief transfer doesn't harm a prisoner's rehabilitation, but I find that those statements are in many cases are dicta or not persuasive, and these cases all tend to be somewhat incestuous also in that they rely upon one another.

The earliest is a Chico case from the Second Circuit which would not have--

Justice Ginsburg: --Mr. Christensen, can I ask you, before you get on to that, why one couldn't read the statute as has been proposed by the appellant to say the don't return until trial is over kicks in only when the transportation is for purposes of trial, that is the Act simply does not apply to bringing somebody in for pretrial matters.

Mr. Christensen: --I would disagree with that, Justice Ginsburg, because the Act itself says that it applies when there's a detainer and someone has been brought in for purposes of prosecution.

Now, if you've placed a detainer on someone for questioning or as a witness in another case, the Interstate Agreement on Detainers does not apply to that because it only applies to detainers that are based on untried indictments, informations, and complaints, but I simply--

Justice Ginsburg: Well, how could... how could this have been done?

Mr. Christensen: --An arraignment is certainly part of a prosecution.

Justice Ginsburg: This very case, here's the prosecutor says I want him here for one day.

To avoid this trap of it, is there a procedure, State to State for bringing somebody up for purpose other than trial?

Mr. Christensen: Certainly.

You can have a hearing and ask the prisoner to waive.

If he waives... in fact, this Court in United States versus Mauro, which is the first IAD case that this Court has dealt with, the Court clearly agreed with the idea that Ford had waived the antishuttling provision.

He had not waived the speedy trial provision, and so this Court affirmed the dismissal of his indictment, and I would also point out that that was without any requirement that he had been prejudiced by this and he was brought to trial within about five months of having been transferred into the receiving State, which is just over the 120 days, so I would suggest to this Court that you have dealt with this issue of prejudice before and resolved it in favor of the prisoners.

Justice Breyer: I don't really see, still, the theory of (e).

I mean, what are they trying to do?

Once the person gets out, you know, once you take the prisoner in for a preliminary proceeding or something, it interferes with his rehabilitation in the initial prison more rather than less to keep him in the State.

Mr. Christensen: Well, and that's a presumption that is perhaps intuitive but one that I'm not convinced is borne out by the facts, and in the record below here there simply is nothing.

That issue was not dealt with.

Justice Breyer: I'm asking for your experience as a criminal lawyer.

Mr. Christensen: Mr. Bozeman has informed me that he lost his position as a barber in the prison at Mariana because of the one day transfer, so he was prejudiced, although that's not in the record below.

The State below--

Justice Breyer: That's not what I mean.

I don't mean in this case.

I mean in your general experience, having looked at all these statutes, what's your view of what the theory of this thing is?

How is it really supposed to work because intuitively I'd think that a person who comes from a preliminary hearing, the longer he stays away, the worse things are, but this provision seems to force the State to keep him away.

Mr. Christensen: --Well, no more than 120 days, Justice Breyer, and again I mentioned the short time periods that are involved here.

It envisions, I believe, those time periods because they're sufficient to take care of all pretrial matters within that time.

He's sitting there, he gets it taken care of, and of course Article I, in stating the purposes, says that the purpose is to resolve detainers.

Bring someone in for arraignment, send him back, the detainer is still there, and the harm caused by the detainer is still there, and that is--

Chief Justice Rehnquist: But if you're bringing somebody in just for trial, presumably you're going to get counsel appointed if he's indigent only at the time he's brought in for trial, and is that going to be enough time for counsel to prepare?

Mr. Christensen: --Well, again, with the 120 days there is a provision that continuances can be granted for good cause shown.

Now, in the antishuttling clause, there is no parallel construction there with the State.

There's no provision that we're going to shuttle you over your objection.

However, the Federal Government provision would allow that by reading the Federal amendment, the Article IX, which says if there's a hearing and the court orders that you're sent back, that's not a violation, but that's only applying to the Federal Government as a receiving State.

It's not in the main body of the IAD, and I think that that is significant in terms of the statutory construction.

In fact, I think it would be to run rough shod over the text to simply ignore it.

Justice Kennedy: Well, I did have the same question as the Chief Justice.

It seemed to me that earlier the prisoner sees his new State counsel and begins working on the case and then the more time before the case starts, the better off the prisoner is.

Mr. Christensen: The more time to confer with his counsel or?

I certainly would think that.

In this case there was very little opportunity to confer with counsel.

If I could turn back to these Federal cases, the Chico case, Mr. Chico was transferred for arraignment, transferred back, and then transferred back to plead guilty.

He did not appeal.

He made no objection to the transfer.

He was transferred pursuant to a writ of habeas corpus ad prosequendum rather than as a detainer.

This was before this Court had dealt with Mauro.

Then when he had a probation violation, he filed a petition for writ of habeas corpus asking that the IAD be recognized.

In Reed v. Farley, this Court has held that habeas corpus is not something that can be used to recognize violations of the IAD, so that would simply not apply.

This case is then cited as justification in another Second Circuit case, the Roy case, Mr. Roy had so many detainers from so many different jurisdictions that I feel quite certain that the Second Circuit was looking for any reason whatsoever to keep from excusing him.

Mr. Roy had another case in the Seventh Circuit which referred to the Second Circuit case and to the Chico case, and in fact the same transfer was complained about in the Second Circuit and in the Seventh and the Second Circuit cases.

The Taylor case that Mr. Lamken mentioned does say that a brief transfer doesn't happen, but the prisoner there asked to be transferred back to State custody.

There's quite clearly a waiver, although the Court for some inexplicable reason doesn't seem to reach that.

That's a First Circuit case.

The Fifth Circuit Sassoon case is also was raised on habeas corpus, and in fact it was raised on habeas corpus in the State courts.

Mr. Sassoon had not appealed the issue following his conviction.

Sixth Circuit Taylor case, many of these people for some unknown reason seem to be named Taylor, the court there held that since he was held in a jail and hadn't been transferred to a prison yet, that there was no violation, and then adds, and besides, all these other courts hold that quick, temporary transfers do not violate the IAD.

It mentions Article IX of the Federal amendment in a footnote but doesn't rely on it.

I find it somewhat inexplicable that these courts have this Federal amendment available to them, but it's evidently not being used because none of the opinions that I've found have done more than mention it in a footnote.

Chief Justice Rehnquist: Well, were these Federal prisoners?

Mr. Christensen: Yes, sir.

Chief Justice Rehnquist: So they could get, the State could get, the Government could get the advantage of the Federal amendment?

Mr. Christensen: Yes, all these are cases where the United States was the receiving State.

The Eighth Circuit Baxter case mentions this but it's again citing Chico, Taylor, and Roy, but it really resolves the issue on the fact that Mr. Baxter was transferred by writ of habeas corpus ad prosequendum before a detainer had been lodged, so it really doesn't add to the argument other than to saying, yes, us, too, and the Ninth Circuit Johnson case simply comes down saying well, we've looked through and this is what the majority thinks, and we think that also.

I would also point out that another reason I believe this cannot be de minimis or harmless error is that we tend to focus in on the phrase, the Court shall enter an order dismissing with prejudice, but there's also a self executing clause in there, it seems that by the transfer itself, ex operi operato, the indictment becomes without further effect.

Now, that is something that I believe that it requires an objection prior to trial to preserve that, just like any sort of defect in an indictment would require, yet it's not something that you can apply harmless error or de minimis analysis to.

If the... it seems somewhat redundant to have, then having the court enter a ruling dismissing the charge but I believe that that's to prevent the prosecutor from coming back and reindicting on these same charges, and it also recognizes that there really is no indictment, self executing clauses being somewhat difficult to enforce otherwise.

I would also point out, it's not very difficult for the States to follow these rules.

It's laid out quite clearly.

In this particular case, as I have set out in the red brief, the prosecutor had ample opportunity to know what the statute said and to follow the rules.

She even had notice from Mr. Bozeman himself who had filed a pro se motion objecting to a prior transfer that said the IAD requires dismissal.

It's... to excuse that is simply, I believe, would be saying that a prosecutor can do whatever he or she pleases and that they hope to be able to get away with it by claiming that it's harmless.

As a practical matter, a trial court judge is almost always going to rule that an error is harmless.

He's going to rule against the prosecutor unless there is some real teeth given to the wording of the statute.

Justice Scalia: Against the prosecutor or against the defendant?

Mr. Christensen: Against the defendant.

Well, it is a sanction, I suppose, against the prosecutor and they understandably don't like that because it's so rare that that happens, and as a defense lawyer, it gives me that small bit of cheer to occasionally have the upper hand.

And also, this statute provides a bright line.

I think that there are going to be endless hearings on whether or not harm has taken place if this Court rules that harmless error can apply.

If you rule that the strict language applies, the Court needn't... merely see, has there been a transfer, and if so, has there been a waiver.

Justice Scalia: I'm not sure what the harm consists of if we had to look for harmless error, what would we look for?

Losing a job as a barber?

Mr. Christensen: I think that it would be something along the lines of rehabilitation, even though this purpose of the IAD is to resolve detainers, I think the background behind that is that detainers interfere with rehabilitation.

Thank you.

Rebuttal of Sandra Jean Stewart

Chief Justice Rehnquist: Thank you, Mr. Christensen.

Ms. Stewart, you have three minutes remaining.

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

Just a few points.

I wanted to point out, the respondent has conceded that there are some exceptions to the actual wording of section, of Article IV(e), he has conceded that the language is not that clear and that there might have to be some construction of that statute in order to make it effectuate its purposes.

Also, it's very important to point out that the agreement was not just for the benefit of the prisoner here, this agreement was entered into for the benefit of the party States as well as for the benefit of the prisoner, and that purpose is specifically stated in Article I, and it is one of the purposes that needs to be considered in determining whether or not a harmless error analysis should apply.

In response to Justice Stevens' question about waiver and whether or not we could just have the prisoner waive, I think it's important to point out that the respondent has argued that one of the problems with implementing harmless error is it would lead to additional litigation in the trial courts, and I would point out that if we have a hearing every time we need to determine whether or not the prisoner wants to waive the right, then again we're going to have additional litigation, so either way we're going to come up with additional litigation.

In answer to Justice Breyer's question about what's the purpose behind Article IV(e), I think it's simply meant to implement Article IV(c), and it's a way to bring the prisoner over, and we need to have him here, dispose of the charges, and bring him back, but I don't think the purpose is to give the prisoner some sort of benefit, some sort of way to have the charges disposed of short of a trial.

Finally, Mr. Bozeman made no argument below about harm and that he suffered any harm, so it should not be considered here, and if this Court has no further questions, I thank you.

Chief Justice Rehnquist: Thank you, Ms. Stewart.

The case is submitted.

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